Below is my column in the New York Post on the news reports that President Joe Biden is seriously considering preemptive pardons for political allies. In granting what I have called “White Knight pardons,” Biden would achieve more of a political than legal purpose. Democrats are worried about the collapsing narrative that President-elect Donald Trump will destroy democracy, end future elections, and conduct sweeping arrests of everyone from journalists to homosexuals. That narrative, of course, ignores that we have a constitutional system of overlapping protections that has blocked such abuses for over two centuries. Ironically, preemptive pardons would do precisely what Biden suggests that he is deterring: create a dangerous immunity for presidents and their allies in committing criminal abuses.
Here is the column:
There are growing indications that President Joe Biden is about to fundamentally change the use of presidential pardons by granting “prospective” or “preemptive” pardons to political allies.
Despite repeated denials of President-elect Donald Trump that he is seeking retaliation against opponents and his statements that he wants “success [to be] my revenge,” Democratic politicians and pundits have called for up to thousands of such pardons.
While there is little threat of any viable prosecution of figures like the members of the January 6th Committee, the use of “White Knight pardons” offers obvious political benefits. After many liberals predicted the imminent collapse of democracy and that opponents would be rounded up in mass by the Trump Administration, they are now contemplating the nightmare that democracy might survive and that there will be no mass arrests.
The next best thing to a convenient collapse of democracy is a claim that Biden’s series of preemptive pardons averted it. It is enough to preserve the narrative in the face of a stable constitutional system . Indeed, Biden’s pardon list has replaced the usual Inauguration Ball lists as the “must-have” item this year. Pardon envy is sweeping over the Beltway as politicians and pundits push to be included on the list of presumptive Trump enemies.
The political stunt will come at a cost. Preemptive pardons could become the norm as presidents pardon whole categories of allies and even themselves to foreclose federal prosecutions. It can quickly become the norm in what I recently wrote about as our “age of rage.”
It will give presidents cover to wipe away any threat of prosecution for friends, donors, and associates. This can include self-pardons issued as implied condemnations of their political opponents. It could easily become the final act of every president to pardon himself and all of the members of his Administration. We would then have an effective immunity rule for outgoing parties in American politics.
Ironically, there is even less need for such preemptive pardons after the Supreme Court recognized that presidents are immune for many decisions made during their presidencies. Likewise, members have robust constitutional protections for their work under Article I, as do journalists and pundits under the Constitution’s First Amendment.
We have gone over two centuries without such blanket immunity. In my book The Indispensable Right, I discuss our periods of violent political strife and widespread arrests. Thomas Jefferson referred to John Adams’s Federalist government as “the reign of the witches.” Yet, even presidents in those poisonous times did not do what Joe Biden is now contemplating.
Moreover, presidential pardons have a checkered history, including presidents pardoning family members or political donors. Bill Clinton did both. Not surprisingly, Clinton last week attempted to add his own wife’s name to the sought-after Biden pardon list. He added, however, “I don’t think I should be giving public advice on the pardon power…It’s a very personal thing.”
That is precisely the point. The power was not created to be used for “very personal things,” like pardoning your half-brother and a fugitive Democratic donor on your last day in office.
Yet, despite that history, no president has seen fit to go as far as where Biden appears to be heading.
We have a constitutional system that allows for overlapping protections of individuals from abusive prosecutions and convictions. It does not always work as fast as we would want, but it has sustained the oldest and most stable constitutional system in history.
These figures would prefer to fundamentally change the use of the pardon power to maintain an apocalyptic narrative that was clearly rejected by the public in this election. If you cannot prove the existence of the widely touted Trump enemies list, a Biden pardon list is the next best thing.
After years of lying to the American people about the influence-peddling scandal and promising not to consider a pardon for his son, Biden would end his legacy with the ultimate dishonesty: converting pardons into virtual party favors.
In doing so, he has ironically lowered the standard and expectations for his successors. Joe Biden has become the president that Richard Nixon only imagined. He would establish with utter clarity that this power is not presidential, but personal and political . . . and many in the Beltway are waiting to give him a standing ovation.
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Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage.”