In his final days in office, President Joe Biden decided to pardon the innocent — people who committed no known crimes — including former Rep. Liz Cheney, R-Wyo., former U.S. Capitol Police Officer Harry Dunn, Dr. Anthony Fauci, Gen. Mark Milley and others.
This unprecedented move by Biden may feel good in the moment, perhaps providing some future protection for those he pardoned against newly inaugurated President Donald Trump’s incessant threats of retribution. But in the long run, Biden’s pardoning the innocent could spark a democracy-damaging cycle of pardons by Trump and presidents to come.
Biden’s pardoning the innocent could spark a democracy-damaging cycle of pardons by Trump and presidents to come.
A number of pardon recipients have already thanked Biden. In a statement, Harry Dunn wrote, “I am eternally grateful to President Joe Biden. ... I wish this pardon weren’t necessary, but unfortunately, the political climate we are in now has made the need for one somewhat of a reality.”
Gen. Milley wrote, “After forty-three years of faithful service in uniform to our nation, protecting and defending the Constitution, I do not wish to spend whatever remaining time the Lord grants me fighting those who unjustly might seek retribution for perceived slights.” The pardon recipients are most likely also appreciative that they won’t have to incur significant legal fees fighting cases in court.
However, Biden’s pardons will provide only limited protection. Those pardoned can still be nefariously audited. They can still be criminally investigated, even if they can’t be prosecuted. They can be dragged before Congress and made to testify. In other words, they could still be put on the hook for legal fees, not to mention the stress, emotional turmoil and reputational harm to those who are vindictively pursued, while knowing they’ve done nothing wrong.
Even more extreme and troubling is the potential for Trump to take full advantage of the Supreme Court’s recent presidential immunity ruling. In a very real sense, a 6-3 conservative majority bestowed upon American presidents the power of lawlessness and a blueprint to use that power.
This sounds like the stuff of laughably unrealistic Hollywood movie scripts, but pursuant to his core constitutional powers, Trump could order his military leadership or his Justice Department officials to summarily and unlawfully detain Cheney, for example, and Trump couldn’t be prosecuted for said unlawful detention.
He could then use another core constitutional power — the pardon power — and pardon those who carried out his unlawful directives. Given the newly minted doctrine of absolute presidential immunity, this course of action would guarantee that no one who obeyed his unlawful commands would be subject to criminal prosecution.
The nine members of the House Jan. 6 committee issued a joint statement making it clear that they weren’t confessing to any crime. To the contrary, they indicated they were in Trump’s crosshairs “not for breaking the law but upholding it.” Biden also emphasized that the pardons don't mean the people who were granted them committed crimes.
Unpersuaded by such statements, Republican politicians are declaring that Biden’s pardons prove that the recipients committed crimes. Such claims may have some superficial (even if only specious) support in Burdick v. United States, a Supreme Court case from more than 100 years ago. In that case, the court observed that a pardon carries with it “an imputation of guilt and acceptance (of a pardon) a confession of (guilt).”
Trump reacted to the initial pardons of the Jan. 6 committee members and others in a text message to NBC News on Monday, saying, “It is disgraceful,” and claiming without evidence, “Many are guilty of MAJOR CRIMES!”
Now that Biden has set at least an atmospheric precedent that pardoning the innocent is an appropriate use of the pardon power, here’s a short thought experiment: Might Trump use Biden’s decision to prophylactically pardon the innocent to pardon his executive branch officials at the end of his term? Trump may say his executive branch officials did nothing wrong over the past four years, but just as Biden pardoned the innocent, he obviously needs to do the same.
And to complete the thought experiment: What are the implications should Trump decide to announce now, on the front end of his presidential term, a plan to pardon everyone on his way out of the Oval Office? That is: signal to all his executive branch officials that they can commit crimes for four years with impunity and immunity.
As his last presidential act, Biden pardoned five of his family members.
As his last presidential act, Biden pardoned five of his family members. But what will happen to the rest of Trump’s perceived enemies? Is selectively pardoning a relatively small batch of folks, when Trump seems to have grievances against so many others, a fair and equal application of the pardon power? Will everyone else simply have to fend for themselves, suffering the burdens of being vindictively prosecuted by Trump’s Justice Department?
As bad as the prospect of revenge prosecutions is, I think pardoning the innocent is potentially worse. Having practiced in the courts of Washington, D.C., for decades, I am familiar with most of the trial court judges who would preside over criminal cases brought against, for example, members of the House Jan. 6 committee.
The women and men of the D.C. federal bench are loyal to the rule of law and the Constitution. I have every confidence they would stand as a bulwark against vindictive prosecutions. Indeed, it would be far better, in my opinion, if we let Trump bring vindictive prosecutions only to have the federal trial court judges strongly reject them. I also believe there are many within the Justice Department who would object to and fight bad-faith prosecutions.
In a time when Trump has done his nefarious best to undermine public confidence in our institutions, it would be extremely valuable to have a co-equal branch of government, the judicial branch, reject and rebuke Trump and the Justice Department for bringing baseless, revenge-fueled prosecutions. I say this while fully acknowledging the horrific burden it would be for those Trump might target to defend themselves against baseless charges.
Trump quoted Martin Luther King Jr. on Monday, as his inauguration coincided with the federal holiday for the civil rights leader. I feel it apt to refer to my favorite Dr. King quote: “The arc of the moral universe is long, but it bends toward justice.”
Pardoning the innocent and risking a never-ending cycle of prophylactic pardons feels like we’d be making that arc longer than it needs to be.
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