Extra: The Biden Family Pardons
Update: 2025-01-25
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In his final hours before leaving office on Monday, former President Biden announced pre-emptive pardons for his siblings, their spouses, and others he feared could be targeted for prosecution during the Trump administration.
Some of those pardoned, like former Joint Chiefs Chairman Retired General Mark Milley and Dr. Anthony Fauci, have been frequent targets of criticism by Trump. In the final days of the Biden administration, some House Republicans discussed pursuing legal action against the former president's brother, Jim Biden, accusing him of lying to Congress.
Hours after Trump was sworn into office, former federal prosecutor and ex-Trump attorney Jim Trusty spoke with host Chris Foster about the history and controversy of pre-emptive presidential pardons.
Trusty explained how pardons work, why they can be problematic for recipients, and what potential charges Biden’s family and other pardon recipients might have faced.
We often have to cut interviews short during the week, but we thought you might like to hear the full interview.
Today on Fox News Rundown Extra, we will share our entire interview with attorney Jim Trusty, allowing you to hear more about his perspective on presidential pardons and why President Biden’s actions have not sat well with many Americans.
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00:00:00
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This is the Fox News rundown extra.
00:00:32
I'm Chris Foster.
00:00:37
Before leaving the White House, now former president Biden announced preemptive pardons for several people he worried could be targets for prosecution by the Trump administration.
00:00:45
Some are people president Trump has said should be prosecuted, including members of the congressional committee that investigated the Capitol riot.
00:00:52
There are also pardons for Biden's siblings and in-laws former joint chiefs share general Mark Milley and Trump critic and Dr.
00:00:58
Anthony Fauci, the target of Republican investigations regarding the COVID-19 pandemic.
00:01:03
Biden says this should not be mistaken as an acknowledgment of any wrongdoing nor should any acceptance be misconstrued as an admission of guilt for any offense.
00:01:10
Now we talked about the pardons who Jim trustee, the former federal prosecutor and former Trump attorney.
00:01:15
The conversation was too long for all to be included in the regular weekday rundown and this weekend edition is where we put those edited parts back in.
00:01:21
Thanks for listening.
00:01:23
We appreciate it.
00:01:24
Now Jim trustee on the Fox News rundown extra.
00:01:27
All right, Jim, thanks for coming back on the Fox News rundown.
00:01:34
Let's talk about these preemptive pardons in practical terms for DOJ purposes.
00:01:38
What do the preemptive pardons mean?
00:01:41
Well, preemptive pardons are kind of untested water.
00:01:45
I mean, the bottom line is we had the historical president of president Ford, pardoning Richard Nixon without the presence of any sort of crimes at that point or at least nothing that had been charged.
00:01:56
So we've kind of lived with the possibility of this concept.
00:02:00
And now it's coming home to roost in space with, you know, a massive amount of pardons or significant pardons being issued by President Biden and a bunch expected by President Trump.
00:02:09
But although most of the president Trump ones we think are ones that are based on actual criminal prosecutions.
00:02:15
So new territory, the real trick is it's going to be very hard to ever see a challenge to this.
00:02:20
You know, there are scholars out there that say that these preemptive pardons are invalid, but you're not going to know that unless a prosecutor charges them and they litigate motions regarding that the constitutionality of these types of pardons.
00:02:35
So I'm not sure we're going to really get to a bottom line, but it's certainly new territory overall.
00:02:40
Yeah, I mean, they're untested because they're probably going to remain untested because who wants to bother to launch a prosecution that isn't going to go anywhere.
00:02:50
Exactly.
00:02:50
I mean, look, Jack Smith is probably spending about 50 to 60 million dollars on those two cases, J6 and Mar-a-Lago that went nowhere.
00:02:58
Can you imagine now having a new special prosecutor going after the Biden family, for instance, only to find out after spending, you know, 20 or 30 million that it was, in fact, a pardon.
00:03:08
Yeah.
00:03:08
Now this does not mean let's make it clear that Liz Cheney or the Biden family or Dr.
00:03:14
Anthony Fauci can suddenly you know, drive 100 miles an hour and become serial killers, right?
00:03:20
This is just for federal crimes.
00:03:21
It's for federal crimes and it's historic, not prospective.
00:03:26
So, and this is the, I think the really interesting kind of, you know, unintended effect component of this, which is anytime a person gets a federal pardon.
00:03:37
They're basically losing their Fifth Amendment privilege at the same time.
00:03:41
It's a way of overcoming privilege.
00:03:42
It's just like immunity.
00:03:43
So, at the end of the day, if you're an aggressive prosecutor or an aggressive Congress, you can bring people in and they have no ability to successfully, you know, fend off the questions through claiming the Fifth Amendment privilege.
