In the waning hours of his presidency, Joe Biden used the power granted to him by the Constitution to stand in the way of Donald Trump’s coming anti-constitutional regime. Invoking the power to grant “pardons and reprieves” vested in the President by Article II, Section 2 of the Constitution, Biden issued so-called preemptive pardons to members of the January 6 Committee (including former Representative Liz Cheney), General Mark Milley, Dr. Anthony Fauci, and others.
As Biden explained, “The issuance of these pardons should not be mistaken as an acknowledgment that any individual engaged in any wrongdoing, nor should acceptance be misconstrued as an admission of guilt for any offense. Our nation owes these public servants a debt of gratitude for their tireless commitment to our country.”
Today’s decision adds to the record number of commutations and pardons he had already issued.
Unlike traditional forms of clemency, preemptive pardons are given, as Professor Rachel Barkow notes, “before someone has actually been convicted—or even before they’ve been charged or investigated.” That’s what Biden did today.
All the people named in Biden’s announcement appeared to be likely targets of the Trump administration. By offering them pardons before Trump took control in Washington, Biden turned his frequently expressed worry about whether the new president had any real commitment to the Constitution into action.
This was one way for him to do what he could to stop Trump from abusing his new power.
Biden’s pre-emptive pardons are an unprecedented vote of no confidence in his successor. Never before has the pardon power been used because one president feared his successor’s authoritarian tendencies.
Trump may find what Biden did particularly galling because, as Georgetown University Law Professor Steve Vladeck puts it, there is “no such a thing as an ‘un-pardon.” He explains, “A pardon that is valid when issued is valid for all time.”
Previously, some of those he pardoned have said they would welcome such an act of mercy. As Fox News reports, one of them, Rep. Bennie Thompson, who chaired the January 6 committee, had talked “with the White House last month about the potential of issuing pardons for lawmakers who served on the committee, and said he would accept a pardon from Biden if it were granted to him.”
Thompson made clear that he believed Trump when “he says he’s going to inflict retribution on this. I believe it when he says my name, and Liz Cheney and the others.”
As Fox News notes, “Trump has referred to Thompson and other members on the Jan. 6 committee as ‘thugs’ and ‘creeps’.… [L]ast month, Trump accused the members on the committee of destroying evidence, adding that ‘everybody on that committee … should go to jail.’”
Despite those threats, others had made clear that they did not want a preemptive pardon. They include Rep. Pete Aguilar, who also served on the committee. Earlier this month, he called a preemptive pardon unnecessary because he “didn’t do anything wrong.”
Another of the people to whom the president offered a pardon, California Rep. Adam Schiff, agreed with Aguilar. Several times, he expressed a concern that what the president did “would be the wrong precedent to set. I don’t want to see each president hereafter on their way out the door giving out a broad category of pardons.”
But what makes Biden’s pardons unprecedented is not that they are preemptive or that some recipients would have preferred not to be included on Biden’s list.
In fact, on August 27, 1787, Luther Martin, a Maryland delegate to the Constitutional Convention, tried to forestall preemptive pardons. He wanted to “insert the words ‘after conviction’ after the words ‘reprieves and pardons’ in Article II.
Martin relented, and his proposal never came to a vote after another delegate, James Wilson, “objected that pardon before conviction might be necessary in order to obtain the testimony of accomplices. He stated the case of forgeries in which this might particularly happen.”
Biden’s use of the power to grant preemptive pardons did not fall into either of the categories Wilson named. However, what Biden did is not precluded by anything in the constitutional design. And, as the Washington Post notes, “preemptive pardons have a long history.”
The Post traces them back to George Washington. “The very first pardon” in this nation’s history “was in part preemptive.” One hundred fifty people who participated in the 1794 Whiskey Rebellion were arrested and charged with treason.
Two were convicted. But the Post reports Washington went ahead and “pardoned the entire group.”
Other examples of preemptive pardons include President Gerald Ford’s 1974 pardon of Richard Nixon, Jimmy Carter’s 1977 pardon of Vietnam-era draft dodgers, and, of course, Biden’s December 1 grant of clemency to his son.
The right of these presidents to do what they did has long been recognized by the Supreme Court. In an 1866 case called Ex Parte Garland, the Court approved preemptive pardons in a matter involving a former Confederate senator pardoned by President Andrew Johnson.
As it explained, the pardon power “extends to every offense known to the law and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment.”
Thirty years later, the Court again considered preemptive pardons, this time whether they could be used, as James Wilson contemplated, to immunize a witness against future prosecutions and, in that way, get around the Fifth Amendment protection against compulsory self-incrimination. It held that “[I]f the witness has already received a pardon, he can no longer set up his privilege, since he stands, with respect to…[an] offense, as if it had never been committed.”
However, such a pardon only removes criminal liability for the specific offense it covers, and a witness still has a Fifth Amendment right to not incriminate themselves by testifying about things that could potentially expose them to further charges. A president’s preemptive pardon cannot stop someone from being charged with a crime under state law.
And in no case can a preemptive pardon be used to provide “a forward-looking shield against any and all criminal liability in perpetuity.”
All of this is to say that what Biden did today is firmly rooted in American law and practice.
But what is genuinely unprecedented is his use of preemptive pardons as a shield against the incoming president and members of his new administration, including people like Attorney General nominee Pam Bondi and FBI Director nominee Kash Patel.
Eighteen months ago, Bondi promised, “When Republicans take back the White House…the prosecutors will be prosecuted, the bad ones, the investigators will be investigated.” Last week, she refused to rule out that possibility during her confirmation hearing before the Senate Judiciary Committee.
Kash Patel has infamously identified and named sixty enemies he said should be prosecuted. Many of them were among those whom Biden pardoned.
In the end, Professor Peter Shane gets it right when he says that Biden’s preemptive pardons are a response to something new and frightening in American politics: the apparent unwillingness of the new president and his appointees “to follow the ordinary norms of even-handedness when it comes to prosecution.”
Anticipating the possibility of preemptive pardons, some commentators worried that if Biden issued them, Democrats would be “joining the other side.” They said it would represent a “pull back from any commitment to democracy and the rule of law.”
In their view, preemptive pardons would signal that we are “headed down a dark road” toward becoming a “banana republic.”
Those concerns are misdirected.
If, and how far, this country goes down that dark road, it will be a result of things the Trump administration does. It will not be because Biden took their threats seriously.