Preemptive pardons set a dangerous precedent by allowing a President to shield allies from legal consequences, undermining the rule of law and threatening democratic governance.
In this Nov. 29, 2021 file photo Anthony Fauci (R), Director of the National Institute of Allergy and Infectious Diseases and Chief Medical Advisor to the President, speaks alongside U.S. President Joe Biden as he delivers remarks on the Omicron COVID-19 variant following a meeting of the COVID-19 response team at the White House on in Washington, DC. Anna Moneymaker/Getty Images, FILE
By Cliff Hamill
Toward the end of the Biden Presidency, President Biden issued preemptive pardons, a new twist in the 250-year-old Democratic experiment that we call the United States. For me, a dangerous precedent because now a President can ask anyone to commit crimes for the President and simply issue them a pardon before the trial or investigation even begins. Via the use of preemptive pardons, the President, him or herself, doesn't need to commit crimes they would like perpetrated, they can have someone else commit crimes for them, and then issue them a pardon for committing that crime.
This is exactly the scenario I fear will play out in the Trump administration. President Trump now has a new playbook as he fights to expand executive power at the expense of the other branches of government. The executive branch is charged with administering the laws that have been enacted by Congress, but now the President can willfully enforce or not enforce any law simply by proxy. He can have someone else break the law for him and simply promises a pardon as a protective umbrella for the illegal application or nonenforcement of law.
The Constitution directs the President to faithfully administer the law. What the Constitution does not do is dictate consequences for failing to faithfully administer the law. It appears the only consequence for a President that is miscreant is impeachment.
The core problem with this unchecked use of preemptive pardons is that it fundamentally alters the balance of power outlined in the Constitution. The judiciary exists to interpret and enforce the law, ensuring that those who violate it face consequences. However, if a President can preemptively pardon individuals before they are even charged or investigated, it effectively removes the judiciary’s role in the process. This not only undermines the separation of powers but also establishes a dangerous precedent where the President can insulate an entire network of individuals from accountability. The logical consequence of this shift is that laws themselves become meaningless in the hands of an executive willing to abuse the pardon power. If those acting on behalf of the President are never at risk of punishment, then the very fabric of the legal system begins to unravel, eroding public trust in democratic institutions.
Allow me to run a scenario by you. A rogue military commander declares the impeachment trial of a President is ‘unnecessary’ and attempts to use the military to halt Congress’s impeachment proceedings of the President. The President has in return promised the commander and his subordinates that if the effort fails, no worries, I'll issue you a preemptive pardon.
This unchecked power has profound implications for democratic governance itself. A President who can preemptively pardon allies is essentially free to engage in authoritarian behavior with no real fear of legal repercussions. If political loyalty rather than adherence to the law determines who is shielded from prosecution, the rule of law ceases to be an impartial standard and instead becomes a weapon of convenience. This introduces a fundamental asymmetry where those aligned with the executive enjoy immunity while political opponents face the full weight of the legal system. Such a dynamic mirrors the behavior of autocratic regimes rather than the constitutional democracy the United States was built upon. If left unchecked, this precedent may mark the beginning of an irreversible decline in the very principles that define the republic.
