What to Know About Biden’s Preemptive Pardons

(Left) Dr. Anthony Fauci, former director of the National Institute of Allergy and Infectious Diseases, at the Rayburn House Office Building in Washington, on June 3, 2024; (Right) Chairman of the Joint Chiefs of Staff General Mark Milley at the Pentagon in Arlington, Va., on July 18, 2023. Chip Somodevilla, Win McNamee/Getty Images

President Joe Biden on his final day in office on Jan. 20 issued several preemptive pardons, including for family members.

He issued pardons for Dr. Anthony Fauci, retired Gen. Mark Milley, and those who served on the U.S. House of Representatives committee investigating the Jan. 6, 2021, breach of the U.S. Capitol.

Biden also granted preemptive pardons to law enforcement officers who provided testimony to the House panel.

A preemptive pardon, while somewhat rare, is not without precedent. Although most pardons are granted following a conviction or a guilty plea, preemptive pardons have been granted in certain specific cases, usually to handle politically sensitive or legally ambiguous issues.

Preemptive pardons—granted in advance of any formal charges or convictions—are granted under Article II, Section 2 of the U.S. Constitution.

“The President ... shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment,” the Constitution states.

Although the Constitution makes no specific reference to the term “preemptive pardon,” the Supreme Court in the 1866 Ex parte Garland case ruled that the president’s authority to pardon is unlimited except in cases of impeachment. This authority was said to extend to “every offence known to the law” and could be exercised “either before legal proceedings are taken, or during their pendency, or after conviction and judgment.”

The pardons were made public while the inauguration ceremony for President Donald Trump was underway, with the White House announcing that Biden had also issued pardons for several family members.

The president’s brother James B. Biden; his sister-in-law, Sara Jones Biden; his sister, Valerie Biden Owens; his brother-in-law, John T. Owens; and his brother Francis W. Biden were all included in the broad pardon.

“The issuance of these pardons should not be mistaken as an acknowledgment that they engaged in any wrongdoing, nor should acceptance be misconstrued as an admission of guilt for any offense,” Biden said in a statement from the White House.

Members of the Jan. 6 House Select Committee, disbanded in early 2023, were also granted preemptive pardons, including former Rep. Liz Cheney (R-Wyo.) and others. The committee was found by Republican lawmakers to have failed to archive important files and deleted others.

Milley, who was chairman of the Joint Chiefs of Staff from 2019 to 2023, and Fauci, who was director of the National Institute of Allergy and Infectious Diseases from 1984 until his retirement in 2022, both drew criticism during their times in office.

Milley previously admitted that he told a Chinese general that the United States was not going to attack China during the first Trump administration. Fauci has been accused of publicly lying under oath about his knowledge of gain-of-function lab research conducted in Wuhan, China.

Perceived Need

Biden said in a statement following his announcement that he believes the individuals pardoned “do not deserve to be the targets of unjustified and politically motivated prosecutions.”

Last month, Biden issued a broad pardon for his son, Hunter Biden, who was facing sentencing for federal tax and gun crimes.

“My family has been subjected to unrelenting attacks and threats, motivated solely by a desire to hurt me—the worst kind of partisan politics. Unfortunately, I have no reason to believe these attacks will end,” Biden said during his Jan. 20 announcement of the pardons.

Members of his family, he said, would face “baseless and politically motivated investigations” by the Trump administration.

Trump pledged to eradicate the “unfair weaponization of the Justice Department” during his inaugural address.

“Never again will the immense power of the state be weaponized to persecute political opponents, something I know something about,” Trump said, in a nod to the criminal indictments he has battled in court for the past several years.

Trump questioned the preemptive pardons while speaking with supporters after his inauguration, asking why Cheney and other members of the committee deserved pardons.

“They destroyed and deleted all of that information that went on for almost two years against Trump. And the reason they did [was] because it was all false,” Trump said.

Preemptive Pardon Precedent

The late President Jimmy Carter issued a blanket pardon in 1977 for those who could have been found guilty of evading the draft during the Vietnam War. The pardon was made to preempt potential legal consequences for those who wished not to serve in the conflict. The pardon did not apply to those who deserted after beginning military service.

Just a few years before, in 1974, President Gerald Ford granted a pardon to former President Richard Nixon, his predecessor, for crimes that he may have committed while in office. That pardon, while controversial, was seen as an attempt to heal national division in the months following the Watergate scandal.

The concept of preemptive pardons dates back to 1795, when the commander in chief of the Armed Forces, President George Washington, issued pardons to several individuals who could have faced charges for their roles in the Whiskey Rebellion. The rebellion, which took the form of a violent protest against federal taxation on distilled spirits, polarized a nation only recently settling from a revolution, largely centered around issues regarding taxation.

Washington set the tone for the use of preemptive pardons, looking to prevent prosecution that could have heightened tensions in the fledgling nation.

Other examples of preemptive pardons include President Benjamin Harrison’s granting amnesty to members of the Church of Jesus Christ of Latter-day Saints for practicing polygamy in violation of federal law, and President Andrew Johnson’s issuing amnesty and pardons to Confederate soldiers and leaders to promote reconciliation during Reconstruction.

The Associated Press contributed to this report.