In a highly unusual move, President Biden issued a wave of pre-emptive pardons and commutations in his final hours in office, aimed at protecting his family, political allies, and those who investigated the January 6th Capitol attack from what he perceived as a politically motivated "retribution" campaign promised by his successor, Donald Trump.
These actions, while legally permissible, have sparked controversy and raise questions about the use of presidential pardon power.
Key Themes and Ideas --
Pre-emptive Pardons:
Biden's pardons were not in response to actual charges or convictions but were issued pre-emptively to safeguard individuals from potential future prosecution by the incoming Trump administration.
This is a break from traditional pardon practices, which typically involve a process of investigation and are granted to those convicted or facing charges. As the New York Times notes, "Mr. Biden’s use of the pardon power to immunize people who have not even come under investigation, much less been charged with or convicted of a crime, has no clear precedent."
The Wall Street Journal calls Biden's move "an extraordinary move by an outgoing president to shield family members and allies from an incoming administration."
Motivation: Fear of Trump's "Retribution":
Biden's core motivation was a deep concern about Trump's stated intention to prosecute political opponents, including members of his family and those who had investigated him or the January 6th attack.
Biden's defense has emphasized Trump's repeated threats to use the Justice Department to target his political enemies, stating he would "appoint a real special prosecutor to go after” Biden and his family.
As per the New York Times, "Throughout his campaign last year, Mr. Trump 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."
Recipients of Pardons:
Biden's Family: Biden pardoned five family members, including his brothers, James B. Biden and Francis W. Biden, his sister, Valerie Biden Owens, her husband, John T. Owens, and James Biden’s wife, Sara Jones Biden.
James Biden was under particular scrutiny, as he was "involved in some of Hunter Biden’s foreign business dealings" that were part of an impeachment inquiry.
Key Figures Targeted by Trump: Gen. Mark A. Milley, Dr. Anthony S. Fauci, and former Representative Liz Cheney.
Jan 6 Committee: All members of the House committee that investigated the January 6th attack, their staff, and the police officers who testified during the inquiry were included in the pardons.
Biden's Justification:
Biden asserted the pardons were necessary due to "exceptional circumstances" and to protect innocent individuals from politically motivated investigations. As stated in the New York Times, “Baseless and politically motivated investigations wreak havoc on the lives, safety and financial security of targeted individuals and their families.”
He emphasized that the pardons should not be interpreted as an admission of guilt by the recipients. He stated: “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,” (New York Times).
He noted his discussion with Trump, where he warned against such actions. WSJ quotes him as saying he told Trump “that there was no need, and it was counterintuitive for his interest to go back and try to settle scores.”
Criticism and Concerns:
Abuse of Power: Critics argue that Biden's actions "risks weaponizing clemency and repurposing it into a shield for political battles,” according to WSJ, and could set a new precedent for the use of presidential power.
Appearance of Guilt: Some recipients, like Adam Kinzinger, expressed concern that accepting a pardon could be perceived as an admission of guilt.
Kinzinger stated: “As soon as you take a pardon, it looks like you are guilty of something,” (New York Times).
Setting a Bad Precedent: Senator Adam Schiff is quoted in the New York Times as saying "I don’t want to see each president hereafter on their way out the door giving a broad category of pardons to members of their administration.”
Individual Reactions to Pardons:
Those Targeted by Trump: Gen. Milley and Dr. Fauci both expressed relief and gratitude, citing the immense distress caused by the threats of prosecution.
Gen Milley: “I do not wish to spend whatever remaining time the Lord grants me fighting those who unjustly might seek retribution for perceived slights,” (New York Times and WSJ).
Dr. Fauci said in his statement, "The fact is, however, that the mere articulation of these baseless threats, and the potential that they will be acted upon, create immeasurable and intolerable distress for me and my family,” (New York Times).
Jan 6th Committee Members: Issued a joint statement through their chairman, Bennie Thompson, stating: “We have been pardoned today not for breaking the law but for upholding it,” (New York Times).
Police Officers: Some police officers who testified, such as Michael Fanone, expressed dismay at the need for pardons, showing anger at the political climate, despite accepting the pardon.
Fanone: "It was 'insane' that we live in a country where the president of the United States feels the need to offer a pre-emptive pardon to American citizens who testified in an investigation regarding an insurrection..." (New York Times).
Those Who Did Not Want Pardons: Some people included in the blanket pardon did not seek and did not wish to accept the pardon, but as it was granted to a group, it was not up to them to refuse.
Other Clemency Actions:
President Biden also commuted the life sentence of Leonard Peltier, a Native American activist, to home confinement.
He also pardoned two Democratic politicians: Ernest William Cromartie and Gerald G. Lundergan.
President Biden's final-day pardons are a striking example of the extreme political polarization and animosity in the current US political landscape. While he believed he was acting to uphold the rule of law and protect innocent individuals, his actions have generated significant debate and raised concerns about the future use of presidential pardon power.
The situation underscores the deep mistrust and animosity between the outgoing and incoming administrations, further highlighting the extraordinary circumstances that led to such unprecedented measures.