Support independent journalism that matters – become a Vox member today.
On Monday, just hours before leaving office, President Joe Biden announced that he has pardoned several individuals who may be targeted for political prosecution in the incoming Trump administration. President-elect Donald Trump has repeatedly threatened to “retaliate” against perceived enemies.
According to a White House statement, Biden’s pardons went to the former chairman of the Joint Chiefs of Staff, Gen. Mark Milley, former federal public health official Dr. Anthony Fauci and “members of Congress and staff who served on the select committee” investigating the January 6, 2020 attack on the US Capitol and “US Capitol and DC Metropolitan Police officers who testified before the select committee.”
For more than 150 years, the Supreme Court has understood the president’s power to grant pardons as entirely within his discretion; usually neither Congress nor the courts can interfere. Although the Constitution allows Biden to pardon whomever he wants, such a pardon does not necessarily protect its recipient from anything Trump or his allies in government might do to make life difficult for Trump’s perceived enemies.
Current law provides that people who are pardoned have broad legal protections against federal criminal charges. Any Biden pardons granted should be virtually invulnerable to judicial challenge. IN Ex parte Garland (1866), the Supreme Court held that the president’s power to pardon was “unlimited,” except that the president could not pardon impeachments. Below Garlandthe power of pardon “extends to every crime known to (federal) law, and may be exercised at any time after its commission, either before or during trial, or after conviction and sentence.” It is also “not subject to legislative control”.
There is always some risk that the current Supreme Court, which has a 6-3 Republican majority, will ignore precedent. But the idea that presidents will decide who gets pardoned and that courts won’t be able to second-guess those decisions is well-established, dating back at least to the post-Civil War era.
Three limits to Biden’s power to pardon
In reality, however, there are three very significant limitations on the power to pardon. The person Biden pardoned could still be successfully targeted by the Trump administration or Trump allies in state government.
One is that as head of the federal government, Biden can only pardon federal crimes. So someone who receives a pardon from Biden (or any other sitting president) can still be prosecuted by state officials for offenses under state law. In other words, the Trump administration could potentially lean on MAGA-friendly prosecutors to target individuals who receive federal pardons from Biden.
It should be noted that prosecutors should not be allowed to target a former federal official for something the official did as part of his duties as a federal employee.
A key Supreme Court case on this point, In re Neagle (1890), arose from a truly wild set of facts. US Supreme Court Justice Stephen Field has had a long-standing feud with David Terry, the former Chief Justice of California. In 1889, while Field was having breakfast at a train station in California, Terry approached and attacked Field. Field’s bodyguard, a deputy US marshal named David Neagle, then shot Terry.
After California charged Neagle with murder, the US Supreme Court ruled that the prosecution must be dismissed. The court explained that Neagle was “acting in accordance with the law of the United States” when he killed Terry and therefore “was not liable to answer in California courts” for the performance of his official federal duties.
Assuming that the current Supreme Court honors its precedent in Neaglein other words, former federal officials should be safe from prosecution for state crimes they allegedly committed while “acting under the authority of the United States.” So if a state were to target, say, former federal public health official Anthony Fauci because of federal policies he pushed during the Covid-19 pandemic, he should be immune from prosecution.
A second limit to the power of forgiveness is that while Garland states that presidents can grant pardons “at any time after the recipient of the pardon is alleged to have committed a crime, the president cannot pardon future acts. That means anyone pardoned by Biden could still be targeted for departure by the Trump administration for anything they do after Biden takes office.
A third limit is that the power to pardon has traditionally been understood to apply only to criminal offenses and not to civil actions or other noncriminal investigations (although at least one scholar has argued that it should be extended to civil torts).
So while Biden could potentially shield Trump’s perceived enemies from federal prosecution, the Trump administration could still sue the pardoned individual for alleged civil law violations. It could also potentially use non-criminal investigations, such as an IRS income tax audit, to target people Trump considers enemies.
Even if Trump’s enemies are eventually freed, the federal government can still inflict an extraordinary amount of misery on them.
Finally, it is worth noting that lawyers are expensive. Anyone who could preemptively pardon Biden, who is targeted by the federal government, could earn hundreds of millions of dollars in legal fees, even if the courts ultimately determine that person is immune from criminal prosecution and not liable for any civil wrongdoing.
This is doubly so if the Trump administration succeeds in moving any criminal or civil case against the pardoned individual into the courtroom of a MAGA-involved judge who could defy precedents such as Garland gold Neagle. While the Supreme Court may eventually step in and declare an individual immune from prosecution or suit, that may not happen until years of investigation and months of lower court proceedings.
And even if a federal investigation turns up no illegal activity—or even any activity that the Trump administration could characterize as illegal in order to press charges—such an investigation could still turn up embarrassing or damaging information that could then be made public. Maybe one of Trump’s enemies is having an extramarital affair. Or maybe they simply said something hurtful about a family member or business associate in an email they thought would remain private.
The bottom line is that if the federal government is determined to make your life miserable, they can probably do it very easily, even if you never spend a day behind bars.
