The very morning that Trump took office, Joe Biden issued a series of preemptive pardons to several key figures and members of his family, reflecting his paranoia about potential political retribution under the incoming administration of Donald Trump. Individuals the outgoing Resident pardoned included:
Dr. Anthony Fauci, the COVID-19 pandemic “expert” who lied to Congress about funding “gain of function” research in Wuhan, China.
General Mark Milley, who went behind President Trump’s back in 2020 and promised his Chinese counterpart he would give China advance notice if the US were planning to attack them.
Members of the House Select Committee investigating the January 6, 2021, Capitol riot, including prominent Republican “never Trumpers” Liz Cheney and Adam Kinzinger.
Biden pardoned family members, specifically his brothers James and Francis, sister Valerie, and their respective spouses.
In late 2024 Biden pardoned his son Hunter, convicted of federal gun charges and who had pleaded guilty to intentionally failing to pay taxes. a pardon which granted his son protection against future charges as well.
The rationale was Biden's fear of " unjustified and politically motivated prosecutions" by the Trump administration. Biden emphasized that these pardons should not be seen as an admission of wrongdoing by the recipients but rather as protection against potential abuse of legal power.
Preemptive pardons are highly unusual and legally untested in this context. Critics argue that issuing pardons to individuals not charged or convicted sets a dangerous precedent, potentially undermining the justice system's integrity. Legal scholars have debated whether such pardons are within constitutional bounds, especially since they could be interpreted as an acknowledgment of guilt, despite Biden's statements to the contrary. This might lead to future legal challenges regarding the scope and validity of presidential pardons.
The move has been met with significant backlash from Republicans, with some viewing it as an admission of guilt or a strategy to shield allies from accountability. This could further polarize the political landscape, fueling narratives of a "two-tiered justice system" where political allies are protected while others face scrutiny.
Public trust in the justice system might be further eroded, as these pardons are perceived as an overt politicization of legal processes. This could have lasting effects on how future administrations approach the use of presidential clemency.
Biden's action might encourage future presidents to use preemptive pardons more freely, potentially weakening the deterrent effect of legal accountability for public officials or political appointees. This could lead to a cycle where outgoing presidents routinely protect their allies, further entrenching political divisions.
There's an ongoing debate about the constitutional implications, particularly whether these pardons could be revoked or challenged in court. Although a pardon is generally considered final once granted, the unprecedented nature of these actions might prompt a Supreme Court case to clarify or limit the pardon power.
However, these pardons do not shield the beneficiary from being charged with state level crimes, and seventeen red state attorneys general are currently exploring their options regarding the criminal acts of Dr. Anthony Fauci.
Biden's preemptive pardons represent an extraordinary use of executive clemency, at the risk of setting contentious legal and political precedents. The full ramifications will unfold over time, influencing how presidential power and justice are use as well as perceived both domestically and internationally. One thing is certain, Biden has thrown the door wide open for Trump to pardon or commute the sentence of just about anyone.