As we may well remember, President Biden was often deliberating on the exercise of his presidential pardon power. It’s speculated that he was particularly concerned about the incoming administration of President-elect Donald Trump and potential investigations brought forward by him. There was a general sense of anxiety within Biden’s administration, expressed mainly by the legal team, although Biden himself had also contemplated the issue.
Despite the initial worry, the decision of issuing preemptive pardons was still in the air, in a state of limbo. Historical precedent of pardons typically involves offenders who have been proven guilty of specific crimes. The Biden’s team consideration to extend this power to those untouched by any investigation or charge was seen as a divergence from tradition.
Their apprehension was rooted in a perceived threat from Trump and his allies who had expressed the desire for ‘retribution’. The Biden camp speculated that these actions might comprise costly investigations for the targets, carrying reputational and financial consequences even without any successful prosecution.
A presidential pardon is a powerful tool carried by the office. However, Biden’s speculative usage would denote an expanditure of its typical deployment. Certain aides under Biden feared that this might pave a path for a more dramatic usage of the same power by Trump.
Trump and his allies had been vocal about their distaste for certain individuals during their time in power. Among these were Dr. Anthony Fauci, pivotal in America’s fight against COVID-19, whose stance on mask mandates and vaccines caused friction with conservatives. This friction earned him a peculiar place, and helped him stay in the headlines.
Predictions ran high about who else might find themselves under the scrutiny of Trump’s administration. Other speculated targets included witnesses in Trump’s legal trials, as well as those officials of the Biden administration who had attracted the discontent of the next president and his allies.
Similar precedents were drawn from Trump’s consideration of pardons for himself and his supporters involved in the contestation of the 2020 presidential election results. This has raised concerns about a cycle of alleged wrongdoing followed by broad pardoning.
Looking back, President Ford in 1974 had granted a complete pardon to Richard Nixon over the Watergate scandal; he saw that a potential trial could lead to a heated and prolonged debate over Nixon’s future public image and professional trajectory. His actions were deemed appropriate to maintain the political decorum and unity of the nation.
Trump is well-known for his clear expressions and for standing true to them. Throughout his campaign, he did hint towards seeking accountability from those who opposed him. His statements on ‘enemies from within’ and other social media posts suggested his efforts towards such goals.
On this list of his ‘enemies’ were not just prominent Democrats, but notable Republicans as well. Former representative Liz Cheney, well know for her conservative views, became a target after her aggressive campaign against Trump. This suggested that Trump’s administration would not differentiate based on political leanings, but rather on individual actions.
The contemplating power of potential pardons by Biden was viewed with reluctant encouragement by some, such as Richard Painter, chief White House ethics lawyer under President George W. Bush. Despite a critical view of Trump, Painter hoped that such preemptive action would enable the incoming president to focus on governing rather than dwelling in the past.
Painter’s support, however, came with a note of caution. He was wary of the possibility that Trump might leverage the promise of blanket pardons to impose actions that may be otherwise rejected due to legal apprehensions. To quote Painter, he said, ‘There could be blatant illegal conduct over the next four years, and he can go out and pardon his people before he leaves office.’
Painter accepted the reality saying that if that was Trump’s intent, it would happen regardless of Biden’s actions. Conventional pardons from Biden were also expected by the end of his tenure. These are typically granted for those prosecuted under federal crimes, aiming to correct disparities in sentencing.