In the last 24 hours of his presidency, Joe Biden issued presidential pardons to Dr. Anthony Fauci, Gen. Mark Milley and members of the congressional committee established to investigate the Jan. 6, 2021, Capitol riot. Just minutes before Biden's successor, Donald Trump, entered the Capitol rotunda for his swearing-in ceremony, the White House announced Biden would also pardon several family members. These pardons were all preemptive, meaning nobody who received a pardon had been accused of committing a crime.
After the pardons were announced, Rep. Marjorie Taylor Greene of Georgia and Sen. Rand Paul of Kentucky — both Republicans — posted to X claiming that issuing pardons to Fauci, Milley and others implied they were guilty of a crime, as did other right-leaning accounts on the platform.
However, Biden saw this argument coming and provided a defense via a statement:
The issuance of these pardons should not be mistaken as an acknowledgment that any individual engaged in any wrongdoing, nor should acceptance be misconstrued as an admission of guilt for any offense. Our nation owes these public servants a debt of gratitude for their tireless commitment to our country.
Trump previously expressed the desire to prosecute members of the Jan. 6 Committee, who he alleged committed "treason." He also suggested Milley could be executed for calling a Chinese general to warn against taking advantage of the chaos on Jan. 6, 2021. While Trump hasn't called for Fauci's prosecution directly, his allies have. In his statement, Biden said he was issuing the pardons because he felt that group of people might unjustly face prosecution under the incoming Trump administration.
Biden was not the first president to issue a preemptive pardon — according to the White House Historical Association, Abraham Lincoln issued preemptive pardons for Confederates before the end of the Civil War. Similarly, Jimmy Carter's executive order pardoning Vietnam draft dodgers applied to those officially charged with evading the draft and those who weren't charged.
However, whether receiving a pardon implies guilt or not is still an open question.
In 1913, a newspaper in New York published an article claiming that someone with political connections was smuggling jewels into the country, information that could have come only from the U.S. Customs Service. The Justice Department, wondering whether the paper had obtained the information via bribery, subpoenaed two editors, George Burdick and William Curtin. Both refused to reveal the information, citing their Fifth Amendment right to not self-incriminate. President Woodrow Wilson then issued them a pardon — since the Fifth Amendment does not apply if someone is immune from prosecution, the men would have to reveal the sources. In response, Burdick refused the pardon and was jailed for failing to respond to the subpoena.
The case eventually rose all the way to the Supreme Court, which decided in 1915 that someone must accept a pardon before it takes effect. Following Burdick, any of the individuals Biden pardoned can refuse his pardon. That might come into play, especially given posts from Paul and Rep. Chip Roy calling for the pardoned to testify before Congress.
The Burdick decision claims a pardon "carries an imputation of guilt; acceptance a confession of it," but it did so in commentary that was not legally binding. That was good enough for President Gerald Ford. After his controversial pardoning of his predecessor, Richard Nixon, Ford reportedly carried around a copy of the passage that he would read to people in case anyone asked him about the pardon — Nixon accepted the pardon, therefore Nixon was admitting guilt, according to Ford. But, again, that text in the decision an aside.
Twelve years later, the Supreme Court flipped, ruling in Biddle v. Perovich that an act of clemency could take effect without it being accepted by the person receiving it, finding that "the public welfare, not [an individual's] consent, determines what shall be done."