White House Weighs Preemptive Pardons for Potential Trump Targets

The Washington Post

17:21 JST, December 6, 2024

President Joe Biden and his top staffers are discussing whether to grant preemptive pardons to figures who might face the hostility of the incoming Trump administration, concerned that President-elect Donald Trump and others in his circle have threatened to go after their political adversaries.

Among those being weighed for potential pardons are Anthony S. Fauci, who helped coordinate the nation’s covid-19 response; retired Gen. Mark A. Milley, former chairman of the Joint Chiefs of Staff, who has called Trump a “fascist”; Sen.-elect Adam Schiff (D-California), who led the first impeachment effort against Trump; and former congresswoman Liz Cheney (R-Wyoming), an outspoken GOP critic of Trump.

The discussions, first reported by Politico, were confirmed by two people familiar with the matter, speaking on the condition of anonymity to discuss private talks.

The effort is being led by White House chief of staff Jeff Zients and White House counsel Ed Siskel, the people said, suggesting that the issue is being treated seriously at the highest levels of the administration.

The discussions are still evolving, and it is not clear that the people being considered for pardons want them. But Biden’s senior staffers have been increasingly alarmed by Trump’s picks for key law enforcement positions, such as Kash Patel, Trump’s choice for FBI director, who has urged retribution against Trump’s adversaries and critics.

The conversations come after Biden issued a sweeping pardon for his son, Hunter Biden, on Sunday that prompted bipartisan backlash, in part because Biden had previously said he would not pardon his son. White House press secretary Karine Jean-Pierre told reporters this week to expect more pardons from Biden before the end of his term.

Biden has made no decision on the preemptive pardons, the people familiar with the matter said, but the staffers are working to be prepared in case the president decides in favor of issuing them.

Asked about receiving such a pardon, a representative for Schiff cited the senator-elect’s recent comments on NPR dismissing preemptive pardons and saying he has faith that the legal system can overcome efforts to abuse it. “I have more confidence in our system able to withstand potential abuses of power by the president,” Schiff said. “And I don’t think a preemptive pardon makes sense.”

Cheney, Fauci and Milley did not respond to requests for comment.

The notion of sweeping preemptive pardons for offenses that have not yet been charged, and may never be, is largely untested. But most scholars agree the Constitution gives a president broad pardon powers that would be difficult to challenge legally.

Presidents generally issue pardons for specific crimes of which the defendant has already been found guilty. Biden’s recent pardon of his son was criticized in part because it was so sweeping, covering any federal crime Hunter Biden might have committed from 2014 to 2024, whether the offense is currently known or not.

In 1974, President Gerald Ford pardoned his predecessor, Richard M. Nixon, for any crimes committed between Jan. 20, 1969, and Nixon’s resignation on Aug. 9, 1974. That pardon was never tested in court.

Some Biden supporters say broad pardons are now necessary, because Trump and his allies have attacked his critics in an unprecedented way, threatening retribution with little regard for the evidence. But other Democrats worry that Biden risks muddying the waters and leading voters to conclude that both sides are simply using the legal system for their own ends.

Trump has promised to pardon those who have been charged with attacking the U.S. Capitol on Jan. 6, 2021, to prevent Congress from certifying Biden’s victory. Trump has not said which of the more than 1,500 defendants would receive pardons.

After his loss in the 2020 election, Trump had considered preemptively pardoning some family members, allies who tried to overturn the election results and himself. But he ultimately chose not to issue those pardons.

The prospect of preemptive pardons by Biden has received mixed reactions from Democrats.

Rep. James E. Clyburn (D-South Carolina), a longtime Biden ally, told CNN on Wednesday that he believed Cheney and special counsel Jack Smith should receive pardons, given the way Trump has threatened to go after them.

“I think that they should all be preemptively pardoned, because I think there are people who Trump may bring into this government who will go after these people in a serious way, and there’s no need to subject them to that,” Clyburn said.

Rep. Brendan Boyle (D-Pennsylvania) noted that Patel has spoken of prosecuting specific individuals, including those who have been investigated by or criticized Trump. Boyle and others have raised concerns about a list in Patel’s book “Government Gangsters” that names people he considers part of the “deep state.”

“The people they’re targeting include law enforcement officers, military personnel, and others who have spent their lives protecting this country,” Boyle said in a statement Wednesday. “These patriots shouldn’t have to live in fear of political retribution for doing what’s right. That’s why I’m urging President Biden to issue a blanket pardon for anyone unjustly targeted by this vindictive scheme.”

One of the people listed in Patel’s book is Sarah Isgur, a former Trump Justice Department spokeswoman and now a critic of the president-elect, who called the idea of blanket immunity for potential Trump targets a “dangerous precedent” in a post on X on Wednesday.

Executive branch officials should not be subject to politically motivated prosecution, she said, but they also should not be able to break the law without consequence. Besides, she said, pardons could be politically tricky for those who receive them and have to explain to the public that they did not commit a crime.

Sen. Edward J. Markey (D-Massachusetts), however, raised Ford’s pardon of Nixon as an example of the healing nature of some such actions. If it appears Trump is intent on using the Justice Department for revenge, he said he would tell Biden to issue pardons so the country can move on from “acrimony.”

“If it’s clear by Jan. 19 that that is his intention, then I would recommend to President Biden that he provide those preemptive pardons to people, because that’s really what our country is going to need next year,” Markey told Boston-based radio station WGBH last week. Trump is set to take office on Jan. 20.

Aaron J. Rappaport, a professor at the University of California College of the Law, San Francisco, said that while there is legal precedent for preemptive pardons, in the past they have applied to specific charges or convictions that a president believes may be coming.

Blanket pardons – for any crime, known or unknown, within a particular period – have less precedent, Rappaport said, adding that Biden may be considering them because he does not know how Trump’s team may or may not prosecute the people Biden is seeking to protect.

“It’s very hard to predict what charges would be brought,” Rappaport said. “We’re not dealing with a situation where we can expect an ordinary use of the criminal justice process – or at least, the anticipation is it might be abused. It puts a particularly difficult burden on anyone attempting to identify specific offenses to insulate them from that abusive process.”

Asked about the Biden administration considering preemptive pardons, Lara Trump, co-chair of the Republican National Committee and the president’s daughter-in-law, told Fox News on Thursday that Trump “has no intention on retribution or revenge.”

“If anyone has done anything wrong, then maybe they should be worried – not because of Donald Trump, because maybe they’ve broken the law,” Lara Trump said. “When it comes to Donald Trump, I think people are actually going to be surprised to see how he operates.”

But Trump and his allies have hardly been shy about suggesting that his critics deserve punishment.

Trump has said Cheney, for example, should have guns “trained on her face.” While his aides said that meant only that she should face combat, others argued that Trump was hinting at a firing squad.

As for Schiff, during Trump’s 2020 impeachment fight, the then-president said Schiff “has not paid the price” for his role. And Trump has suggested that Milley’s call to Chinese leaders to reassure them after the Jan. 6 attacks would have merited execution in an earlier era.

Rep. Marjorie Taylor Greene (R-Georgia), a Trump ally, has said that Fauci, who often found himself at odds with Trump over covid-19 policy, should be “prosecuted for crimes against humanity.”