President Biden considers preemptive pardons amid concerns over Trump revenge tour

WASHINGTON ― President Joe Biden's senior aides are discussing potential preemptive pardons for individuals they fear President-elect Donald Trump and his incoming administration might target for criminal investigations and prosecutions after taking office, according to a source familiar with the conversations.

The discussions, first reported by Politico, come amid Biden's broadly-worded pardon this week for Hunter Biden, which was made not only to reprieve his son from existing gun and tax felonies but to shield him from potential future charges by Trump's Justice Department.

Some Democratic lawmakers, led by U.S. Sen. Ed Markey of Massachusetts, are publicly advocating for the pre-pardons ? alarmed by Trump's repeated past threats to prosecute his political enemies and his recent pick of longtime ally Kash Patel to replace Christopher Wray as director of the Federal Bureau of Investigation. They note that anyone facing an FBI investigation or federal indictment could be forced to spend significant time and money defending themselves, and where the risk of prison time is real in the event of a conviction.

But other Democrats, already upset by Biden pardoning his son after he promised he wouldn't, say preemptive pardons aren't necessary and warn it could set a dangerous precedent.

Those who could be on a pre-pardon list include retired Gen. Mark Milley, who Trump has called a traitor worthy of the death penalty; former Republican Rep. Liz Cheney, who Trump has said should "go to jail" for her role on the House committee that investigated the Jan. 6, 2021 attack on the Capitol; Dr. Anthony Fauci, a frequent target of Republican lawmakers over his work during the U.S. response to the COVID-19 pandemic; and Sen.-elect Adam Schiff of California, who Trump has referred to as "the enemy within" for his leading role while serving in the House of Representatives during Trump's first impeachment.

More: President Biden faces backlash from Democrats for breaking promise by pardoning son

Yet the possibility of pre-pardoning people who have not been charged of any crimes raises several legal concerns that could ultimately sway Biden not to take action, according to legal experts and lawmakers. Accepting a pardon carries with it the suggestion of accepting guilt. And some Democrats worry Biden would set a new precedent for pardons, opening the door for Trump to take similar actions.

"It's certainly something to consider," said Olivia Troye, a former counterterrorism White House adviser to Vice President Mike Pence, who has turned into a vocal critic of Trump. This week, Troye was threated with legal action in a letter from Patel's attorney over critical comments Troye recently made about him on television.

"I guess my question is, I have not done anything wrong. I know that. And I know that many of us who have just spoken the truth, all we are doing is speaking the truth," Troye said in a Thursday interview on CNN.

More: President Biden bypassed Justice Department in pardoning son Hunter: court records

A White House spokesperson declined to comment but did not deny the internal discussions have taken place.

In response to Biden considering preemptive pardons, Trump transition spokeswoman Karoline Leavitt said, "Unlike Joe Biden, President Trump will not weaponize the justice system against his political opponents."

Jeffrey Crouch, an assistant professor of politics at American University and expert on the presidential pardon power, said a president can grant executive clemency as soon as a federal crime is committed and does not need to wait until someone is charged, tried or convicted.

Crouch said it unclear whether recipients of potential preemptive pardons would be admitting guilt, calling it "unchartered waters." But he warned that granting pardons under the circumstances being discussed "could weaponize clemency" and stray wildly beyond the intended use of presidential clemency power.

"A constitutional power designed to dispense official forgiveness will have evolved into a catch-all provision for shielding political cronies or critics," he said. "This is far from what the framers of the Constitution had in mind for presidential pardons."

More: Was the Trump administration going to pursue Hunter Biden? There were clues

Politico reported the deliberations have been led by White House counsel Ed Siskel and involve several top aides, including chief of staff Jeff Zients.

Markey, in an interview last week with WGBH public radio in Boston, said he believes "without question" that Trump will 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."

"If it’s clear by January 19th that (revenge) is his intention," Markey added, "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."

More: Judge scolds President Biden for trying to 'rewrite history' in Hunter Biden pardon

Sen. Jon Tester, D-Mon., who lost his reelection bid last month, expressed openness to preemptive pardons. “What I would do is take a look and see if they’re meritorious,” Tester told USA TODAY. “If they’re meritorious, that’s fine. If they’re not, no.” But Tester added his input is not “near as effective as it was before the election.”

Other Democrats said they oppose pardoning individuals not yet charged with crimes.

“I just haven't heard a good case to be made for pardoning behavior that hasn't yet been committed or hasn't yet been defined," said Sen. Tim Kaine, D-Va., who is among several Democrats critical of Biden's pardon of Hunter Biden.

“When I was a governor, I had a pardon power, used it in individual cases to grant pardons to people who have been convicted," added Kaine, who served as Virginia's chief executive from 2006 to 2010. "For example, they're innocent and they've done things to rehabilitate them. The idea of just kind of general vague, pardon for unknown activities that haven’t been charged. That is so susceptible to abuse."

More: Hunter Biden pardon 'unprecedented' and 'very unusual,' experts say

A former senior Justice Department official told USA TODAY the pardons "would set a really bad precedent, so I hope he doesn't do it."

"I don't think there's any real threat of people being prosecuted when they didn't commit crimes," the former official said, adding that Trump's retribution is more likely to come in the form of attacks in the media.

Schiff ? who has been repeatedly threatened by Trump ? told Politico he opposes the idea. “I would urge the president not to do that,” Schiff said. “I think it would seem defensive and unnecessary.”

Rep. Ro Khanna, D-Calif., said Democrats should consider the optics of such a sweeping move following Biden's pardon of his son.

“If you are Black or brown in this country, and get arrested, incarcerated for possession of drugs and you have parents who think that the system was incredibly disproportionate, you don't often have access to power to say, ‘let's have mercy or let's have fairness,’” Khanna said.

Contributing: Phillip Bailey and Francesca Chambers. Reach Joey Garrison on X, formerly Twitter, @joeygarrison.

This article originally appeared on USA TODAY: Biden considering preemptive pardons for those on Trump's target list