Biden should resist the temptation to pardon his allies. It would set a terrible precedent.
The office of the presidency of the United States is not an easy role to fulfill. It comes with the almost unbearable burden of making decisions about highly impactful matters that most of us would never even think about. If done to the best of one’s ability, it should be emotionally and intellectually exhausting.
You might forgive presidents for not always making what we would judge to be the best decision in hindsight – when circumstances were ambiguous, when their information was incomplete, or when time pressures rule out a thorough measure of the costs and benefits.
Often though, they are in a position where we should expect them to make the right decision. For example, we should expect Biden to not preemptively pardon his allies. Biden has stated that his decision on whether to grant preemptive partners to some of his allies depends on who Trump ends up appointing.
There is an interesting question about whether preemptive pardons are allowed under Article II of the Constitution but we’ll set that aside. President Gerald Ford set a precedent with his preemptive pardon of Richard Nixon but the Supreme Court has demonstrated many times that precedents are not decisive.
Biden would not only be following in the footsteps of the man who he has criticized the most, but would also be lowering the bar even further for what we can expect to see presidents do. Recall the blatant abuse of the pardon that Donald Trump demonstrated in his first term.
Incredibly, Trump managed to suppress whatever little integrity or decency he had left to pardon everyone from war criminals to the minions he ordered to commit crimes on his behalf.
Biden’s concern that Donald Trump could weaponize the justice system to exact furious vengeance on those who believe have wronged him is obviously not unfounded. Trump’s wide ranging threats have been well documented.
While some of his threats can be interpreted as mere desires that actual crimes be investigated and not that he will personally order them during his second term, he “ReTruthed” (the Truth Social equivalent of retweeting) that, “Democrats are going to start getting indicted,” and stated in no uncertain terms that he, “will appoint a real special prosecutor to go after the most corrupt president in the history of the United States of America, Joe Biden, and the entire Biden crime family.”
Trump also aimed many threats at US attorneys, members of the January 6 committee, journalists, and non-profit charities. During his first term, he publicly and privately pressured the Justice Department to investigate his political rivals, some of which the DOJ actually investigated. He has weaponized the justice system and there is nothing that indicates that he will refrain from doing so again. He also nominated Pam Bondi for Attorney General – she has repeated Trump’s claims that the federal cases against Trump were political persecution.
And yet, if Biden’s allies did nothing wrong, then they should allow the courts to determine their culpability. Some, like Former Rep. Adam Kinzinger and Senator Adam Schiff have claimed that they do not wish to receive a pardon because they have done nothing wrong. On the other hand, Representative Bennie Thompson stated, “We had a discussion about pardons. It wasn’t a particular pardon. … I said for me, as a member of the committee, if one is offered, I would accept it.”
If they are innocent of any crimes, it certainly wouldn’t be fun to be investigated by the DOJ, but all of these pardons for allies contribute to the understanding that those under the command of the president are free to do as they are ordered because they will ultimately receive a pardon – it establishes that the president’s underlings are above the law.
Appointed officials should always be afraid of being prosecuted but instead we are seeing a disturbing trend towards unfettered corruption. Not only were Trump’s allies promised pardons once they were actually investigated or prosecuted, now presidential allies are promised preemptive pardons before any investigations can even take place.
If Biden does grant these preemptive pardons, he will also be telling all of Trump’s henchmen that they should have no inhibitions about following Trump’s most outrageous orders.
Rafael Perez is a columnist for the Southern California News Group. He is a doctoral candidate in philosophy at the University of Rochester. You can reach him at rafaelperezocregister@gmail.com.