How Joe Biden and Donald Trump's Perverse Pardons Undermined the Rule of Law
Biden's pardons for friends and Trump's blanket pardons for January 6 participants set terrible precedents.
During his 2020 presidential campaign, Joe Biden said he would "broadly use his clemency power" to address "unduly long sentences for certain non-violent and drug crimes." He ultimately delivered on that promise in a big way, commuting 4,165 sentences by the end of his term. That total far exceeded the previous record set by Barack Obama, who granted 1,715 commutations.
During his 2024 presidential run, Donald Trump said he would free Silk Road founder Ross Ulbricht, who had received a life sentence for creating a website that connected drug buyers with drug sellers. "He's already served 11 years," Trump said. "We're going to get him home." Like Biden, Trump kept his promise, granting Ulbricht a "full and unconditional pardon" on his second day back in the White House.
Anyone who questions long prison sentences for nonviolent drug offenders should recognize these actions as appropriate uses of presidential clemency, aimed at mitigating injustices caused by draconian criminal laws. But Biden and Trump also showed that presidents can abuse clemency in service of their personal interests.
Biden did that on his way out the door, when he granted preemptive pardons to his relatives and allies. Trump did it hours later, when he approved blanket clemency for nearly 1,600 of his most enthusiastic supporters, all of whom had been charged with crimes related to the January 6, 2021, riot at the U.S. Capitol.
Biden's parting pardons followed a pattern that began on December 1, when he intervened in the criminal cases against his son, Hunter Biden, after repeatedly promising to respect the legal process. The president argued that his son's prosecution for gun and tax offenses was politically motivated. That claim was puzzling because David Weiss, the special counsel who brought both cases, had been appointed by Biden's own attorney general.
Biden's hypocrisy was compounded by his administration's vigorous defense of the constitutionally dubious gun law his son had violated, which makes it a felony for illegal drug users to receive or possess firearms. Worse, Biden had signed a bill that increased the potential penalties for people who do what his son did. Under current law, they could face combined maximum sentences of nearly half a century. Biden seemed to think a drug user who buys a gun is committing a grave crime that merits a stiff prison sentence—except when his son does it.
In addition to sparing his son punishment for his gun and tax felonies, Biden protected him from future charges under the incoming Trump administration by barring his prosecution for any federal crimes he might have committed from January 1, 2014, through December 1, 2024. Biden took the same sweeping approach and invoked the same excuse when he pardoned five other relatives on January 20, saying they otherwise might face baseless charges driven by "the worst kind of partisan politics."
Biden also pardoned several former federal officials and the members of the House select committee that investigated the Capitol riot. "I believe in the rule of law, and I am optimistic that the strength of our legal institutions will ultimately prevail over politics," he said. But in light of Trump's threats to punish his political opponents, Biden added, "I cannot in good conscience do nothing."
Instead of forcing Trump to put up or shut up, Biden issued pardons that lent credence to Trump's vague claims of criminality. Those pardons also set a dangerous precedent, inviting future presidents to shield their underlings from accountability for breaking the law. Coupled with the Supreme Court's broad understanding of presidential immunity from criminal prosecution for "official acts," this is a recipe for impunity that belies Biden's avowed commitment to the rule of law.
Trump likewise abandoned his supposed principles when he indiscriminately pardoned defendants who had rioted in his name, outraged by his stolen-election fantasy. "If you committed violence on that day," J.D. Vance, now the vice president, said on January 12, "obviously you shouldn't be pardoned."
A week later, Trump drew no such distinction, pardoning Capitol rioters who had assaulted police officers along with people who had merely entered the building without permission. That was too much even for Trump's reliable allies at the Fraternal Order of Police, who had mistakenly thought he "supports our law enforcement officers" and "has our backs."
Alexander Hamilton thought entrusting a single official with "the benign prerogative of pardoning" would "inspire scrupulousness and caution." Biden and Trump managed to dash that already beleaguered hope in a single day.
This article was adapted from an essay that was originally published by Tangle in February.
This article originally appeared in print under the headline "Biden and Trump's Perverse Pardons Undermine the Rule of Law."
