Joe Biden issues preemptive pardons before Donald Trump’s inauguration

Outgoing President Joe Biden issued pre-emptive pardons to retired General Mark A Milley, Anthony S Fauci, members and staff of the January 6 congressional committee and police officers who testified before the panel in an extraordinary move just hours before President-elect Donald Trump’s inauguration.

He also pardoned several of his immediate family members.

In a lengthy statement, Biden said that he was issuing the pardons not because of any wrongdoing by those individuals but to protect them from potential political prosecution. Trump has repeatedly threatened to go after those who have crossed him politically or attempted to hold him accountable for his efforts to overturn the 2020 election results.

“These public servants have served our nation with honour and distinction and do not deserve to be the targets of unjustified and politically motivated prosecutions,” Biden said. “I believe in the rule of law, and I am optimistic that the strength of our legal institutions will ultimately prevail over politics. But these are exceptional circumstances, and I cannot in good conscience do nothing.”

In a more personal act, Biden also pre-emptively pardoned his siblings – James Biden, Frank Biden and Valerie Biden Owens – as well as their spouses, John Owens and Sara Biden.

“My family has been subjected to unrelenting attacks and threats, motivated solely by a desire to hurt me – the worst kind of partisan politics,” Biden said. “Unfortunately, I have no reason to believe these attacks will end.”

The unprecedented actions – a President has never pardoned people neither charged with nor suspected of wrongdoing – reflected the historical uncertainties of the moment, as a President takes office having regularly threatened the imprisonment of his political opponents.

Joe Biden speaks at the International African American Museum in Charleston. Photo / AFP

It also gave a glimpse of the fear and anger underlying the stately ceremonies of Inauguration Day, as the White House made the announcement hours before Biden was scheduled to welcome Trump there for a tea-and-coffee reception.

Biden, hours from the end of a decades-long political career in Washington, did not name Trump in his statement, but he repeatedly alluded to the incoming President’s actions and his attacks on those now being pardoned.

“Rather than accept accountability, those who perpetrated the January 6 attack have taken every opportunity to undermine and intimidate those who participated in the Select Committee in an attempt to rewrite history, erase the stain of January 6 for partisan gain, and seek revenge, including by threatening criminal prosecutions,” he said.

Milley, a former chairman of the Joint Chiefs of Staff, said he was “deeply grateful” for Biden’s decision.

“After 43 years of faithful service in uniform to our nation, protecting and defending the Constitution, I do not wish to spend whatever remaining time the Lord grants me fighting those who unjustly might seek retribution for perceived slights,” Milley said in a statement. “I do not want to put my family, my friends and those with whom I served through the resulting distraction, expense and anxiety.”

Trump has falsely stated that phone calls, authorised by then-Trump administration officials at the time, in which Milley sought to reassure Chinese officials that the United States was stable during the last presidential transition were a “treasonous act”. In 2023, Trump posted on Truth Social, “This is an act so egregious that, in times gone by, the punishment would have been DEATH!”

Trump has repeatedly threatened to retaliate against members of the House committee that investigated the January 6, 2021, attack, including former congresswoman Liz Cheney, one of his most prominent Republican critics.

Harry Dunn, a former US Capitol Police officer who was on the front lines when Trump supporters breached the Capitol, also expressed gratitude for Biden extending him a pre-emptive pardon and “for his leadership and service to this nation”. Dunn resigned from the police force to run for a congressional seat in Maryland but lost in the Democratic primary.

“I wish this pardon weren’t necessary, but unfortunately, the political climate we are in now has made the need for one somewhat of a reality,” Dunn said. “I, like all of the other public servants, was just doing my job and upholding my oath, and I will always honour that.”

Michael Fanone, a former DC police officer who was beaten unconscious and threatened with his own gun during the riot, said Monday morning he had heard about the pardons but has not received official notification.

“I think it’s f***ed up that I live in a country where a President feels that it’s necessary to pre-emptively pardon a police officer for testifying truthfully for what they experienced on January 6, to protect them from another President who incited January 6 and is about to take office,” Fanone said.

Fanone, who resigned from the police force a year after the attack, became a spokesman and advocate for officers injured in the riot. He was unapologetic about criticising his own department, which he asserted had ostracised him for speaking out.

Fanone said that he has not decided whether he will accept the pre-emptive pardon and that he is not sure it is constitutional. “It further fuels this narrative that those of us who testified did something wrong,” he said. “But at the end of the day, I can’t help that … Now it’s all about protecting me and my family.”

