Biden’s Pardons for Cheney, Fauci, and Others Could Have Unintended Legal Consequences, Experts Warn
In a last-minute decision, President Joe Biden issued pardons for several high-profile figures, including former Wyoming Republican Congresswoman Liz Cheney and Dr. Anthony Fauci. The pardons, granted in the final days of Biden’s presidency, appear to be a strategic move aimed at shielding these individuals from potential political retaliation by President-elect Donald Trump’s incoming administration.
The recipients of the pardons have been central figures in recent political battles, with Cheney playing a leading role on the January 6th Committee and Fauci serving as the director of the National Institute of Allergy and Infectious Diseases during the COVID-19 pandemic. Biden’s aides have indicated that the pardons were intended to prevent these figures from facing retribution or being targeted by the incoming administration, particularly given the contentious political environment.
However, legal experts have raised concerns that the pardons may not offer the level of protection that Biden’s team expects, particularly in terms of ongoing legal proceedings and potential future testimony. According to federal litigation attorney Jesse Binnall, the pardons do not grant immunity in all circumstances. While the pardons may protect Cheney and Fauci from certain criminal charges, they do not shield them from being compelled to testify under oath if subpoenaed by Congress or in civil and criminal cases.
Binnall, who previously represented former President Donald Trump, made it clear that those pardoned under these circumstances would still be required to testify if called upon, and their Fifth Amendment rights to avoid self-incrimination would not apply. “This is great news for anyone who wants to see them prosecuted,” Binnall wrote on the social media platform X (formerly known as Twitter). He added that any effort to evade testifying by invoking the Fifth Amendment would not be effective, given the pardons.
Moreover, Binnall emphasized that the pardons would not prevent Cheney and Fauci from facing legal consequences if they were to lie under oath during their testimony. Lying while under oath, also known as perjury, remains a criminal offense regardless of a pardon. Therefore, both individuals could still face legal ramifications if they provide false statements during any proceedings.
Some social media users, including retired U.S. Army officer Kurt Schlichter, pointed out the potential for bias in Washington, D.C. legal proceedings. Schlichter, who is also an attorney, suggested that any testimony related to the pardoned individuals should be moved out of Washington, D.C., to avoid the risk of a biased jury pool or a politicized environment that may be more lenient toward Democrats. “Washington D.C. is a biased venue that will not convict Democrats when they commit perjury,” Schlichter remarked, adding that it may be necessary to conduct depositions or trials in a neutral location.
While Cheney and Fauci were among the more prominent figures on the list of those receiving pardons, Biden’s clemency decisions also included other controversial figures. These included General Mark Milley, the former Chairman of the Joint Chiefs of Staff, who became a target of criticism from Trump during his presidency. Milley had been outspoken about the need to safeguard democratic institutions and had publicly disagreed with Trump on multiple occasions, including during the January 6th Capitol riot. Biden’s pardons also extended to other members of the January 6th Committee, which conducted a thorough investigation into the events surrounding the Capitol attack.
Former President Trump reacted publicly to the pardons, especially criticizing Cheney’s role in the January 6th hearings. Trump referred to Cheney as a “disaster” and a “crying lunatic,” echoing his long-standing animosity toward her for her outspoken stance against his actions related to the Capitol riot. Trump’s remarks reflect the deep political divisions surrounding the pardons, which appear to have been issued not only to prevent immediate retribution but also to influence the political narrative moving forward.
The legal scope of pardons has also been a point of contention. Former Arizona state legislator Josh Barnett noted that while pardons can absolve individuals of certain past offenses, they do not automatically protect them from being charged with new crimes that occur after the pardon. A pardon typically covers specific offenses committed before it is granted but does not shield an individual from future legal trouble. Barnett pointed to the case of General Milley, who allegedly contacted his Chinese counterpart during the final days of Trump’s presidency, offering to warn China of any impending military actions. Such actions, if deemed treasonous, would not be covered by a prior pardon.
Barnett explained that if a person commits a new offense, such as treason, after receiving a pardon for previous crimes, the pardon would not extend to that new offense. This legal principle highlights the limits of presidential clemency and underscores the potential for ongoing legal challenges for those who have been pardoned, particularly if they face allegations of wrongdoing after the pardon is granted.
The pardons granted by Biden have sparked significant debate, raising questions about the legal consequences for those involved and the broader political ramifications. While the clemency decisions may have been intended to protect political allies, they have also introduced new complications, potentially exposing recipients to further legal scrutiny and consequences in the future. The pardons underscore the complex nature of presidential power and the intricacies of legal immunity, highlighting the challenges that may lie ahead for both the recipients and the Biden administration itself.
