Biden’s preemptive pardons would be a political disaster
A historic expansion of an already-vast executive power would undermine the rule of law and the opposition to Trump
For the past several years, President Joe Biden frequently repeated a maxim about Donald Trump’s effort to overturn the 2020 election: “You can’t love your country only when you win.” After Biden decided to pardon his son Hunter — something he repeatedly promised the American people he would not do — his political opponents will always have an inarguable rejoinder: You can’t respect the rule of law only when you win.
Biden’s pardon of his son was a catastrophic political mistake. A central focus of Biden’s presidency was restoring integrity to the White House and strengthening the democratic institutions Trump tried so hard to break. He described Trump as a dire threat to the “pursuit of justice, to the rule of law, to the very soul of this country.”
Biden made these arguments at a time when Trump faced multiple trials across the country and a conviction in New York on 34 felony charges. But the MAGA movement dismissed all the legal proceedings against him as sinister partisan “lawfare.” Trump said the New York court that convicted him was “in total conjunction with the White House and the DOJ. … This was all done by Biden and his people.” As Biden made the case that Trump represented a unique threat to the rule of law, Trump successfully convinced many voters that the real threat came from the White House.
It was easy for Trump’s defenders to dismiss the New York hush money case. Although the case resulted in a conviction, it was a political gift to Trump. It centered on a novel legal theory and a rarely invoked statute, which looked like judicial overreach to many Americans. This allowed Trump to argue that Democrats are hypocrites for accusing him of being a threat to democracy when they were allegedly trying to torpedo the leading GOP candidate by “weaponizing” the justice system. Of course, this was a lie — the Biden administration had nothing to do with the hush money case. Twelve New York jurors convicted Trump, not some deep state kangaroo court. But this didn’t change the perception among many voters that Trump was the victim of political persecution.
The other cases in Washington, D.C., Georgia, and Florida — for attempting to subvert the 2020 election and mishandling classified documents — were more serious and more easily understood. Perhaps Americans would have reacted differently if one of these cases came first instead of the hush money case. But we’ll never know.
One reason Biden pardoned Hunter was his belief that the Trump DOJ would come after him merely because he’s the former president’s son. Biden is now considering sweeping preemptive pardons for government officials and political allies who could also conceivably be targeted, such as former Wyoming Rep. Liz Cheney1 and Anthony Fauci. Like the Hunter pardon, this is an extremely bad idea. It would provide pardons to individuals who haven’t been charged or even investigated, which wouldn’t just suggest that they’re guilty (this is certainly what Trump would argue) — it would also be a historic expansion of an already-vast executive power.2
The desire to grant preemptive pardons is understandable, as Trump has repeatedly promised to weaponize the justice system as revenge against his political foes. This concern is even more justified as Trump nominates sycophants to lead agencies like the FBI and the DOJ — the prospect of Kash Patel as FBI director should be alarming to anyone on Trump’s list of targets. Another concern is that Trump and his agents can inflict a huge amount of pain on his political enemies even if the justice system works as intended — victims could confront lengthy and stressful legal proceedings, which may be financially ruinous even if they’re acquitted. Trump has a long history of using legal action in this way, which must be taken into account now that he will have the power of the federal government behind him — especially given his vows to seek retribution in a second term.3
However, Biden still shouldn’t adopt a policy that treats the justice system as a lever of personal power. Yes, it will be unfair if innocent people end up in court, but there are other ways for civil society to address this problem — by fundraising to help the wrongfully accused pay their court costs, for instance. Preemptive pardons, on the other hand, would give Americans yet another reason not to trust the rule of law in the United States. The justice system would look like little more than a political weapon that can be manipulated and undermined at will. This corrosion of faith in the rule of law could have extremely destructive consequences for the long-term stability of our democratic institutions.
After the guilty verdict against Trump in the New York case, Biden declared: “The American principle that no one is above the law was reaffirmed.” He delivered a high-minded lecture about the integrity and fairness of the American justice system, and said “it’s reckless, it’s dangerous, it’s irresponsible for anyone to say this was rigged just because they don’t like the verdict.”
At a time when Biden’s political rival faced four separate indictments, it was vital to insist on the independence of the DOJ and the entire legal system — and a critical part of demonstrating this independence to the American people was the president promising he would not interfere with the charges facing his son. When Biden was asked directly if he would accept the outcome of Hunter’s trial, he responded unequivocally: “Yes.” Then he was asked, “Would you rule out a pardon for your son?” Again, he responded without a moment’s hesitation: “Yes.” And he had a message for “all the MAGA Republicans”: “Stop undermining the rule of law.”
