Biden Pardons For Cheney, Fauci, Others Could Backfire: Legal Expert

Biden’s Last-Minute Pardons: A Professional Analysis of the Clemency and Its Complex Legal and Political Implications

In the waning days of his administration, President Joe Biden exercised one of the most expansive discretionary tools afforded to the presidential office: the power of clemency. Announced in a carefully curated list, the round of pardons—traditionally intended to redress injustices, correct prosecutorial overreach, and extend mercy—this time carried an unmistakably political undertone. By shielding figures such as former Representative Liz Cheney and Dr. Anthony Fauci, Biden’s administration sought to preempt what aides described as potential “reprisals” by the incoming Trump administration. Yet, while the gesture afforded temporary relief from criminal liability for the pardoned offenses, it also unleashed a host of legal nuances and political reverberations that render these clemencies anything but straightforward.

The Presidential Pardon: Constitutional Authority and Historical Context

The U.S. Constitution’s Article II, Section 2 grants the president broad power “to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” Historically, pardons have served multiple functions: they have corrected wrongful convictions (as in the case of President Ford’s posthumous pardoning of Richard Nixon), offered mercy in light of extenuating circumstances, and at times, facilitated political reconciliation. Presidents from Abraham Lincoln to Gerald Ford to Barack Obama have invoked clemency to address contentious or divisive legal matters.

Biden’s decision to extend last-minute pardons to individuals closely associated with his administration’s public policy and investigative work—rather than a broad swath of nonviolent offenders or military service members—represents a more narrowly tailored and politically charged use of this executive power. By designating high-profile figures like Cheney and Fauci, Biden underscored a protective posture toward officials who, in recent years, have become lightning rods in America’s polarized political landscape.

The Pardon Recipients: An Overview

Among the select group extended clemency were two of the most prominent faces of the January 6 congressional investigations and the federal government’s public health response:

• Liz Cheney, former Republican congresswoman from Wyoming and vice chair of the House January 6 Committee. A vocal critic of former President Trump’s conduct and a leading advocate for accountability after the Capitol breach, Cheney found herself ostracized within her own party and faced potential legal exposure due to extensive subpoenas and committee proceedings.

• Dr. Anthony Fauci, long-serving director of the National Institute of Allergy and Infectious Diseases and chief medical advisor for the Biden White House. Fauci became the public face of the federal government’s pandemic response, enduring relentless attacks from critics questioning his guidance on lockdowns, masks, and vaccine mandates.

Also included in the pardons were:

• General Mark Milley, former Chairman of the Joint Chiefs of Staff, who notably criticized Trump’s rhetoric and decisions during the final months of his term.

• Other members of the January 6 committee and key federal officials whose testimony and actions played critical roles in congressional inquiries.

Together, these pardons conveyed a clear message: the Biden administration would not abandon to potential retribution those who had acted in what it deemed the national interest.

Clemency Does Not Equal Immunity from Witness Testimony

Despite the widespread headlines proclaiming “pardons granted,” the practical legal effect of these clemencies falls short of providing blanket immunity. Federal litigation attorney Jesse Binnall—formerly associated with President Trump’s legal team—was swift to note that while the pardons absolve the individuals of criminal liability for the specific offenses covered, they do nothing to relieve them from the obligation to testify under oath if properly subpoenaed.

Under constitutional and statutory law, a presidential pardon extinguishes punishment for the offense specified but does not negate the obligation to answer questions truthfully before grand juries, courts, or congressional committees. Indeed, in the event that Cheney, Fauci, or any other pardoned individual were compelled to testify, they would retain the full force of perjury statutes should they willfully lie. As Binnall observed on the social media platform X (formerly Twitter), “No one who was just pardoned will be able to refuse to testify in a civil, criminal, or congressional proceeding based upon the Fifth Amendment.” Far from shielding them from accountability, the pardon effectively removes their ability to invoke self-incrimination privileges regarding the covered offenses—and subjects any false statements to perjury charges.

The Fifth Amendment’s Limited Reach Post-Pardon

The Fifth Amendment guarantees that no person “shall be compelled in any criminal case to be a witness against himself.” Ordinarily, a subpoenaed witness may invoke the Fifth to decline testimony where answering could lead to criminal exposure. However, when a person has been pardoned for a specific crime, the risk of prosecution for that offense is extinguished. Consequently, as many legal scholars have pointed out, the Fifth Amendment no longer applies to questions directly related to the pardoned conduct.

That dynamic transforms the pardon into a double-edged sword: while it clears the slate of prior criminal liability, it removes the witness’s most potent shield against self-incrimination. A pardoned witness who nonetheless lies under oath risks perjury, obstruction of justice, or contempt charges—offenses that a presidential pardon generally does not cover unless explicitly stated. In effect, the clemency heightens the stakes for truthful testimony, a point underscored by commentators who regard the pardons as “great news” for prosecutors and congressional investigators.

Venue Matters: Overcoming Perceived “Bias” in Washington, D.C.

With a seemingly partisan tilt in the composition of federal venues, some conservative voices have aired concerns that the District of Columbia judiciary would be unlikely to secure convictions against high-profile Democrats. Retired Army officer and attorney Kurt Schlichter argued on X that to avoid “liberal bias” in D.C., investigators should relocate depositions and trials to jurisdictions perceived as more neutral or conservative.

