When President Joe Biden pardoned his son Hunter, most of the pundit class was outraged. Conservative commentators, of course, accused Biden of hypocrisy, taking the pardon as proof that the “Biden crime family” had been real all along. But moderates and liberals also had complaints: The pardon of a family member undermines the rule of law, they said, and sets a bad precedent for Donald Trump to do the same thing, and so on.
These pundits were wrong — and now the stakes are much higher.
As Politico and The New York Times have reported, the Biden White House is considering pre-emptive pardons for numerous people on Donald Trump’s (and FBI director-designate Kash Patel’s) “enemies list” to spare them the ordeal of baseless harassment and prosecution.
That is exactly what Biden should do. Let’s look at the positive case for pardons first, and then respond to the objections some have lodged in the press.
This is obviously new territory for the United States. No president in American history has ever promised to do this.
First, Trump, Patel and others have made it clear that they intend to use the Department of Justice, and the FBI more specifically, to go after their political enemies, even though they haven’t pointed to any specific laws their opponents have broken. That’s because no laws have been broken. Yes, various public officials and journalists have defied, prosecuted or offended Trump — an offense that he will soon have the power to punish.
This is obviously new territory for the United States. No president in American history has ever promised to do this. That’s because it runs counter to everything American democracy is supposed to stand for. It is what so-called banana republics and authoritarian regimes do. But it is what the president-elect has promised to do, time and time again.
Now, if Trump’s enemies are innocent, what do they have to be afraid of? Plenty.
They will be arrested. Their homes will be searched. Their privacy will be violated. They will face legal bills, which can easily run to hundreds of thousands of dollars, and will have to spend months defending themselves in court instead of living their lives freely. And they will be harassed, threatened and trolled by the swarms of zealous partisans on Elon Musk’s propaganda platform. (This happened to me recently. You probably have no idea how disgusting and disturbing it can be — especially if, like me, you’re a parent.)
Consider the story of Dr. Steven Hatfill, who was falsely accused of mailing envelopes of anthrax to prominent figures in 2001. We now know that he didn’t do it. But the FBI ruined his life, ransacked his home and office and leaked information to the press. Helicopters hovered overhead, and agents followed him everywhere. Eventually, he lost his job and had to go into hiding. And he was never even indicted.
Will any of this happen to the people on Trump’s “enemies list”? Given how often Trump himself made the threats on the campaign trail, why should we assume that it wouldn’t? As a private citizen, Trump filed lawsuits all the time to intimidate anyone who crossed him, and as president-elect, he has appointed loyalists whose only qualification seems to be their willingness to do what they’re told. I cannot think of a single reason why Trump wouldn’t make good on this promise.
And who’s on the list? At the very least, Trump has mentioned or threatened former Rep. Liz Cheney, Dr. Anthony Fauci, special counsel Jack Smith, Sen.-elect Adam Schiff, New York Attorney General Letitia James, Fulton County District Attorney Fani Willis and U.S. Attorney General Merrick Garland; and New York Justice Arthur Engoron. Patel’s list also includes former U.S. Attorney General Bill Barr, Trump’s former United Nations Ambassador John Bolton, FBI Director Christopher Wray and 50 other members of the purported “deep state.” Not to mention that Trump has called journalists “enemies of the people” and Patel has said he wants to “come after” them.
One person on the list is former Department of Justice official Sarah Isgur, who wrote this week in The New York Times that she does not want a pardon because she believes she will be exonerated in a court of law and vindicated in the court of public opinion. “As Americans start to see his lack of evidence, Mr. Patel will look ridiculous,” Isgur wrote. But is that true? Didn’t Donald Trump just get elected despite being a convicted felon (and under indictment for many more crimes)? Innocence and guilt clearly do not generate as much outrage as one might hope.
We could be facing the greatest mass miscarriage of justice in American history.
We could be facing the greatest mass miscarriage of justice in American history. Pre-emptively pardoning those Trump has threatened is a necessary counter-measure against unprecedented threats, both for the targets of Trump’s revenge and for the integrity of the justice system as a whole.
