Biden White House considering preemptive pardons for Trump’s perceived enemies
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President Joe Biden walks to the Rose Garden to deliver remarks at the White House on Tuesday, November 26. Kevin Dietsch/Getty Images
Senior Biden White House aides, administration officials and prominent defense attorneys in Washington, DC, are discussing potential preemptive pardons or legal aid for people who might be targeted for prosecution by President-elect Donald Trump after he retakes power, multiple sources told CNN.
Reports of these conversations have captured the attention of Trump’s legal advisers, who, according to a source familiar with their strategy, believe President Joe Biden would be setting a new precedent in terms of the scope of pardons that they could take advantage of, down the line, to help their own allies.
Biden’s senior aides inside the White House have been deliberating for weeks about the possibility of issuing preemptive pardons, according to the sources familiar with the discussions. The move, which would cover people who haven’t ever been formally accused of any crimes, would be an extraordinary step and shows the grave concerns many Democrats have that Trump will prosecute a range of figures that he considers to be his enemies.
Trump has publicly called for the jailing of people like Republican former Rep. Liz Cheney, who served as vice chair of the House select committee that investigated the January 6, 2021, US Capitol attack, as well as special counsel Jack Smith, who brought federal criminal cases against Trump.
One former senior White House official said aides inside the White House and across various federal agencies are intensely worried about the possibility that the incoming Trump administration will prosecute anyone deemed as having antagonized the president-elect.
Additionally, several prominent white-collar lawyers across Washington have fielded calls in recent weeks from government officials, including investigators from Smith’s office, who are concerned they could be targeted by the incoming Trump administration.
“You have got (an incoming) president that has basically said he’s going to go after all these people,” a source familiar with the discussions told CNN. “Why not do it?”
A White House spokesperson declined to comment.
Possible legal defense funds
According to Politico, which first reported on the internal debate, the discussions are being led by White House counsel Ed Siskel and other senior aides to the president, including chief of staff Jeff Zients.
The former White House official who spoke to CNN, who is intimately familiar with the workings of the White House counsel’s office, said it would be typical for Siskel and his team to first put together a detailed memo to be presented to Biden.
In that situation, that memo would include a list of individuals that Biden might consider pardoning preemptively, the context about any prior legal precedent, and a discussion of the wide range of potential ramifications if the president does move forward with these pardons.
The calls among worried government officials and top white-collar defense lawyers in DC, appear, at this point, to be precautionary. One private attorney told CNN that they’re “feeling out what they should do if something happens” once Trump takes over.
A spokesman for Smith’s special counsel office declined to comment on whether he would seek a preemptive pardon. CNN previously reported that Smith intends to step down before Trump takes office, instead of being fired, as the president-elect has pledged to do.
As Democrats brace for the political and legal scrutiny that could come from the new president, his administration, and the GOP-run Congress, one significant concern for many current and former administration officials is the possibility of mounting legal bills.
Multiple sources said there have been discussions about setting up legal funds to help support those who would not be able to afford thousands of dollars in lawyers’ fees.
Some of the private practice bar have discussed if influential white-collar practices could work together to help career Justice Department workers – and others who are exiting the federal workforce – to possibly provide them low-cost or pro-bono representation.
And at least one progressive group is working on assembling resources – such as lawyers, security experts and communications professionals – who could help government officials placed under investigation during the Trump years, some of the people familiar with the discussions said.
Emboldening Trump?
A source familiar with Trump legal strategy says his team believes Biden’s pardon of his son Hunter has set a new precedent for presidents to issue expansive pardons to their children – and this could be something Trump chooses to do before he leaves office.
The Hunter Biden pardon was notable for not only forgiving the crimes in his tax and gun indictments, but also for protecting him from being charged with any offense he “may have committed or taken part in” between January 2014 and December 2024.
There’s also the president’s brother James Biden, who hasn’t faced charges but whose overseas business dealings attracted intense scrutiny from congressional Republicans. Several GOP-run House committees urged the Justice Department to prosecute James Biden in connection with lying to Congress. (He denies all wrongdoing and declined to comment for this story.)
If Biden goes even further and grants preemptive pardons to an expansive list of individuals, Trump’s team believes that move would also create a new precedent and give Trump political cover to do the same for his allies, according to the source.
CNN reported in 2021 that before Trump left office during his first term, he considered – but did not grant – preemptive pardons for family members, political allies, his personal attorneys, and even for himself, including in the wake of the January 6 insurrection.