00:03:57
So, yeah, that's the interesting unintended consequence here is you could have a whole bunch of Biden families dragged into Congress.
00:04:02
They could be in trouble for either obstruction or fall statements if that's how they proceed.
00:04:07
So, it's a little bit of a mixed bag when you actually receive a pardon on these particular circumstances.
00:04:13
So, in the end, this could make it more likely that somebody, the Jim Biden or Dr.
00:04:19
Anthony Fauci or somebody could be put in the position of stepping in it if Congress wants to call them back and throw hard questions at him.
00:04:26
Right.
00:04:26
I mean, they probably, you know, they have the immunity basically from these pardons for the historical conduct.
00:04:32
The question is, if they're brought in and they have to answer questions or face contempt, which is what would happen under these circumstances, will they essentially snare themselves?
00:04:42
Will they say something that's false?
00:04:44
Will they lie in a provable way?
00:04:46
I mean, look, I'm not a huge fan of false statement prosecutions.
00:04:48
They've become kind of the coin of the realm in recent years.
00:04:51
And they're frequently a substitute for the actual corruption.
00:04:54
In other words, you know, prosecutors say, well, we can't prove bribery, but we know he lied to us that one day.
00:04:59
And that becomes kind of the new federal prosecution for public corruption.
00:05:03
I don't love that concept, but that is something that's going to be available to prosecutors and to congressional overseers alike is bringing people in, seeing if their stories hang together and perhaps having consequences if they don't.
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00:05:41
If you're a personal attorney, defense attorney, is there any advantage you can think of or isn't even possible to say no thanks and not accept a pardon like this?
00:05:54
Yeah, well, yeah, that's a great question because there's an awful lot of attorneys out there right now that have January six cases on appeal.
00:06:01
They think they've got something good in their appeal.
00:06:04
And they're making that kind of decision.
00:06:06
They're working with their clients to make that decision of would we reject a pardon?
00:06:10
It's very rare.
00:06:11
I can think of one example, which was President Obama issued a pardon for a drug defendant, a drug dealing defendant and said, I'm going to give you this pardon as long as you agree to take drug testing when you get out of prison.
00:06:21
I think I wouldn't do it.
00:06:23
So I'm not sure what that says about his drug problem or his stubbornness, but he rejected a pardon because it had a string attached to it.
00:06:30
Look, I think the smart path, if you're a defense attorney and you've got a guy that's somewhere in the process or at least could be charged criminally is you take your get out of jail free card.
00:06:41
You take your pardon.
00:06:42
I think it's kind of crazy to say I'd rather on principal wait to see how an appellate court deals with my issue.
00:06:48
You might win.
00:06:48
You might not, but either way, a pardon ends it and you can fairly say when you apply for housing, for jobs, for voting, for guns, you know, I do not have a conviction.
00:06:57
Yeah.
00:06:58
I suppose in the end, it's a better to have it and not need a thing than a need it and don't have it thing.
00:07:03
Do any of the names on the preemptive pardon list stand out as odd or maybe somebody to DOJ might have legitimately wanted to take a look at?
00:07:12
Look, I mean, there's a few names that from today that are obviously not Biden family members.
00:07:17
The headline is certainly Biden family members and that's kind of a horrific, I think, an embarrassment moment to have all these people by name being said,
00:07:28
being subject to pardons in a way that suggests, unfortunately, for anyone that receives it, suggests that they may have committed a crime.
00:07:35
I mean, again, pardons historically were absolutely for people that were convicted of crimes or charged with crimes and, you know, it was kind of expected.
00:07:42
This was forgiveness.
00:07:43
This was not about wiping free a criminal record.
00:07:46
Now, historically, that's also trended in the other direction.
00:07:49
We had guys like Jack Johnson, the famous heavyweight boxer, who a lot of people think was a subject of just complete racism in an approach that went after him for a man act violations under federal law.
00:08:00
And so, there are some that may have been factually innocent or at least were persecuted unfairly.
00:08:05
But again, pardons generally can note that you're guilty of a crime, but you're being forgiven for it.
00:08:10
So to have a whole bunch of Biden family members is certainly the headline.
00:08:13
There's some other relatively high profile people thrown in the mix today, but I think that's basically for distraction from the big ones.
00:08:20
And again, recently, the commutations and pardons, I think we're kind of over the top.
00:08:25
They're not necessarily anything that can be stopped or challenged in court.
00:08:28
But effectively eliminating the death penalty for most of the death row inmates in the federal system, commuting cases like the Black Widow case or the mayor of the judge in Scranton who engaged in kids for cash,
00:08:41
those were real low points for the use of pardons.
