Dem
52
Ties
3
GOP
45
Two sources have told The Washington Sun that White House attorneys are working on mass pardons for many junior officials in the White House, especially those working on sensitive topics, including deportations, war, or trade. This activity revved up after Sen. Elissa Slotkin (D-MI) said earlier this month that potential investigations should make young people think twice about accepting a job in the administration. Conservative organizations, including the Heritage Foundation and American Moment, have been lobbying for Pardons for All.
Presumably it is a foregone conclusion that all the senior officials will be pardoned, as well as all of Trump's family and presumably himself as well. Pardons for billionaires and major donors are also on the agenda. There could possibly be thousands of pardons, probably by the autopen that Republicans have said makes the signature invalid.
One thing that should be noted here is that a pardon does not block a congressional committee from subpoenaing someone to testify. In fact, it makes it worse. Someone who has been pardoned for a particular crime (or all crimes) can no longer invoke the Fifth Amendment to avoid self-incrimination because the pardon eliminates the possibility of being indicted. Of course, the timing matters. If Congress issues a subpoena for someone in Feb. 2027, a possible pardon that might arrive on Jan. 20, 2029 at 11 a.m. still allows the person to plead the Fifth until 2029.
Clemency expert Prof. Mark Osler of the University of St. Thomas School of Law said: "It's a despoilment of what is supposed to be a tool for mercy and national reconciliation being used as a battlefield tool in political wars." Liz Oyer, the pardon attorney under Joe Biden, said: "Preemptive pardons of everyone in the administration, or even of a significant number of administration officials, would be incredibly damaging because they would effectively place the executive branch outside the reach of the law."
Could these pardons be challenged? Sure, a future Democratic AG could say:
The intent of the pardon power is to correct miscarriages of justice. That means people who were incorrectly convicted due to some error in the judicial process. It was not meant to pardon people who haven't even been indicted. Consequently, I don't believe advance pardons are valid and will prosecute people who have committed crimes, even if they have an advance pardon. When these cases get to the Supreme Court, the Court can rule on them.
The AG could suggest, as a thought experiment, that people consider a president who said: "I will pardon anyone who assassinates a Supreme Court justice I don't like!" Would such a pardon be valid? Presidential pardons cover federal crimes but also D.C. crimes (because it is a federal territory), so there would be no way to indict someone on "state" charges for a crime committed in the District.
Republicans are already (preemptively) declaring that anyone who is unhappy at this policy should point the finger at Joe Biden, because he started it. Actually, Gerald Ford started it by pardoning Richard Nixon for various and unspecified crimes. That said, Biden certainly accelerated it with his preemptive pardons of his family and high-ranking members of his administration. When he did so at the time, we took the view that he had no choice, because otherwise these people would have been subject to years' worth of sham investigations, hearings, court filings, etc. That prediction, which was not exactly difficult to make, has de facto proven correct. The administration has pursued spurious vendetta investigations against James Comey, Jack Smith, Letitia James, Rep. Ilhan Omar (DFL-MN), the reflecting pool "vandal," etc. Can you imagine what Todd Blanche, the fellow cosplaying as AG, would do if he had a juicy target like Hunter Biden or Anthony Fauci?
We also wrote at the time that Biden and his team knew full well that they were greasing up the slippery slope, and that Trump would take this and run with it. Clearly he is planning to do so. It is equally clear, however, that presidential administrations cannot operate with no fear of legal consequences because they know they'll be pardoned for all offenses on the last day of the president's term. One can only hope that, as with something like gerrymandering, the flaws in the system have become so apparent that it will lead to bipartisan support for significant reform. That said, gerrymandering can be fixed by an act of Congress. The pardon power might well take a constitutional amendment. But maybe not. Suppose Congress passed a law stating that pardons can be granted only to people who have already been convicted of some crime and then only for that specific crime. If the Supreme Court upheld the law the first time it was tested, that might also do the job. (V & Z)