With the departure of the Biden administration and the arrival of the second Trump administration, presidential pardons are in the news. Nothing new about that, one could say. As the President prepares to leave the White House, inevitably attention turns to consideration of who will benefit from presidential clemency. In the final hours of President Biden’s presidency, he granted a number of controversial pardons. And on the first day of President Trump’s new term, he too granted controversial pardons.
Yet now, as with so much in contemporary politics, the return of President Donald Trump has changed how we think about the pardon power. The personal is political with Trump, only more so. With a President who views so much through the prism of himself, it is no surprise that we’re now talking about perhaps the most personal form of presidential power at the start of Trump’s second term rather than at the end.
This article will discuss five ways that we understand the President’s pardon authority. While the first three are familiar, two are new. As part of his election campaign, Trump promised pardons for defendants convicted in the attack on the United States Capitol on January 6, 2021 – a promise he delivered on. No other presidential candidate has ever proposed to use the pardon power in such a partisan way while seeking office.
In addition, during the campaign, Trump and several of his surrogates – including some nominated to serve in his administration – threatened retribution on political enemies. In response, President Joe Biden issued preemptive pardons to protect individuals who may be targeted by the next administration, including members of his family. This too was a new development in the context of the President’s pardon authority.
Under Article II of the Constitution, the President has the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” While the Supreme Court has described the pardon power as broad, there are limits to its scope. The pardon power applies only to crimes committed before the pardon was issued and a pardon applies only to federal crimes. Therefore, a pardon does not protect the recipient from civil investigations, proceedings, or claims or from criminal charges brought by a state or local official.
As Professor Frank Bowman has written, the Framers of the Constitution gave the President the exclusive and unreviewable power to pardon as a separation-of-powers check on a legislature that has passed “draconian laws” or “particularly bloody-minded judge” who has committed an injustice. At the same time, according to Bowman, some “worried that a pardon authority that extended to all offenses, even treason, could be employed by a president to conceal his own misdeeds by pardoning his confederates.”
In practice, sometimes the President has pardoned those who have been the victim of injustice and deserving of mercy. After World War II, for example, Harry Truman granted pardons to conscientious objectors who had been convicted of violating the federal draft law enacted in 1940. And sometimes, as discussed below, the President has exercised the pardon power for personal reasons, protecting family members and allies who have run afoul of the law.
(1) Family First. Perhaps the most salient use of the pardon power is when the President uses it for the benefit of his family. President Biden drew criticism from both parties when he issued a blanket pardon for his son in early December. Biden not only pardoned Hunter for a conviction and a guilty plea, but also for federal crimes “he committed or may have committed” over a more than ten-year period. This was an entirely legal pardon, intended to protect his son from the Trump administration. Just before leaving office, Biden issued pardons for five other family members.
While the breadth of President Biden’s pardon for his son was notable, he certainly was not the first President to issue a pardon for a family member. Near the end of his first term, President Trump pardoned Charles Kushner, the father of his son-in-law Jared Kushner, who had been convicted of a number of federal offenses in 2005. (More recently, Trump has nominated Charles Kushner to serve as U.S. Ambassador to France.) And, in his last month in office, President Bill Clinton pardoned his half-brother Roger Clinton, who had pleaded guilty to federal drug charges. It must be noted that both Roger Clinton and Charles Kushner already had served their sentences before being pardoned.
(2) Then Friends. Is there any word more apt in the political discourse of pardons than “crony”? Originally, crony – from the Greek khronios, “long-lasting” – referred to an old friend. Over time, the term evolved to refer to a political favorite or pal. Either definition applies when examining the history of pardons. A number of Presidents have pardoned their friends, political allies, and former officials before leaving office.
A brief, albeit incomplete, roll call from past presidencies includes Trump’s pardons of his former national security adviser Michael Flynn, who had pleaded guilty to lying to the Federal Bureau of Investigation, and Paul Manafort, his former campaign manager who was convicted of federal mortgage fraud; Clinton’s pardon of Marc Rich, the financier who fled to Switzerland after he was indicted for tax evasion; and George W.H. Bush’s Iran Contra pardons, which included former Secretary of Defense Caspar Weinberger, who had been indicted but not tried for perjury and obstruction of justice.
