Biden just gave Trump a new pardon playbook

In the final days of Trump’s first term, at least one close ally — former Rep. Matt Gaetz (R-Fla.) — requested a similarly sweeping pardon, according to congressional testimony. But top White House aides made clear it was a nonstarter.

Now that Joe Biden has crossed the Rubicon, legal experts and former Trump associates say it will be harder to restrain Trump next time. He now has a readymade rationale to follow suit when he returns to office.

During the 2024 campaign, Trump pledged to harness the pardon power even more aggressively. Most notably, he promised to pardon many of the rioters who stormed the Capitol in his name on Jan. 6, 2021.

Almost immediately after the Hunter Biden pardon was announced, Trump hinted that he may cite it as justification for granting broad clemency to Jan. 6 defendants.

“Does the pardon given by Joe to Hunter include the J-6 Hostages?” he asked on social media, describing the rioters in terms rooted in his efforts to downplay the violence they wrought against police that day.

Joe Biden deviated from past practices by invoking fairness — rather than acceptance of responsibility — as the putative criteria for pardoning his son, said Samuel Morison, an attorney who worked in the Office of the Pardon Attorney for 13 years. Trump is now freer to invoke that same reasoning to grant broad protection to his own allies.

“I do think this gives Trump greater leeway to exercise the pardon power in ways that he might otherwise have hesitated, because it gives Trump more political cover to do what he wants,” Morison said. “How can you say that the president can’t grant pardons to correct something that he believes is an injustice? Biden just did it.”

Ty Cobb, a White House lawyer during Trump’s first term who has since become a prominent Trump critic, agreed.

“Trump doesn’t really need excuses to act selfishly or vengefully,” Cobb said. “But this provides him one on a silver platter.”

Resisting broad pardons in Trump’s first term

Trump has already wrestled with how far to push the pardon power — but largely deferred to wary advisers.

According to testimony before the House select committee that investigated the attack on the Capitol, Trump mused shortly before he left office in January 2021 about pardoning family members, staff, nonviolent members of the Jan. 6 mob and even himself.

Trump’s White House counsel Pat Cipollone and other top advisers told the committee that they worked to suppress some of those proposals.

Cipollone said he considered resigning over “some pardons that were being proposed.” Another aide, Johnny McEntee, said he witnessed Cipollone successfully persuade Trump against a blanket pardon for nonviolent Jan. 6 rioters. And a third adviser, Eric Herschmann, said he recalled a discussion about pardons for Trump family members but said “it was never going anywhere,” primarily because “it was clear the family didn’t want pardons.” (Trump did pardon Charles Kushner, the father-in-law of Ivanka Trump — and last week, he chose Kushner to be the next ambassador to France.)

And Herschmann told the panel he and another Trump White House aide, deputy counsel Pat Philbin, were flummoxed when Trump loyalist Gaetz (who was, at the time, under investigation for sex trafficking) asked them for a sweeping pardon that would have covered “everything that ever happened.”

Herschmann recalled saying that such broad terms would be “unprecedented” and virtually impossible to craft.

“How are you ever going to articulate that?” he testified in 2022. “How was the pardon office going to write this? What would we conceivably do?”

While the first Trump administration stopped short of trying to write an essentially limitless pardon, the Biden White House did not. The language in the Hunter Biden pardon — covering all “offenses against the United States which he has committed or may have committed or taken part in” from Jan. 1, 2014, through Dec. 1, 2024 — closely tracks the language of Ford’s pardon of Nixon, who was granted protection for any crimes he may have committed during his presidency.

Before Joe Biden settled on the broad pardon, there was a debate in the West Wing about whether the president should grant a far more limited form of clemency, according to a Democrat who was in contact with the White House and was granted anonymity to relay the private conversations. Some senior officials believed Joe Biden should merely commute the sentences that Hunter Biden was set to receive in the coming weeks for gun and tax crimes.

White House spokesperson Andrew Bates disputed that there was internal debate over the issue, saying “that is false.”

The president chose a full pardon — a broadly worded one extending to other potential crimes — because he wanted to insulate his son from retributory criminal investigations by the Trump Justice Department, according to the Democrat. Trump’s calls for investigating his adversaries, including the Biden family, were a centerpiece of his campaign.

Joe Biden’s pardon, meanwhile, flew in the face of his longstanding commitment to honor the outcome of his son’s criminal proceedings and withhold any clemency.

Democrats brace themselves

Few Democrats have defended the Hunter Biden pardon, and some have spoken against it.

“As a father, I sympathize for his family’s situation,” said Sen.-elect Andy Kim (D-N.J.). “But as you know, as an American, as a person working here in these types of jobs, I’m very disappointed. I don’t think it was the right decision to make. I think it just feeds into so much of what I find is challenging at this moment when it comes to the people I’m talking to that are so distrusting of politics.”

And the current president’s provocative pardon comes as congressional Democrats gird themselves for what all expect to be the next president’s mission to expand executive power.

“This was an improper use of power,” said Sen. Gary Peters (D-Mich.). “It erodes trust in our government, and it emboldens others to bend justice to suit their interests.”

One component of Trump’s mission may be a blanket pardon of Jan. 6 defendants shortly after he is inaugurated — a prospect that is worrying even one Trump-appointed judge. Another immediate component, Trusty suggested, is a pardon of Carlos de Oliveira and Walt Nauta, the two Trump aides who are charged with helping him obstruct the investigation into the classified documents that Trump kept at Mar-a-Lago after he left office.

“To me, that’s kind of a no-brainer,” Trusty said. “And maybe out of an abundance of caution, he tracks the language of Hunter Biden’s very broad pardon.”