WASHINGTON — A day that began with the outgoing president’s pardon of lawmakers and his own family ended with the incoming president’s pardon of supporters who violently stormed the U.S. Capitol four years ago.
The clemency grants by departing President Joe Biden and new President Donald Trump — one benefiting uncharged people not accused of wrongdoing, the other aiding rioters convicted of violent felonies — are vastly different in scope, impact and their meaning for the rule of law.
But the remarkable flex of executive authority in a 12-hour span also shows the men’s deeply rooted suspicion of one another, with both signaling to their supporters that the tall pillars of the criminal justice system — facts, evidence and law — could not be trusted as foundational principles in each other’s administrations.
“It was a sad day for Lady Justice no matter which side of the political spectrum you’re on,” said John Fishwick Jr., a former U.S. attorney in Virginia during the Obama administration. “In alternative ways, both Biden and Trump were sending the same message. Trump was saying it was a corrupt system the last four years, and Biden was saying it’s about to be a corrupt system. And that’s a horrible message.”
In pardoning his siblings and their spouses in one of his final actions in office, Biden said his family had been “subjected to unrelenting attacks and threats, motivated solely by a desire to hurt me — the worst kind of partisan politics.” He said he had “no reason to believe these attacks will end,” a similar rationale he cited when pardoning his son Hunter in December for tax and gun crimes despite having pledged not to.
He also pardoned Dr. Anthony Fauci, retired Gen. Mark Milley and members of the House committee that investigated the Jan. 6 attack on the Capitol — all considered potential targets of investigation in a Trump administration despite no public evidence of any criminal behavior. Trump’s pick for FBI director, Kash Patel, has for instance singled out Fauci as someone deserving of investigation and prosecution over the handling of the COVID-19 pandemic.
Even as Biden said he believed in the rule of law and was “optimistic that the strength of our legal institutions will ultimately prevail over politics,” he acknowledged that “exceptional circumstances” compelled him to act.
That wobbly faith in the criminal justice system under Trump’s watch appears to mirror the American public’s perspective.
About half of Americans are “not very” or “not at all” confident that the Justice Department, the FBI or the Supreme Court will act in a fair and nonpartisan manner during Trump’s second term. In each instance, roughly 3 in 10 are “somewhat” confident and about 2 in 10 are “extremely” or “very” confident, according to an AP-NORC poll from January.
While the outgoing Democratic resident was convinced his successor could not be trusted not to target his perceived adversaries, including his own relatives, the incoming Republican president seemed equally convinced the prior administration engaged in political persecution of his supporters.
Trump pardoned, commuted the prison sentences of or vowed to dismiss the cases of all of the 1,500-plus people charged with crimes in the deadly Jan. 6, 2021, U.S. Capitol riot, a sweeping maneuver that far exceeded the forecasts of other Trump administration officials, who suggested the clemency grants would be narrower.
The clemency wiped out the largest investigation in Justice Department history, the beneficiaries including members of the mob of Trump supporters who violently attacked police officers with weapons like flag poles, bats and bear spray, as well as leaders of far-right extremist groups convicted of failed plots to keep the Republican in power.
Trump has cast the rioters as “hostages” and “patriots” despite the breadth of evidence accumulated by prosecutors and has complained that the cases were politically motivated despite no evidence of any coordination between the Justice Department and the White House.
“That’s breathtaking. This is a man who does not believe in the rule of law. He believes he can do as he pleases. He’s made that clear for many years,” said Chris Edelson, an assistant American University professor specializing in presidential powers.
He said he did not fault Biden for the preemptive pardons, given Trump’s warnings of reprisal.
“It would be a lie or at the very least misleading for President Biden to assure Americans that they can trust the system,” Edelson said.
Questions about faith in the rule of law have taken center stage as Trump looks for the Senate to confirm both Patel and his attorney general pick, Pam Bondi, who during her confirmation hearing last week told senators that she would not play politics while also suggesting that the Justice Department over the last four years had become weaponized.
For critics of the pardons like Fishwick, the former U.S. attorney, the clemency risks adding to the misguided public perception that the criminal justice system is “rigged.”
“I think both Biden and Trump were using the pardon power as part of political statements,” Fishwick said, “and that’s not how the Founding Fathers envisioned them being implemented by the president.”
