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By
Norman Eisen, Richard W. Painter, and Kim Wehle
Whatever you may think of the Hunter Biden pardon, there is a far more important clemency issue at hand: preventing widespread politicized prosecutions in the next administration.President Joe Biden is uniquely positioned to stave this off, and he should use his remaining power to protect the many likely victims of President-elect Donald Trump’s planned retribution. Indeed, in the face of the nomination of Kash Patel—who has publicly vowed to attack Trump’s critics—to head the FBI, Biden has been discussing that very idea with senior aides and is feeling pressure from Democratic allies to act quickly.Those needing protection include those who testified against Trump and others the former and future president has directly threatened, including figures such as Michael Cohen. Doing so would spare them and all of us the trauma of watching people face public punishment for having done their jobs with fidelity to the rule of law and the Constitution, but against Trumpian headwinds.
President Joe Biden speaks in the Roosevelt Room at the White House on June 30, 2023.
President Joe Biden speaks in the Roosevelt Room at the White House on June 30, 2023.
Chip Somodevilla/Getty Images
We come to our position from the recognition and likelihood that there will be political “revenge” prosecutions by the incoming Trump administration. Statements about the power to prosecute political enemies by political extremists surrounding the president-elect—and statements by Trump himself—have raised this possibility. The Supreme Court has vastly exacerbated matters by ruling that a president has absolute immunity from criminal prosecution for his communications with the Justice Department.The threats that point toward selective prosecutions conflict with longstanding norms of the Department of Justice, and ethics standards binding on all prosecutors. Prosecutors must abstain from prosecuting others based on partisan affiliation or personal animosity. But if the DOJ becomes an agency subservient to the president’s political goals, as Trump and his allies have threatened, the public will have no legal or practical assurance that prosecutors will adhere to these standards.In a more perfect world, Congress in the remaining weeks of this session would pass legislation prohibiting politically motivated prosecutions and giving criminal defendants legal authority to challenge cases brought against them—and to obtain related evidence—where there is a threshold showing that prosecutors’ motives were tainted by politics or vengeance.
If a federal court finds that a prosecution is improperly devoid of sufficient grounding in law or facts, Congress should create a mechanism for having them tossed out and require the federal government to reimburse the victims for their attorneys’ fees. The current law governing selective prosecution is far too stingy, in part because it was not built for a president like Trump.(We note that in the Georgia anti-racketeering case, which was brought over the 2020 election, several defendants were allowed to cross-examine Fulton County prosecutor Fani Willis about her personal relationship with another prosecutor and to seek interlocutory or interim review of the prosecution by appellate courts. One would think that defendants alleging politically motivated prosecutions—a matter more serious than prosecutors being in bed with each other—should have a similar opportunity to prove that a prosecution was improper before a case proceeds to trial.)But that is too much to hope for given our divided Congress. Accordingly, as a last resort, the departing president should use his pardon power to exonerate individuals who have already been singled out for prosecution by persons associated with the president-elect. With the Supreme Court so heavily favoring the president’s near-absolute control over the Justice Department, and Trump suggesting that he will vindictively use that control against perceived enemies, it is time for Biden to more aggressively use another “absolute” power embedded in the Constitution: the pardon power.Biden should issue pardons to witnesses and anyone else at risk of retaliation for having taken steps to legally expose Trump to wrongdoing, as well as anyone whom he or his henchmen have specifically threatened. Consider Trump’s former counsel Michael Cohen, who testified before the House Oversight Committee in 2019 and provided key testimony in Trump’s Manhattan criminal prosecution—testimony that was credited by a jury in its return of 34 guilty counts. Cohen has already served his sentence, as well, which is a traditional criterion for a pardon.Besides specific pardons for specific individuals who are known targets, another approach would be to pardon broad categories of people, such as anyone who allegedly committed crimes in connection with an investigation of a president or former president. While pardons extended to broad categories of people are rare, the approach has been used in the past to avoid the Justice Department becoming complicit in moral quagmires of the federal government’s own making. President Jimmy Carter’s mass pardon of draft evaders after the Vietnam War is a prominent example.We recognize that use of the pardon power to preempt politicized prosecutions is not an ideal solution to the serious threat of retributive “justice,” especially when a majority of those who ought to be pardoned have committed no crime. Use of the pardon power in this context could itself be regarded as political. But, if Congress insists on standing by as the Justice Department becomes politicized, with some members even encouraging movement in that direction already, the pardon power should be invoked to prevent an irreversible assault on the rule of law. Despite the widespread debate around the pardoning of his son, Biden has a long legacy of caring about public service and our founding charter of separated powers, which is designed to ensure, in James Madison’s words, that “ambition must be made to counteract ambition.” Should Biden wield his pardon power broadly, he should do so compassionately and fairly, showing mercy to all those at risk of political persecution—not just his Democratic allies.To prevent the worst from happening in the New Year, Biden must use his brief remaining time in office to firmly show force against Trump.Ambassador Norman Eisen (ret.) is a co-founder and board member of State Democracy Defenders Action, a nonpartisan group dedicated to defending the foundations of our democracy and defeating autocracy in 2025—and beyond.Richard W. Painter is a law professor at the University of Minnesota Law School and was the chief White House ethics lawyer for President George W. Bush.Kim Wehle, author of Pardon Power: How the Pardon System Works—and Why, is a law professor at the University of Baltimore.The views expressed in this article are the writers’ own.
