https://www.newsweek.com/sorry-bidens-pardons-are-much-worse-trumps-opinion-2018843
Sorry, Biden's Pardons Are Much Worse Than Trump's | Opinion
The article describes the differences between President Biden's and President Trump's pardons. The author criticizes Biden's pardons for being politically motivated and benefiting his family and allies. The author also argues that Trump's pardons were granted to defendants who had been convicted or charged, unlike Biden's preemptive pardons.
On inauguration day, President Trump pardoned or commuted the sentences of the approximately 1,550 defendants convicted for their involvement with the January 6, 2021 attack on the Capitol. He also ordered DOJ to dismiss all other pending indictments. Most of them, about 900, were for non-violent misdemeanors such as trespass and disorderly conduct. He granted the clemency all at once, and did not begin with pardoning the non-violent misdemeanor defendants first and then examining the remaining defendants on a case-by-case basis as he and others previously had suggested.
Meanwhile, on the very same day, just 15 minutes before he left office, President Biden issued the last set of his own pardons. He granted them to members of his family, most notably his brothers, sister, and in-laws, as well as to members of his administration such as Dr. Anthony Fauci and General Mark Milley, and even to political supporters like the congressional January 6 committee members. Biden's pardons followed thousands of pardons he issued this month to what he claimed were non-violent federal offenders and commutations of virtually all federal death penalties.
Many Democrats and media outlets have criticized Trump's mass clemency for the January 6 defendants, even as they casually ignored President Biden's. But let's put aside the hypocrisy for a moment to examine the real differences between the two sets of pardons, regardless of one's views of their merits.
First, Biden granted pardons and commutations to more than 8,000 individuals, which is more than any other modern president. Thousands of Biden's clemency grants were to serious criminals, including murderers, child killers, child abusers, and the biggest municipal embezzler in history, Rita Crundwell. Several of the grants benefitted well-connected Democrats. In both 2022 and 2024, Biden abused his pardon power to achieve mass sentencing reductions that Congress refused to pass by law. President Obama did the same thing when he issued mass commutations of drug sentences.
Second, it's obviously not principle but politics that drove Biden's pardons; Biden's post-election mass death row commutations did not follow his self-proclaimed opposition to the death penalty. He left three men on death row whose commutations would have politically harmed Democrats. He did not commute the sentences of Dzhokar Tsarnaev (Boston Marathon bomber), Dylann Roof (murderer of nine black churchgoers in Charleston), and Robert Bowers (murderer of 11 worshippers a synagogue in Squirrel Hill, PA). Biden's alleged opposition to the death penalty also did not prevent DOJ from filing capital murder charges against Luigi Mangione.
Third, President Biden needs to pardon his family, officials, and allies only because he fears the very lawfare that he invented. Biden's DOJ broke more than two centuries of history to prosecute a former president and the candidate of the major opposition political party. He is like an arsonist who demands more spending on fire departments. Because of his stated fear of retaliation, Biden pardoned his family and associates before prosecutors ever launched investigations. These pardons were to Biden's own benefit, as their reciipients are much less likely to disclose any information that directly implicate President Biden to the family's alleged "pay to play, 10 percent for the Big Guy" schemes.
Contrast that with Trump's clemency, which did not directly benefit him or his family, and covered defendants who were actually convicted or charged, unlike Biden's preemptive pardons that covered up to 10 years' worth of potential and actual criminal activity for his family and allies.
In Trump's case, almost all of the defendants had undergone arrest, trial, conviction, and punishment. If Trump had followed Biden's example, as all future presidents may, he would have issued blanket pardons for all of the January 6 defendants on January 7, 2021. But he did not, and instead allowed the criminal justice system to proceed first, measured the results, and then decided whether pardons were warranted.
Crucially, President Trump also went to the public for approval before he issued the pardons. Biden told the American people he would not pardon his son, Hunter, and then issued his grants after the voters had rejected the incumbent party. Trump, by contrast, repeatedly stated on the campaign trail his belief that the J6 defendants, particularly the non-violent ones, were treated much worse than regular suspects, suffering from long solitary confinement and unusually heavy jail sentences. Trump could have used Biden's own words to justify granting clemency to the J6 defendants, because they "do not deserve to be the targets of unjustified and politically motivated prosecutions."
Trump also has solid legal precedent to grant clemency to those many defendants whom the Biden/Garland DOJ charged with "obstruction or impediment of an official proceeding." In June 2024, the Supreme Court in Fischer v. U.S. rejected the DOJ's misusing Sarbanes-Oxley and that charge, which built upon the Court's precedents in cases like McDonnelland Yates. The J6 clemency extended the Supreme Court's reading to those who had been convicted beforehand.
It's not accident that President Biden waited until after the election to issue his most controversial pardons. Indeed, he waited until the last 15 minutes before the inauguration. Biden hid them from the public and refused to answer any questions about them. Trump by contrast openly discussed granting clemency to the J6 defendants throughout the campaign and gave the American people a chance to decide. He granted clemency on his first day in office, not his last.
Democrats have resorted to pardons because they appear to expect lawfare to continue. DOJ released Jack Smith's special counsel J6 report even though Trump had won the election and DOJ could no longer pursue charges. It is even trying to release the special counsel report about the Florida classified documents case, even though Trump's co-defendants are entitled to a presumption of innocence until proven guilty. Both President Trump and Attorney General–designate Pam Bondi are positioned to stop the lawfare, but only if the Democrats abjure their politicization of criminal justice. Lawfare can descend on Democrats as easily as on Republicans.
John Yoo is a distinguished visiting professor at the School of Civic Leadership and a senior research fellow at the Civitas Institute at the University of Texas at Austin, the Heller Professor of Law at the University of California, Berkeley, and a nonresident senior fellow at the American Enterprise Institute. John Shu is a legal scholar and commentator who served in the administrations of Presidents George H. W. Bush and George W. Bush.
The views expressed in this article are the writers' own.
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