Biden’s pardon of his son has many very unusual characteristics. It’s one thing for a president to pardon his son – which is already unusual. It’s another to do it like this (the clip is about two minutes long):
The word “unprecedented” comes to mind.
And now there’s apparently talk of many more pardons of this preemptive type before Joe leaves the presidency or the symbolic presidency or the sham presidency or whatever you want to call it:
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.
“Extraordinary step” all right. Hey, why not just issue pardons to any Democrat or NeverTrumper the DOJ might want to indict during Trump’s presidency? That should do the trick.
And it’s pretty rich that Biden, the so-called president who is the person with the power to issue federal pardons, “has not been brought into the broader pardon discussions yet.”
What a travesty.
But let’s go back in time to a moment in history when there was a great deal of discussion in the news about the issue or a president giving out preemptive pardons. That time was almost exactly four years ago, in the lame-duck period of Trump’s first administration. For example, we have this at NPR:
President Trump is being urged to use his remaining time in office to grant preemptive pardons to people close to him, including family members and maybe even himself. …
President-elect Joe Biden has said he’d let professionals within the Justice Department assess whether a case is merited against Trump, and that decision — which would be unprecedented — is one of the toughest facing the department in the new administration.
We all know now how the DOJ and Biden ended up deciding about that, and what the results were. Hubris, meet nemesis.
More:
In an email, Crouch, author of The Presidential Pardon Power, says that “someone must have committed a federal offense, but as soon as that happens, the president can grant them clemency. He does not need to wait until the alleged offender is charged, stands trial, and so on.”
Crouch continues: “These pardons are not common, but they do happen occasionally.”
Accordingly, Trump could “pardon his children, his aides, his supporters, and so on for federal offenses and be on firm legal ground,” Crouch says. “The really unclear scenario would be if he attempted to pardon himself.”
We also know that Trump did none of this – no preemptive pardons. The pardons he issued were for specific offenses and as far as I know they were limited to crimes for which people were already convicted and in many cases had served time – in other words, they were very conventional pardons despite all the speculation.
This article was also written back in the last days of Trump’s first administration, and it deals with the issue of the pardon for unspecified crimes:
But another source of possible constitutional defect for a presidential self-pardon would arise if it were granted before any charges had been brought against him and without specifying the conduct being pardoned. The same constitutional objections could be raised about such a preemptive pardon granted to anyone else.
The case for the effectiveness of a preemptive non-specific pardon usually relies on the precedent set by President Ford’s pardon of Richard Nixon for any federal crimes he might have committed during his presidency. But the constitutional validity of the Nixon pardon was never tested: special prosecutor Leon Jaworski was urged to do so at the time and was later vague in his Watergate memoir about why he decided not to.
With a handful of other exceptions, notably George H.W. Bush’s Iran-Contra pardons and Trump’s recent pardon of Michael Flynn, pardons historically have not been granted to preempt a prosecution for crimes that have not even been identified much less charged.
That indicates that the Hunter pardon could be tested in court, if the author is correct. It’s one thing to issue a preemptive pardon for a certain crime or a certain line of conduct that hasn’t yet been charged in the legal sense, as long as it is specified. It’s another to do what Biden has done, or what his aides are described as contemplating that he will do before he leaves office.

