Joe Biden considers preemptive pardons for allies before Trump takes office

U.S. President Joe Biden
| Photo Credit: AP

President Joe Biden is weighing whether to issue sweeping pardons for officials and allies who the White House considers could be targeted by President-elect Donald Trump’s administration, a preemptive move that would be a controversial use of the president’s extraordinary constitutional power.

The deliberations so far are largely at the level of White House lawyers. But Mr. 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 (December 5, 2024) to discuss the sensitive subject. No decisions have been made, the people said, and it is possible Mr. Biden opts to do nothing at all.

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Pardons are historically afforded to those accused of specific crimes — and usually those who have already been convicted of an offence — but Mr. Biden’s team is considering issuing them for those who have not even been investigated, let alone charged. They fear that Mr. Trump and his allies, who have spoken of enemies lists and exacting “retribution,” could launch investigations that would be reputationally and financially costly for their targets even if they do not result in prosecutions.

While the president’s pardon power is absolute, Mr. Biden’s use in this fashion would mark a significant expansion of how they are deployed, and some Mr. Biden aides fear it could lay the groundwork for an even more drastic usage by Mr. Trump. They also worry that issuing pardons would feed into claims that the individuals committed acts that necessitated immunity.

Recipients could include infectious-disease specialist Dr. Anthony Fauci, who was at the forefront in combating the coronavirus pandemic and who conservatives have criticised for mask mandates and vaccines. Others include witnesses in Mr. 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 Mr. Biden’s decision to pardon his son Hunter — not just for his convictions on federal gun and tax violations, but for any potential federal offence committed over an 11-year period, as the president feared that Mr. Trump’s allies would seek to prosecute his son for other offences. That could serve as a model for other pardons Mr. Biden might issue to those who could find themselves in legal jeopardy under Mr. Trump.

Mr. Biden is not the first to consider such pardons — Mr. Trump aides considered them for him and his supporters involved in his failed efforts to overturn the 2020 presidential election that culminated in a riot at the Capitol on January 6, 2021. But he could be the first to issue them since Mr. Trump’s pardons never materialised 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.