Presidents' unprecedented pardon power sparks scrutiny

The unprecedented use of pardons by former President Biden on his last day in office coupled with President Trump’s sweeping pardon of violent Jan. 6 offenders on his first has sparked renewed scrutiny of the singular power.

At the stroke of pen, both presidents’ acts of clemency marked a stark departure from the status quo, stretching the already vast limits of the pardon power and raising alarm among critics and allies alike.

Just hours apart, both Biden and Trump issued a flurry of pardons.

On Monday morning, Biden pardoned a series of figures he feared would face prosecution under the second Trump administration, including epidemiologist Anthony Fauci, former Chair of the Joint Chiefs of Staff retired Gen. Mark Milley, and all nine members of the House select committee that investigated the Jan. 6, 2021, Capitol riots.

Then, in an order released as Biden arrived at the Capitol for the inauguration ceremonies, the outgoing president used his final minutes in office to unexpectedly pardon his brother and other members of his family.

Some Democrats criticized Biden’s moves as overreaching.

“I have sympathy for President Biden, but I don’t know that the extent of the pardons he granted was necessary, and I don’t think any of us can be satisfied with the way that Trump or Biden used the pardon authority, one of the most extensive and sweeping executive powers that are available today,” said Sen. Chris Murphy (D-Conn.), even as he said “there are real unique threats that are presented to the Biden family by Trump's obsession with targeting his political opponents.”

Trump took his turn later Monday evening, issuing a series of pardons and commutations that cleared the slate for the more than 1,500 people facing charges in connection with the Jan. 6 riot at the Capitol. It was a move that went beyond the stance of Vice President JD Vance, who just days ago said those who committed violence that day “obviously” shouldn’t be pardoned.

Trump also came under fire within his own party for providing pardons to rioters who can be seen on film violently assaulting police officers.

“Well I think I agree with the vice president,” Sen. Mitch McConnell (R-Ky.) told Semafor, referring to the prior comments from Vance.

“No one should excuse violence. And particularly violence against police officers,” McConnell said.

Trump’s pardon unwound the prosecution of every defendant charged in relation to Jan. 6 — driving criticism that he failed to do any case-by-case evaluation of those involved.

The order also commuted the sentences of high-profile members of the Proud Boys and Oath Keepers — two far-right groups that plotted to stop the election certification ahead of the attack, spurring rare seditious conspiracy charges — to time served.

“It’s not right. People who assault police officers — if they do the crime, they should do the time,” Sen. Bill Cassidy (R-La.) said.

Biden’s pardon for his brother comes after a similar order for his son Hunter Biden, who was facing both tax and gun charges in cases filed in two different states.

President Biden said his son had been “singled out” for being his son and that “there’s no reason to believe it will stop here.”

He relayed a similar sentiment about his brother as he pardoned his siblings and their spouses.

“My family has been subjected to unrelenting attacks and threats, motivated solely by a desire to hurt me — the worst kind of partisan politics,” Biden said in a statement. “Unfortunately, I have no reason to believe these attacks will end.”

Biden’s fear of prosecution for his brother isn’t unfounded. Shortly before the former president left office, House Oversight and Accountability Chair James Comer (R-Ky.) wrote a letter to attorney general nominee Pam Bondi asking her to consider possible contempt of congress charges for James Biden. Comer had led the GOP probe into Biden family business dealings.

But Rep. Jared Moskowitz (D-Fla.) said during an appearance on CBS News that former President Biden erred in offering preemptive pardons for those who had yet to face any involvement with the criminal justice system.

“I don't like these pardons. I don't like these preemptive pardons. You know, these are pardons of people who have not committed any crimes,” he said.

“So, yes, this is another norm that falls here in Washington, and there will be repercussions from this. But again, we didn't get here just by accident. We got here based on statements and threats that have been made against these people.”

Former members of the Jan. 6 committee sought to distinguish their pardons from those given to the more than 1,500 who stormed the Capitol.

“Look, the people who were pardoned this morning were pardoned because we were innocent,” Rep. Jamie Raskin (D-Md.) said during an appearance on CNN, adding that Trump was threatening committee leaders like former Rep. Liz Cheney (R-Wyo.) and Rep. Bennie Thompson (D-Miss.) and others with “fraudulent political prosecutions.”

“The people who were just pardoned a little while ago, were pardoned because they were guilty of violently assaulting police officers, carrying dangerous weapons inside the Capitol, destroying federal property and so on, and it was just a mass pardon for all of them, without even looking to see whether those people were rehabilitated and whether they continue to pose a threat to public safety,” Raskin said.

But not all who received pardons from Biden approved of the former president’s logic behind doling them out.

Even as Sen. Adam Schiff (D-Calif.) called Trump’s Jan. 6 pardons a “grotesque display of his new power,” he was critical of Biden’s pardon for committee members.

“I continue to believe that the grant of pardons to a committee that undertook such important work to uphold the law was unnecessary, and because of the precedent it establishes, unwise,” Schiff said in a Monday statement.

“But I certainly understand why President Biden believed he needed to take this step in light of the persistent and baseless threats issued by Donald Trump and individuals who are now some of his law enforcement nominees.”

Schiff’s remarks build on earlier comments about the risk of setting a new tone upon leaving office, saying he didn’t want to see “each president hereafter on their way out the door giving out a broad category of pardons.”

It was a rare moment of some agreement between Schiff and Trump, as the president later pounced on Biden’s pardons, particularly for his family.

“I could have pardoned my family. I could have pardoned myself and my family,” he said Monday night. “I said, ‘If I do that, it’s going to make me look very guilty’ — I don’t think I’d be sitting here, frankly.”

“Now maybe every president that leaves office, they’re going to pardon every person they’ve ever met,” Trump added.

Moskowitz said he feared what Trump or others might do on their way out of office.

“Four years from now — I mean, it's a long time from now, obviously — but if President Trump feels that he wants to pardon his family on the way out the door, now Democrats can't say anything about that,” he said.

Ella Lee contributed.

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