Because such pardons are unprecedented, they have not been tested in court. But the courts have often been deferential in allowing presidents to exercise authorities explicitly granted to them in the Constitution – such as the pardon power – as they see fit.

The closest historical analogy might be President Gerald Ford’s pardon of his predecessor, Richard M Nixon. Nixon had not been charged with a crime, but he resigned under threat of impeachment and was being investigated by a special prosecutor in the Watergate scandal. Those pardoned this time, in contrast, have not been charged with anything or even faced evidence that they did anything wrong.

Recipients of the pre-emptive pardons include Fauci, former director of the National Institute of Allergy and Infectious Diseases, who was a public face of the government response to the Covid-19 pandemic. Fauci has faced years of investigation by congressional Republicans who allege that the longtime civil servant was not forthcoming about the possible origins of the pandemic.

Fauci led a US health agency that helped fund virus research in Wuhan, China, where the outbreak was first detected in 2019, and some scientists and government officials believe that the virus leaked from a laboratory there. There is no evidence SARS-CoV-2, the virus behind the pandemic, was in any laboratory before the outbreak.

Trump and other conservatives also blame Fauci and other public health officials for recommending measures that they say were overly harsh. Robert F Kennedy jnr, Trump’s pick to lead the Department of Health and Human Services, and Senator Rand Paul, who chairs a Senate oversight panel, have both called for potentially prosecuting Fauci.

Fauci has dismissed the allegations that he participated in a cover-up as “preposterous” and has said he was appropriately transparent about his agency’s role.

Many Biden officials and public health leaders have praised Fauci as a heroic civil servant who helped lead the country through the most significant health crisis in a century.

As speculation about the potential pre-emptive pardons floated around Washington in recent weeks, some potential beneficiaries, such as Senator Adam Schiff, said they did not want a pardon, as they had done nothing wrong and trusted the justice system. Others, including Representative Bennie G Thompson, who chaired the January 6 committee, said they would accept a pardon, given Trump’s repeated and explicit threats.

If Biden’s action was extraordinary, so was the climate that prompted it. Trump and his allies have said for months that those who have opposed the former President should be prosecuted and imprisoned.

Now that he is taking power, it is not clear whether Trump would pursue such prosecutions; in the 2016 election, Trump’s crowds chanted “Lock her up!” about his Democratic opponent, Hillary Clinton, but she was not targeted once he took office. This time, however, Trump made revenge and retribution a central theme of his campaign.

Many of his threats have been aimed at the House committee that investigated the January 6 attack. “Everybody on that committee … for what they did, yeah, honestly, they should go to jail,” Trump told NBC News in December, not long after winning election to a second term.

In September, Trump posted on Truth Social, “WHEN I WIN, those people that CHEATED will be prosecuted to the fullest extent of the Law, which will include long-term prison sentences so that this Depravity of Justice does not happen again”.

US President-elect Donald Trump takes the oath of office. Photo / Getty Images

Trump’s associates have echoed these promises. “The prosecutors will be prosecuted, the bad ones,” Pam Bondi, Trump’s nominee for Attorney-General, said on Fox News in 2023, shortly after Trump was charged in his fourth criminal case. “The investigators will be investigated.”

Trump ally Stephen K Bannon, addressing a conservative audience in June, cited Trump’s conviction for hiding a hush money payment to a porn star. “You are going to be investigated, prosecuted and incarcerated,” Bannon promised, referring to those who brought the case.

The incoming President has also promised to pardon those convicted of offences related to the attack on the Capitol. The convictions range from seditious conspiracy to assaulting police officers to conspiracy to obstruct an official proceeding, in addition to lesser offences.

During his final weeks in office, Biden took a number of executive actions in an attempt to bolster his legacy and to make it harder for Trump to dismantle some of his prized initiatives. Many of those actions, however, can be undone by Trump with the stroke of a pen, just as Biden did to implement them.

That is one reason Biden focused on pardons and commutations, which cannot be reversed. In his final weeks, Biden granted clemency to most federal death row inmates and pardons to other federal prisoners.

He also gave his son Hunter a sweeping pardon, a controversial decision that reversed his long-standing pledge not to use his presidential powers to protect his son, who was found guilty of gun-related charges in Delaware and pleaded guilty to tax evasion in California.

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In addition to protecting those named, Biden’s pardons served as his final effort to remind Americans that the man now taking office had sought to overturn the results of the previous election, and to urge vigilance about what might lie ahead.

In Biden’s farewell address to the nation last week, he warned of the rise of a new American “oligarchy” featuring an excessive concentration of political and economic power.