Legal Experts Criticize Biden’s Preemptive Pardons, Arguing They Offer Incomplete Protection and May Compel Recipients to Incriminate Themselves

Joe Biden’s issuance of preemptive pardons to family members and political allies has been criticized by legal experts who argue that such actions may not offer comprehensive legal protection.

On Monday, just hours before leaving office, Joe Biden granted preemptive pardons to individuals including Dr. Anthony Fauci, retired General Mark Milley, and members of the House January 6 Committee, such as former Representatives Liz Cheney and Adam Kinzinger.

Additionally, he pardoned five family members: his brothers James and Francis Biden, his sister Valerie Biden Owens, and their spouses.

Renowned attorney Jesse R. Binnall of the Binnall Law Group broke down the implications of these preemptive pardons on social media platform X, calling the situation “great news” for those seeking accountability.

Binnall highlighted a critical legal consequence: individuals who received pardons cannot invoke the Fifth Amendment to avoid testifying in civil, criminal, or congressional proceedings about the pardoned conduct.

“The pardons are actually great news,” Binnall wrote. “No one who was just pardoned will be able to refuse to testify in a civil, criminal, or congressional proceeding based upon the 5th Amendment.”

“And let’s just be realistic. Most of these disgusting individuals would probably have to be charged in Washington, DC, which doesn’t convict partisan leftists.”

The pardons are actually great news. No one who was just pardoned will be able to refuse to testify in a civil, criminal, or congressional proceeding based upon the 5th Amendment.

And let’s just be realistic. Most of these disgusting individuals would probably have to be…

— Jesse R. Binnall (@jbinnall) January 20, 2025

Attorney and legal analyst Phil Halloway echoed Binnall’s assessment, pointing out that the pardons have their limits.

“For anyone who may have violated any state laws (I’m looking at Fauci) they can still take the 5th since the pardon doesn’t cover state law violations,” Holloway wrote.

For anyone who may have violated any state laws (I’m looking at Fauci) they can still take the 5th since the pardon doesn’t cover state law violations

— Phil Holloway (@PhilHollowayEsq) January 20, 2025

Lawyer Ron Coleman, a Counsel at the Dhillon Law Group, joined the discussion, adding, “Same thought. Nailed it, Jesse. There’s a lot of fun still ahead.”

Same thought. Nailed it, Jesse.

There’s a lot of fun still ahead

— Ron Coleman (@RonColeman) January 20, 2025

Binnall fielded several questions regarding the implications of these pardons, emphasizing that individuals who have received them can no longer invoke the 5th Amendment to avoid testifying about their federally pardoned conduct.

When asked whether there was any precedent for such a scenario, Binnall responded:

“A requirement of asserting the 5th Amendment is that one has to reasonably believe that the information sought could be used in a criminal prosecution. While I’m not aware of any specific cases where a pardoned individual has attempted to assert the 5th Amendment on such circumstances, it’s difficult to see any legal basis for an assertion in regards to pardoned conduct.”

A requirement of asserting the 5th Amendment is that one has to reasonably believe that the information sought could be used in a criminal prosecution.

While I’m not aware of any specific cases where a pardoned individual has attempted to assert the 5th Amendment on such…

— Jesse R. Binnall (@jbinnall) January 20, 2025

Concerns about potential state prosecutions and civil liability were also raised. Binnall clarified:

“Civil: no. State: they’d have to have a reasonable basis to think they’d be prosecuted. Especially when it comes to the J6 committee and [General Mark] Milley, all the offenses that I can imagine are federal.”

Civil: no. State: they’d have to have a reasonable basis to think they’d be prosecuted. Especially when it comes to the J6 committee and Miley, all the offenses that I can imagine are federal.

— Jesse R. Binnall (@jbinnall) January 20, 2025

One user asked if the pardons would cover future perjury, to which Binnall offered a stark reminder:

“Pardon can only apply to what’s been done in the past, not what someone will do in the future. If they lie in sworn testimony in the future, they can and should be charged.”

:-) If they perjure themselves in a future proceeding they would not be covered by pardons they just received.

— Jesse R. Binnall (@jbinnall) January 20, 2025

The Fifth Amendment to the U.S. Constitution protects individuals from being compelled to incriminate themselves.

In the legal case Burdick v. United States (1915), the Supreme Court ruled that the protection against self-incrimination could not be bypassed by a presidential pardon if the individual refused to accept it.

The Court emphasized that a pardon is a legal act that must be voluntarily accepted by the recipient. If an individual rejects the pardon, it is as though it was never granted. Moreover, the court ruled that an acceptance of a pardon implies an acknowledgment of guilt.

In the case of Burdick, he was subpoenaed to testify before a grand jury and was granted a presidential pardon for any related offenses. However, Burdick refused to accept the pardon and declined to testify, citing his Fifth Amendment right against self-incrimination.

The Court held that because Burdick did not accept the pardon, he did not waive his constitutional right to remain silent. The pardon could not be forced upon him to compel his testimony.

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