The United States is a nation of laws where those who commit crimes are oftentimes prosecuted and sentenced. During Joe Biden’s presidency, America became a nation where some who did not commit any crimes were prosecuted by a weaponized Department of Justice while others who allegedly engaged in wrongdoing were not prosecuted, released, or, most recently, pardoned. The precedent set by Biden’s last-minute pardons is dangerous and leaves yet another stain on his failed presidency.
According to CNN, Biden recently issued last-minute pardons for Gen. Mark Milley, Dr. Anthony Fauci and members of Congress who served on the January 6 Committee. Biden also issued pardons for his brothers James and Frank, his sister Valerie, and their individual spouses. Biden issued these preemptive pardons shortly, or immediately before, President Donald J. Trump’s inauguration.
It is not unusual for a president to use his pardon power, which is set forth in Article II, Section 2, Clause 1, of the Constitution. Case law is quite clear that a pardon can be given at any time after a crime is committed and even before charges are brought. As the Supreme Court stated in Ex Parte Garland:
The power of pardon conferred by the Constitution upon the President is unlimited except in cases of impeachment. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment. The power is not subject to legislative control.
Generally, a pardon does not apply to state crimes or in cases of impeachment, nor does it apply to future crimes (crimes that have not yet been committed). In addition, a person who is pardoned generally waives his/her Fifth Amendment rights to the extent that any testimony provided by that person applies/relates to the federal crime for which he/she was pardoned, but not necessarily for other potential state or federal crimes he/she has committed.
While a president’s pardon power is broad, Biden’s decision to preemptively pardon his family members was despicable and carries with it a cloud of guilt against those who were pardoned. Rather than allowing for an investigation into these individuals for any wrongdoing or alleged criminal conduct, Biden preemptively pardoned them. Apparently, the pardons were needed to protect them against any possibile politicized prosecutions led by a weaponized Department of Justice under the Trump administration. Specifically, as reported by The Hill, Biden stated that the family pardons derived from his concern about, “baseless and politically motivated investigations wreak havoc on the lives, safety, and financial security of targeted individuals and their families.”
Biden’s preemptive family-member pardons reek of politicization and come across as an intentional and desperate effort to protect these individuals from possible investigations and/or potential prosecution, if warranted. By way of these preemptive pardons, many Americans will presume that the individuals impacted by the pardons allegedly engaged in some type of wrongdoing. Otherwise, what other reason could there be to issue a pardon preemptively? Biden’s concern about retribution by the Trump administration is like the pot calling the kettle black and is merely another ruse by a defeated and failed president.
The pardons issued by Biden are not analogous to the pardons issued by President Trump for the many people who were charged, prosecuted, and/or put behind bars for the events on January 6. Unlike Biden’s pardons, Trump’s pardons were not preemptive. In other words, the individuals pardoned by Trump had already been charged, prosecuted, or put behind bars. In many cases, these individuals did not engage in any wrongdoing but were the innocent and unfortunate victims of a weaponized Department of Justice and/or overzealous judges. As a matter of fact, despite Trump’s recent pardons, the possible weaponization continues, as at least one Democrat prosecutor recently announced that he is looking into the possibility of pursuing state charges against some of the January 6 defendants recently pardoned by Trump.
It goes without saying that Biden’s preemptive pardon sets dangerous precedent. In essence, by preemptively pardoning individuals before they are investigated and/or charged, Biden is sending a message that anyone who allegedly or possibly engages in certain types of crimes/wrongdoing can be shielded from prosecution by way of a presidential pardon. What, for example, would prevent a president from using his pardon power to shield someone from prosecution that the president knew had engaged in some sort of wrongdoing and profited from such wrongdoing while in office?
Finally, with respect to his family members, Biden’s pardon might possibly be subject to challenge. Specifically, the pardon was “for any nonviolent offenses against the United States which they may have committed or taken part of during the period of January 1, 2014, through the date of this pardon.” This language is very broad and fails to identify a specific crime. For example, if, as the Supreme Court stated in Burdick v. United States, a pardon carries an imputation of guilt and acceptance carries a confession of it, how could this occur if a pardon fails to identify a specific crime? In other words, without a specific crime, how can there be an imputation of guilt and how can a person confess to a crime without knowing what the crime is?
There is some precedent for such broad and non-specific pardons, such as when Gerald Ford pardoned President Richard Nixon for “all offenses against the United States” that Nixon had or may have committed during his term in office. However, as reported by The Brookings Institution, the specificity of this pardon was never challenged in court and it is unclear how a court would answer this question today.
Notwithstanding, Biden’s decision to pardon his family members was a slap in the face to the rule of law, created bad precedent, and was another despicable act that will further tarnish the heavily stained record of a failed president.