A Comparison of Biden and Trump’s January 20th Pardons

Civil Rights Policy Brief #235 | By: Rod Maggay | February 9, 2025

Featured Photo Credit From: nbcmontana.com

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Article II, Section 2, Clause 2 of the United States Constitution provides: The President…shall have power to grant reprieves and pardons for Offenses against the United States, except in cases of impeachment.”

Additionally, the United States Department of Justice has an Office of the Pardon Attorney. This office has been in existence for more than 130 years. The office accepts applications and reviews and investigates requests for executive clemency. They review all applications and make recommendations to the President whether to accept or deny a person’s request for clemency. The President does not have to accept the office’s recommendations and can decide on his own whether to grant clemency. Nor does the President have to go through the review procedure that the DOJ office provides. If a President desires, he can simply issue clemency or a pardon. Supreme Court precedent has also interpreted the constitutional clause about pardons to include commutations of sentence, pardons and commutations that are conditional, reductions in fines and amnesties.

On January 20, 2025, Inauguration Day, outgoing President Joe Biden issued a number of pardons to multiple members of his family, including his son Hunter. He also issued pardons to Dr. Anthony Fauci, Reps. Liz Cheney and Adam Schiff and other members of the House January 6th Committee and Gen. Mark Milley. With the exception of his son Hunter, no criminal charges had been filed against any of the other persons receiving a pardon from President Biden. Because of this, the pardons to these people except his son are referred to as pre-emptive pardons.

Later in the day on January 20th after President Trump was inaugurated as the 47th President, the President issued a blanket pardon to the approximately 1,500 persons who had been convicted and imprisoned for their roles in the January 6th insurrection. President Trump’s order contained pardons, commutation of sentences and dismissal for those whose criminal trials have not yet concluded. LEARN MORE, LEARN MORE

Policy Analysis: Despite loud calls questioning the legality and constitutionality of the pardons and commutations of sentences issued by both President Biden and Trump on the same day, the history of the pardon clause included in the Constitution and as interpreted by the U.S. Supreme Court shows that the President is the exclusive holder of the “pardon power” and can issue pardons as he or she sees fit. Even though the U.S. Government has an Office of the Pardon Attorney at DOJ, that office is there to simply investigate and review the requests they receive for federal clemency and then issue their recommendation. The President is under no obligation to abide by the Office’s recommendation and can issue clemency even if the Office did not review the case and regardless of what the Office of the Pardon Attorney says. Both Presidents Joe Biden and Donald Trump were simply executing their power on January 20th.

While the pardons issued by President Biden are valid despite questions as to why they were issued prior to a person being charged with a crime, there is historical precedent to show that issuing the pardons pre – emptively is appropriate. Fifty-one years ago, President Richard Nixon resigned from the presidency because of the Watergate scandal. He would likely have been impeached and subsequently charged with a crime but neither happened. President Gerald Ford later issued a pre – emptive pardon to Nixon even though no charges were levied against him. President Ford’s pardon has never been tested in court and shows that pre – emptive pardons, like the ones President Biden issued, are valid.

But while Presidents are given wide latitude in issuing pardons, they are often controversial and are often criticized for partisan reasons. President Biden’s pardons to his family are controversial because it raises the question as to whether his family may have more troublesome episodes and dealings than has been revealed. But when contrasted with President Trump’ pardon of more than 1,500 January 6th persons connected with the insurrection the difference is clear and shows that President Trump’s pardons are more foolish. Trump is pardoning people who have committed violent crimes against the U.S. These violent crimes include destruction to property, use of a deadly weapon and obstruction of law enforcement. Additionally, many were convicted, many more pleaded guilty and a handful were even convicted of sedition. And there were a number of fatalities that day, as a Capitol Police officer was killed as well as one of Donald Trump’s supporters. Pardoning these violent offenders is much different than President Biden pardoning men and women who Trump vowed to get revenge on because they were simply doing their job investigating him, such as Reps. Cheney and Schiff. By using the pardon power pre – emptively, Joe Biden is using the power to protect good people from Trump’s stated goal of retribution and for simply doing their job, like Dr. Anthony Fauci. Trump is simply trying to change the narrative around Jan. 6th and is simply giving a free pass to those with violent tendencies. Trump’s pardons still won’t change the narrative that he instigated the insurrection on that day to try and subvert an election he lost.

While the pardons issued by both Presidents will likely stand, politicians on both sides of the aisle have not been shy about expressing their disgust with Trump’s pardons. Republican Sens. Lindsey Graham and Mitch McConnell have made it known that they highly disapprove of Trump pardoning and commuting the sentences of hundreds of rioters. And, in an interesting move, Illinois Gov. J.B. Pritzker signed an order that bars any convicted Jan. 6th rioter from being employed in an Illinois state job. While this only applies to the State of Illinois, it shows that politicians will not let Trump’s foolish pardons be the last word on what happened on Jan. 6th. LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources

• American Civil Liberties Union (ACLU) – information page on clemency and pardons.
• President Gerald R. Ford Presidential Library and Museum – history and analysis of President Ford’s pardon of Richard Nixon.
  

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact rodwood@email.com.

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