Schlichter’s suggestion raises interesting logistical and legal questions. Federal crimes and congressional subpoenas typically fall within the jurisdiction where the alleged criminal acts occurred or where the subpoena power is exercised. Transferring proceedings out of the nation’s capital would require venue motions and judicial approval, a process that could delay testimony and engender further legal challenges. Nonetheless, the proposal signals a broader concern among Republican lawmakers and pundits: that the courts in Washington, D.C.—long dominated by Democratic-appointed judges—would not fairly adjudicate cases against partisan allies of the Democratic Party.

The Scope of a Pardon: Beyond the Explicitly Covered Offenses

Another critical dimension of these clemencies lies in understanding precisely what a presidential pardon covers. Arizona Republican operative Josh Barnett offered a detailed explanation on social media: a pardon generally applies only to the specific offenses enumerated or implicitly understood at the time of issuance. Should evidence surface of separate, subsequent wrongdoing—such as treasonous communications or destruction of documents—those offenses would stand outside the ambit of the clemency.

Barnett’s commentary serves as a reminder that pardons are not all-encompassing get-out-of-jail-free cards. Unless the presidential directive explicitly names future or unspecified conduct, newly discovered criminal actions remain prosecutable. This limitation carries significant weight in scenarios where, for example, an official pardoned for documentary infractions later faces allegations of espionage or unauthorized disclosures. The clemency, in such instances, would provide no protection.

Political Reactions: Trump’s Denouncement and Partisan Backlash

Unsurprisingly, former President Donald Trump seized upon the pardons as fodder for his own political messaging. In an appearance on Fox News with host Rachel Campos-Duffy, Trump decried the so-called “unselect committee of political thugs” and railed against Cheney and other Republicans who had joined the January 6 investigation. He cast the pardon as evidence of a broader “corrupt” agenda among his opponents, insisting that the committee “destroyed every piece of evidence” when it concluded that their findings were not favorable to him.

Trump’s rhetoric underscores the deep partisan chasm over accountability for the January 6 Capitol breach and the subsequent congressional inquiry. Whereas the Biden administration frames the pardons as protective measures for public servants fulfilling their sworn duties, Trump and his allies characterize them as cynical maneuvers to shield political adversaries. This clash of narratives sets the stage for a prolonged battle over the legitimacy of both the investigatory process and the scope of executive clemency.

Legal Expert Perspectives: Balancing Mercy and Accountability

Beyond the political theater, constitutional scholars have weighed in on the propriety and long-term implications of these pardons. Some argue that shielding officials who acted under official capacity from criminal liability helps ensure that future public servants can perform duties without fear of politically motivated prosecutions. By that rationale, a broad pardon protects the institutional integrity of government functions—whether conducting pandemic response or overseeing high-stakes congressional investigations.

Conversely, critics caution that such a pardon risks undermining the rule of law by suggesting that executive branch actors are above legal scrutiny. They highlight the potential chilling effect on whistleblowers, oversight committees, and investigative journalism. If key officials anticipate that they might evade all consequences through a presidential pardon, the incentive to maintain rigorous internal compliance and ethical standards could diminish.

Implications for Future Administrations

The Biden pardons may also set a precedent for future transitions of power. A tradition has long emerged of outgoing presidents extending clemency to allies and fellow party members to guard against successor retribution. Presidents Clinton and Obama, for instance, issued pardons that included political figures or associates. Trump himself faced criticism for commutations and pardons granted on behalf of personal aides and campaign associates.

Moving forward, the question arises: will every incoming administration feel compelled to follow suit, creating perpetual cycles of protection and reprisal? Or, will Congress seek legislative reforms to limit the scope of presidential pardons, perhaps by requiring more detailed disclosures or constraining their retrospective coverage? To date, efforts to curb clemency power—such as imposing narrower statutory definitions or sunset provisions—have found little traction, reflecting the constitutional framers’ deliberate insulation of this executive authority.

Navigating Congressional Investigations Post-Pardon

Practically speaking, congressional committees retain significant subpoena power and may compel testimony from the pardoned individuals. The House and Senate have enforcement mechanisms—including civil and criminal contempt referrals—to deter noncompliance. With the Fifth Amendment effectively neutralized regarding the covered conduct, Cheney, Fauci, and others may find themselves under intense pressure to provide unvarnished testimony or face potential perjury indictments.

Committee counsel and House leadership will likely strategize carefully to leverage the pardons: drafting questions that align precisely with the pardoned offenses, scheduling depositions in venues deemed favorable, and coordinating closely with the Department of Justice in the event of perjury or obstruction referrals. The interplay between executive clemency and legislative oversight will thus become a central feature of Washington’s post-transition legal landscape.

Conclusion: Clemency’s Complex Legacy

President Biden’s decision to grant last-minute pardons to Liz Cheney, Dr. Anthony Fauci, and select former officials crystallizes the dual nature of presidential clemency: an act of mercy that nonetheless carries profound legal and political consequences. While the pardons afford immediate relief from criminal exposure for specified offenses, they do not insulate the recipients from the rigors of sworn testimony, nor do they extend to unenumerated or future misconduct.

As congressional investigations press forward, the pardoned witnesses will be tasked with navigating a fine line between transparency and self-preservation. Legal experts and partisan commentators will debate whether these clemencies protect institutional integrity or erode accountability. Meanwhile, the broader implications for executive-legislative relations and the exercise of mercy in American jurisprudence will unfold in the months and years to come.

Ultimately, this round of pardons underscores that the power to forgive is inseparable from the power to investigate—and that in a polarized era, decisions made in the final days of an administration can reverberate well beyond the swearing-in of the next.