Politico reports that top White House officials are considering keeping President Joe Biden Issue an advance apology Among the current and former federal officials who could be targeted by the incoming administration of President-elect Donald Trump.
for More than 150 yearsThe Supreme Court has understood the President’s power to grant pardons to be entirely within his discretion; Generally, neither Congress nor the courts can intervene. Still, while the Constitution allows Biden to pardon whomever he wishes, such a pardon would not necessarily protect its recipient from anything Trump or his government allies might do to make life difficult for Trump’s perceived enemies.
Trump has done it repeatedly Threats of “retaliation” Against perceived enemies, and some of his nominees for top law enforcement jobs have been more specific. In a 2023 book, FBI director-designate Kash Patel published a list of 60 “Members of the executive branch are the deep state“- all people are his The FBI may try to investigate.
Patel’s list includes Biden and Vice President Kamala Harris; current and former top government officials, including Republicans such as former Attorney General Bill Barr; As well as more obscure figures like a former FBI agent and a former legal representative for the Democratic National Committee.
According to the New York Times, talks of pardons for these or other individuals “Primarily at staff level“But those talks are reportedly being led by White House counsel Ed Siskel, one of Biden’s highest-level advisers.
Current law provides that those pardoned receive broad legal protections against federal criminal charges. Any pardon Biden issues should be virtually immune to court challenge. In Ex parte Garland (1866), the Supreme Court held that the President could not pardon an impeachment unless the President’s power to pardon was “unlimited.” under GarlandThe power of pardon “extends every crime known.” [federal] Act, and it may be enforced at any time after its commission, either before the taking of legal proceedings or during the pendency of them, or after conviction and judgment.” It is “not subject to legislative control.”
There is always some risk that the current Supreme Court, which has a 6-3 Republican supermajority, will ignore precedent. But the idea that presidents can decide who gets pardoned and that courts can’t second-guess those decisions is well-established and stretches back at least to the post-Civil War era.
Three Limits on Biden’s Pardon
There are three very significant limits to the power of forgiveness, however. A person pardoned by Biden could still be successfully targeted by Trump administration officials or Trump allies in state government.
One is, as head of the federal government, Biden Can only pardon federal crimes. So anyone who receives a pardon from Biden (or any other sitting president) can still be prosecuted by state officials for crimes under state law. The Trump administration, in other words, could potentially lean on MAGA-friendly state attorneys general to target federal pardons from Biden.
It should be noted that state prosecutors should not be allowed to target a former federal official for anything the official did in the performance of their duties as a federal employee.
The seminal Supreme Court case in this regard, Negele again (1890), derived from a truly wild data set. US Supreme Court Justice Stephen Field had a long-standing feud with former California Chief Justice David Terry. In 1889, Field was having breakfast at a train station in California when Terry approached Field and attacked him. Field’s bodyguard, a deputy US marshal named David Nagle, then shot and killed Terry.
After California Niggle was charged with murder, the US Supreme Court ruled that the prosecution must be dismissed. The court explained, Nagle was “acting under the authority of the laws of the United States” when he killed Terry and thus “is not liable to answer to the California courts” for the performance of his official federal duties.
Assuming the current Supreme Court respects its precedent NagleIn other words, former federal officials should be immune from prosecution for state crimes they allegedly committed “while acting under the authority of the United States.” So if a state targets, say, former federal public health official Anthony Fauci over federal policies Fauci imposed during the Covid-19 pandemic, Fauci should be immune from that lawsuit.
The second limitation of the power of pardon is that when Garland Given that the president can issue a pardon “at any time” after the pardon recipient is accused of committing a crime, the president likely won’t pardon future acts. This means that anyone pardoned by Biden could still be targeted in the Trump administration for anything they do after Biden leaves office.
A third limitation is that the pardon power has traditionally been understood to extend only to criminal offenses and not to civil cases or other non-criminal investigations (although at least one scholar The argument was that this should be extended to civil offences)
Thus, while Biden could potentially protect Trump’s perceived enemies from federal criminal prosecution, the Trump administration could still sue the pardoned individual for allegedly violating a civil law. It could potentially use non-criminal investigations, such as an IRS income tax audit, to target those who view Trump as an enemy.
Even if Trump’s enemies eventually go free, the federal government could still cause them an extraordinary amount of misery.
As a final point, it should be noted that lawyers are expensive. Anyone Biden may preemptively pardon, who has been targeted by the federal government, could run up hundreds of thousands of dollars in legal fees even if the court ultimately determines that the person is both immune from prosecution and not responsible for any civil wrongdoing.
That’s doubly true if the Trump administration can move any criminal proceedings or civil disputes against the pardoned person into the courtroom of a MAGA-affiliated judge, who could defy precedent. Garland or Nagle. While the Supreme Court may eventually intervene and acquit the person of the case or case, this may not happen after years of investigations and months of lower court proceedings.
And, even if a federal investigation does not uncover any illegal activity — even activity that the Trump administration might characterize as illegal enough to press charges — such an investigation could still uncover embarrassing or damaging information that could then be made public. Perhaps one of Trump’s alleged enemies is having an extramarital affair. Or maybe they just said something hurtful about a family member or business partner in an email they thought would remain private.
The point is, if the federal government is determined to make your life miserable, you can probably accomplish that goal pretty easily, even if you never spend a day behind bars.
