Opinion: Biden should grant amnesty to all of the Trump’s ‘enemies’

President Biden’s controversial pardon of his son Hunter demonstrates the virtually limitless presidential pardoning power. Before he leaves office in a few weeks, Biden has some urgent unfinished business. There is a class of vulnerable Americans, at least as deserving as convicted felon Hunter Biden, who must immediately be pardoned or granted sweeping amnesty to protect them from certain intimidation, criminal investigation and criminal prosecution merely for doing their jobs.

Donald Trump has repeatedly pledged to persecute his critics whom he labeled “the enemy from within.” A broad swath of Americans made his enemies list:

• The “fake news media” was “dishonest,” “corrupt,” “low life reporters,” “bad people,” “human scum” and “some of the worst human beings you’ll ever meet.”

• Trump’s Democratic opponents were “Marxist and communists and fascists” and “they’re sick … and they’re so evil.”

• His enemies were “vermin” and “more dangerous than China, Russia and all these countries.”

Trump identified some of his enemies by name: U.S. Sen. Adam Schiff, D-Calif., Rep. Nancy Pelosi, D-San Francisco, retired Gen. Mark Milley, former Rep. Liz Cheney and Vice President Kamala Harris. But undoubtedly hundreds, if not thousands, of others are in harm’s way. These include members of Congress, judges, prosecutors, journalists, lawyers, business and organized labor leaders, academics, celebrities and many more.

Reign of terror

Trump’s promised retribution is not merely overblown campaign rhetoric. Trump is deadly serious. Whoever ends up his attorney general — the nation’s chief law enforcement officer who oversees the FBI and appoints all federal prosecutors –will be a die-hard Trump loyalist who will do his bidding. His latest nominee, Pam Bondi, stated in 2023: The DOJ “prosecutors will be prosecuted — the bad ones. The investigators will be investigated.”

Bondi’s collaborator, if confirmed, will be Trump’s choice for FBI director, Kash Patel, who has openly vowed “to go out and find the conspirators — not just in government but in the media who lied to American citizens.” Patel brazenly touts Trump’s reign of terror. “We’re going to come after you. Whether it’s criminally or civilly, we’ll figure that out. … (W)e’re putting you all on notice …”

Abuse of presidential power to punish vocal adversaries is not unprecedented. President Richard M. Nixon was forced to resign in 1974 when it was revealed that he had misused the FBI and IRS to investigate members of his hit list of 576 enemies.

What can be done to thwart Trump? Waiting for innocent citizens to be investigated — at great emotional, financial and reputational harm — would be an unacceptable abdication of Biden’s constitutional duty to preserve the rule of law. Trump’s threatened unconstitutional actions must be nipped in the bud. Right now.

Biden has at his disposal effective constitutional means to thwart unconstitutional acts. The first clause in Article II, Section 2, of the Constitution states: “The President . . . shall have the power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.” The Supreme Court has consistently held that, excepting impeachment, the president’s power to grant pardons is “unlimited” and not subject to congressional or judicial review or restriction.

The scope of pardons is expansive. Not only can they cover crimes for which the recipient has been convicted, but they also can extend to any offense that he “has committed or may have committed or taken part in” for a specified period in the past. That was the language of President Gerald Ford’s pardon of Nixon for his Watergate-related crimes for which he had not yet been charged, and the wording of Hunter Biden’s pardon.

In harm’s way

There are obvious candidates. Cheney, Pelosi, Schiff, Milley, former Rep. Adam Kinzinger, special counsel Jack Smith, members of the House January 6th Committee, journalists at the New York Times, Washington Post, CNN, MSNBC, and other media outlets and the host of former government officials who openly opposed Trump’s election as a threat to democracy. Each can individually receive a pardon.

But that is not enough. Many other persons are in harm’s way. These include the special counsel’s and January 6th Committee’s staff, prosecutors, the judges and their law clerks who have presided over Trump’s criminal and civil cases, military leaders, and Harris-Walz campaign workers, among others. They are too numerous and not readily identifiable to grant individual pardons. They cannot be left behind — they must also be protected from harassment, investigation and prosecution.

Fortunately, the Constitution affords a solution — amnesty. While amnesty is identical to a pardon in its effect, amnesty is another form of pardon typically extended to whole classes or groups instead of individuals. With the stroke of a pen, Biden can grant blanket amnesty to an expansively defined community of potential Trump targets. That would effectively checkmate any effort to investigate, much less prosecute, anyone protected by the amnesty grant.

Presidents have granted amnesty to groups comprising thousands of members. In the 1860s, Abraham Lincoln and Andrew Johnson gave amnesty to more than 150,000 Confederate soldiers. In 1977, Jimmy Carter granted amnesty to several hundred thousand men who unlawfully evaded the draft during the Vietnam War. Most recently, Biden has pardoned thousands convicted of federal marijuana-related crimes.

Biden has the historic opportunity to spare countless Americans from the fear of retaliation by a spiteful bully. Mass pardons of innocent citizens do not require an act of political courage. Amnesty for Trump’s political “enemies” is a moral imperative.

Pierce O’Donnell is a California trial lawyer who clerked for U.S. Supreme Court Justice Byron R. White.