As President Joe Biden prepares to exit the White House, there’s growing speculation about his potential decision to issue preemptive pardons for certain officials and allies. This move, though unusual, could be part of his strategy to safeguard individuals from possible legal actions under the incoming presidency of Donald Trump. Preemptive pardons, as the name suggests, are granted before formal charges are brought against individuals. This would be a highly unconventional step, but one with a history of precedent that could significantly impact the political landscape.
To better understand what’s at stake, let’s dive into the context and implications surrounding preemptive pardons. While traditional pardons are typically issued after someone has been convicted or is facing legal proceedings, preemptive pardons are granted in anticipation of potential legal challenges. These kinds of pardons are a rare but notable feature of U.S. presidential powers, and the possibility of Biden using them has sparked intense debate among politicians and legal experts alike.
The Fear of Vindictive Prosecutions
As Donald Trump prepares for his second term in office, there is increasing concern among his critics about the potential for political retaliation. Trump has already made public comments about seeking retribution against his political adversaries, with remarks such as "locking up" prominent figures like Liz Cheney and other senior Democrats. Additionally, his pick for FBI director, Kash Patel, is reportedly assembling a list of individuals he intends to “go after.”
This sense of political retribution has led many to believe that a preemptive pardon could be necessary for those at risk of being unfairly targeted. Among those potentially on the list of individuals who could benefit from a preemptive pardon are Dr. Anthony Fauci, the former head of the U.S. National Institute of Allergy and Infectious Diseases, who became a lightning rod for criticism from conservative factions due to his handling of the COVID-19 pandemic. Liz Cheney, the former Republican representative who campaigned against Trump, is also seen as a likely candidate, as is California Senator-elect Adam Schiff, who was instrumental in the first impeachment trial of Donald Trump.
While Biden’s advisors are reportedly discussing this issue, there is no consensus within the Democratic Party on whether preemptive pardons should be issued. Some, like Representative Brendan Boyle, have voiced support for a "blanket pardon" to protect those at risk of becoming targets of political vengeance. Boyle has been vocal about the need to shield individuals from what he calls a "no hypothetical threat," referring to the real possibility that Trump’s administration could pursue vindictive legal actions against political opponents.
However, not everyone is on board with this approach. One prominent figure who may find himself on the receiving end of a preemptive pardon—Adam Schiff—has publicly opposed the idea. Speaking with NPR last month, Schiff urged President Biden not to issue such pardons, arguing that doing so would seem "defensive and unnecessary." His resistance underscores the tension within the Democratic Party over how to best navigate the political and legal challenges of a second Trump presidency.
The Legal Framework Behind Preemptive Pardons
For those unfamiliar with the concept, a preemptive pardon is essentially a pardon granted before any formal legal action has been taken against an individual. This stands in contrast to more traditional pardons, which are typically issued after legal proceedings have commenced, or following a conviction.
One common question that arises in the discussion of preemptive pardons is whether they are even legal. The answer is yes—preemptive pardons are fully within the scope of presidential powers. The Supreme Court ruling in Ex parte Garland (1866) firmly established that the president’s power to issue pardons is essentially limitless, with one key exception: impeachment. As the ruling clarified, the president’s pardon power extends to any offense recognized by law and can be exercised "either before legal proceedings are taken, during their pendency, or after conviction and judgment." This interpretation makes it clear that the president's power to grant pardons is not constrained by legislative action, giving the president broad discretion in how and when pardons can be granted.
A Historical Precedent
While preemptive pardons are uncommon, they are not without historical precedent. One of the most famous examples occurred in 1974, when President Gerald Ford granted a “full, free, and absolute pardon” to his predecessor, Richard Nixon. This pardon was issued in the aftermath of the Watergate scandal, which ultimately led to Nixon’s resignation. Ford’s reasoning was rooted in the desire to avoid further division in the country. He argued that pursuing a trial against Nixon would only prolong the national turmoil and would be unnecessarily punitive given that Nixon had already suffered the loss of the presidency.
Another notable instance came in 1992, when outgoing President George H.W. Bush pardoned former Defense Secretary Caspar Weinberger and several others involved in the Iran-Contra affair. In that case, Bush’s action effectively shielded these individuals from prosecution before they were formally tried. This move stirred controversy, but it underscored the potential political motivations behind preemptive pardons.
Abraham Lincoln also employed preemptive pardons during the Civil War, offering them to individuals involved in the rebellion. Similarly, President Jimmy Carter granted a blanket pardon to Vietnam War draft dodgers in 1977, allowing them to reintegrate into society without fear of legal consequences. These historical examples highlight the strategic use of pardons in times of political crisis or transition.
The Politics Behind Preemptive Pardons
The potential for preemptive pardons under Biden’s administration is clearly a politically charged issue. While some Democrats view it as a necessary safeguard against potential political retribution, others worry that such a move could be seen as conceding too much to Trump’s agenda. In addition to Adam Schiff’s opposition, many others within the party fear that granting preemptive pardons could be viewed as a sign of weakness or could unnecessarily escalate tensions between the two sides of the political aisle.
For Biden, the decision is fraught with complexity. On the one hand, there is the very real concern that Trump, once back in office, could use the legal system to target political enemies. On the other hand, the optics of issuing preemptive pardons could be seen as an attempt to undermine the justice system or as a reactionary move that could further fuel division in the country.
Moving Forward
As the Biden administration nears its conclusion, the issue of preemptive pardons remains an open question. The growing debate over this possibility underscores the polarized nature of U.S. politics today, with each side weighing the pros and cons of using executive power to influence the legal landscape. Whether or not Biden will decide to issue such pardons remains uncertain, but the discussion itself is a reminder of the high stakes involved in the transition of power.
In the end, the potential use of preemptive pardons highlights the broader questions surrounding presidential authority, political accountability, and the pursuit of justice. As the country braces for another chapter in its political history, it’s clear that the decisions made in the coming weeks will have lasting implications.
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