With Joe Biden reportedly considering issuing blanket pardons for top critics of Donald Trump, numerous high profile Democrats have emerged urging the president to do so on behalf of their colleagues who they worry could face legal retribution from Trump in the coming years.
Preemptive pardons would shield Trump’s political opponents from a possible barrage of legal attacks while setting a new precedent for sweeping, mass pardons, which some warn Trump will consequently pursue himself.
Bernie Sanders, the Vermont senator, said Biden should “very seriously consider” the use of preemptive pardons to protect members of Congress who investigated Trump’s role in the 6 January 2021 attack on the US Capitol. Trump has threatened to prosecute those involved in the 6 January congressional investigation and other top Democrats, including the California senator Adam Schiff, the California congresswoman Nancy Pelosi, and the former Wyoming congresswoman Liz Cheney.
“This is what authoritarianism is all about, it’s what dictatorship is all about – you do not arrest elected officials who disagree with you,” Sanders said on NBC News on 15 December.
The Massachusetts senator Ed Markey has also come out in support of blanket pardons, saying on Boston Public Radio that he believed Trump would act in a “dictatorial way, in a fascistic way” once in office and said he would recommend that Biden “provide those preemptive pardons to people, because that’s really what our country is going to need next year”.
Trump, who campaigned on a platform of purging federal employees and cracking down on his enemies, said in an 8 December appearance on Meet the Press that he thinks members of the January 6 committee “should go to jail”. He has long vowed to punish his political opponents in government, referring to them as “enemies from within”. His rhetoric about “enemies” has prompted concern about the president-elect weaponizing the judiciary against his political opponents.
Although Trump often speaks in general terms about his “enemies”, he has pointed to specific individuals he would take legal – even prosecutorial – action against if elected.
“We have a lot of bad people,” he said during a 20 October interview on Fox News. “But when you look at Shifty Schiff and some of the others, yeah, they are, to me, the enemy from within. I think Nancy Pelosi is an enemy from within. She lied. She was supposed to protect the Capitol,” he said, referring to debunked claims that Pelosi was responsible for security at the Capitol on 6 January 2021 and abdicated her duties.
Trump’s pick to lead the Federal Bureau of Investigations, Kash Patel, has echoed Trump’s calls for revenge, maintaining his own “enemies list”. Patel and Pam Bondi, Trump’s nominee to lead the Department of Justice, have both projected near-total fealty to Trump – sparking worry they would willingly go along with Trump at whatever cost.
In addition to Schiff, Pelosi, and Cheney, Trump’s former chief medical advisor Anthony Fauci has also been a target of widespread anger from the right for prescribing social distancing, lockdown measures and vaccines to slow the spread of Covid-19.
Cheney has spoken against Trump’s threats. “Donald Trump’s suggestion that members of Congress who later investigated his illegal and unconstitutional actions should be jailed is a continuation of his assault on the rule of law and the foundations of our republic,” she said.
Whether those on the receiving end of Trump’s ire want, or would accept blanket pardons, is unclear. If figures like Cheney receive such clemency, they would potentially be spared years of litigation, massive legal fees and criminal convictions. On the other hand, accepting a preemptive pardon could give the impression of guilt – and offer Trump the precedent to issue mass preemptive pardons to associates accused of improprieties.
It’s even possible that Trump’s political opponents who publicly reject the possibility of a pardon would accept one anyway.
Schiff has distanced himself from the pardon talk, telling ABC’s George Stephanopoulos that he did not support the idea of a blanket pardon, which he called “unnecessary”.
“Those of us on the committee are very proud of the work we did,” he said. “We were doing vital quintessential oversight of a violent attack on the Capitol.”
Legal scholars told the Guardian that Biden would likely be within his constitutional right to enact sweeping preemptive pardons. There are limits on the presidential pardon – a president cannot pardon individuals convicted of non-federal crimes, or grant clemency for future infractions. The kind of pardons Biden could pursue would likely fall within his executive authority.
Still, typically, “you don’t receive a pardon unless you’ve done something wrong”, said Mark Osler, a law professor at University of St Thomas and an expert on sentencing and clemency policy. “The members of the J6 committee, I’m sure that their position is they’ve done nothing wrong.”
What has emerged for the outgoing administration and for possible recipients of Biden’s pardon is a kind of damned if you do, damned if you don’t scenario: without pardons, Trump’s most high-profile political opponents could face trumped-up charges and convictions.
Rachel Barkow, a law professor at New York University, added that for Biden to issue mass pardons, it would be helpful to have a comprehensive list of people who Trump could go after when he takes office.
“If the only people you pardoned ended up being the higher ups, you’re creating a potentially perverse structure where the little fish, who worked as lower level people down the chain, are the ones who find themselves being prosecuted because there is no one else to go after,” Barkow said.
“[It’s] almost the worst of all worlds,” she added. “You’re setting people up for that expensive, life-altering federal investigation who weren’t particularly high up, but they weren’t pardoned because they didn’t get the attention of the administration.”
Lost in the debate over the possible creative and expansive uses of clemency, both Osler and Barkow said, are more traditional uses of the pardon – and the people living out lengthy sentences who have expressly asked for clemency.
“We seem to be in this era with both Biden and with what Trump says he’s going to do, where the pardon power is going to be used for unconventional purposes,” said Osler. “But it’s not being used for conventional purposes – it’s not being used to show mercy to those who have truly changed their lives, who follow the rules, who filed a petition, and that’s deeply unfortunate.”
