Forget Hunter Biden’s pardon. Whatever President Joe Biden said earlier about it, anybody who didn’t see that coming doesn’t know anything about him. Above all, he loves his family. The pardon was inevitable. The real thing to consider is that we may be entering into a new age of pardons.
Consider what Biden has to ponder next. Under the guise of ending lawfare as a political weapon, President-elect Donald Trump seems to be gearing up for lawfare to go nuclear. If he succeeds in installing Pam Bondi as attorney general, Kash Patel as head of the FBI, and Pete Hegseth as Defense Secretary, he will have a strategic triad for an atomic attack on Trump’s enemies. Trump will claim he is destroying the American justice system in order to save it.
So, Biden is certainly grappling with how far he should go in launching a first strike on Trump’s plans. There are many targets that might need to be hardened, regardless whether they committed any crimes, including special counsel Jack Smith, Nancy Pelosi, Merrick Garland, Alvin Bragg, Letitia James, Fani Willis, Kamala Harris, Liz Cheney, Mark Milley, and more.
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Biden is free to pardon them all. In deciding the scope of presidential immunity in Trump’s federal election fraud case, the Supreme Court emphasized that pardons are a core presidential function, absolutely immune from scrutiny. If Trump wants lawfare to end he might accept broad Biden pardons and move on. Fat chance.
But, even if he did, Trump will still likely launch a new age of pardons. Thanks to the Supreme Court, if Trump lawlessly uses the levers of government to go after perceived enemies, he will be absolutely immune from court consequences. Not so, for minions who might break the law doing Trump’s dirty work. Some of them will enjoy some forms of immunity but not everyone and not for everything.
And this is where more pardons come in. Trump might reassure some of those launching his strikes that he will pardon them even before they are charged with any crimes. Maybe he will reassure them further by pardoning some or all the Jan. 6 insurrectionists to show how he protects his own. Given his likely lawfare battle plan, Trump will be handing out pardons like rounds of ammunition.
But the Bondi, Patel, Hegseth triad—if it gets assembled—shouldn’t be too confident about lawlessly going lawfare nuclear. Trump has no power to pardon them if they commit crimes within state jurisdiction. And, while there are serious obstacles to them being sued in civil court, Trump can’t protect them or the government from paying damages to those they might wrongly injure.
And there’s one other important thing they should remember and their underlings must remember. Trump will make his pardon decisions on a whim. Trump won’t feel bound by pardon recommendations generated by his advisors. And it won’t be enough to be slavishly obedient to Trump. If you carry out his orders and it hurts Trump—no job and no pardon for you.
Oh, and if you feel he’d never do that to you, think how hopeful his soon to be emasculated advisors were when they joined Trump’s first administration, including chiefs of staff Reince Priebus and John Kelly, Secretary of State Rex Tillerson, Secretary of Defense James Mattis, communication directors Sean Spicer, Anthony Scaramucci, and Hope Hicks, and so on.
Yes, the chosen few will reach the inside of the pardon fallout shelter, but don’t bet on the door being open for you. You may find yourself outside pounding and screaming.
So, consider an alternative. Do what Trump is publicly saying he wants to do—lawfare disarmament. The Justice Department could seek even stronger independence of prosecutors from politics. The FBI could review its priorities and insulate itself better from outside pressure. The Defense Department could ensure that promotion within the military is based on merit, not politics.
Wouldn’t that be nice. Trump’s claims of lawfare against the Justice Department have always been false, but more protection of prosecutions from politics would be welcome. Sadly, Trump is lying about ending lawfare. He and his triad seem to be preparing to achieve a mushroom cloud of just the opposite.
Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former co-chair of the American Bar Association Committee on Employee Benefits. He is the author of the new book, The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.
The views expressed in this article are the writer’s own.
