Biden can’t save Trump’s enemies with preemptive pardons

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Politico reports that top White House officials are considering having President Joe Biden issue preemptive pardons of several current and former federal officials who may be targeted by President-elect Donald Trump’s incoming administration. 

For more than 150 years, the Supreme Court has understood the president’s power to issue pardons as entirely within his discretion; typically, neither Congress nor the courts may intervene. Yet, while the Constitution permits Biden to pardon whoever he wants, such a pardon won’t necessarily protect its recipient from everything Trump or his allies in government might do to make life difficult for Trump’s perceived enemies.

Trump has repeatedly threatened “retribution” against perceived enemies, and some of his nominees for top law enforcement jobs have gotten more specific. In a 2023 book, FBI director nominee Kash Patel published a list of 60 “members of the executive branch deep state” — all people his FBI might try to investigate. 

Patel’s list includes Biden and Vice President Kamala Harris; current and former top government officials, including Republicans like former Attorney General Bill Barr; as well as more obscure figures like a former FBI agent and a former legal representative for the Democratic National Committee.

According to the New York Times, the discussion of pardons for these or other individuals “remains primarily at a staff level,” but those discussions are reportedly being led by White House counsel Ed Siskel, one of Biden’s highest-level advisers.

Current law provides that people who are pardoned receive broad legal protections against federal criminal charges. Any pardons Biden issues should be virtually invulnerable to a court challenge. In Ex parte Garland (1866), the Supreme Court held that the president’s pardon power is “unlimited,” except that the president cannot pardon impeachments. Under Garland, the pardon power “extends to every offence known to [federal] law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment.” It also is “not subject to legislative control.”

There is always some risk that the current Supreme Court, which has a 6-3 Republican supermajority, will ignore precedent. But the idea that presidents get to decide who is pardoned and that courts do not get to second-guess those decisions is well-established and stretches back to at least the post-Civil War period.

Three limits on Biden’s pardon power

There actually are three very significant limits on the pardon power, however. A person pardoned by Biden might still be successfully targeted by Trump administration officials or Trump’s allies in state government.

One is that, as the head of the federal government, Biden can only pardon federal crimes. So someone who receives a pardon from Biden (or any other sitting president) might still be prosecuted by state officials for offenses under state law. The Trump administration, in other words, could potentially lean on MAGA-friendly state prosecutors to target individuals who receive a federal pardon from Biden.

It should be noted that state prosecutors should not be allowed to target a former federal official for something that official did pursuant to their duties as a federal employee. 

The seminal Supreme Court case on this point, In re Neagle (1890), arose from a truly wild set of facts. Stephen Field, a justice of the US Supreme Court, had a longstanding feud with David Terry, a former Chief Justice of California. In 1889, while Field was eating breakfast at a train station in California, Terry approached and assaulted Field. Field’s bodyguard, a deputy US marshal named David Neagle, then shot and killed Terry.

After California charged Neagle with murder, the US Supreme Court ruled that this prosecution must be dismissed. Neagle, the Court explained, was “acting under the authority of the law of the United States” when he killed Terry, and thus was “not liable to answer in the courts of California” for carrying out his official federal duties.

Assuming the current Supreme Court honors its precedent in Neagle, in other words, former federal officials should be safe from prosecution for state crimes they allegedly committed while “acting under the authority of the United States.” So if a state were to target, say, former federal public health official Anthony Fauci over federal policies Fauci pushed during the Covid-19 pandemic, Fauci should be immune from that prosecution.

The second limit on the pardon power is that, while Garland states that presidents may issue a pardon “at any time after” the pardon recipient allegedly committed a criminal act, the president may not prospectively pardon future acts. That means that anyone pardoned by Biden could still be targeted in the Trump administration for anything they do after Biden leaves office.

The third limit is that the pardon power has traditionally been understood to extend only to criminal offenses and not to civil lawsuits or other non-criminal investigations (although at least one scholar has argued that it should be extended to civil offenses). 

Thus, while Biden could potentially shield Trump’s perceived enemies from federal criminal prosecutions, the Trump administration might still sue a pardoned individual for allegedly violating a civil statute. It could also potentially use non-criminal investigations, such as an IRS income tax audit, to target people Trump views as foes.

Even if Trump’s enemies are ultimately exonerated, the federal government could still cause them an extraordinary amount of misery

As a final point, it’s worth noting that lawyers are expensive. Anyone Biden might preemptively pardon, who is targeted by the federal government, could run up hundreds of thousands of dollars in legal fees even if the courts ultimately determine that this individual is both immune from prosecution and not liable for any civil offense.

This is doubly true if the Trump administration manages to shunt any criminal proceeding or civil dispute against a pardoned individual into a MAGA-aligned judge’s courtroom, who might defy precedents like Garland or Neagle. While the Supreme Court may eventually intervene and declare the individual immune from prosecution or suit, that may not happen until after years of investigations and months of lower court proceedings.

And, even if a federal investigation uncovers no illegal activity — or even no activity that the Trump administration can characterize as illegal in order to bring meritless charges — such an investigation might still uncover embarrassing or damaging information that could then be made public. Perhaps one of Trump’s perceived enemies is engaged in an extramarital affair. Or maybe they simply said something hurtful about a family member or business partner in an email they thought would remain private.

The bottom line is that, if the federal government is determined to make your life miserable, it can probably achieve that goal very easily, even if you never spend a day behind bars.