OPINION:
Rumors are circulating that President Biden isn’t done exercising his pardon power. According to Politico, the president’s advisers are weighing the possibility of dispensing pardons to Sen.-elect Adam Schiff, California Democrat, former Rep. Liz Cheney, ousted Wyoming Republican, and Dr. Anthony Fauci, the former COVID-19 czar.
Mr. Biden did express his displeasure with the Department of Justice and its politicized prosecutions in his grant of executive clemency to his son Hunter Biden, but this was off-message. The Democratic establishment has spent nearly four years insisting that “no one is above the law” under this administration. Preemptive pardons would be an admission that this has always been a lie.
While White House leakers are floating recognizable names such as Dr. Fauci and Ms. Cheney as primary pardon beneficiaries, this is a distraction. It’s far more likely their machinations seek to quietly include lesser-known FBI and Justice Department foot soldiers who bent the rules to prosecute the administration’s enemies.
After all, Mr. Schiff and Ms. Cheney are already covered by legislative immunity. They don’t need a pardon. It’s also doubtful whether Dr. Fauci would accept forgiveness for his crimes; he says he hasn’t committed any.
“I don’t know what one would prosecute me for,” he told CNN in August.
The House Oversight Committee, which investigated the coronavirus pandemic, issued a report Wednesday concluding that Dr. Fauci’s agency, the National Institute of Allergy and Infectious Diseases, funded risky gain-of-function experiments at the lab in Wuhan, China, that likely sparked the global panic. The good doctor gave inconsistent testimony before Congress about this while his staff worked to concoct a much less plausible theory about the public eating bats.
Dr. Fauci tells a different tale: “I played a major role in the development of the vaccine that was responsible for the saving of millions of lives. So, if that’s what you’re accusing me of, then I’m definitely guilty of that.”
Dr. Fauci rose to become America’s highest-paid civil servant, taking home $480,000 a year, by knowing how to work the system. It’s hard to imagine finding the mountain of evidence needed to sway a jury in the District.
Accepting the pardon also comes at a significant cost. Dr. Fauci and members of the Jan. 6 congressional committee such as Ms. Cheney and Mr. Schiff can — if necessary — dodge difficult questions by asserting their right to avoid incriminating themselves. That changes if they accept a pardon.
There’s no possibility of self-incrimination if they can’t be indicted in connection with their conduct. This was put to the test a century ago when newspaperman George Burdick was summoned before a grand jury and ordered to snitch on his government sources.
As a good journalist, Burdick refused. President Woodrow Wilson tried to outwit him by issuing a blanket pardon under the guise of protecting him from contempt proceedings. Burdick tore up the proclamation to preserve his Fifth Amendment privilege, and the Supreme Court agreed he was within his rights to do so.
So, if Mr. Biden goes ahead and declares his Democratic allies above the law, at least there will be a consolation prize. Those who evade prosecution will still be forced to testify about the dirty deeds of the current administration in judicial and congressional proceedings.
The “big guy” cares about his legacy. Issuing preemptive pardons would force his minions to talk about what went on behind the scenes on his watch. Given that prospect, he might think twice about endorsing the plan West Wing staffers are leaking to the media.
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