In the final minutes of his presidency on Monday, President Biden issued a “full and unconditional pardon” for his family, including his brother, James B. Biden, who had been under a congressional investigation by Republicans regarding the Biden family’s business dealings. The president’s son, Hunter Biden, who was also at the center of a similar investigation, was previously granted a broad pardon as well.
As President-elect Trump prepared for his swearing-in ceremony, Biden also preemptively pardoned other potential targets of the incoming Trump administration, including former director of the National Institute of Allergy and Infectious Diseases Dr. Anthony Fauci, retired Gen. Mark Milley, and lawmakers who served on the House Jan. 6 Committee.
Throughout his 2024 campaign, the president-elect has made no secret about wanting to seek revenge against those who have crossed him, even circulating social media posts about locking up senior political officials or journalists. In response to the pardons, Trump labeled Biden’s actions a “disgrace,” claiming—without evidence—that those pardoned were guilty of “major crimes.” Republicans have already threatened to investigate Biden’s actions.
All of this raises some important questions: What exactly is a preemptive pardon, and how does it work? To answer them, we took a closer look.
What is a preemptive pardon?
Preemptive pardons are considered rare and controversial, as they have the potential to bypass justice. Unlike traditional clemency, these pardons are granted to individuals who haven’t been investigated or charged.
“For example, in the federal system, you’re not actually convicted until you’re sentenced,” Rachel Barkow, a law professor at New York University, told Katie Couric Media in December 2024. “So when most people use the term [preemptive pardon], they mean that you’re giving a pardon before someone has actually been convicted — or even before they’ve been charged or investigated.”
As with any other pardon, they’re “an expression of forgiveness and can help eliminate some of the consequences of a conviction,” according to the Department of Justice.
Are preemptive pardons legal?
While it’s customary for a president to grant clemency at the end of their term, such acts of mercy are typically extended to Americans convicted of crimes. Experts, however, agree that Biden has the constitutional right to issue preemptive pardons. He could have chosen to issue blanket pardons to individuals threatened by Trump and his allies, or he could have granted pardons to a broader group, such as those convicted of federal marijuana offenses.
“The president has the power to grant federal executive clemency at any time after a federal crime has been committed,” American University politics professor Jeffrey Crouch told us in December 2024. “He does not need to wait for someone to be charged, tried, convicted, and sentenced first. The Supreme Court has recognized the president’s flexibility in this area in Ex Parte Garland and Ex Parte Grossman.”
Not only is this considered legal for Biden to execute, but some believe that strategic preemptive pardons might be prudent. Peter Shane, a constitutional law professor at New York University, calls it a “rational response” to an incoming administration who doesn’t appear “to follow the ordinary norms of even-handedness when it comes to prosecution.”
“The reason preemptive pardons are being discussed right now is because the incoming administration has indicated that they’d go after certain people, and it looks like political retribution,” Barkow tells us. “So the argument for doing it would be to spare those people from having to go through the misery of a federal investigation.”
The president-elect nominated several appointees who could follow through on his threat to investigate his political enemies: Trump’s pick for FBI director, Kash Patel, reportedly has a list of people he wants to “come after.” In his 2023 book, Government Gangsters: The Deep State, the Truth, and the Battle for Our Democracy, Patel included a 60-name list of people he claims are members of the “deep state” who “must be held accountable and exposed,” including President Biden, Vice President Kamala Harris, current FBI Director Christopher Wray, and former Secretary of State Hilary Clinton.
Some argue that Biden’s broad pardon of his son, Hunter Biden, opened the door to a more liberal swath of pardons in the future, and there are concerns that issuing preemptive pardons could be a slippery slope. “Stretching the pardon power here would make it easier for future presidents to consider a similar move for similar reasons,” Crouch tells us. “The end result of the back-and-forth would be a weaponization of clemency.”
Is there any legal precedent for preemptive pardons?
Though preemptive pardons might sound unusual, they do have some historical precedent. The most famous example was President Gerald Ford’s “full, free, and absolute pardon” of his predecessor, Richard Nixon. This was prompted by Nixon’s infamous Watergate scandal, which involved the illegal break-in of the Democratic National Convention headquarters (and subsequent cover-up).
But that’s hardly an isolated case: Abraham Lincoln issued preemptive pardons to former Confederate soldiers in 1863 following the Civil War. Jimmy Carter would follow this move more than 100 years later, when he granted clemency to draft dodgers during the Vietnam War in 1977.
It’s also worth noting that George H.W. Bush pardoned former defense secretary Casper Weinberger before he was ever brought to trial in the Iran-Contra affair that rocked the Reagan administration in 1985. At the time, Weinberger is believed to have shipped illegal weapons to Iran to support Nicaraguan rebels, though he denied any wrongdoing until the day he died.
Who all did Biden pardon?
Biden pardoned members of the House Committee that investigated the violent insurrection by Trump supporters on Jan. 6, 2021. Namely, this included the co-chairs — Democratic Rep. Bennie Thompson and GOP Rep. Liz Cheney — whom the president-elect called out during his recent interview on NBC’s Meet the Press. “For what they did, honestly, they should go to jail,” Trump said during the prime-time interview.
Thompson welcomed a preemptive pardon from Biden, out of fear that the president-elect might target him. “I’ve never heard an elected official other than the incoming President talk about retribution,” he told CNN.
But not all of those being targeted by Trump even want to be pardoned, let alone preemptively. California Sen. Adam Schiff, who led the president-elect’s first impeachment in 2019, told NPR in November that such a move by Biden would “seem defensive and unnecessary.” Shane pointed out that the Constitution already immunizes members of Congress from criminal prosecution in relation to their legislative activities, so if if Trump tries to go after them, “they will be well-positioned to defend themselves.”
Trump could still target other high-ranking officials from the Biden administration, which likely explains why Biden pardoned Dr. Anthony Fauci. Fauci, who became a lightning rod for conservative criticism due to his role in implementing mask mandates and vaccine initiatives, expressed gratitude for the pardon while emphasizing that he had “committed no crime.”
What have Democrats said?
Former President Bill Clinton notably voiced his hope that Biden would avoid granting any preemptive pardons. However, he did express willingness to talk with the president about the potential for a pardon for his wife, Hillary, though no such pardon was ultimately granted.
“If President Biden wanted to talk to me about that, I would talk to him about it. But I don’t think I should be giving public advice on the pardon power,” he said during an appearance on ABC’s The View in December 2024. “I think it’s too… it’s a very personal thing, but I hope he won’t do that,” Clinton said at the time.
Other Democrats completely slammed the idea. Connecticut Sen. Richard Blumenthal said he “strongly opposed” Biden’s consideration of preemptive pardons for Trump’s political rivals, saying it would leave them even “exposed and vulnerable.” Similarly, Minnesota Sen. Amy Klobuchar said she’s “not a fan” of the idea.
Despite pushback from some members of his party, Biden has set the presidential record for the most individual pardons and commutations issued, according to Politico. His actions extended beyond his own family and party: On Friday, he announced the commutation of sentences for nearly 2,500 individuals convicted of nonviolent drug offenses.