Now let’s look at the negative case, specifically the objections raised by pundits and legal experts.
The most persuasive objection I’ve seen is that broad, pre-emptive pardons may be unconstitutional. In the Constitution, the pardon power is absolute: It cannot be reviewed, and pardons can be issued for any reason, or none at all. However, some have argued that pardons need to be for specific, past convictions, not potential future ones, and must be issued in good faith. But these will be questions for the Supreme Court to decide. Biden should do his part to safeguard the innocent and hope that Supreme Court justices do theirs responsibly. Pardons are not like the Court’s recent invention of presidential immunity, as Isgur suggested.They are an existing part of the constitutional system. Others have noted, correctly, that a wave of pre-emptive pardons would be unprecedented. President George W. Bush pardoned an array of Iran-Contra figures, and Trump himself pardoned several of his former aides. But it is also true that the scope and pre-emptive nature of these proposed pardons is new. They are only unprecedented, however, because the nature of the threat is equally unprecedented. As professor Frank Bowman told the Times, “if we had anyone other than Trump coming in, I would think this is inexcusable. But I don’t know, man. We’re kind of playing with different rules here.” A third claim warns of, essentially, moral hazard, reasoning that if Biden plays fast and loose with the pardon power, Trump will, too — or that pardons might validate conspiracy theories about the “deep state.” Such claims, however, assume that Trump cares about any of this, which he does not. He will spread whatever conspiracy theories he wants to spread, regardless of what Biden does. And he has has already promised sweeping pardons of the 547 people convicted or charged with crimes connected to the January 6, 2021, insurrection. Those still relying on norms and precedent as guardrails ignore the overwhelming evidence that Trump simply doesn’t care about them. What Biden does is irrelevant. Fourth, in the wake of the Hunter Biden pardon, several columnists opined that Biden was tarnishing his legacy. Poppycock. First, Biden leaves a legacy of (temporarily) normalizing American government, passing the most comprehensive effort to address global climate disruption, restoring respect for America abroad, and a host of other accomplishments. Of course, he had plenty of failures too, but the pardon hardly undermines his successes. And as for charges of nepotism, as White House press secretary Karine Jean-Pierre said, the only reason his son came under scrutiny in the first place (prosecuted for tax offenses, no less) was that his last name was Biden. Kneecapping Trump’s vindictive plans will protect the rule of law, not undermine it. A pardon of public servants and journalists is even less ethically problematic. No one can accuse Biden of favoritism or flouting the rule of law. On the contrary, pardons will protect the rule of law from abuse by a vindictive demagogue. The real danger to our institutions of justice is allowing Trump’s campaign of revenge to proceed without using the levers of power currently at Biden’s disposal. In any case, people can decline to be pardoned. In addition to Isgur, Schiff has also said he doesn’t want one. That is a courageous choice — and, who knows, potentially a politically wise one — but the choice should be theirs to make. Finally, some have expressed concerns that such pardons could be interpreted as admissions of guilt. I’m sure Republican politicians and the right-wing media will howl that it’s so, but Democrats can’t let fear of bad-faith Republican spin determine their courses of action; that’s not how politics works. Rather, it will be up to Democrats and responsible voices in the press to make the case that protecting people against groundless harassment is not the same as admissions of guilt. In sum, these well-intentioned objections to Biden’s use of the pardon power have the situation exactly backward. Kneecapping Trump’s vindictive plans will protect the rule of law, not undermine it, and of course it will protect dozens of innocent people as well. The time for action is now — before it’s too late.
Jay Michaelson
Jay Michaelson will be a visiting professor at Harvard Law School in 2025. He clerked for Judge Merrick Garland on the DC Circuit Court of Appeals, was the Supreme Court columnist for the Daily Beast for eight years, and is the author of the bestselling book God vs. Gay? The Religious Case for Equality. He holds a JD from Yale, a PhD in religion from Hebrew University, and nondenominational rabbinic ordination. 
