Republicans on Capitol Hill are desperate to move on from Donald Trump’s blanket pardon of Jan. 6 rioters, contending that the president has the authority to do whatever he wants when it comes to pardons. But that argument only seems to apply to a president when he is named “Trump” — and certainly not Joe Biden.
When Speaker Mike Johnson was asked about Trump’s Jan. 6 pardons this week, he noted that the president has “the pardon and commutation authority.”
“It’s his decision,” Johnson said, adding that Congress didn’t want to “second guess” President Trump.
“We’re not looking backwards,” he said.
But minutes later, during that same press conference, Johnson made it clear there were some pardons he would like to investigate: the ones Biden issued to some Democrats and some members of his family.
“To us, it is disgusting,” Johnson said. “There’s a lot of attention that’s going to be paid to this and I think that is appropriate. And we will be looking at it as well.”
GOP lawmakers told NOTUS they see no contradiction in Johnson’s reasoning, arguing that Trump has the absolute authority to pardon whomever he pleases.
Biden, however, these lawmakers said, overstepped his authority by pardoning his family and other key figures from future prosecution.
“The Biden ones were basically preemptively covering up possible crimes, versus a bunch of people on J6 that were basically trespassing, other than the ones that were breaking things, but in that case those people already served time,” Rep. Doug LaMalfa told NOTUS. “So I do think there’s a distinction.”
The former president’s preemptive pardons — granted to people like Anthony Fauci, members of the House Jan. 6 committee and some of Biden’s relatives — were meant to protect certain individuals from what Biden thought would be politically motivated indictments.
“My family has been subjected to unrelenting attacks and threats, motivated solely by a desire to hurt me — the worst kind of partisan politics,” Biden said in a statement accompanying the pardons. “Unfortunately, I have no reason to believe these attacks will end.”
Although Biden’s idea is that he’s protecting individuals from a political witch hunt, the pardons incensed Republicans — and some Democrats.
But Trump’s sweeping clemency for all involved in the Capitol riot, including those convicted for assaulting law enforcement officials with weapons, drew hardly any pushback from his own party. And Republicans insisted there was no hypocrisy to that position.
For instance, Rep. Tim Burchett said he wants to take a closer look at Biden’s pardons. “I’d like to know that they’re above board, there was no quid pro quo, that sort of thing,” he said.
For Trump’s pardons, Burchett argued they warranted no such scrutiny. “No, it’s totally within his wheelhouse,” Burchett said. “It’s totally up to the president.”
Republicans acknowledged a broad constitutional pardon authority for the president makes it difficult to act against the ones issued by Biden. (“From what I understand, it’s pretty cut and dry,” Burchett said. “We suffer those under all presidents, it seems. People that are connected and otherwise.”)
But that doesn’t mean they want to simply move on from the issue.
Johnson suggested he wanted Republicans to “look into” Biden’s pardons, calling them “disgusting.” And Republicans told NOTUS they were on board with an investigation.
“I would entirely support that,” Rep. Nancy Mace said. “Constitutionally, I’m not sure what we’re able to do, but it is entirely bullshit.”
Mace took particular issue with the type of convicts — “violent offenders, murderers on death row” — who were granted clemency during Biden’s final weeks in office. (Those death row inmates will remain incarcerated, but they will be spared from execution, in line with the Biden administration’s opposition to capital punishment.)
And at the same time, Mace didn’t think Trump’s blanket pardon for Jan. 6 rioters was worthy of another look.
“Nobody on J6 murdered anyone,” Mace told NOTUS. “Most of the people he pardoned were nonviolent, people whose punishments were greater than the crime.”
“Not a single person on the left wanted anyone arrested for cities that were being burned down by Black Lives Matter,” Mace continued. “So they can just, like, sit their ass right back down.”
Republicans floated various tweaks to presidential pardons, changes that would have prevented Biden’s pardons but allowed for Trump’s.
“There needs to be some sort of a freeze that says that an outgoing president does not have pardon abilities,” Rep. Lauren Boebert told NOTUS. “In that lame duck session, I think pardons should be prevented, and if you want to pardon somebody, get it done before that.”
Such a change, of course, could limit Trump’s ability to pardon individuals. But Boebert was quick to point out that her pitch wouldn’t actually do that — at least for the time being.
“Trump isn’t outgoing; he’s incoming, and so what he did would not be impacted by the suggestion I just made,” Boebert said.
