The Free Press
One of the first promises Donald Trump made in his inaugural address was to restore the integrity of a justice system he believes was manipulated against him by his political opponents. “The scales of justice will be rebalanced,” he said. “The vicious, violent, and unfair weaponization of the Justice Department of our government will end.”
When Trump said this on the campaign trail, it sounded like a partisan gripe to the roughly half of the country that loathed him. But on Monday, the man Trump just replaced in the White House unintentionally but undeniably lent credence to his point.
With minutes left in his presidency, Joe Biden pardoned five more members of his family. (He had pardoned his son, Hunter, in December.) A few hours earlier, Biden pardoned a slate of some of his successor’s most high-profile opponents, including members and staff of the House January 6 committee as well as longtime government health and science bureaucrat Anthony Fauci and Mark Milley, former chairman of the Joint Chiefs of Staff. These pardons cover all potential federal crimes dating back to January 1, 2014.
In short, Biden issued sweeping acts of preemptive clemency for his allies and family—before they were even indicted, let alone convicted. The closest any American president had ever come to doing that was Gerald Ford’s pardon of his predecessor, Richard Nixon, after his August 1974 resignation. At the time, Nixon was still a target of the Watergate special counsel.
Biden’s pardons are an epic face-plant, inconsistent with his 2020 promises to uphold the rule of law and, indeed, with his professed faith in the same justice system that prosecuted Trump. By using the pardon power as a shield to these selected parties, he implied that that the rule of law indeed was vulnerable to the kind of political influence that Trump said tainted the prosecutions against him. These last-minute pardons set a precedent for Trump to respond in kind on his way out of office in January 2029 and preemptively pardon his allies.
Or possibly earlier: Leading Democrats openly worried that Biden’s overuse of the pardon power would license Trump to commit his own excesses. “The pardon process I think has gotten out of hand, and it’s a bad precedent—preemptive pardons,” Senator Peter Welch, a Democrat who sits on the Senate Judiciary Committee, told CNN.
Thus did an outgoing president who had come to office as a restorer of democratic norms create a dangerous new one as he departed it.
Still, there is a silver lining. Trump has often sounded like a man bent on retribution against those he believes abused their power to persecute him. Certainly, he has led his voter base to expect a reversal of the wheels of justice in that direction. Yet Biden has likely foreclosed that option with respect to the beneficiaries of the pardons. Even if Trump wanted to lock them up, it’s unlikely his Justice Department would have any success.
There could be an upside for the republic. The impasse, if that’s the word, can be interpreted as a kind of truce. Republicans will not be able to rummage through the law books to prosecute certain individuals—Fauci, Milley, Liz Cheney, et al.—as opposed to alleged crimes. That is, they won’t be able to imitate Manhattan’s Democratic district attorney, Alvin Bragg, who brought the most legally dubious case against Trump.
To be sure, the door remains open to investigations, either congressional or by internal administration bodies, of Biden’s Justice Department’s past conduct. And that process is a potential nightmare for the targets.
Biden backhandedly acknowledged this in his statement on Monday’s preemptive pardons. “Baseless and politically motivated investigations wreak havoc on the lives, safety, and financial security of targeted individuals and their families,” Biden said.
Randy Barnett, a constitutional law professor at Georgetown University Law Center, sees potential merit in investigating exactly how the Biden Justice Department wielded “the full power of the federal government against his political opponent.” He made clear that there is no place for manufactured or retributive inquiries but argues that one potentially legitimate area is any coordination between Biden officials and the state prosecutors—Bragg in New York and Fani Willis in Georgia—who brought cases against Trump.
While that may sound far-fetched to some readers, there is smoke, if not fire. Consider for example Nathan Wade, a former special prosecutor in the Fulton County district attorney’s office. In October he acknowledged to the House Judiciary Committee that he held two meetings with Biden White House officials during his work with Willis into Trump’s pressure on Georgia’s secretary of state to overturn the 2020 election.
Matthew Colangelo, who was a senior counsel in Bragg’s office as it prosecuted Trump, worked in senior positions at the Biden Justice Department until December 2022. Before taking that slot, he had a senior role working for New York State attorney general Letitia James, and oversaw her civil litigation against Trump’s real estate empire. In December 2022, he left the DOJ and joined Bragg’s team that brought the 34 felony indictments that ended in Trump’s conviction in May.
The House Judiciary Committee pursued Colangelo in an investigation under its chairman, Rep. Jim Jordan, a Republican from Ohio. The Justice Department responded in July to a series of document requests from Jordan and the committee, claiming that they searched and found no emails between Bragg’s office and Colangelo prior to his decision to join that team. One Republican House staffer told The Free Press he expects the new attorney general–designate, Pam Bondi, to revisit the matter if confirmed.
Senator Ted Cruz told The Free Press he also expects far more cooperation with Congress from both the FBI and the Justice Department in the Trump administration. “There is a big difference between weaponization and accountability,” Cruz said. He added that he has personally urged Trump’s picks to lead the Justice Department and the FBI—Pam Bondi and Kash Patel—“to significantly enhance transparency. The Biden Department of Justice stonewalled Congress repeatedly.”
Though not on a par with actual partisan prosecution, it’s likely that Bondi’s Justice Department will pursue bureaucrats they suspect of leaking sensitive information unfavorable to Trump, something the Justice Department rarely did in his first term.
“I have no doubt they will try to identify leakers or others who are sabotaging policy,” Ilya Shapiro, the director of constitutional studies at the Manhattan Institute, told The Free Press. “Some of that may well end up with criminal investigations, but that is qualitatively different than going after political enemies.”
This gets to a central lesson of the Democrats’ attempt at lawfare against Trump, one which the new president would be well advised to heed: That effort backfired spectacularly.
By enabling Trump to posture before his voter base as a martyr, it offset the disgrace that had deservedly attached to him because of the January 6, 2021, riot at the Capitol. The FBI’s raid in 2022 at his home in Mar-a-Lago lashed the Republican Party closer to him during his primary. Bragg’s invocation of novel legal theories to justify his hush money prosecution earned Trump sympathy from conservative critics and liberals alike.
Meanwhile, in terms of actual legal accountability, the prosecutions achieved nothing. Between Trump’s election November 5 and his inauguration Monday, the major cases against him were either dropped, mortally wounded, or concluded with no penalty.
Trump of course had help. The Supreme Court ruled over the summer that most presidential acts are immune from prosecution in the courts after a president leaves office. Biden’s own mishandling of classified material as vice president undercut the case against Trump for retaining classified documents at his personal estate at Mar-a-Lago and covering that up. A special counsel assigned to Biden’s case opted not to prosecute him—on the politically damaging grounds that a jury would be loath to convict a forgetful old man.
Biden’s implied trashing of the justice system was not lost on David Weiss, the U.S. attorney who oversaw the prosecution of Hunter Biden. In his little-noticed final report on the investigation, made public on January 13, he chastised the former president for citing the unfairness of the case against Hunter as a reason to pardon his son. “Calling those rulings into question and injecting partisanship into the independent administration of the law undermines the very foundation of what makes America’s justice system fair and equitable,” he wrote.
As Trump begins his second term, he has a chance to end the cycle of lawfare the Democrats started. He knows better than anyone else that in 2024, at least, lawfare hurt those who waged it much more than their target. A wise man might consider this a strong argument for not repeating the mistake his foes made.
Sometimes the news moves so fast, you have to look closely to recognize if you’ve seen it before. Check out Eli Lake’s new podcast, Breaking History, where he breaks down the news by breaking down history. Premiering January 22 on all podcasting platforms.