Former president Joe Biden’s decision to issue preemptive pardons to allies and family in his final hours in office Monday sets new precedent for expanding executive authority, which may prove difficult to reverse.
Breaking a promise he made before taking office, Biden issued preemptive pardons to his family members, along with Dr. Anthony Fauci, General Mark Milley and members of the Jan. 6 committee, before Trump was sworn-in Monday morning.
The decision sets “a perilous precedent that could be exploited by future administrations to protect political allies from the consequences of their actions,” former federal prosecutor Andrew Cherkasky told the Daily Caller News Foundation.
“These sweeping and vague pardons represent an unprecedented dangerous expansion of executive authority that threatens the very foundations of our constitutional republic’s requirement for law and order,” Cherkasky said. “By issuing blanket, prospective pardons for unspecified crimes over such an extended period, Biden has effectively placed these individuals above the law and beyond the reach of justice.”
Biden’s pardons cover any offenses spanning back to 2014. Hunter Biden’s pardon, which his father announced in December, also begins in 2014 — the year he joined the board of Ukrainian energy company Burisma.
Devon Archer, Hunter Biden’s former business partner, told the House Oversight Committee that the value of adding him to the board was the Biden family “brand.”
In a 2020 interview with CNN’s Jake Tapper, Biden promised he would not issue preemptive pardons after it was reported Trump was considering issuing them to his children.
“It concerns me, in terms of what kind of precedent it sets and how the rest of the world looks at us as a nation of laws and justice,” Biden said at the time.
Q: “Do you have any reaction to the pardons President Biden did at the last minute?”
President Trump: “I’m not going to discuss it now. I think it was unfortunate that he did that.” pic.twitter.com/jz8ZAOGaS9
— CSPAN (@cspan) January 20, 2025
Hans von Spakovsky, senior legal fellow at the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, said Biden legitimized using preemptive pardons for “political purposes.”
“And if you think Trump won’t use Biden as precedent and issue scores of them when he leaves office to avoid a possible Democrat administration engaging in politically motivated prosecutions as the Biden DOJ has for the past four years, one would have to be quite naïve,” he said. “This is emblematic in some ways of the Democrats’ removal of the filibuster in the Senate with respect to judicial nominations for short term political gain, which in the long run they have come to regret.”
The pardons may never end up in court because there is nobody with standing to bring a challenge, von Spakovsky told the DCNF.
University of Michigan Law School professor emeritus Richard Lempert wrote for Brookings in 2021 that a broad preemptive pardon would likely “be held invalid.”
“A pardon which doesn’t specify in sufficient detail the offenses pardoned conflicts with the notion that accepting a pardon is an implicit admission of guilt,” Lempert wrote. “It is hard to say that a person who has accepted a pardon for any offense he or she may have committed has admitted guilt to an offense when we don’t know what wrongful behavior has been acknowledged. Moreover, judicial language justifying pre-emptive pardons appears to have pardons for specific offenses in mind.”
Biden also commuted sentences for 2,500 individuals on Friday, including a cop killer and criminals convicted on felony gun charges.
After pardoning his family members, Biden also commuted the life sentence of a Native American activist who killed two FBI agents.
In December, Biden commuted sentences for all death row inmates. The list included child murders and a man who killed an Ohio police officer.
Cherkasky noted that the pardoned individuals “lose their Fifth Amendment protections against self-incrimination for the pardoned offenses, potentially opening avenues for questioning and investigation that were previously closed.”
“Ultimately, Trump may need to balance the pursuit of justice with the practical realities of governing and advancing his agenda for the American people,” Cherkasky told the DCNF. “I predict President Trump will exercise a MAGAnanimous approach to let sleeping dogs lie and focus more on the future of our great country instead of employing years of lawfare like his predecessor.”
(Featured Image Media Credit: Screen Capture/CSPAN)
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