Let’s acknowledge that little of what you or I think will determine whether Joe Biden decides to issue a wide swath of preemptive pardons to 60 or more people listed as enemies by Kash Patel, Donald Trump’s announced pick to take over the FBI.
But we can understand something about the debate and what it portends, about the craziness of our politics and divisions being brought on by an incoming Team Trump barreling towards retribution and prosecution of those who would question Trump, his behavior, his policies and his legal liabilities.
Politico reported last week that there is a “vigorous internal debate” among Biden aides about issuing pre-emptive pardons to officials likely to be targeted by Trump, using the power of the FBI and Justice Department. In 2024, Patel published a book, “Government Gangsters: The Deep State, the Truth, and the Battle for Our Democracy,” with an index listing of three dozen specific enemy names. He never even got to obstreperous members of Congress like then Rep., now Senator-elect, Adam Schiff, D-Calif., or former Rep. Liz Cheney. It is a feature of his campaign for confirmation that he would have the FBI pursue these investigations and possible criminal or civil charges.
The argument for issuing such pre-emptive pardons is obvious — protecting people like Gen. Mark Milley or Special Counsel Jack Smith or Jan. 6 committee witness Cassidy Hutchinson for doing their jobs and speaking or acting against Trump’s interest when it became necessary to do so. The argument against is equally obvious. They “could suggest impropriety, only fueling Trump’s criticisms,” as Politico put it. Biden will have to explain why he’s pardoning people who have done nothing wrong.
In any event, issuing the pardons will provide all the justification that Trump himself seeks in declaring actions by a “weaponized” Justice Department null and void, and simply seek to wipe away hundreds or thousands of convictions against Jan. 6 rioters as null and void.
More broadly, however, it is easy to read this whole question as an indictment of what we have allowed to develop as a lack of trust and belief in our justice systems and courts, in the acceptance that justice is tainted with political partisanship, and that He Who Wins an Election, even by 1.5% of votes, can declare who faces jail for posing any opposition.
Biden’s Dilemma
Herein lies the dilemma for Biden, who has spent years defending the democracy goal and insisting that he would keep hands off the Justice Department. He regularly has criticized Trump for promising the opposite — on moral grounds, democracy grounds and constitutional grounds.
And yet, he now finds himself in the single spot to do something about what Trump and his inner circle is proposing as a war of retribution. Indeed, he fired the first shot in this Justice war last week by announcing a previously distanced pardon for his son, Hunter, against current — and any potential future — criminal charges still being sought by congressional Republicans over anything that might embarrasses a past or present Biden.
Biden cannot have both the moral high ground and assurances that Team Trump — Patel at the FBI, Pam Bondi as Attorney General, and his own criminal defense lawyers as leading deputies at a Trump-loyal Justice Department — won’t go after opponents in government, politics or, as promised, in journalism and the media.
Trump cannot both wave his retribution sword expect to have broad support. He somehow will have to come up with real evidence that can survive court trial review and that will persuade juries before he can jail anyone. He can’t argue about others weaponing Justice if he is weaponing Justice himself.
Between deportation work and retribution, it will be a wonder that Trump’s FBI will have bandwidth to battle street crime. Obviously, they will drop whole efforts to look at anti-trust, civil rights, policing reform or other non-political white-collar crimes.
The Pardon Process
It has been a basic tenet of the pardon process that the petitions are for individuals rather than for unidentified groups, and that the petitions come after conviction or guilty plea, not before. That is to assure that the system is used for “mercy” and not as protective camouflage for undertaking what otherwise would be illegal acts.
But Biden can’t wait until the Trump appointees are confirmed, in place and taking actions against enemies. As Schiff noted last week, there is no obligation on the part of the pardoned to accept a presidential get-out-of-jail card, and in the case of legislative enemies like himself, he likely is covered by official acts in office, just as Trump himself is.
So Biden pre-emptive pardons present multiple problems: a lasting stain on his promises to stay out of Justice for partisan matters, a broad redefinition of what pardons are for, and a legal and political gift to Trump to do likewise with broad swaths of his own followers, including the Jan. 6 “hostages,” as he calls them, to be released without further accountability.
Of course, even beyond Justice and prosecution, Trump’s government will have the power to use the IRS, the FCC and licensing agencies, or the power to withhold various government programs and funds to pressure his political foes.
You can decide for yourself. If we wait or anticipate that reason will prevail at a politicized FBI and Justice Department, it will be too late to act. Still, any such pardons should be as narrowly definitive as possible.
Team Trump is presenting challenges that are extraordinary and based on abusing prosecutorial and government powers. Biden will have to argue that playing by reason and traditional rules will put people in danger.
Either way, we lose, either in accountability or in cheapening pardon power for politics.
