Can Biden issue preemptive pardons to protect Trump critics from retribution?

Amna Nawaz:

After President Biden gave his son Hunter an expansive pardon, legal experts have questioned how a president's pardon power could be used moving forward. That includes questions about the possible use of preemptive pardons.

To discuss, I'm joined now by Kim Wehle. She's a professor at the University of Baltimore School of Law and author of the book "Pardon Power: How the Pardon System Works and Why."

Kim Wehle, welcome back to the "News Hour."

Kimberly Wehle, Former U.S. Associate Independent Counsel:

Hello. Great to be here.

Amna Nawaz:

So before we move into some of the questions that folks have now, I want to start with that pardon by President Biden of his son. It's drawn mixed reviews, even from members of his own party, as you have seen.

But you have defended his decision to issue that pardon. Tell us why.

Kimberly Wehle:

Well, it doesn't fall in the category of a self-dealing pardon. Hunter Biden's not someone that there's a concern that he will go on to commit violent crimes or even additional crimes. He paid back his tax liability with interest. The gun charge was for a very low-level offense that even the likes of Lindsey Graham have said publicly probably would not have been prosecuted if he had not been the president's son.

And, of course, for both of those, he had relapsed into his addiction after the death of his brother, Beau. So it appears to be that the president is anticipating vengeance or retaliatory investigations or prosecutions of his son under the next Trump administration, which, of course, Donald Trump has been very public about his plans to use the Justice Department for that reason.

And the Supreme Court, last summer in its immunity decision, held that crimes committed using the Justice Department would be immune from any oversight. So it seems like Joe Biden's responding to the moment that is this incoming administration that we have never seen in American history. So it's almost a reaction to that and less sort of pardon for his own self-interest.

Amna Nawaz:

Well, let me ask you about this moment we're in, then, because related to some of these points you're raising, you're right, president-elect Trump has previously said that he wants to use law enforcement to target some of his political enemies. Just this week, he said that members of the January 6 Committee should go to jail.

All of that has raised questions about this issue of preemptive pardons, whether or not President Biden should issue those. What do you make of those calls for preemptive pardons and is it legal to do so?

Kimberly Wehle:

We have been coining a new term, preemptive pardons, in the last few days. You could call them immunity pardons or protective pardons or safe harbor pardons.

Again, it seems to be the idea is in response to a troubling projection for the use of the Department of Justice in a retaliatory manner. The pardon power is extremely broad. There are no expressed limits in the Constitution. And in that immunity case, the court made it clear or underscored that the pardon power is core.

So I think it would be very difficult to challenge legally a preemptive or prospective pardon for these folks. There are, of course, complicating factors in that regard. They might not want a pardon. And the Supreme Court's made clear, without an acceptance of a pardon, a pardon is not effective.

And then there will be questions around how to frame the pardon. Is it a more generic one like Jimmy Carter did for draft dodgers? They weren't actually identified by name. Or would it be folks identified by name? And the bigger question really is, does that make them safer or less safe from retaliatory actions from the Trump administration if that is indeed going to happen?

But it would protect people that don't have the financial resources to fight a vindictive prosecution in court. That can be very expensive, even if you're innocent. And the law governing selective or vindictive prosecutions is very president-friendly. Very hard to prove that, because the theory is the president is the top law enforcement officer, the chief executive, and there's a tremendous amount of deference given to the choice of who to prosecute.

Amna Nawaz:

Kim, there's also the issue of precedent that it sets. And on that note, even members of his own party have said that President Biden should not issue these kinds of preemptive or immunity pardons, as you say.

Even just newly sworn in senator Adam Schiff had this to say. He said: "I don't want to see a precedent where you have presidents as they leave office issuing blanket pardons to members of their party or members of the administration. I think it would be another diminution in our democracy." He says: "It's completely unnecessary."

Do you agree with that?

Kimberly Wehle:

I'm not so sure I agree with him that it's completely unnecessary, maybe for him personally. But, of course, there are many on the — quote — "enemies list."

Kash Patel, the anticipated appointee FBI director, has a list. As far as that kind of revolving door of immunity pardons, yes, that's a very serious concern. And it's one that I raised before this topic came up. But I agree overall with those who have said that we're heading into very treacherous waters when it comes to the rule of law and the Constitution and the potential abuse of the massive powers of law enforcement, investigations and prosecutions by the incoming president of the United States.

Amna Nawaz:

Kim, President Biden has about 40 days left in office. When you look at the pardon power, what could or should he be doing with that power over these last remaining days?

Kimberly Wehle:

What gets lost in this conversation around the pardon power is the original purpose, which is mercy.

And presidents, I think since Reagan, where there was a political benefit to being tough on crime, have really largely shied away from using it to achieve justice. There's no federal parole in the federal criminal justice system. But we all — we know there are problems with racial disparities. There are long sentences for nonviolent offenses. We know there are probably people on death row that are innocent.

So, Joe Biden, as one of his elements of his outgoing legacy, which is a little bit under siege in this moment, could use that unlimited power to actually address some of the massive problems in the criminal justice system, like for example, he did with marijuana offenses and President Obama did in 2013 with respect to low-level drug offenses.

So it could be — the pardon power is — it holds corruption and mercy in the same in the same place. And this — it could tip towards the more beneficial aspects of the pardon if the outgoing president were decide to use his power in that regard.

Amna Nawaz:

That is Kim Wehle from the University of Baltimore School of Law joining us tonight.

Kim, thank you for your time. Appreciate it.

Kimberly Wehle:

Thank you.