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On Monday, outgoing President Joe Biden issued a last batch of pardons, some covering government officials who have been threatened with baseless criminal investigations by incoming President Donald Trump, and five others covering Biden’s own family, ostensibly for the same reason. Later in the day, after he took the oath of office, Trump issued more than 1,500 pardons and commutations covering everyone charged with or convicted of crimes committed in the course of the Jan. 6, 2021, insurrection at the U.S. Capitol.
Biden’s pardons were understandable, though in my view gravely mistaken. Trump’s were an abomination. Considered together, as they must be, they amount to a grave blow to the rule of law in America.
When we speak of the rule of law, we mean, of course, that all are protected from injustice by a system of uniform rules applied uniformly by neutral officers of the law. But we also mean that all, high and low, must walk in justified fear that violations of law will be punished by the same system applying its strictures with majestic indifference to birth, wealth, political affiliation, or social status. Neither aspect of this ideal ever works perfectly in any society. But both must work reasonably reliably in a healthy society, and especially in a healthy democratic republic.
Conversely, two invariable attributes of autocracy are, first, that no one trusts the organs of the law to protect them from baseless inquisitions, false charges, and cruel punishments, and second, that the powerful and their friends need have no fear of the law, regardless of their misdeeds, so long as they remain in favor with the ruling power.
Biden’s preemptive pardons create an expectation, and a regrettable precedent, that all of a president’s political allies, friends, and family who might be at risk from the law wielded by a successor will be pardoned before there can be any determination by the legal system that they have acted illegally.
It is, of course, true that Biden’s action was a reaction to the open threats of Trump and his acolytes to misuse the legal system as an instrument of retribution. Nonetheless, however justified the fear that Trump’s new-minted minions at the Justice Department will undertake baseless investigations may have been, Biden’s action betrayed a disheartening lack of faith in the capacity of the criminal justice system to reject groundless criminal charges, and thus a fundamental misunderstanding of the role of courts in a rule-of-law system.
It is certainly true that investigations alone can be emotionally debilitating and financially ruinous. For that reason, I sympathize with the former president’s motivations, and I am pleased on a personal basis for those honorable public servants who will receive some relief from Biden’s preemptive actions. But two of the core functions of the criminal justice process are, first, to provide a forum in which the accused can rebut criminal allegations, and, second, to speak with an authoritative voice in publicly rejecting unfounded allegations.
By preemptively pardoning all those threatened with Trumpian injustice, Biden prevents the justice system from doing its essential job of declaring that Trump’s claims are false. As matters stand, MAGA blowhards will forever be able to claim that Biden issued pardons to cover up nefarious criminal schemes.
This is particularly true of Biden’s pardons to his family, which seem far less justifiable than those issued to beleaguered patriots like Anthony Fauci, Mark Milley, and those affiliated with the House Jan. 6 committee. While pardons to the latter group can never fairly be categorized as narrowly self-serving, pardons to Biden’s family are precisely that. Again, I understand the former president was reacting to endless MAGA threats to investigate and prosecute the “Biden crime family.” But if, as I assume, the Biden family is entirely innocent of any crime, the venue for proving that point, both legally and in the public mind, is the courts. By issuing these pardons, Biden has cast a permanent taint of suspicion on the very people he seeks to protect.
Moreover, as I have argued elsewhere, Biden’s well-meaning pardons can at best afford their beneficiaries only partial relief from the grievous inconveniences of groundless MAGA investigations. So long as Trump is president, they should all reliably expect endless harassment by the civil organs of the executive branch, continued congressional inquiries, and indeed DOJ investigations despite the pardons, perhaps indeed into the circumstances of the pardons themselves.
I am a longtime student of the pardon power and, in the course of writing my upcoming book on the subject, I have reviewed executive clemency actions throughout the entire span of American history. Biden’s preemptive pardons are, so far as I know, unprecedented. No previous president has issued pardons to people he believed to be innocent of any crime who were not under active investigation, previously charged, or convicted. Even though responsive to Trump’s equally unprecedented threats of baseless persecution, Biden’s pardons have now set a precedent that will, without question, be abused by successors with less honorable motives. They will surely be cited by Trump when he issues his own preemptive pardons to friends and family—who may be far less innocent of wrongdoing than Biden’s beneficiaries—later in his term.
