Experts say Biden has a constitutional right to issue preemptive pardons

As President Joe Biden weighs whether to issue preemptive pardons to people President-elect Donald Trump has vowed to seek retribution against and even prosecute, experts said he has the power to do so under the Constitution.

In his first network TV interview since his presidential victory, Trump vowed to use the first day of his second Oval Office term to pardon people convicted for their roles in the Jan. 6, 2021, insurrection at the U.S. Capitol Building in Washington by a pro-Trump mob, even considering clemency for the more than 900 people who have pleaded guilty. He also said members of the House Select Committee investigating Jan. 6, namely co-chairs Rep. Bennie Thompson, D-Miss., and Rep. Liz Cheney, R. Wyo., should be punished.

"For what they did, honestly, they should go to jail," Trump said on NBC's "Meet the Press" on Sunday.

'Both legal and probably prudent'

Legal experts said Biden can protect people Trump considers his political enemies by issuing them preemptive pardons.

"It is both legal and probably prudent for President Biden to consider pardoning people who could be hit with bogus charges or harassed with the elements of law enforcement just because he doesn’t like what they say or what they’ve said," Norman Ornstein, senior fellow emeritus at the American Enterprise Institute, a public policy think tank in Washington, told ABC News.

Trump nominated Kash Patel as FBI director and Pam Bondi as attorney general. Both have publicly stated that they are on board with using the Justice Department as a mechanism of retribution.

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

Trump said in the "Meet the Press" interview that he has no intention of instructing Patel or Bondi on whom they should investigate and prosecute.

Nixon's pardon set precedent

Last week, Biden granted his son, Hunter Biden, a pardon for federal convictions for failing to pay income taxes from 2016 to 2020 and for lying on a federal Bureau of Alcohol, Tobacco and Firearms and Explosives form when he purchased a handgun in 2018 and said he was not using drugs at the time.

Ornstein noted that the full pardon of Hunter Biden was not just for his recent convictions but covers any crime he may have committed over a nearly 11-year span: Jan. 1, 2014 to Dec. 1, 2024.

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

"It would be over a period of time, potentially going back to 2016, where he could pardon them for any potential offenses or real offenses that may have been committed or charged," Ornstein said.

Orenstein said precedent had already been established by former President Gerald Ford when he granted a blanket pardon to President Richard Nixon in 1974 for any crimes committed while he was the commander in chief even though Nixon hadn't been charged with a crime when he resigned from office over the Watergate scandal.

Biden and his senior aides are discussing possible preemptive pardons for people who might be targeted by the incoming Trump administration, a source close to the president told ABC News. Possible names include current and former officials such as Cheney, Fauci and retired Gen. Mark Milley -- the former chair of the Joint Chiefs of Staff under Trump. Milley has long been a target of Republican attacks over the withdrawal of troops from Afghanistan.

In September 2023, Trump accused Milley of treason, posting on his Truth Social platform, "In times gone by, the punishment would have been DEATH!”

Under a section called the "Commander-in-chief clause," Article II, Section 2 of the U.S. Constitution says the president "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."

"He does not need to wait until someone is charged, tried or convicted," said Jeffrey Crouch, an assistant professor of American politics at American University and author of the book "The Presidential Pardon Power." "The Supreme Court has recognized the president’s flexibility in this area."

Risk of weaponizing clemency

But Crouch cautioned that the use of preemptive pardons can be a slippery slope.

"The clemency power was intended to give presidents the ability to dispense mercy and defuse societal tensions, such as a war or rebellion," Crouch told ABC News. "Granting pardons under the current circumstances in the manner being discussed could weaponize clemency. A constitutional power designed to dispense official forgiveness will have evolved into a catch-all provision for shielding political cronies or critics. This is far from what the framers of the constitution had in mind for presidential pardons."

Crouch said presidential pardons can't be overturned.

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

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

Several Democrats have been urging Biden to issue preemptive pardons to foil Trump's possible attempts at seeking retribution. Rep. Brendan Boyle, D-Pa., said in a Dec. 4 statement, "This is no hypothetical threat."

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

Boyle added, "The people they’re targeting include law enforcement officers, military personnel, and others who have spent their lives protecting this country. These patriots shouldn’t have to live in fear of political retribution for doing what’s right. That’s why I’m urging President Biden to issue a blanket pardon for anyone unjustly targeted by this vindictive scheme."

In a Nov. 26 interview on Boston Public Radio station WGBH, Sen. Ed Markey, D-Mass., also urged Biden to consider preemptive pardons.

“I think that without question, Trump is going to try to act in a dictatorial way, in a fascistic way, in a revengeful way his first year towards individuals who he believes harmed him,” Markey said. "If it’s clear by Jan. 19 that is [Trump's] intention, then I would recommend to President Biden that he provide those preemptive pardons to people, because that’s really what our country is going to need next year."

According to the Office of the Pardon Attorney, under the U.S. Department of Justice, Biden has pardoned 26 people during his tenure in the White House compared to the 238 clemency grants made by Trump in his first term.

Other Democrats, including House Democratic Leader Hakeem Jeffries of New York, are encouraging Biden to use his pardon power to help working-class Americans "who have been aggressively prosecuted and harshly sentenced for nonviolent offenses."

"During his final weeks in office, President Biden should exercise the high level of compassion he has consistently demonstrated throughout his life, including toward his son, and pardon on a case-by-case basis the working-class Americans in the federal prison system whose lives have been ruined by unjustly aggressive prosecutions for nonviolent offenses," Jeffries said in a statement. "This moment calls for liberty and justice for all."