In the same interview, Biden encouraged Americans to “Stand up. Tell the truth. Serve your country.” Biden didn’t serve his country when he issued the pardon for Hunter — he served his own family. He didn’t tell the truth when he said he would not interfere with the justice system as it determined the fate of his son. And he failed to stand up for the principles he claimed to embrace just a few months earlier. “Our justice system has endured for nearly 250 years,” he said after Trump was convicted in May 2024. “And it literally is the cornerstone of America. … The justice system should be respected.”
But Biden demonstrated that he doesn’t respect the justice system. In his statement about the Hunter pardon, he said, “I believe in the justice system, but as I have wrestled with this, I also believe raw politics has infected this process and it led to a miscarriage of justice.” He claimed that there was an “effort to break Hunter” with “unrelenting attacks and selective prosecution.” He continued: “In trying to break Hunter, they’ve tried to break me — and there’s no reason to believe it will stop here.” Biden told the entire country that the justice system is “infected” by politicization, and he darkly implied that this system had been compromised to the point where its verdicts cannot be trusted. This is what Trump has been saying all along, and he will use this argument and precedent to justify further manipulation of the justice system.
Trump has explicitly outlined plans to weaponize the DOJ, law enforcement, and intelligence agencies; suggested that the military may be necessary to deal with the “enemy within”; and promised to deport millions of people. His political opponents will need to use every tool at their disposal to resist this authoritarian agenda — including legal challenges and political appeals to the rule of law. They can’t afford another reckless decision from Biden that will make these appeals seem hypocritical and reduce their political impact. Biden has already made resisting Trump far more difficult with the Hunter pardon. As Shikha Dalmia put it in a recent article for The UnPopulist: “Biden’s self-serving move will make it much easier for the right-wing media ecosystem to whatabout and sow public cynicism when — not if — Trump extends an open invitation for lawbreaking for his personal or political benefit.” Preemptive pardons would make this situation even worse.
One of Trump’s political talents is his ability to produce false equivalences that undermine his opponents while obscuring his own culpability for far more egregious offenses. Trump attempted to overthrow the 2020 election, spent years dismissing the results as fraudulent, and never conceded defeat, but he claims Democrats are the ones undermining democracy with partisan “lawfare.” While Trump routinely uses hateful and dehumanizing rhetoric against immigrants and his political opponents, he’s quick to decry criticism from Democrats as unacceptably dangerous and divisive. Recall the nakedly disingenuous demands for Democrats to tone down the rhetoric after the attempt on Trump’s life last summer. Trump is happy to accuse his political opponents of dishonesty, but he lies so brazenly and with such velocity that attempting to fact check him has long been a pointless exercise.
While Trump didn’t pay much of a political price for his legal troubles — if anything, they galvanized his base and led to a surge in fundraising — the same can’t be said for Biden’s misuse of the pardon power. According to an AP-NORC poll, just 22 percent of Americans approved of his decision to pardon Hunter. After Biden announced the pardon, Trump posted on Truth Social that it was an “abuse and miscarriage of Justice!” Does anyone imagine that a barrage of preemptive pardons, issued days before Biden leaves office, would be warmly received by the country? Does anyone think this decision would do anything other than deepen the institutional distrust that already exists? If the justice system is the cornerstone of our democracy, as Biden insists, he should allow it to function unencumbered by political interference.
Biden had the legal power to issue the Hunter pardon, but for many Americans, he violated the principle that he and his fellow Democrats have recited repeatedly for four years: nobody is above the law. Preemptive pardons for people who haven’t even been accused of crimes — which will be interpreted by many Americans as blanket immunity for Biden’s political allies — will make this principle look even more hollow. This will make it far more difficult to resist Trump when he inevitably tramples on many of our most important democratic norms, and possibly even laws, over the next four years. For example, Trump recently said members of the House committee that investigated January 6 “should go to jail” while declaring that the people who stormed the Capitol that day are victims of a “nasty system” who deserve pardons. This is the sort of thing Democrats must resist, and Biden has made it much harder to do so.
Despite the immediate threat of Trump’s authoritarianism, his opponents must always remember that there will be a time after Trump. We can’t afford to detonate our institutions along the way in the name of saving them. The debate about pardons is one subject in an urgent conversation about democratic norms in the Trump era. Trump’s political opponents will have to decide which norms to uphold and which ones to challenge over the next four years. In each case, either decision will involve costs. The question is which costs are worth sustaining to ensure that American democracy can withstand Trumpism without compromising the features that have allowed it to withstand even greater threats throughout history.
Like her fellow members of the January 6 committee, Trump believes Cheney should be imprisoned.
Biden has already set a record for presidential pardons and clemency.
It looks like Pam Bondi will cruise to confirmation as Trump’s AG. She was all in on Trump’s effort to overturn the 2020 election, so the chances that she will function as a brake on his weaponization of the justice system aren’t good.