By Sarah Ellison · The Washington Post (c) 2025
Inauguration Day began and ended with unusual pardons from two presidents that legal and democracy scholars say reflected a lack of faith in the justice system, just as Donald Trump entered office.
When outgoing President Joe Biden issued preemptive pardons earlyMonday to an array of people who he said “do not deserve to be the targets of unjustified and politically motivated prosecutions,” he broke new ground in the depth and breadth of the pardon power, legal scholars said. Hours later, Trump made good on longtime pledges to pardon those convicted are charged in relation to the riot at the Capitol on Jan. 6, 2021.
Just hours before Donald Trump’s inauguration, Biden pardoned retired Gen. Mark A. Milley, Anthony S. Fauci, members and staff of the Jan. 6 congressional committee, police officers who testified before that panel, and several members of his family. Together, the moves marked the first time a president has pardoned people neither charged with nor suspected by law enforcement authorities of wrongdoing.
Biden’s announcements Monday “are a valid exercise of pardon power. But that doesn’t answer whether they are a wise use of that power,” said Mark Osler, a law professor at the University of St. Thomas School of Law and an expert on clemency. “You can see the incoming administration will see this as an invitation to do the same.”
Trump did not need the invitation.
Later Monday, Trump issued a blanket pardon for virtually all of the Jan. 6, 2021, Capitol riot defendants and commuted the sentences of the remaining 14 – a broad move that gives some form of clemency to all those charged or convicted in the violent attack.Taken together, “they reflect a wholesale rethinking of what pardoning means,” said Osler.
“Clemency is the soul of the Constitution, and it’s been used to show our highest principles of national reconciliation and mercy,” said Osler. “To see it used for political purposes and as a chess game does sully that history.”
Jimmy Carter pardoned those who had evaded the Vietnam draft, which consisted of roughly 500,000 men, though only somewhat fewer than 9000 had been convicted. (Carter excluded deserters.) Abraham Lincoln pardoned former Confederate soldiers, though he attached conditions to the pardons. “All these pardons, however, were for specific acts, rather than blanket pardons for all activity between certain dates,” said Richard Pildes, a constitutional law scholar at NYU.
Biden’s move signaled his effort to protect his family and others from the incoming president, who has vowed to take action against his political enemies and those he perceives pursued him unjustly. Trump and his allies had repeatedly described Biden and his family as criminals and vowed retribution in his second term.
“My family has been subjected to unrelenting attacks and threats, motivated solely by a desire to hurt me – the worst kind of partisan politics,” Biden said in a lengthy statement. “Unfortunately, I have no reason to believe these attacks will end.”
Last month, Biden pardoned his son Hunter, who was found guilty of gun-related charges in Delaware and pleaded guilty to tax evasion in California. Trump and his allies repeatedly targeted him.
Trump’s pardons are a gift to his base, who have long viewed the trials and punishments of Jan. 6 defendants as a symbol of overzealous prosecution by the Biden administration’s Justice Department. But historians and other legal scholars have said that holding those responsible for the events of Jan. 6 is crucial to deterring further violence and lawlessness and that mass pardons amount to an endorsement of election denialism and the use of violence for political gain.
“Using violence to gain power or hold onto power, as happened on January 6, 2021, is unacceptable in a democracy, and if that happens, the rule of law needs to be used to confront that,” said Daniel Ziblatt, professor of government at Harvard and the co-author of “How Democracies Die,” among other books. Allowing such behavior to go unchecked, “just encourages vigilantism.”
The most significant pardon in U.S. history is widely considered to be President Gerald Ford’s pardon of his predecessor, Richard M. Nixon. Nixon had not been charged with a crime for his role in the Watergate scandal, but he resigned under threat of impeachment and was being investigated by a special prosecutor. Ford pardoned Nixon, he explained, “to shift our attentions from the pursuit of a fallen President to the pursuit of the urgent needs of a rising nation.”
“The Nixon pardon was really significant for the higher purpose of national reconciliation,” said Osler. “This is a sharp counterpoint to this moment.”
Trump has repeatedly vowed to take action against those he perceives as his enemies, including members of Biden’s family.
Fauci has faced years of investigation by congressional Republicans, who allege that the longtime civil servant was not forthcoming about the possible origins of the coronavirus pandemic.
Even though presidential pardons shield people from federal prosecution, they do not prevent congressional investigations or a special counsel investigation, which are likely to come, experts said.
“I predict there will be congressional investigations, and the pardon doesn’t spare them from that,” said Akhil Reed Amar, a professor of law and political science at Yale Law School.
It is customary for presidents to issue pardons on their way out of office, and Trump’s first term was no exception. He issued a string of pardons for key allies, including his former strategist, Stephen K. Bannon.
In contrast, those pardoned by Biden on Monday have not been charged with anything, and allegations of wrongdoing have not been backed up by substantial evidence.
Among his family members, Biden preemptively pardoned his siblings – James Biden, Frank Biden and Valerie Biden Owens – as well as John Owens and Sara Biden, the spouses of Valerie and James.
Trump said after his inauguration that the pardons were “unfortunate” but that he wasn’t going to discuss them immediately.
“January 2025 will be the most significant month in the history of pardon power, and we will spend years unpacking the implications of this moment,” Osler said.