Protecting Trump’s enemies from prosecution just reinforces the idea of politics as retribution. Instead, Democrats should be defending his most vulnerable targets.
President Joe Biden walks to the West Wing in January 2023.
(Chip Somodevilla / Getty Images)
The pardon phase of a lame-duck presidency is never a pretty thing. Bill Clinton extended criminal pardons to big-ticket donors such as Marc Rich and political allies such as Susan McDougal, Mel Reynolds, and Dan Rostenkowski, as well as his brother Roger. George W. Bush was far stingier in his exercise of the pardon power, but still maximized its political returns, with a pardon for former GOP representative Randy “Duke” Cunningham, and a commuted sentence for former Dick Cheney aide Lewis “Scooter” Libby. Donald Trump’s first term yielded a bonanza of pardons for his cronies and enablers, from Roger Stone and Micheal Flynn to Dinesh D’Souza—and Scooter Libby for good measure. Trump’s flagrantly self-dealing use of executive clemency has indeed created a new category of jail-emptying for legal analysts—the “henchmen pardon.”
In the waning days of the Biden presidency, the pardoning power is again being stretched to potentially take in a group that might be called “imaginary henchmen”—lawmakers and officials deemed enemies of the MAGA movement, such as public health administrator Anthony Fauci, Adam Schiff, the newly elected senator who chaired Trump’s first impeachment in the House, former Joint Chiefs chair Mark Milley and erstwhile Never Trump GOP House representative Liz Cheney. This comes in the wake of Biden’s decision to pardon his son Hunter on gun and tax charges, after pledging he’d do no such thing.
This clutch of preemptive pardons is also a response to Trump’s clear mission to inflict legal vengeance on his detractors during his second term. His nominee to head the FBI, Kash Patel, has repeatedly promised to round up Trump critics for legal retribution, and his Justice Department nominee, Pam Bondi, is another road-tested, if less publicity-minded, Trump lackey. The threat of legal harassment from such figures is far from idle—yet the use of preemptive pardons to defuse it is both too passive in conception and too narrow in focus. Pardons, after all, traditionally cover people who’ve been convicted of crimes, wrongfully or otherwise—and using pardons to shield people raising legitimate issues and criticisms legally, in the service of the public weal, abets rather than arrests the criminalization of politics that all sides in our corrupt system claim to abhor. It also affords no comfort to less high-profile and politically connected foes of Trumpism, who can’t leverage their proximity to Biden into a shield against future prosecution. As with the earlier Trump and Clinton pardons, these extensions of clemency would reinforce the impression that mercy from the Oval Office only applies to the American power elite.
So let me float a modest proposal: To redeem the use of the pardon power, Biden should disburse it far and wide. One obvious use of it, which would yield robust moral and political benefits, would be to grant a preemptive pardon to undocumented (and documented) immigrants now facing the prospect of indiscriminate mass deportation when Trump takes office next month—people who entered the country illegally within the last 20 years, who are currently awaiting an asylum decision, or are under the age of 12. (This idea isn’t original with me, by the way—I encountered it on the Bluesky account of an old friend, Daniel Radosh.) Special care should be taken to include the legal recipients of Temporary Protected Status, such as the Haitian community in Springfield, Ohio, relentlessly demonized by the Trump campaign—Trump is bound to try to abolish the TPS program as he moves forward on mass deportations. If Democrats are serious about confronting advancing MAGA fascism, this would be an effective way to throw up major obstacles to its enforcement at the outset.
The strategy could prove legally fruitless over the long haul, particularly as Trump can count on a MAGAfied federal court system to shore up his phony, jury-rigged argument that an immigrant “invasion” warrants expansive emergency war-power measures from the executive. But an imminent plan to legally target and repatriate a non-white population based on antisocial and violent traits imputed to them on the basis of national origin is indeed a dramatic and inestimably damaging lurch toward fascism, so a correspondingly urgent and expansive use of executive power to thwart it is a first-order political exigency. That’s especially true for an opposition party that’s frequently invoked the threat of MAGA authoritarian rule to democracy and the rule of law. Democrats disastrously sat on their hands when the first Trump White House established its more modest, but equally bogus, agency to combat the nonexistent wave of violent immigrant crime; indeed, to its shame, the Biden White House left it intact after rescinding the executive order that created it. A mass pardon for immigrants imperiled by this horrific escalation of Trump’s xenophobic predations would mark a long-overdue clean break with the Democrats’ craven and unimaginative collaboration with draconian border policies designed to stoke unfounded moral panics and political revenge fantasies on the right, as well as supplying a bulwark of support for taxpaying workers in this country menaced by brown-shirt raids dispatched from Washington.
