On inauguration day, President Trump pardoned or commuted the sentences of the approximately 1,550 defendants convicted for their involvement with the January 6, 2021 attack on the Capitol. He also ordered DOJ to dismiss all other pending indictments. Most of them, about 900, were for non-violent misdemeanors such as trespass and disorderly conduct. He granted the clemency all at once, and did not begin with pardoning the non-violent misdemeanor defendants first and then examining the remaining defendants on a case-by-case basis as he and others previously had suggested.

Meanwhile, on the very same day, just 15 minutes before he left office, President Biden issued the last set of his own pardons. He granted them to members of his family, most notably his brothers, sister, and in-laws, as well as to members of his administration such as Dr. Anthony Fauci and General Mark Milley, and even to political supporters like the congressional January 6 committee members. Biden's pardons followed thousands of pardons he issued this month to what he claimed were non-violent federal offenders and commutations of virtually all federal death penalties.

Many Democrats and media outlets have criticized Trump's mass clemency for the January 6 defendants, even as they casually ignored President Biden's. But let's put aside the hypocrisy for a moment to examine the real differences between the two sets of pardons, regardless of one's views of their merits.

First, Biden granted pardons and commutations to more than 8,000 individuals, which is more than any other modern president. Thousands of Biden's clemency grants were to serious criminals, including murderers, child killers, child abusers, and the biggest municipal embezzler in history, Rita Crundwell. Several of the grants benefitted well-connected Democrats. In both 2022 and 2024, Biden abused his pardon power to achieve mass sentencing reductions that Congress refused to pass by law. President Obama did the same thing when he issued mass commutations of drug sentences. //

Second, it's obviously not principle but politics that drove Biden's pardons; Biden's post-election mass death row commutations did not follow his self-proclaimed opposition to the death penalty. He left three men on death row whose commutations would have politically harmed Democrats. He did not commute the sentences of Dzhokar Tsarnaev (Boston Marathon bomber), Dylann Roof (murderer of nine black churchgoers in Charleston), and Robert Bowers (murderer of 11 worshippers a synagogue in Squirrel Hill, PA). Biden's alleged opposition to the death penalty also did not prevent DOJ from filing capital murder charges against Luigi Mangione.

Third, President Biden needs to pardon his family, officials, and allies only because he fears the very lawfare that he invented. Biden's DOJ broke more than two centuries of history to prosecute a former president and the candidate of the major opposition political party. He is like an arsonist who demands more spending on fire departments. Because of his stated fear of retaliation, Biden pardoned his family and associates before prosecutors ever launched investigations. These pardons were to Biden's own benefit, as their reciipients are much less likely to disclose any information that directly implicate President Biden to the family's alleged "pay to play, 10 percent for the Big Guy" schemes.

Contrast that with Trump's clemency, which did not directly benefit him or his family, and covered defendants who were actually convicted or charged, unlike Biden's preemptive pardons that covered up to 10 years' worth of potential and actual criminal activity for his family and allies. //

Democrats have resorted to pardons because they appear to expect lawfare to continue. DOJ released Jack Smith's special counsel J6 report even though Trump had won the election and DOJ could no longer pursue charges. It is even trying to release the special counsel report about the Florida classified documents case, even though Trump's co-defendants are entitled to a presumption of innocence until proven guilty. Both President Trump and Attorney General–designate Pam Bondi are positioned to stop the lawfare, but only if the Democrats abjure their politicization of criminal justice. Lawfare can descend on Democrats as easily as on Republicans.