Biden's Preemptive Pardon of Fauci, Milley and the January 6th Committee is Understandable and Ultimately Wrong
Defense of the institutions of democracy and law requires a willingness to sacrifice in the face of injustice. There is no getting around that
Update: Since I published this piece, with minutes left in his presidency, former President Joe Biden, preemptively pardoned his entire family. This doesn’t undermine any point I’ve made here, but makes the anti-democratic transgression even worse.
When Donald Trump nominated Kash Patel for the position of Director of the Federal Bureau of Investigation, he revealed his intention to transform federal law enforcement into a weapon against his political opponents. Patel, who served as Trump's former counterterrorism official, has explicitly outlined his plans in his book Government Gangsters, publishing what amounts to an enemies list of government officials he believes should face criminal prosecution. Many of the individuals on Patel's list are the very same public servants Joe Biden has now preemptively pardoned on the eve of Trump's return to the presidency.
The ethical instinct to protect public servants from politically motivated prosecution is both understandable and noble. These individuals—from Dr. Anthony Fauci's leadership during a global pandemic to General Mark Milley's stewardship of constitutional order during a precarious transition of power—fulfilled their duties to the American people under extraordinary pressure. When faced with the prospect of these officials being targeted by a potentially vindictive Justice Department, President Biden's protective response through preemptive pardons appears, at first glance, to be a reasonable shield against injustice. Yet this seemingly justified defense of public servants reveals a deeper tension between individual fairness and institutional integrity that lies at the heart of democratic governance.
However, the defense of democratic institutions sometimes requires accepting painful and seemingly unfair burdens. When we examine the historical moments where democracy has been most severely tested, we often find individuals who faced unjust prosecution but chose to work through the legal system rather than circumvent it. The civil rights movement provides a powerful example—its leaders understood that submitting to unjust arrests and defending themselves in court, while personally costly, ultimately strengthened the rule of law by exposing injustice through proper legal channels. This same principle applies to our current moment. While it may seem cruel to expect public servants to face the stress and financial burden of defending themselves against politically motivated prosecutions, creating a separate class of citizens who are preemptively immune from legal scrutiny poses a greater danger to democratic institutions than any individual prosecution could.
Preemptive pardons, regardless of their protective intent, create several compounding harms to democratic institutions. First, they establish a troubling precedent where the executive branch can effectively declare certain individuals above the law before any specific charges are brought. This undermines the fundamental principle that the legal process itself, rather than executive intervention, should determine guilt or innocence. Second, they create an implicit admission that our judicial system cannot be trusted to fairly evaluate politically charged cases—a concession that paradoxically weakens the very institutions we're trying to protect. Most importantly, preemptive pardons short-circuit the public's ability to witness the strength or weakness of politically motivated prosecutions through proper legal channels. When public servants defend themselves successfully in court against baseless charges, it strengthens public faith in the judicial system. When they bypass this process entirely through executive protection, it reinforces the dangerous notion that justice operates differently for different classes of citizens.
This recognition—that defending our institutions sometimes requires individuals to face unjust prosecution—points to a fundamental truth about democratic citizenship that we often overlook in our pursuit of fairness. To be a public servant in a democracy means accepting that you may need to defend yourself through proper legal channels, even when those channels are being manipulated for political ends. This is not because such prosecutions are legitimate—indeed, we should vigorously oppose them through legal defense and public advocacy. Rather, it's because the very act of successfully defending oneself against politically motivated charges strengthens the legitimacy of our legal system. When Dr. Fauci or General Milley face their accusers in court and demonstrate the baselessness of charges against them, they do more than clear their own names - they demonstrate the resilience of our judicial system against political manipulation. This process, while personally burdensome, builds public confidence in ways that preemptive pardons never can.
The appropriate response to politically motivated prosecutions lies not in presidential pardons but in mobilizing democratic institutions and civil society to defend targeted public servants. This means ensuring robust legal defense funds, supporting public interest law organizations, and maintaining consistent public pressure against the weaponization of justice. The American legal system already provides numerous safeguards against malicious prosecution—from the grand jury process to judicial discretion in dismissing baseless charges. When these safeguards appear to fail, the solution is to strengthen them through reform and public oversight, not to bypass them through executive action. Moreover, Congress has the power to conduct oversight hearings, pass legislation protecting civil servants, and use its budgetary authority to prevent the misuse of federal resources for political vendettas. These institutional responses, while perhaps less immediate than pardons, preserve the principle of equality before the law while still protecting public servants from genuine abuse. I say this recognizing that the Republican Party controls Congress and will at least through the next two years. But their majority in the House is thin, and the Democrats have some workable leverage there.
Some might argue that facing the reality of a hostile Congress makes preemptive pardons more necessary, not less. After all, if traditional institutional protections are weakened by partisan control, shouldn't we seek alternative safeguards? But this reasoning actually strengthens the case against preemptive pardons. When democratic institutions are under strain, preserving their legitimacy becomes even more crucial. By issuing these pardons, Biden has inadvertently provided ammunition to those who claim our justice system operates on two tiers—one for political insiders and another for everyone else. This perception of special treatment, even when intended to prevent abuse, corrodes public faith in democratic institutions at precisely the moment when we most need to demonstrate their resilience and fairness. The hard truth is that maintaining institutional integrity during periods of political stress requires more rigorous adherence to proper process, not less.
The defense of democratic institutions has never been easy or painless. History shows us that preserving the rule of law often requires individuals to bear difficult burdens for the greater good of our constitutional system. While Biden's instinct to protect public servants from political persecution is understandable, preemptive pardons ultimately weaken the very institutions they aim to defend. The coming years will likely test our democracy in unprecedented ways, and the temptation to seek expedient solutions will be strong. But the path to preserving our democratic institutions requires us to match the courage of those who built them—accepting personal risk and unfairness when necessary, defending ourselves through proper legal channels even when they appear stacked against us, and maintaining faith that our system of laws, however imperfect, remains our best defense against political persecution. This is the difficult wisdom that Biden's pardons, despite their protective intent, fail to embrace: there are no shortcuts in the defense of democracy.