Attorneys across the political spectrum have raised concerns about blanket pardons to protect against future investigations or prosecution.
“It’s just such a different use of the pardon power,” said Neil Eggleston, former White House counsel to President Barack Obama. “You would create the beginning of a tit for tat where, when any administration is over, you just pardon everybody.”
Presidential pardons protect against federal Justice Department prosecutions, but do not shield individuals from state-level criminal cases or congressional investigations.
While Trump has publicly said he wants his Justice Department to go after his perceived adversaries, the system has built-in checks against abuses of power, such as judges that can throw out charges, grand juries that can refuse to indict, juries that can return “not guilty” verdicts, and other safeguards to protect against purely vindictive prosecutions.
Some prominent former Justice Department officials have said they wouldn’t want a preemptive pardon from Biden, because it might imply they’re conceding there was wrongdoing during their work for the federal government, according to a source familiar with their thinking.
Trump’s ever-growing enemies list
Trump has a well-documented history of pushing – both publicly and privately – for investigations and prosecutions of his political opponents, almost always based on unproven, baseless and conspiracy-tinged allegations about their supposed activities.
Many of his recent threats targeted prosecutors who charged him with crimes: Smith, Manhattan District Attorney Alvin Bragg and Fulton County District Attorney Fani Willis.
He has publicly called for investigations into prominent lawmakers: Cheney and the rest of the January 6 committee members (who he said “should go to jail”), former House Speaker Nancy Pelosi (for her supposed “ties to Russia”), Senator-elect Adam Schiff (for his role in the Trump-Ukraine impeachment saga) and a host of other Democratic lawmakers.
Still, members of Congress have immunity from the Constitution’s “speech or debate clause” that offers such broad protections for their legislative work that even members of the defunct January 6 committee would be unlikely to take seriously any legal threats.
Trump also has said Vice President Kamala Harris “should be … prosecuted” for letting undocumented immigrants into the country. After the election, Trump called for probes of Iowa pollster Ann Selzer (for “election fraud,” by releasing a poll with Harris ahead), and into stock traders who spread “illegal rumors” about his investment in Truth Social.
During his first term, some of Trump’s calls for probes were apparently heeded, leading to investigations into 2016 Democratic nominee Hillary Clinton, former FBI director James Comey, and former FBI deputy director Andy McCabe, now a CNN contributor.
None of them were ever charged with crimes.
Some of Trump’s longtime foes who worked on the Russia probe around the 2016 election may not have much legal exposure now because their government service ended so long ago and statutes of limitations may have lapsed.
There are plenty of other figures that, despite Trump’s calls, weren’t investigated during his first term, but could be scrutinized when he returns to power: former President Barack Obama (for “treason”), former Secretary of State John Kerry (for his contacts with Iran), and even MSNBC host Joe Scarborough (based on a conspiracy theory that he was possibly able to “get away with murder” after one of his interns died in 2001).
Attorneys who might defend top targets have their own fears, too. Representing Trump administration and political officials had largely gone out of fashion for large DC defense firms in recent years, with few willing to take on clients, especially after January 6.
The view at Washington’s elite firms – which tend to lean liberal – may be shifting back toward getting involved, but it’s still not clear how much pushback the next Trump presidency may receive from the capital’s powerful law firms, several prominent attorneys told CNN this week.
“There could well be a fear now by law firm leaders that if we take on those cases, could we ourselves be targeted?”one white-collar lawyer who regularly represents high-profile political figures told CNN on Thursday.
Focus on political pardons angers activists
Some liberal-leaning and criminal justice reform groups are pushing Biden to focus his final clemency efforts less on family members, political allies or Trump’s potential targets – and instead to help incarcerated Americans whom they believe deserve relief.
One group, FWD.us, is airing TV ads in the Washington, DC, market, pressing Biden to “give people a second chance,” by granting clemency to Americans with “outdated” prison sentences that they argue would be shorter under today’s laws and policies.
They’ve pointed to Obama’s record-setting commutations as a model. He reduced the punishments of more than 1,300 convicts, including 500 people serving life sentences.
“The thousands of people serving disproportionately long and racially disparate sentences in federal prison have been waiting for relief long before the politics of this particular moment,” Zoë Towns, executive director of FWD.us, said in an email. “It is our hope that whatever comes next includes a robust clemency effort focused on them.”
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