00:08:44
And I'm concerned about, you know, where this precedent takes us over the long run.
00:08:48
Are we going to have presidents routinely pardon everyone from their administration in a blanket fashion on their way out the door because of partisanship concerns?
00:08:56
Yeah, and it's a bigger blanket than any president's ever used before.
00:08:59
Joe Biden issued more pardons and commutations than any other president.
00:09:03
Is there resentment among prosecutors at the end of presidential terms when this happens every time or is it just look I did my job presidents can do what they want.
00:09:12
Yeah, it's a little above.
00:09:13
I mean, look, I think if you I was a prosecutor for 27 years and up until very recently, I never had anyone subject to a commutation.
00:09:22
I had the Black Widow case, federal case that was subject to a commutation.
00:09:26
It was kind of a partial commutations.
00:09:28
He was already on home arrest.
00:09:29
And I thought to myself, this is outrageous.
00:09:31
I mean, we spent all this time cobbling together a case against a woman who killed three different men over a period of decades.
00:09:38
And because it was in federal court as wire fraud and male fraud, I guess he considered it nonviolent.
00:09:44
It's kind of laughable.
00:09:45
So when you put in the sweat equity, when you know you had a very righteous case, it probably stings a little bit.
00:09:50
But there's other cases that have been in the system for 30 or 40 years.
00:09:53
They're pretty much already out of prison or almost out of prison.
00:09:57
They've done wonderful things as inmates or as kind of confidants of other prisoners.
00:10:02
So there's times where even if you spend a lot of time working the case hard, you can live with it because you're in favor of justice.
00:10:09
You're the DOJ, DOJ, what year's under which president?
00:10:12
It's my question of leading to.
00:10:14
Oh, wow.
00:10:14
Well, I was under the, I was at DOJ from 1999 to 2017.
00:10:21
So I had a whole bunch of presidents and probably six different AGs during that period of time.
00:10:26
My question is, is the job fundamentally the same when it, you know, boots on the ground stuff or can presidents and can attorney generals really affect the mission and the focus of what the department does from the top down or things done at such a micro level that's not really there?
00:10:45
No, it's a fair question.
00:10:47
My experience was, particularly when I was just a trial attorney, as opposed to somebody a little more engaged in policy making, like when I became the chief of organized crime and gang section,
00:10:57
you know, then I'd have a voice on legislation and policy.
00:11:01
But when you're a prosecutor in the field doing your cases, it doesn't have a dramatic effect.
00:11:06
I mean, I always think of it as kind of like an aircraft carrier and you get a new captain who says we're going to turn to the port, you know, 40 degrees.
00:11:13
Well, it's going to take two years before I noticed the ship moved.
00:11:17
So occasionally they'll have certain, I mean, I remember I had attorney general Ashcroft.
00:11:22
I remember he had an interest in going after obscenity cases and the rest of us, you know, kind of cussed under our breath and said we're not doing that stuff.
00:11:30
And there were people from main justice that would come out and try to prosecute these cases and not do all that well.
00:11:36
But generally speaking, it's a little bit of a change in resources.
00:11:41
You know, are we going to go harder on violent crime for these next four years?
00:11:45
But it doesn't have a dramatic immediate effect normally on the AUSA's, on the prosecutors that are on the ground.
00:11:53
We always talk about, or there is always talk about DOJ independence.
00:11:58
And also from the other side accusations of the DOJ doing the president's bidding, depending on who's in office at the time, do most to your knowledge, AG's ever flat out.
00:12:07
Mr.
00:12:07
President, I'm sorry, we just can't do that.
00:12:10
Or is, is that a wink and a nod thing?
00:12:13
Well, that's a great question.
00:12:15
I mean, I'm sure there's inside stories that none of us are ever going to know.
00:12:19
But, you know, my feeling is that the attorney general's almost inevitably have some sort of character defining moment that's put in front of them with their president.
00:12:28
And, you know, I can think of, I guess the famous one for Jim Comey was supposedly, when he was high up in DOJ, not letting something happen when the attorney general was,
00:12:40
I think it was general Ashcroft was in surgery.
00:12:42
He was being pressured, you know, to say yes to something.
00:12:46
And he said no, or maybe another decent example was attorney general holder speaking of pardons.
00:12:54
When the Mark Lewis rich pardon was being offered, this was a pardon for a billionaire fugitive that Bill Clinton ultimately gave.
00:13:01
And when holder was asked, can you not oppose this pardon, he changed his position to neutral, because he was originally opposing it.
00:13:08
So, you know, I think that was actually not a great moment for an attorney general on those on those moments where you have to say no, and you have to follow your conscience.
