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Mr. Biden would set a bad precedent if he grants a preemptive pardon to someone who could be targeted by Mr. Trump, while the protective effect is limited.
After the controversial pardon of his son Hunter Biden earlier this month, U.S. President Joe Biden is said to be discussing with aides the possibility of issuing a series of preemptive pardons for members of the administration who are at risk of being targeted when Donald Trump takes office.
According to Politico, Mr. Biden may preemptively pardon former presidential health advisor Anthony Fauci, former Chairman of the Joint Chiefs of Staff Mark Milley, incoming Senator Adam Schiff, and former Republican Congresswoman Liz Cheney.
Some U.S. presidents like George Bush and Gerald Ford have granted pardons to those facing federal charges. However, experts warn that issuing pardons in advance for individuals who have not yet faced specific charges is a new issue, raising concerns that the White House is abusing its power.
The pardon is one of the privileges of the U.S. president as outlined in the Constitution. Article 2, Section 2, Clause 1 of the U.S. Constitution states, "The President shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."
"The power of pardon implies allowing the president to show mercy and ease tensions in society, such as in a time of war or unrest," Jeffrey Crouch, a professor of American politics at the University of America, Washington, told CBC News.
"What we are discussing could lead to the 'weaponization' of the pardon power. This is not the intention of the framers of the Constitution," according to Mr. Crouch.
The power of pardon only applies to federal charges, which can be issued even before charges appear. U.S. presidents often issue a series of pardons or commutations in the final days of their term.
According to Aaron J. Rappaport, a professor at the Law School, University of California (UCLA), it is very difficult to predict what charges President Biden's potential pardons may face in his administration, as "we are in a situation where we cannot apply conventional legal thinking."
During his first term, Trump pardoned strategist Steve Bannon and several allies, friends, and acquaintances. Trump had claimed he would pardon those who stormed the U.S. Capitol during the riots on January 6, 2021.
After the Watergate scandal forced Richard Nixon to resign in 1974, U.S. constitutional scholars believed there was enough evidence to prosecute Nixon. But before the charges were brought, his successor Ford granted a preemptive pardon to Nixon, saying it was time to move past the controversy.
However, Mr. Biden's preemptive pardon will apply to individuals who have not been charged with any specific crime. They are simply targets that may be pursued by the incoming administration.
Mr. Crouch acknowledges that Mr. Biden has the authority to issue preemptive pardons, as "the language in the Constitution is quite broad, allowing the president a high degree of flexibility." "The framers of the Constitution debated the provision that pardons could only be granted to those who had been convicted, but then decided not to do so," according to Mr. Crouch.
It is currently unclear what language Mr. Biden will use in the preemptive pardon.
It is currently unclear what language Mr. Biden will use in the preemptive pardon.
"If drafted, I would write something like 'As far as I know, you are a model citizen, always abiding by the law. Given the context we are living in, I am preemptively pardoning you,'" said Jon Michaels, a constitutional scholar at the University of California - Los Angeles (UCLA).
This pardon order also has limited effectiveness, as the person Mr. Biden wants to protect could still be targeted by Mr. Trump through allies at the state level.
Close sources to Mr. Biden are concerned that the president will set a bad precedent and that Trump's successor will take similar actions. Additionally, the preemptive pardon raises the risk of misunderstanding that the person has acted in a way that warrants the avoidance of potential prosecution.
Sources say several former U.S. officials have contacted Mr. Biden seeking certain protections before Mr. Trump takes office. The president-elect on November 30 nominated Kash Patel, a former Indian-American security official loyal to him, as FBI director. Patel had listed dozens of officials as the country's "enemies."
Others argue that a preemptive pardon is unnecessary. "I will urge the president not to do so," incoming Senator Schiff told Politico.
Lawyer Sarah Isgur, spokesperson for the U.S. Department of Justice during Trump's first term, shares this view. She had previously criticized Trump and is believed to be a target.
"That would set a dangerous precedent," Ms. Isgur wrote on X. "Of course, we do not want executive officials facing the risk of prosecution with political motives, but we also do not want them to believe they can violate the law without facing consequences."
Meanwhile, Richard Painter, the White House ethics lawyer under George W. Bush, supports Mr. Biden issuing preemptive pardons, as this helps to "erase past issues" for Trump, encouraging the president-elect to focus on leading the country.
"This is not an ideal situation," Painter told AP. "We are facing a lot of not-so-great choices."
(According to CBC News, Independent)
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