Joe Biden completes his shameful race to the rule-of-law bottom

Yesterday’s bipartisan pardon-fest was, to use Bill’s word, grotesque. We’ll probably have more to say about Trump’s appalling, but predictable, decision to grant clemency to all January 6, 2021 rioters, including pardons for some who assaulted and injured police officers. This post will concentrate on Biden’s last minute preemptive pardons — pardons for people who haven’t been charged with a crime and are not even under criminal investigation.

Biden granted preemptive pardons to Gen. Mark Milley, Anthony Fauci, and members of Congress who served on the committee investigating the January 6, 2021 riot. Then, at the very last minute, he granted preemptive pardons to his family members.

Preemptive pardons are unprecedented and problematic. The closest thing to a precedent was Gerald Ford’s pardon of Richard Nixon. It applied to "all offenses against the United States" that Nixon "has committed or may have committed or taken part in during the period from January 20, 1969, through August 9, 1974."

Nixon had not been charged with any criminal offenses. However, as this article by Jacob Sullum of Reason points out, Nixon had been impeached and the articles of impeachment that the House Judiciary Committee approved charged him with some offenses that are federal crimes.

Indeed, Ford's pardon acknowledged that Nixon, "as a result of certain acts or omissions occurring before his resignation," had "become liable to possible indictment and trial for offenses against the United States." He issued the pardon, nonetheless, to spare America the ordeal and divisions of trying a former president.

Biden, by contrast, insists that the people he just pardoned deserve clemency because they have done nothing wrong.

Preemptive pardons are problematic because they deprive our justice system of its ability to determine whether those who receive them have done something criminally wrong. As Reason’s Sullum says:

Thanks to Biden's pardon, we will never know if prosecutors could have proven [the case that Fauci lied to Congress] beyond a reasonable doubt. Likewise for additional charges that Hunter Biden might have faced in connection with his income taxes or allegations of foreign lobbying. Nor will Trump's vague charges of corruption against "the entire Biden crime family" ever be tested by investigators, prosecutors, judges, or jurors.

That’s not all:

If presidents get in the habit of preemptively pardoning their underlings, impeachment and removal will be the only real remedy for federal officials who commit crimes, and that option is available only when their abuses come to light soon enough to complete that process. Coupled with the Supreme Court's broad understanding of presidential immunity from criminal prosecution for "official acts," this is a recipe for impunity that belies Biden's avowed commitment to the rule of law.

Thus, Jonathan Turley is right to view Biden’s pardons as part of a “race to the bottom.”

But Turley is wrong to call it a “one man race.” Donald Trump has also been running it. In fact, it was Trump’s threats against his political adversaries that prompted preemptive pardons for the likes of Milley and members of the Jan. 6 committee. (The pardons for family members are another story.)

For example, Trump has suggested that Milley should be executed. He has also said that members of the Jan. 6 committed should go to jail.

Statements like these by a presidential candidate are as unprecedented as the kind of pardons Biden issued yesterday. Had Trump not made them, it’s highly unlikely that Biden would have issued preemptive pardons to Trump’s enemies.

In my view, though, Biden has done the Trump administration a favor by issuing pardons to them. (Again, the pardons for his family are different.) Certainly, Pam Bondi owes Biden one.

Without the pardons, she might well have had to try to explain to Trump why the DOJ ought not, and in all likelihood cannot successfully, prosecute Mark Milley and Jan. 6 committee members. That would likely have been a most unpleasant experience for Bondi.

She might then have had to waste DOJ resources trying to concoct charges against these enemies of Trump. After that, she might have had to pursue frivolous, embarrassing cases, thereby giving Trump’s enemies, including those in the media, ammunition against him.

Moreover, history tells us that the Democrats are likely to regain control of the House of Representatives in the 2026 elections. If they do, Trump’s “persecution” of enemies like Milley and Liz Cheney would become the stuff of congressional investigations and, quite possibly, a third Trump impeachment.

This is what things have come to in America. A former president and then-current presidential candidate makes unprecedented statements that raise the prospect of using the criminal justice system to prosecute his political enemies. A sitting president and local partisan prosecutors use the criminal justice against that candidate. Then, on his way out the door, that president issues a series of unprecedented and problematic preemptive pardons — and, ironically, thereby spares the once-and-future president from shooting itself in the foot.

And then, once that president is installed, he immediately starts a new cycle of disrespect for law and order by pardoning his shock troops for committing violent crimes in the same building where he has just been sworn in as chief enforcer of our laws.