00:13:17
Obviously, there's a lot of difficulty with Jeff Sessions as AG with President Trump.
00:13:21
I think it's a tough spot to be in to be the attorney general, but, you know, my hope is that the attorney general will hold people accountable that did really outrageous things.
00:13:30
And I include some some prosecutors, frankly, from the J6 and Mar-a-Lago era.
00:13:36
But I also recognize we don't want to just endlessly investigate the investigators.
00:13:40
And my hope is that ending law fair truly means ending law fair.
00:13:43
It doesn't mean a free pass for people that did really bad things, really bad illegal things.
00:13:49
But I think we need to, you know, restore DOJ's independence to some degree and restore the notion that they truly mean it when they say rule of law, and they don't do the political things that they did over those last four years.
00:14:00
You mentioned investigating the investigators, and that's been something that has been talked about among Republicans hoping to take back power now that they have.
00:14:09
Are we talking about overzealousness or actual criminal acts?
00:14:14
Well, I would say actual criminal acts should be kind of the standard here.
00:14:20
Although, I think, you know, there's a lot to be gained by doing a little bit of a deep dive.
00:14:25
And hopefully, kind of a nonpartisan deep dive, a professional deep dive into how these investigations to January 6 and the Mar-a-Lago cases were handled.
00:14:34
Now, normally, when DOJ prosecutors are involved, if they're accused of misconduct, it goes to the office of professional responsibility, OPR.
00:14:43
The problem is people are jumping off the ship.
00:14:46
And so if they leave the employee of DOJ, and I know Jay Bradst on that, Jack Smith, on that, I'm sure other people involved in the Jack Smith investigations have done it or will do it soon.
00:14:56
Once they depart from the Department of Justice, OPR typically does not issue any sort of report or make any sort of findings.
00:15:03
And I think history would be well served by really digging deep because I lived this for about a year and saw things that I'd never seen for any other target of an investigation.
00:15:12
And I think answers are warranted.
00:15:14
So again, I recognize just a little fatigue in the idea of endlessly looking back at what the last prosecutor did.
00:15:19
And it shouldn't be about just being in-tempered or being rude or doing things that seem a little bit unseemly.
00:15:26
It should be about potential violations of law.
00:15:29
And I think that there are actually a couple of examples of potential violations of law from the way these guys conducted themselves.
00:15:36
From her record and from what stuff she said, what do you expect from Pam Bondi, the Attorney General?
00:15:41
Well, from what I saw, she actually acquitted herself pretty well the other day at the hearings.
00:15:46
And that was encouraging.
00:15:47
And I do think, look, if you're the Attorney General for a state, the size of Florida, you've managed in office that size, you've got a running head start on being able to handle the behemoth of DOJ.
00:15:58
I actually like the fact that she's tried cases.
00:16:01
This is not just a politician masquerading as a prosecutor.
00:16:05
This is somebody who seems to have some bonafides as an actual prosecutor.
00:16:09
I like that.
00:16:10
And I like what she had to say about kind of rule of law on ending law fairs.
00:16:14
So I'm encouraged.
00:16:16
You know, it really, it comes down to, there's all this kind of backwards looking stuff we're doing, like, what is she going to do about January 6th, et cetera?
00:16:23
And the prosecutor's to handle those cases.
00:16:25
But you have to remember the Attorney General every morning is waking up to like, you know, incredibly nuanced issues, procedurally and substantively, where people sit down at the conference room and say,
00:16:35
you know, Madam AG, do we have enough to indict this senator for corruption?
00:16:39
Do we pull the trigger on this terrorism case?
00:16:43
Or do we let him stay out on the streets to help, you know, to build a better case, but also risk a terrorist attack?
00:16:48
I mean, these are really weighty difficult issues that land on the Attorney General's lap every day.
00:16:55
And so my hope is, and what I've seen so far encourages me, that that Pam Bondy has the gravitas to deal with that, that she has the experience, the judgment, the wisdom to deal with not just the stuff that's kind of politically hot right this moment,
00:17:07
but all the things that are coming that, you know, many of which are things that we'll never hear about, but that require really good judgment and prosecutorial common sense.
00:17:15
And again, I'm hopeful, but a lot of it comes down to who she puts around her too.
00:17:19
All right, well, good luck to her.
00:17:20
Jim Trusty, thanks for coming back on The Fox News Rundown, a formal federal prosecutor, a former Trump attorney for that matter.
00:17:25
Jim Trusty, thanks Jim.
00:17:27
Sure, great to be with you.
00:17:28
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00:17:48
Hi, everybody.
00:17:50
It's Brian Kilmeade.
00:17:51
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