Presidential pardons escalate as modern political weapon

Summary
Dueling moves by Trump and Biden open new frontiers for one of the most sweeping powers in the Constitution.Monday’s use of the presidential pardon by former President Joe Biden and President Trump have stretched the power’s bounds, legal scholars said.
WASHINGTON—U.S. presidents have held the right to pardon crimes since the country’s founding, and they have exercised it often with political and personal considerations in mind. But legal scholars said the power’s bounds have never been so stretched as Monday, when incoming President Trump used it to relitigate the Jan. 6, 2021, riot and departing President Biden used it not for mercy but as a protective shield.
Trump’s final decision to issue blanket pardons and commutations to the more than 1,500 of his followers charged in connection with the Capitol attack came just days before the inauguration, people familiar with the matter said. While some people close to Trump discussed the merits of issuing pardons on a case-by-case basis depending on the severity of a defendant’s conduct, Trump ultimately favored quick action that could broadly apply to everyone, the people said.
Trump’s pardon proclamation cast Jan. 6 defendants as victims of a “grave national injustice" whose absolution would begin “a process of national reconciliation."
Past presidents have cited reconciliation as a reason for granting mercy, including George Washington and Andrew Johnson, who in December 1868 pardoned more than 10,000 rebels including Confederate President Jefferson Davis, describing the move as a way to foster “permanent peace, order and prosperity throughout the land."
Mark Osler, a law professor at the University of St. Thomas in Minnesota, said Trump’s pardons set a new marker because he granted mercy not to his opponents, but his most loyal supporters.
“There wasn’t reconciliation needed between those who participated in Jan. 6 and Donald Trump," Osler said.
President Biden broke boundaries of his own Monday in granting pre-emptive pardons to his siblings and their spouses, and to public figures Trump has publicly attacked, including Dr. Anthony Fauci and Gen. Mark Milley. He also pre-emptively pardoned members and staff of the House Jan. 6 committee that investigated Trump’s efforts to overturn the 2020 election results, along with police officers who testified before the panel.
Biden had previously caused uproar by pardoning his son Hunter Biden before he was sentenced for convictions on gun and tax charges. The pardon, like the one issued to the elder Biden’s siblings, covered a more than decadelong period dating to January 2014.
Biden said Monday that Trump had essentially forced his hand, requiring him take pre-emptive measures against the possibility of politically motivated reprisals, after Trump’s repeated threats of retribution against perceived enemies.
While familial favoritism has been a feature of pardons in the past, Biden’s were different because his relatives weren’t facing criminal charges. His extraordinary use of pardons to put up a protective bubble around them and others risked setting a dangerous precedent and deepening public distrust in the justice system, said American University professor Jeffrey Crouch, author of “The Presidential Pardon Power."
“It shows a lack of faith in the fairness of the criminal justice system, but even more disturbing, it makes it easier for future presidents to follow suit," Crouch said.
The pardon power is one of the most unchecked authorities the Constitution grants to the president. In an 1866 decision involving a member of the Confederate Congress pardoned by President Johnson, the Supreme Court described the authority as “unlimited," except in cases of impeachment. “It extends to every offence known to the law, and may be exercised at any time," from before legal proceedings have begun to after a defendant has served his sentence, Justice Stephen Field wrote for a 5-4 court.
A Trump supporter outside the Washington, D.C., Central Detention Facility on Monday.
In 1947, President Harry Truman pardoned draft resisters from World War II; three decades later, President Jimmy Carter granted clemency to men who evaded the Vietnam War draft. President Gerald Ford pardoned his predecessor former President Richard Nixon, whose decision to resign rather than face impeachment during the Watergate scandal elevated Ford to the presidency. The move spared Nixon a potential criminal trial, but its unpopularity may have cost Ford the 1976 election that Carter won.
Before this week’s escalations, the presidential pardon had generally come to be an accepted mechanism for addressing what each administration views as inequities in the justice system.
President Obama, for example, granted clemency to more than nearly 2,000 people, many of whom were lower-level drug offenders, viewing the long, mandatory sentences of the 1980s and ’90s as damaging excesses from the drug war, particularly in the Black community. Inmates applied through the Justice Department’s pardon attorney, and the White House signed off on its recommendations.
Trump during his first term avoided that typical process and made his own choices, sometimes at the urging of celebrities and family members like his daughter, Ivanka. Getting a pardon often required special access. Trump was criticized for issuing dozens of pardons to political allies and friends, but he also earned praise from some advocates for showing mercy to people serving long sentences for relatively minor, nonviolent offenses.
The president this week signaled he could use his second term to deploy pardons aggressively in politically charged cases. On Tuesday, he pardoned Silk Road founder Ross Ulbricht, who was serving a life sentence on drug and money laundering charges in connection with the underground online drug bazaar. Ulbricht had become a cause célèbre for libertarians and crypto enthusiasts who said he was treated unjustly.
Trump had promised to pardon Ulbricht if elected; in a Tuesday social-media post, the president said he freed the prisoner in honor of Ulbricht’s mother “and the Libertarian Movement, which supported me so strongly."
By Wednesday, all of the more than 200 Jan. 6 defendants in federal custody had been released. Under the federal Crime Victims’ Rights Act, the Justice Department was required to notify victims of the Capitol attack and their lawyers that the assailants were being freed. “Advance notice of this release was not possible since the release was immediate and/or unexpected," one notification read.
Washington, D.C. Metropolitan Police Officer Daniel Hodges, who was assaulted with a stolen police shield, said the clemency “doesn’t completely erase all the work that’s already done, but it obviously sends the wrong message" and tells politically motivated assailants “that they don’t have anything to worry about in terms of accountability."
Trump’s clemency also ended all of the more than 300 pending prosecutions, prompting the Justice Department to ask for the cases to be dismissed.
Some judges who presided over the steady stream of plea hearings and trials in the last four years offered sharp parting words as they granted prosecutors’ requests.
In an order Wednesday, U.S. District Judge Tanya Chutkan in Washington said “no pardon can change the tragic truth of what happened on January 6, 2021."
The events of Jan. 6 show no sign of relenting as a political flashpoint. On Wednesday, Speaker Mike Johnson said Republicans were creating a new panel to continue their work “exposing the false narratives peddled by the politically motivated January 6 Select Committee" that investigated the Capitol attack and Trump’s efforts to overturn the 2020 election.
Asked by reporters about Trump’s pardons, he said it was the president’s decision and “we’re not looking backwards." Later, when asked about Biden’s clemency actions, Johnson called the pardons of family members “shocking," adding: “We will be looking at it."
In a private meeting on Wednesday, House Democratic leaders cast the Trump pardons as the first major political error of the new administration, saying the move will be largely unpopular with the public, according to several lawmakers who attended.
Meridith McGraw, Sadie Gurman and Katy Stech Ferek contributed to this article.
Write to C. Ryan Barber at ryan.barber@wsj.com and Jess Bravin at Jess.Bravin@wsj.com