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There are growing indications that President 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 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 House’s Jan. 6 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 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 — to preserve the narrative.
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.
Dangerous new norm
But the political stunt would 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 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 government immunity rule that comes with service in the executive branch.
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 of Congress have robust constitutional protections for their work under Article I, as do journalists and pundits under the First Amendment of the Constitution.
We have gone more than 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’ Federalist government as “the reign of the witches.”
Trust the Constitution
Yet even presidents in those poisonous times did not do what Joe Biden is now contemplating.
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 it to, but it has endured as 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 — one 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 his promise not to consider a pardon for his son, Biden would end his legacy with the ultimate dishonesty by 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 the media is waiting to give him a standing ovation.
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.”