One of the enduring features of American politics until the Trump era was that, as a general rule, the party in power did not warp the justice system to target political opponents. Indeed, the modern president who came closest to abusing the federal government’s vast powers to pursue his enemies, Richard Nixon, was ultimately forced to resign for covering up a scheme to spy on the Democrats in the 1972 election.
But since Trump first ran for president in 2016, both parties have been engaged in a game of chicken when it comes to deploying the justice system against their opposition. The latest salvo in this contest came last week when the news leaked that President Joe Biden is considering issuing blanket pardons for potential targets of the incoming Trump administration. This would include current and former members of Congress like Adam Schiff and Liz Cheney. It would also include current and former officials in the executive branch.
To put it mildly, such a pardon would constitute a massive norm violation. To start, pardons traditionally have been issued for specific crimes where the person has already been convicted and is serving or has served time. There have been exceptions. Gerald Ford pardoned Nixon in 1974 after he resigned and before he was charged with any crimes. As he was about to leave office, Bill Clinton pardoned Marc Rich, a wealthy financier who had fled to Switzerland to avoid prosecution—and whose wife was a major Democratic donor. And earlier this month, of course, Biden pardoned his son Hunter for crimes for which he was convicted “or may have committed or taken part in” between January 1, 2014 and December 1, 2024.
But never in the history of the republic has an entire class of people been pre-pardoned for crimes for which they have not yet been investigated, much less indicted. Such a preemptive pardon not only signals a lack of confidence in the fairness of our justice system; it’s also an invitation for Trump to do the same.
