POLITICO (“Biden White House Is Discussing Preemptive Pardons for Those in Trump’s Crosshairs“):
President Joe Biden’s senior aides are conducting a vigorous internal debate over whether to issue preemptive pardons to a range of current and former public officials who could be targeted with President-elect Donald Trump’s return to the White House, according to senior Democrats familiar with the discussions.
Biden’s aides are deeply concerned about a range of current and former officials who could find themselves facing inquiries and even indictments, a sense of alarm which has only accelerated since Trump last weekend announced the appointment of Kash Patel to lead the FBI. Patel has publicly vowed to pursue Trump’s critics.
The White House officials, however, are carefully weighing the extraordinary step of handing out blanket pardons to those who’ve committed no crimes, both because it could suggest impropriety, only fueling Trump’s criticisms, and because those offered preemptive pardons may reject them.
The deliberations touch on pardoning those currently in office, elected and appointed, as well as former officials who’ve angered Trump and his loyalists.
Those who could face exposure include such members of Congress’ Jan. 6 Committee as Sen.-elect Adam Schiff (D-Calif.) and former GOP Rep. Liz Cheney of Wyoming. Trump has previously said Cheney “should go to Jail along with the rest of the Unselect Committee!” Also mentioned by Biden’s aides for a pardon is Anthony Fauci, the former head of the National Institute of Allergy and Infectious Diseases who became a lightning rod for criticism from the right during the Covid-19 pandemic.
The West Wing deliberations have been organized by White House counsel Ed Siskel but include a range of other aides, including chief of staff Jeff Zients. The president himself, who was intensely focused on his son’s pardon, has not been brought into the broader pardon discussions yet, according to people familiar with the deliberations.
The conversations were spurred by Trump’s repeated threats and quiet lobbying by congressional Democrats, though not by those seeking pardons themselves. “The beneficiaries know nothing,” one well-connected Democrat told me about those who could receive pardons.
[…]
What has some Biden aides particularly concerned is that even the threat of retaliation could prove costly to individuals because they’d be forced to hire high-priced lawyers to defend themselves in any potential investigation.
Especially for those officials without significant means, the specter of six-figure legal bills in the coming years is unnerving. Some Biden appointees, I’m told by people facing scrutiny, are already considering taking the best-paying jobs next year in part to ensure they have the resources to defend themselves against any investigations.
Adding to Biden’s challenge in the final weeks of his presidency is the pressure he’s also feeling from Democrats who want him to offer the same generous clemency to those less privileged that he handed his son.
WaPo (“White House weighs preemptive pardons for potential Trump targets“) adds:
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 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.
[…]
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.”
NYT (“Biden Team Considers Blanket Pardons Before Trump’s Promised ‘Retribution’“):
[A]s White House officials weigh the matter, they are concerned that such a move would fuel the impression spread in conservative media that the recipients had actually done something wrong. At least some of those who would be obvious candidates for such pardons have said privately that they would not want one because of such an implication. Others who are concerned about retribution have lobbied for their own pardons.
[…]
Mr. Trump, who has argued that the many criminal and civil cases against him are part of a sweeping “witch hunt” that has “weaponized” the justice system, has done little to disguise his desire to use the law enforcement system to get back at his foes. He has threatened to prosecute Democrats, election workers, law enforcement officials, intelligence officials, reporters, former members of his own staff and Republicans who do not support him.
He has said on social media that Ms. Cheney “should be prosecuted for what she has done to our country” and that the whole Jan. 6 committee “should be prosecuted for their lies and, quite frankly, TREASON!” He said that Vice President Kamala Harris “should be impeached and prosecuted.” He has promised to “appoint a real special prosecutor to go after” Mr. Biden and his family. He has suggested that Gen. Mark A. Milley, the retired chairman of the Joint Chiefs of Staff, deserved execution.
He has said that Letitia James, the attorney general of New York who won a $450 million judgment against him for business fraud, and Justice Arthur F. Engoron, who presided over the trial, “should be arrested and punished accordingly.” He shared a post saying that the police officers who defended the Capitol on Jan. 6 “should be charged and the protesters should be freed.” He has said that if Mark Zuckerberg, the founder of Facebook, does anything deemed illegal, “he will spend the rest of his life in prison.”
Mr. Patel’s own list of “deep state” enemies includes not just Democrats but former Trump appointees who broke with him or were seen as obstacles, including John R. Bolton, the former national security adviser; William P. Barr, the former attorney general; Mark T. Esper, the former defense secretary; Pat A. Cipollone, the former White House counsel; Gina Haspel, the former C.I.A. director; and Christopher A. Wray, the current F.B.I. director.
“Trump and Patel’s threats of prosecution are real,” said Paul Rosenzweig, a homeland security official under President George W. Bush and a senior counsel to the independent counsel Ken Starr in his investigation of President Bill Clinton. “Biden has a moral obligation to defend all of those who risked their livelihoods for him and protect them, as best he can, from Trump’s authoritarian impulses. He should issue a pardon to anyone on Trump or Patel’s enemies list. It’s the least he can do.”
Some Democrats have echoed the argument. “The people they’re targeting include law enforcement officers, military personnel and others who have spent their lives protecting this country,” Representative Brendan F. Boyle of Pennsylvania said in a statement. “These patriots shouldn’t have to live in fear of political retribution for doing what’s right.”
But other Democrats said it would reflect badly on the party, making it look as though it were only protecting its own rather than the most powerless in society.
“The Democrats should be for reforming and curtailing the pardon power,” Representative Ro Khanna of California said in an interview. “Black and brown individuals incarcerated because of marijuana possession have faced and continue to face far more injustice than some of the most privileged individuals who have served in the Congress or Senate.”
The whole thing is rather bizarre, and even floating the idea further politicizes the criminal justice system. But it’s undeniable that Trump has repeatedly threatened to use the incredibly powerful tools of the Executive Branch to go after those who he feels have wronged him and, as noted, defending against this would be ruinously expensive and otherwise life-altering even if they are ultimately exonerated. Preemptive pardons may well be the lesser of evils.
It’s absolutely true that Biden’s pardon of his son—and, if it comes to pass, these pardons—will be used by Trump to justify bad acts. But he’s going to commit those bad acts, regardless.
There is an unseemly quality, to say the least, of a lame-duck administration that has just been soundly defeated at the ballot box using its last days in office working against the things the winner pledged to do in the campaign. In the case of promises that themselves violate the fundamental principles of the republic, though, it’s hard to get too worked up over it.
