This past Wednesday, Politico reported that members of the Biden Administration are considering offering pardons to a number of current and former members of the government who may find themselves unfairly prosecuted by the incoming President. Donald Trump has promised to exact revenge on elected officials and political opponents, along with members of the so-called deep state. He has chosen Kash Patel, a close ally who has talked about going after Trump’s enemies, to lead the F.B.I. This has caused people at the White House to wonder whether pardons are the only way to protect potential targets, who include the former chief medical adviser Anthony Fauci and the former F.B.I. deputy director Andrew McCabe.
President Joe Biden elicited backlash last week when he pardoned his son Hunter, for his convictions on tax evasion and gun charges, as well as for any potential crimes that spanned the past decade—a so-called blanket pardon. Many Republicans, including Trump, have threatened to pursue Hunter in the same manner that they have threatened Fauci et al., but Hunter remains the only well-known figure Biden has, as of yet, pardoned.
To talk about the benefits and drawbacks of pardoning people in Trump’s crosshairs, I recently spoke by phone with Rachel Barkow, a professor at the N.Y.U. School of Law and an expert on criminal law and mass incarceration. During our conversation, which has been edited for length and clarity, we also discussed the practical difficulties of trying to protect people from Trump, whether blanket pardons are constitutional, and whether the pardon power makes sense in 2024.
What do you think of the idea of blanket pardons for people whom Trump has singled out for some sort of retribution?
Well, it wouldn’t be my top clemency priority. There have been a lot of people who have filed petitions with the Biden Administration, who have followed all the rules, and filled out all the paperwork. They’ve been waiting for years and they’re in a queue, and he has a really low grant rate for those people. Those are the people that I think should be getting the priority of his attention right now.
But this is obviously unusual. We just don’t have examples of this blanket pardon, except for President Nixon and now for Hunter. It’s not as if there’s a long historical pedigree of doing something like this, but we’re living in strange times. We also haven’t had an instance of an incoming Administration that has threatened to engage in political, retaliatory investigations and potential prosecutions of people. And these strange times would be the only reason, I think, you would even consider doing something like this.
What do you see as the downsides?
One is just making sure you actually have a comprehensive list, because, if you’re going to single out certain people for protection and you miss others, then the people you miss are going to be the ones that the incoming Administration is going to target. Let’s say the current Administration pardons twenty or thirty people. It’s not as if there aren’t others who also worked on congressional investigations into Trump, or were part of January 6th prosecutions, or were members of the Mueller team—whoever it is that’s on the Trump hit list.
If you are not comprehensive in terms of the list of people that you’re shielding, then I suspect what the incoming Administration is going to do is just go down the line and find whoever’s left, and prosecute them. Because doing that still enables it to do what it aims to do, which is to embarrass people, and make it into a political sideshow. It turns out that you’re not going to get the benefit of avoiding all of these really awful investigations.
Then, the other issue is the fact that it might be better to have a public investigation of some of these ridiculous claims so that people can see there’s nothing to them, and can learn how the government actually works, and can realize there’s nothing there. There are some benefits to having investigations when someone’s name is cleared, whereas, if you do a preëmptive blanket pardon, there’s always that question of why they needed it. Was there something that actually was bad that was going to come out? If you keep things open and transparent, you avoid any kind of taint or doubt that someone actually was engaging in something problematic.
Right, but that seems almost quaint, in the sense that, if there’s a prosecution of Anthony Fauci on trumped-up charges, most people have already made up their minds about it. I am not sure how much it would matter to air the evidence.
I think everyone is going to weigh these pluses and minuses differently, but I do think that is still a potential downside to this. There are some people who might prefer to have the air cleared, and they would prefer not to have what looks like a shield for something when they feel like they didn’t do anything wrong. It would be up to any individual to decide if they wanted to accept and use their pardon to avoid an investigation and trial.
But then there is one supposed downside that I do not agree with, but I know other people have floated, and that is, I don’t think what Biden decides to do will in any way affect what Trump decides to do when he’s President. I don’t see this as, if Biden does it, then that somehow sets the precedent and therefore Trump will do it. I think Trump will do what Trump will do, no matter what Biden does. To me, that is a downside that doesn’t really exist, because I just don’t believe each side plays by the same rules anyway.
I’m glad to hear you say that, because I do feel that one of the arguments against prosecuting Trump in the first place was, You’re going to set a precedent that Presidents can be tried, and then Trump may prosecute Biden or Hillary Clinton or Barack Obama. It just seems like he’s going to do that if he wants to do that.
I totally agree. I think it really should just be a question for Biden of, Do I think this is the right thing to do? Is this the right thing to do for these people right now? I really do worry about the lack of the list being sufficiently comprehensive, and I do think it just creates that appearance of something being hidden, which, for the people who’ve already made up their minds, who are already on one tribal side or the other, won’t matter, but I believe there are a lot of people in the country who don’t pay as close attention to these kinds of issues. They’re not tuned in all the time. You also have to be really focussed on the over-all messaging it sends to people like that.
I want to ask about another potential downside of pardoning these people, which is whether it expresses a lack of confidence in the system beyond Trump’s appointees if you do this. Trump can maybe get Kash Patel, or whoever runs the F.B.I., to go after someone, but you still need a grand-jury indictment, which I know can be very easy to get, and you still need a judge to go along with the prosecution, and you still need a jury to convict.
I would say, in some sense, the process is the punishment, and, if you are facing a federal investigation, that is a scary process. Even if everything works great and, at the end of it, you are exonerated and you’re not charged and everything is fine, you are going to spend an enormous amount of time and money and worry before that outcome takes place. It’s not nothing to find yourself the target of a federal investigation. Even if you have faith in the process, I think it’s a big deal.
