President Joe Biden is weighing whether to issue sweeping pardons for officials and allies who the White House fears could be unjustly targeted by President-elect Donald Trump’s administration, a preemptive move that would be a novel and risky use of the president’s extraordinary constitutional power.
The deliberations so far are largely at the level of White House lawyers. But Biden himself has discussed the topic with some senior aides, according to two people familiar with the matter who spoke on condition of anonymity Thursday to discuss the sensitive subject. No decisions have been made, the people said, and it is possible Biden opts to do nothing at all.
Pardons are historically afforded to those accused of specific crimes – and usually those who have already been convicted of an offense — but Biden’s team is considering issuing them for those who have not even been investigated, let alone charged. They fear that Trump and his allies, who have boasted of enemies lists and exacting “retribution,” could launch investigations that would be reputationally and financially costly for their targets even if they don’t result in prosecutions.
While the president’s pardon power is absolute, Biden’s use in this fashion would mark a significant expansion of how they are deployed, and some Biden aides fear it could lay the groundwork for an even more drastic usage by Trump. They also worry that issuing pardons would feed into claims by Trump and his allies that the individuals committed acts that necessitated immunity.
Recipients could include infectious-disease specialist Dr. Anthony Fauci, who was instrumental in combating the coronavirus pandemic and who has become a pariah to conservatives angry about mask mandates and vaccines. Others include witnesses in Trump’s criminal or civil trials and Biden administration officials who have drawn the ire of the incoming president and his allies.
Some fearful former officials have reached out to the Biden White House preemptively seeking some sort of protection from the future Trump administration, one of the people said.
It follows Biden’s decision to pardon his son Hunter — not just for his convictions on federal gun and tax violations, but for any potential federal offense committed over an 11-year period, as the president feared that Trump allies would seek to prosecute his son for other offenses. That could serve as a model for other pardons Biden might issue to those who could find themselves in legal jeopardy under Trump.
Biden is not the first to consider such pardons — Trump aides considered them for him and his supporters involved in his failed efforts to overturn the 2020 presidential election that culminated in a violent riot at the Capitol on Jan. 6, 2021. But he could be the first to issue them since Trump’s pardons never materialized before he left office nearly four years ago.
Gerald Ford granted a “full, free, and absolute pardon” in 1974 to his predecessor, Richard Nixon, over the Watergate scandal. He believed a potential trial would “cause prolonged and divisive debate over the propriety of exposing to further punishment and degradation a man who has already paid the unprecedented penalty of relinquishing the highest elective office of the United States,” as written in the pardon proclamation.
Politico was first to report that Biden was studying the use of preemptive pardons.
On the campaign trail, Trump made no secret of his desire to seek revenge on those who prosecuted him or crossed him.
Trump has talked about “enemies from within” and circulated social media posts that call for the jailing of Biden, Vice President Kamala Harris, former Vice President Mike Pence and Sens. Mitch McConnell and Chuck Schumer. He also zeroed in on former Rep. Liz Cheney, a conservative Republican who campaigned for Harris and helped investigate Jan. 6, and he promoted a social media post that suggested he wanted military tribunals for supposed treason.
Kash Patel, whom Trump has announced as his nominee to be director of the FBI, has listed dozens of former government officials he wanted to “come after.”
Richard Painter, a Trump critic who served as the top White House ethics lawyer under President George W. Bush, said he was reluctantly in support of having Biden issue sweeping pardons to people who could be targeted by Trump’s administration. He said he hoped that would “clean the slate” for the incoming president and encourage him to focus on governing, not on punishing his political allies.
“It’s not an ideal situation at all,” Painter said. “We have a whole lot of bad options confronting us at this point.”
While the Supreme Court this year ruled that the president enjoys broad immunity from prosecution for what could be considered official acts, his aides and allies enjoy no such shield. Some fear that Trump could use the promise of a blanket pardon to encourage his allies to take actions they might otherwise resist for fear of running afoul of the law.
“There could be blatant illegal conduct over the next four years, and he can go out and pardon his people before he leaves office,” Painter said. “But if he’s going to do that, he’s going to do that anyway regardless of what Biden does.”
More conventional pardons from Biden, such as those for sentencing disparities for people convicted of federal crimes, are expected before the end of the year, the White House said.