Trump’s Jan. 6 pardons were, of course, infinitely worse. Biden’s preemptive pardons to virtuous officials sought to protect those who violated no law, but instead were zealous in upholding it. Trump’s exonerated (or in the case of 14 militia members, at least freed) those who were actually convicted of attempting to nullify the most basic law in any democracy—the constitutional provisions for installing in office those who freely and fairly win elections.
Presidents throughout American history have employed pardons liberally in the wake of domestic unrest, civil war, and foreign conflicts to reconcile rebels and protestors to the national community. George Washington pardoned the Whiskey Rebels. Abraham Lincoln pardoned hundreds, and Andrew Johnson thousands, of Confederates. Multiple presidents pardoned fractious Mormons. All the major wars of the 20th century were followed by presidential pardons of deserters, draft evaders, and the like.
But all those pardons were issued by presidents who suppressed the rebellions or who presided over the aftermath of the wars that pardon beneficiaries had resisted or protested or in which they had violated military law. No American president has ever pardoned those who joined him in seeking to overthrow constitutional government. Trump pardoned people who were, quite literally, his co-conspirators in the crime of attempting to prevent the peaceful transfer of power.
When the Framers of the Constitution debated inclusion of a pardon power, they were concerned that a president would pardon his co-conspirators in treasonous plots. For that reason, many wanted either no presidential pardon power or one limited by subject matter or by the requirement of senatorial participation. Fears of this sort were assuaged by James Madison’s argument that a president who issued pardons to his criminal confederates could, of course, be impeached. What he and the rest of his generation failed to anticipate was that Congress could ever fall so far under the sway of a corrupt and demagogic president that it would lack the courage to impeach him even when he openly sought to overthrow constitutional government.
We live in such a degraded moment. A president who was both impeached and indicted for conspiring to overthrow the government returns to power with a Congress controlled by his own enablers, a gang either gleefully supportive of Trump’s transgressions or too cowed to murmur even a sotto voce protest. In such a moment, Madison’s expectation that a presidential pardon of his own co-conspirators would result in impeachment is a laughable fantasy.
Trump’s Jan. 6 pardons and their timid acceptance, or indeed rapturous embrace, by the Republican Party are not only unprecedented in American history, but they also represent an ominous departure for Trump himself. To be sure, in his first term, he misused the pardon power by first dangling and then granting pardons to close associates like Steve Bannon, Paul Manafort, Roger Stone, and Michael Flynn, who might have provided damaging evidence against him in either criminal or impeachment proceedings. But hitherto, his support for violent paramilitary groups who backed him was expressed only rhetorically, as in his characterization of the deadly Charlottesville white supremacist riot as having “very fine people on both sides,” or his admonition to the Proud Boys during a presidential debate to “stand back and stand by.” On Monday, his first day back in office, he used the pardon power to wash clean the proven crimes of extremist militias. In doing so, he unmistakably offered implicit permission for such groups to use violence in the future, with an implied promise that, so long as they act in his service, he will render them legally immune.
There is, of course, precedent for executive embrace of violent militias. But it lies in dark historical episodes like the rise of the Third Reich and the unhappy present of too many countries in what we have hitherto been pleased to sneer at as the “Third World.” By definition, official acceptance of extralegal paramilitary violence is the antithesis of the rule of law.
In sum, Biden’s well-intentioned, if misguided, use of the pardon power together with Trump’s cynical, malevolent employment of it place the future of rule of law in America in genuine peril. The danger is made even more acute by the Supreme Court’s recent, deeply dangerous, holding that pardons are a “core power” of the presidency and that presidents are absolutely immune from criminal liability for even flagrantly illegal uses of it.
During Trump’s upcoming term, we should expect Trump to wield his stranglehold on DOJ leadership and, if necessary, pardons to shield himself and all who support him from immediate legal jeopardy. Even pardons awarded to protect Trump himself from legal liability are now, per the Supreme Court, constitutionally privileged. We should also expect Trump to end his term with preemptive pardons, justified by reference to the Biden precedent and consciously crafted to free all those who have remained slavishly loyal from apprehension that they will ever be held legally accountable for sins in their master’s service. Relieved of that salutary fear, his followers in and out of government can be expected to behave accordingly.
Once Trump is gone, whether by operation of constitutional term limits or the inexorable wheel of time, it will be terribly difficult, perhaps impossible, to restore the restraining expectations that hitherto governed pardons. If history teaches any lesson, it is that new accretions of presidential authority are almost never entirely surrendered.
In sum, we may be entering a prolonged era of legal impunity for presidents, their families, friends, and even criminally violent supporters. If that proves so, the rule of law in America cannot long survive.
