As Biden considers preemptive pardons, experts he has constitutional right

As President Joe Biden considers whether to fire him preventive pardons President-elect Donald Trump has vowed to demand compensation and even prosecute people, experts say he has the power to do so under the Constitution.

In his first televised network interview since his presidential victory, Trump vowed to use the first day of his second term in the Oval Office on January 6, 2021, to pardon those convicted in a professional riot at the US Capitol building in Washington. -The Trump mafia, even considering the pardon for more than 900 people who have been found guilty. Also, members of the House Select Committee investigating Jan. 6, namely Bennie Thompson, D-Miss. and Rep. Liz Cheney, R.Wyo., said they should be punished.

“For what they did, frankly, they should go to jail,” Trump said on NBC’s “Meet the Press” on Sunday.

“Legal and probably prudent”

Legal experts said Biden could protect people whom Trump considers his political enemies by issuing pardons.

“It’s legal and probably prudent for President Biden to consider pardoning people who might be harassed with false accusations or by law enforcement because he doesn’t like what they say or what they said,” Norman Ornstein. , senior fellow emeritus of the American Enterprise Institute, a Washington public policy think tank, told ABC News.

Trump nominated Kash Patel as FBI Director and Pam Bondi as Attorney General. Both have publicly stated that they agree with using the Department of Justice as a payment mechanism.

In his 2023 book, “Government Gangsters: The Deep State, the Truth, and the Battle for Our Democracy,” Patel included a list of 60 names he says are members of the “Deep State” who “must be held accountable and exposed” — the others others include President Biden, Vice President Kamala Harris, FBI Director Christopher Wray, Hilary Clinton, former Trump Attorney General Bill Barr and current Attorney General Merrick. Garland.

Trump said during the “Meet the Press” interview that he has no plans to clarify who should investigate and prosecute Patel or Bondi.

Nixon’s pardon set the precedent

Last week, Biden pardoned his son, Hunter Biden, for federal penalties for paying income taxes from 2016 to 2020 and lying to the federal Bureau of Alcohol, Tobacco and Firearms and Explosives when he bought a gun in 2018. he said he was not using drugs at the time.

Ornstein noted that Hunter Biden’s full pardon was not just for his most recent convictions, but covers nearly any crime he may have committed over an 11-year period: January 1, 2014 to December 1, 2024.

Biden said he could make a similar pardon for the House Select Committee and others who might be targeted by Trump, including Dr. Anthony Fauci, the former director of the National Institute of Allergy and Infectious Diseases, whom Trump allies have accused of suppressing information. About the origins of the COVID-19 pandemic.

“There would be a period of time, until 2016, where he would be pardoned for potential crimes or actual crimes that he might have committed or been accused of,” Ornstein said.

Orenstein said former President Gerald Ford set a precedent in 1974 when he pardoned President Richard Nixon for crimes committed while he was commander-in-chief, even though Nixon had not been charged with a crime when he resigned. Office of the Watergate scandal.

Biden and his top aides are discussing possible pardons for people who may be targeted by the Trump administration, a source close to the president told ABC News. Possible names include current and former officials such as Cheney, Fauci and retired General Mark Milley, former chairman of the Joint Chiefs of Staff under Trump. Milley has been the target of Republican attacks to withdraw troops from Afghanistan.

In September 2023, Trump accused Milley of treason, posting on his Truth Social platform: “At one time, the penalty would have been DEATH!”

According to the section called “Commander-in-Chief Clause”, Article II of the US Constitution. Article 2 states that the president “shall have power to grant pardons and pardons for crimes against the United States, except in cases of impeachment.”

“It doesn’t have to wait until someone is indicted, tried or convicted,” said Jeffrey Crouch, an assistant professor of American Politics at American University and author of “The Presidential Pardon Power.” “The Supreme Court has recognized the president’s flexibility in this area.”

The danger of weaponizing clemency

But Crouch warned that using preemptive pardons can be a slippery slope.

“The clemency power was to give presidents the ability to grant clemency and ease societal tensions, such as war or rebellion,” Crouch told ABC News. “Granting pardons under the current circumstances could weaponize clemency. A constitutional power designed to grant official pardons will become a full-blown provision to protect political friends or critics. The framers of the Constitution are far from having presidential pardons in mind.”

Crouch said presidential pardons cannot be revoked.

During his first term, Trump pardoned former national security adviser Michael Flynn, who was also convicted in his investigation into Russian interference in the 2016 presidential election by special counsel Robert Muller; his former campaign manager Paul Manafort, charged with bank and tax fraud; and his longtime friend and onetime campaign adviser Roger Stone, also charged with lying to Congress, witness tampering and obstruction of justice stemming from the Russian election interference investigation.

Trump also pardoned his son-in-law Jared Kushner’s father, Charles Kushner, from tax evasion and witness tampering convictions. Charles Kushner has been selected by Trump to be the ambassador to France in his second term.

Several Democrats have called for Biden to be pardoned to thwart possible attempts by Trump to seek retribution. MP Brendan Boyle said in a statement on December 4: “This is not a hypothetical threat.”

“By selecting Kash Patel as his FBI director, Trump has made it clear that he is more focused on settling personal scores than protecting the American people or upholding the rule of law,” Boyle said.

Boyle added, “The people who are going are law enforcement officers, the military, and others who have spent time protecting this country. These patriots should not have to live in fear of political retribution for doing the right thing. That’s why I am asking President Biden to pardon this vindictive scheme.” for anyone unfairly targeted by this.”

November 26 in an interview on Boston Public Radio WGBHSen. Ed Markey, D-Mass., also urged Biden to consider pardons.

“I think Trump is certainly going to try to act in a dictatorial way, in a fascist way, in a vindictive way, toward individuals who he believes have harmed him in his first year,” Markey said. “If it’s clear by January 19 that’s (Trump’s) intention, then I would recommend to President Biden to give people those pre-pardons, because that’s really what our country is going to need next year.”

According to the Office of the Pardon Counsel, under the U.S. Department of Justice, Biden has pardoned 26 people while in the White House compared to 238 granted by Trump during his first term.

Other Democrats, including House Democratic Leader Hakeem Jeffries of New York, are pushing Biden to use his pardon power to help working-class Americans “who have been convicted of assault and received harsh sentences for non-violent crimes.”

“In his final weeks in office, President Biden should use the high level of compassion he has consistently demonstrated throughout his life, including for his own son, and pardon working-class Americans in the federal prison system on a case-by-case basis. Their lives have been ruined by unjustly aggressive prosecutions for non-violent crimes,” Jeffries said in a statement. “This moment calls for freedom and justice for all.”