That’s the moral case for a mass preemptive pardon for immigrants; the political one is less urgent, but equally compelling for a Democratic Party that’s driven itself into the electoral wilderness without a compass. The Harris-led party never met the electorate with a clear and decisive sense of purpose or identity, professing to defend democracy and the interests of working Americans at the same time that it let major donors set its economic agenda and romanced a never-significant cohort of Never-Trump GOP supporters. Its message on immigration was especially lackluster and self-undermining, as Harris vowed to sign the brutal and regressive Republican border overhaul that Trump sabotaged in order to continue campaigning on immigration moral panics; meanwhile, Biden has scarcely done anything to address the plight of immigrants during his final days in office.
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A bold bid to upend the Trump White House’s mass deportation agenda out of the gate would send an unambiguous message that Democrats will go to great lengths to prevent the further spread of fascist rule and xenophobic lies from a cynical and morally bankrupt GOP. It would create much the same galvanizing effect on the anti-Trump opposition sparked by the brigades of protesters and legal supporters who sought to block the Muslim ban in the early days of Trump’s first term.
Again, the legal grounds for a mass-immigrant pardon could be shaky; since “unlawful presence” is a civil offense, a presidential pardon, which only applies to criminal ones, probably wouldn’t override the deportation offensive in court. Still, some immigration lawyers suggest that there is in fact a solid case for pardons. “There is actually no reason at all that the broad constitutional provision that allows the president to pardon ‘Offenses against the United States’ could not include civil violations of the Immigration and Naturalization Act,” says Boston immigration attorney Matt Cameron, who’s made the argument for pardons on his podcast, Opening Arguments. “It has never been used that way, but I agree that it should be. And here’s an NYU Law Review article that makes the complete case for all of this, I think convincingly.”
Cameron also notes that a mass pardon could also furnish immigrants a sturdy path to citizenship. “There’s also a major side benefit to this blanket pardon which non-attorneys almost wouldn’t think of: Penalties for periods of unlawful presence would not be applied, which would immediately help every undocumented person who is married to a US citizen who would otherwise either have to wait outside the US for 10 years or go through the extremely lengthy (and uncertain) hardship waiver process,” he says.”This is what Biden’s Keeping Families Together program, recently killed by a Texas federal judge, was trying to do.”
Legal precedent aside, it’s also true that the present roster of potential pardon beneficiaries now under consideration in the Biden White House haven’t committed crimes either—the theory behind the preemptive use of clemency here is that Trump’s law-enforcement goons will find retroactive means to criminalize political dissent. Why shouldn’t the same logic used to protect the civil freedom of the Biden White House’s political allies be extended to the far more imminently imperiled population of hard-working immigrants?
Since Democrats have again and again proved to be frightened of their own shadows in advancing genuinely fair and equitable immigration reform, here’s an appealing burst of social-democratic rhetoric to get the ball rolling: An act of mass immigration amnesty “will go far to improve the lives of a class of individuals who now must hide in the shadows, without access to many of the benefits of a free and open society. Very soon many of these men and women will be able to step into the sunlight and, ultimately, if they choose, they may become Americans.” That was Republican household god Ronald Reagan, speaking as he signed a bill into law that extended amnesty and a path to citizenship for 3 million undocumented immigrants in 1986. It’s no doubt far too late in the game for Joe Biden to be bold and imaginative under his own steam in the cause of immigration justice—so let him cite the old Beltway saw of bipartisan accord in the spirit of an immigration reform he voted for nearly 40 years ago. But most of all, let him use the long-discredited power of the pardon for the democratic protection of a huge population of workers poised to be unjustly demonized and banished from the country in a burst of fascist retribution. And let the Democratic Party stir back to life on that bold precedent.