(3) Criminal Justice Policy. Presidents have used the pardon power to promote substantive policy goals as well as help friends and family. Professors Rachel Barkow and Mark Osler have argued that clemency “is more important than ever in an era of grossly excessive punishments and mass incarceration.” They argue that clemency should be an integral part of criminal justice policy.
While President Biden drew flak for pardoning his son, subsequently he commuted the sentences of nearly 1,500 people who had been placed on home confinement during the pandemic and, according to the White House, “successfully reintegrated” with their families and communities; commuted the death sentence of 37 federal inmates to life without parole; and commuted the sentences of nearly 2,500 nonviolent drug offenders. President Biden justified all these actions on the basis of criminal justice policy goals, such as addressing sentencing disparities, promoting rehabilitation, and opposing the death penalty.
(4) Campaign Promises and Threats. When Jimmy Carter ran for President, he promised to pardon those who evaded the draft during the Vietnam War. Doing so, he argued, would help “heal our country after the Vietnam war.” Shortly after taking office, Carter issued a proclamation granting a pardon to those who violated the Selective Service Act from August 1964 through March 1973.
It is not the case, then, that Trump is the first candidate to incorporate the pardon power in his election campaign. But he is the first candidate to yoke the pardon power to his personal grievances. While campaigning, Trump described the defendants convicted of crimes in connection with the riots at the Capitol on January 6, 2021, as “political prisoners” and promised pardons for some of them. On his first day in office, the new President granted a blanket pardon to nearly all the Capitol Riot defendants—about 1,500 total—and commuted the sentences of the remaining 14 defendants. The Washington Post described the pardons as “a sweeping move that gives some form of clemency to all those charged or convicted in the riot.”
Additionally, as part of his campaign, Trump threatened retribution on political enemies, a threat backed by his intention to appoint Kash Patel, enemies list in hand, to head the FBI. (Just in case you missed Patel’s list of 60 “Members of the Executive Branch Deep State,” you can get the gist from his children’s book, The Plot Against the King.)
During Trump’s first term, there was much commentary about his disregard of political norms. The pardon power is now part of that discussion. As his second term begins, we’re now talking about pardons he issued at the start, rather than at the end, of his tenure. And, as discussed next, for the first time the departing President issued preemptive pardons to protect individuals he believed would be targeted by the next administration.
(5) Playing Defense: The Preemptive Pardon. In response to Trump’s retribution threats, Biden gave preemptive blanket pardons to protect some individuals on the Trump administration’s enemies list. Recipients included Dr. Anthony Fauci, who advised Presidents Trump and Biden during the pandemic; General Mark Milley, former chairman of the Joint Chiefs of Staff; and all the members of the House Committee that investigated the January 6 attack on the Capitol.
In issuing these pardons, Biden stated, “Baseless and politically motivated investigations wreak havoc on the lives, safety and financial security of targeted individuals and their families.” He added, “Even when the individuals have done nothing wrong—and in fact have done the right thing—and will ultimately be exonerated, the mere fact of being investigated or prosecuted can irreparably damage reputation and finances.”
It remains to be seen how much of a shield these pardons will provide. They will not protect recipients from federal criminal investigation or prosecution for any alleged wrongdoing after the pardon was issued. Nor will they protect recipients from a civil or administrative investigation or claim, such as a politically motivated IRS audit.
The Trump administration now must decide whether to incur the costs associated with retribution. If we’ve learned anything about politically motivated investigations and trials over the past four years, it’s that they are a quagmire. Investigations take time, indictments are subject to legal challenge, and judges can be idiosyncratic in how and when they rule. Should the administration use its political capital on investigations and indictments that highlight its weaponization of the legal system, the voters will have an opportunity to render their verdict on such efforts in 2026 and 2028.
If the Trump administration pursues legal retribution despite Biden’s preemptive pardons, it certainly will be very costly for the individuals in its crosshairs. None of the prospective defendants enjoys the stronger than ever cloak of immunity that Trump secured from the Supreme Court this past summer.
Now that he is no longer in office, Biden could pledge to raise funds to defray the legal costs of any individual subject to a retribution-motivated investigation or prosecution. For individuals ensnared in such a case, this would defray the financial costs of defending themselves though it would not lessen the other forms of havoc referred to by President Biden when issuing his preemptive pardons.
