President Joe Biden and his top advisers are discussing whether to issue pre-emptive pardons to individuals who may face hostility from President-elect Donald Trump’s incoming administration. Concerns have risen over Trump and his circle threatening action against their political adversaries.
Among those reportedly being considered for pardons are Anthony S. Fauci, known for leading the US covid-19 response; retired General Mark A. Milley, former chairman of the Joint Chiefs of Staff, who called Trump a “fascist”; Senator-elect Adam Schiff (D-California), who led Trump’s first impeachment; and ex-Congresswoman Liz Cheney (R-Wyoming), a prominent Republican critic of Trump. The discussions, initially reported by Politico and confirmed by two sources familiar with the matter, are being overseen by White House Chief of Staff Jeff Zients and White House Counsel Ed Siskel, indicating their importance at the highest levels of the administration.
Biden’s deliberations on pre-emptive pardons
While Biden has made no definitive decision, his staff are preparing for the possibility of granting these pardons. However, it remains unclear whether those being considered would accept them. For instance, Schiff recently expressed scepticism about pre-emptive pardons, asserting his belief in the resilience of the legal system against potential abuses.
Cheney, Fauci, and Milley have not commented on the matter. Constitutional considerations and political implications
The idea of pre-emptive pardons for uncharged offences is largely untested, though the Constitution grants presidents broad pardon powers. Historically, such powers have been used sparingly, primarily for specific charges or convictions. President Gerald Ford’s pardon of Richard Nixon in 1974 for any crimes committed during his presidency remains one of the few examples of a broad pardon.
Biden’s recent pardon of his son, Hunter Biden, drew bipartisan criticism for its sweeping nature, covering any federal offence he might have committed between 2014 and 2024. Critics argue that issuing pre-emptive pardons could blur the line between justice and political manoeuvring.
Mixed reactions from Democrats
Some Democrats support the idea, citing the unprecedented nature of Trump’s threats. Representative James E. Clyburn (D-South Carolina) suggested pardons for figures such as Cheney and Special Counsel Jack Smith, emphasising the need to shield them from potential retribution.
Others, however, worry about the political optics. Pardons could suggest wrongdoing, complicating public perceptions of those receiving them. Senator Edward J. Markey (D-Massachusetts) highlighted Ford’s Nixon pardon as an example of how such actions might foster national unity but noted the risks involved.
A contentious precedent
Critics, including Sarah Isgur, a former Trump Justice Department spokeswoman, have argued that blanket immunity could set a dangerous precedent. While protections against politically motivated prosecutions are essential, Isgur contends that pardons must not become tools for insulating officials from accountability.
Trump’s rhetoric and potential targets
Trump and his allies have made clear their intentions toward certain figures. For example, he has suggested severe consequences for Milley and Schiff while endorsing harsh criticisms of Cheney and Fauci. Rep. Marjorie Taylor Greene (R-Georgia) has even accused Fauci of “crimes against humanity.”
Despite Lara Trump’s assurances that the president-elect has no interest in retribution, Trump’s history of incendiary statements continues to raise alarms.
As Biden contemplates his next move, the decision to issue pre-emptive pardons carries profound legal and political implications, shaping the narrative of accountability and justice under his administration.
