President Joe Biden is reportedly weighing the unprecedented step of issuing preemptive pardons for officials and allies potentially targeted by the incoming administration of President-elect Donald Trump. This move, described as both novel and risky, underscores the fraught political climate and Biden’s concerns over possible retribution by the Trump administration.
The deliberations, primarily confined to White House lawyers, are in their early stages. According to anonymous sources familiar with the discussions, Biden himself has engaged in conversations about the matter with senior aides. However, no final decisions have been made, and the president may ultimately opt against such action.
Historically, presidential pardons are granted post-conviction or to individuals formally charged with a crime. Biden’s consideration of issuing pardons to individuals not yet accused or investigated represents a significant departure from precedent. The move aims to protect those who might be unjustly targeted by Trump’s administration, which has made no secret of its intent to pursue perceived adversaries.
A shield against retribution
Concerns about retribution stem from Trump’s campaign rhetoric and actions. Trump and his allies have openly discussed maintaining “enemies lists” and have vowed to exact revenge on opponents. White House aides fear such actions could result in investigations that, even if legally unfounded, could financially and reputationally devastate their targets.
Among those potentially under consideration for pardons is Dr. Anthony Fauci, a prominent figure during the COVID-19 pandemic, who became a divisive figure due to his advocacy of public health measures. Others include key witnesses in Trump’s legal battles and Biden administration officials viewed unfavourably by Trump’s inner circle.
The scope of Biden’s pardon considerations has been compared to his earlier decision to pardon his son, Hunter Biden. The pardon covered Hunter’s federal gun and tax violations and extended to potential offences over an 11-year period, aimed at shielding him from further scrutiny by Trump’s allies. This model could inform Biden’s broader strategy.
Historical precedents and implications
If Biden proceeds, he would not be the first president to explore controversial pardons. Gerald Ford’s 1974 pardon of Richard Nixon post-Watergate is a notable historical example. Ford’s justification centred on the need to move the nation past a divisive scandal, a rationale Biden may echo to defend his potential actions.
However, Biden’s consideration of preemptive pardons raises unique legal and ethical questions. Critics argue that issuing such pardons could validate claims of wrongdoing by the recipients and provide Trump a blueprint for even more expansive pardon use during his tenure.
Richard Painter, a former ethics lawyer in the George W. Bush administration, reluctantly endorsed the concept of preemptive pardons in this scenario. Painter argued that protecting potential targets could prevent Trump from using his office to pursue political vendettas, allowing a greater focus on governance.
Trump’s vows of retribution
Trump’s rhetoric on the campaign trail has fuelled concerns. He has frequently referenced his desire to punish those he believes wronged him, including high-profile figures like President Biden, Vice President Kamala Harris, and former Vice President Mike Pence. Trump has even amplified calls for military tribunals for alleged treason by his adversaries.
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Kash Patel, Trump’s nominee for FBI Director, has been vocal about targeting dozens of former officials, further amplifying fears of politically motivated prosecutions under the new administration.
Balancing risks and precedents
Biden’s aides are acutely aware of the risks. While the president’s pardon power is constitutionally absolute, its use in this context would set a significant precedent. Critics warn that such actions could embolden Trump to wield the same power to protect allies engaging in potential misconduct during his term.
Despite these concerns, Biden’s administration is expected to proceed with more conventional pardons addressing systemic issues, such as disparities in federal sentencing, before the end of the year.
As the Trump presidency looms, Biden’s decision on preemptive pardons will likely be one of the most scrutinised actions of his tenure, with implications that could reverberate far beyond his time in office.
