Biden’s preemptive pardons

MYRNA BROWN, HOST: It’s Thursday the 30th of January.

This is WORLD Radio and we’re so glad to have you along with us today. Good morning, I’m Myrna Brown.

MARY REICHARD, HOST: And I’m Mary Reichard.

First up on The World and Everything in It, preemptive presidential pardons.

Last week, both the former and current presidents issued scores of pardons. President Donald Trump focused on January 6 defendants and pro-lifers. And in his final hours in office, President Joe Biden granted prospective pardons— to people he thought the new administration might prosecute in the future.

BROWN: Preemptive pardons are relatively rare in US history.

How might pardons for actions not yet prosecuted change the pardon power of the president? WORLD’s Mary Muncy spoke to a handful of experts who have concerns about that.

MARY MUNCY: After the 2020 election, CNN reported that outgoing President Donald Trump was considering preemptive pardons for his family members, and close advisors. In an interview with CNN, Jake Tapper asked the newly elected president about it.

TAPPER: Does this concern you?

BIDEN: Well, it concerns me in terms of what kind of precedent it sets and how the rest of the world looks at us as a nation of laws and-and justice.

But during the 2024 campaign, allegations of Biden family corruption prompted candidate Donald Trump to threaten potential prosecution.

DONALD TRUMP: When this election is over, based on what they’ve done, I would have every right to go after them.

Though, in that same interview with FOX, Trump said it would be terrible to prosecute a former president of the United States.

It seems that wasn’t assuring enough for President Biden… and news broke during Trump’s inaugural address last week, that Biden issued sweeping pardons.

NBC: President Biden pardoning his family members.

TODAY: Among those pardons, Dr. Anthony Fouci, Gen Mark Milley.

WHAS11: He also pardoned all members of the January 6 committee.

It’s not the first time a president has issued preemptive pardons… or that a president has pardoned members of his family… but it’s not common.

ILYA SHAPIRO: It's always not looked good.

Ilya Shapiro is the director of constitutional studies at the Manhattan Institute.

SHAPIRO: I mean, those presidents have always been criticized for doing that and seen as rightly so, as something that smells.

President Biden issued more than 8,000 pardons during his presidency. Most of them were to cover actual crimes or sentences. Some of them—like the one for his son Hunter—also covered potential crimes committed during a particular time.

Something he’s well within his right to do…though it may not be the best thing to do.

SHAPIRO: It is one of the biggest powers that the President has under our Constitution.

There’s no judicial review, a person doesn’t actually have to be convicted, and the president can pardon anyone—even someone convicted of treason.

Really, the only limit is that it only applies to the past.

SHAPIRO: He's not saying you have a Get Out of Jail Free card for anything that you do for the next five years.

Several of the people Biden pardoned have not been convicted of crimes. In his pardons, Biden stipulated that it didn’t mean they had committed them either.

It gets cloudy in President Biden’s preemptive pardons for Dr. Anthony Fauci, the January 6th committee, and Biden’s family. The legal motivation isn’t for unfair convictions, known or potential crimes, just the threat of political persecution.

So, where did the power to pardon come from and why is it so broad?

RICHARD LEMPERT: The pardon power goes back to medieval England.

Richard Lempert is an emeritus professor of law and sociology at the University of Michigan.

LEMPERT: At that time, all felonies were capital offenses, so you might get hung for, you know, stealing a cow.

And the only way to avoid the death penalty was a pardon from the king.

During the writing of the Constitution, there was a lot of back and forth over whether there should be limits on the pardon power—things like requiring conviction, not allowing the president to pardon in cases of treason, or building in some sort of congressional or judicial review.

But in the end, they decided the threat of impeachment would be enough to check the president’s power.

And over the past 250 years or so, the Supreme Court has interpreted the power even more broadly.

DAN KOBIL: The U.S. Supreme Court decided to make the president more king-like.

Dan Kobil is a professor of Constitutional law at Capital University Law School in Columbus Ohio.

One of the big questions the Supreme Court has dealt with is whether someone can reject a pardon… and if they accept it, is that an admission of guilt? The question came to a head when President Gerald Ford pardoned President Richard Nixon.

At the time, the Supreme Court had said accepting a presidential pardon is a tacit admission of guilt.

Since then, the court has ruled that someone who’s pardoned can’t reject it… it happens to you, just like a conviction… so since you can’t reject it, accepting it doesn’t mean anything about your guilt or innocence.

KOBIL: The problem, I think, with the Biden preemptive pardons is that it indicates a lack of faith in our justice system.

Kobil says preemptive pardons in the past have been rare. But he believes that’s likely changing.

KOBIL: I suspect what's going to happen in the future is that we are going to see other presidents pardoning members of their administration, political allies, things like that, preemptively.

And that creates three interesting wrinkles. The first one is that with sweeping pardons like the ones Biden or Ford granted, the pardon may cover more than what the president knows.

The second wrinkle…a president could potentially ask someone to commit a crime on his behalf… and promise a pardon.

Back to Shapiro.

SHAPIRO: In effect, future congressional staffers or presidential aides can think in the back of their mind that if they commit wrongdoing, if they commit federal crimes, they will be pardoned.

The last wrinkle is that… once someone gets a pardon, Shapiro doesn’t think they can plead the fifth because now they’re immune to federal charges. Which could end up leading to investigations an outgoing administration hoped to avoid in the first place.

SHAPIRO: So if there is an investigation about what happened, either under COVID, with respect to Fauci or with respect to the January 6 investigation and prosecutions with those officials, they can't decline to testify because they might self-incriminate.

On the other hand, there might be reasons why preemptive pardons make sense…the mental and financial burden of defending yourself… and despite his own trust in our legal system, it’s not perfect, and mistrials do happen.

In the English system, the people removed the pardon power from the king in the 17th century because of corruption.

In our system, the power could potentially be limited with a Constitutional Amendment … but that’s a long and politically hairy process.

For now, Shapiro worries that a president pardoning his political allies with a slow path to impeachment puts us at the top of a slippery slope.

SHAPIRO: That sets a precedent. That's, you know, a recipe for lawmaking that ultimately is the most dangerous thing from all of this.

Reporting for WORLD I’m Mary Muncy.

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.