Rep. Anna Paulina Luna said she wanted to go further than Johnson’s call for Congress to investigate Biden’s pardons.
“In addition to what Johnson said, I think that we need to come up with legislation to ensure that that never happens again,” Paulina Luna told NOTUS. “It’s a historical tradition, but also my goodness, Biden couldn’t find better people to pardon?”
Rep. Eli Crane said he took issue with the preemptive pardons granted by Biden to insulate his family from criminal probes that Trump and Republicans have long considered launching. Pardons for specific acts, in this case rioting and assaulting police officers, would be above board, Crane argued.
“I don’t know about the preemptive 10-year pardons, some of the ones that Biden put together,” Crane said. “Now, if it’s for something specific, that’s different.”
Of course, not every Republican was ready to shrug off Trump’s pardons. Rep. Rich McCormick took issue with both presidents’ use of their clemency powers.
“A lot of it’s become quite partisan,” McCormick told NOTUS. “In general, presidential or executive power has been overblown the last couple decades. Whether it be Biden, Trump, Harris, it doesn’t really matter what president we’re talking about. I’d like to see more balance of power.”
But McCormick doubted lawmakers could actually overhaul the presidential pardoning powers.
“The problem is, it would have to be ratified by a president,” McCormick said, adding that he’d like to discuss it with Trump.
Rep. Clay Higgins, who landed a leadership position on the House Oversight Committee this week, said he appreciated Johnson’s sentiment about looking into Biden. But he said he didn’t need the speaker’s permission to go after Biden’s family — or anyone else for that matter.
“I didn’t need the speaker’s advisement to give me clearance to continue to investigate anything we want to investigate in the Oversight Committee,” he said.
Higgins added that he might investigate Biden’s family, if only he didn’t have other things on his plate.
“It’s a book I have. If I decide to open it, we’ll open it, and there’s nothing stopping us from doing that,” Higgins said. “I have more higher priorities to deal with than the Biden crime family, man. But that’s there. If I decide to investigate it, then we will.”
Other Republicans, like Rep. Vince Fong, took Johnson’s call to move forward to heart and entirely waved off questions about the speaker’s remarks.
“I gotta run,” Fong said after stopping to hear a question about Johnson’s comments.
And other Republicans just wanted to avoid the issue entirely. Rep. Dan Crenshaw told NOTUS he was “not talking about any pardons,” before sharing his thoughts on Trump’s blanket clemency.
“I was very outspoken about what they did,” Crenshaw said of the Jan. 6 rioters. “I have no problem with them being in jail, but I also think time served is proper punishment at this point.”
“Look, the president has pardon power,” he continued. “You don’t have to like what he does.”
Not long after GOP leadership’s call to move forward from Trump’s Jan. 6 pardons, Republicans this week announced a new select subcommittee to continue investigating “all events leading up to and after Jan. 6.”
In that announcement, Rep. Barry Loudermilk said he was honored to continue examining “failures that led to the breach of the United States Capitol,” making no mention of Trump or the rioters who the president sprung from prison.
One such rioter, Oath Keepers founder Stewart Rhodes, returned to the Capitol this week, meeting with Republican Rep. Gus Bilirakis in the hopes of freeing another Oath Keeper from prison.
Democrats like Rep. Jamie Raskin, who served on the actual Jan. 6 committee, scoffed at the GOP effort to keep searching for some alternative explanation to the Capitol riot.
“Like criminals returning to the scene of the crime,” said Raskin, who like other committee members received a preemptive pardon from Biden. “They’ve had four years now to come up with an alternative factual narrative, and they have not been able to come up with one.”
Democrats in general were outraged over Trump’s blanket pardon, and they were indignant that Johnson and other Republicans would be so reluctant to criticize the president for the decision.
Rep. Eric Swalwell, who served as a House manager during Trump’s second impeachment trial following the attack in the Capitol, tore into Johnson’s efforts to downplay Trump’s pardons.
“Jan. 6 is one of the largest crimes ever committed in the United States, and Donald Trump is principally responsible for it, so for him to clear his own name, he has to clear all of their names,” Swalwell told NOTUS. “He thinks history is written by the winners, and so he’s going to rewrite what happened that day.”
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Mark Alfred is a NOTUS reporter and an Allbritton Journalism Institute fellow.