WASHINGTON — (AP) — President Joe Biden faces a stark choice as he contemplates broad preemptive pardons to protect aides and allies from potential retribution by Donald Trump: Does he hew to the institutional norms he’s spent decades defending or flex the powers of the presidency in untested ways?
The deliberations so far are largely at the level of White House lawyers. But the president has discussed the topic with senior aides, according to two people familiar with the matter who spoke on condition of anonymity to discuss the sensitive subject. No decisions have been made, the people said, and it is possible Biden opts to do nothing at all.
Biden is taking the idea seriously and has been thinking about it for as much as six months — before the presidential election — but has been concerned about the precedent it would set, according to another person familiar with the president’s discussions who spoke to The Associated Press on condition of anonymity.
Pardons are historically afforded to those accused of specific crimes –- and usually to those who have already been convicted of an offense — but Biden’s team is considering issuing them for some who have not even been investigated, let alone charged.
The president could, if he chooses, issue blanket pardons to specific people whom Trump and his allies have threatened to punish. Or he could pardon a broad class of people — not unlike pardons issued to those convicted of federal marijuana offenses or those ensnared in the “don't ask, don't tell” military policies.
Either way, he'd be using the powers of the presidency in a new way. Some worry that Trump and his allies, who have talked of enemies lists and exacting "retribution," could launch investigations that would be reputationally and financially costly for targeted people even if they don't result in prosecutions.
The door has already been opened, given that Biden has extended a broad pardon to his son, Hunter, who was convicted and pleaded guilty in tax and gun cases. Biden explained that decision by saying he believed the prosecution of his son had been poisoned by politics.
White House press secretary Karine Jean-Pierre said Friday that Biden plans additional pardons before leaving office though she would not elaborate on the process. She repeatedly referenced “changing factors” that motivated the president to pardon his son despite promising he wouldn’t. She said Republicans have continued to try to see Hunter Biden investigated for an array of alleged offenses, a rationale that could support additional pardons for Biden aides and allies.
It was two weeks ago that one of the president’s closest allies in Congress, Rep, Jim Clyburn of South Carolina, encouraged Biden to pardon his son Hunter. The morning after that conversation, Clyburn told Biden’s staff that he believed the president should also pardon those being targeted by Trump.
“I was very forceful in my discussions with him about what I thought he ought to do regarding his son,” Clyburn said Friday. “But I also told them that I thought he ought to go even further, because all the noise about Jack Smith and Liz Cheney and Doctor Fauci and all of that.”
Special Counsel Jack Smith has been investigating Trump for his efforts to overturn the 2020 presidential election and for accusations he hoarded classified documents at his home. Liz Cheney, a conservative Republican, was the vice chairwoman of the congressional committee investigating the Jan. 6, 2021, Capitol insurrection and campaigned for Vice President Kamala Harris. Fauci, an infectious disease expert, was instrumental in the government's response to the coronavirus.
All have raised the ire of Trump.
Clyburn said he told Biden’s team, only half jokingly, that because the Supreme Court has already said that the president has certain immunities, “let’s give that same immunity to Jack Smith for carrying out his duties and to, Doctor Fauci, Liz Cheney, they were carrying out their duties.”
Among those mentioned publicly for possible presidential pardons, there are different sentiments on whether pardons would even be wanted.
Former House Speaker Nancy Pelosi supported the president’s move to pardon his son, but has been silent on the speculation that Biden is considering additional pardons for her or others.
A top Pelosi ally, Rep. Adam Schiff, the Democratic congressman who led Trump’s first impeachment, has panned the idea of pardoning Biden's allies. He says “the courts are strong enough to withstand” the worst of Trump’s threats.
“I don’t think a preemptive pardon makes sense,” the incoming senator told NPR recently.
“I would urge the president not to do that. I think it would seem defensive and unnecessary,” Schiff said.
Democratic Rep. Jamie Raskin, who was the lead manager on Trump’s second impeachment, on the charge of inciting the Jan. 6, 2021, insurrection at the Capitol, said members of Congress already are protected by the speech and debate clause in the Constitution, which protects them prosecution for participating in their legislative duties.
Raskin said figures like Mark Milley, the former chairman of the Joint Chiefs of Staff, and John Kelly, Trump's former White House chief of staff, would similarly be protected by the First Amendment. But Raskin said the question is, "Should they go through the criminal investigation and prosecution for not doing anything wrong? I think that's why this whole issue has erupted."
Raksin added that with Trump promising to pardon hundreds of people who assaulted police officers on Jan. 6th, “I can hardly fault President Biden for exploring the use of the pardon to protect people from a fraudulent and unjust prosecution.”
House Democratic Leader Hakeem Jeffries said he’s had no conversations with the White House regarding any preemptive pardons for current or former members of Congress.
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Associated Press Writers Kevin Freking and Lolita C. Baldor contributed to this report.