The Hunter Biden Pardon

Despite concerns, this feels like justice

On Sunday evening, president Biden announced he was granting a full pardon to his son, Hunter.

Hunter Biden and President Joe Biden

As a reminder, Hunter was charged with possessing a firearm while he was addicted to drugs and for lying on a form related to that gun purchase. He had the gun for less than two weeks and never fired it. He was also charged with failing to pay federal income taxes for several years while he was addicted. Before being indicted, he had already repaid the taxes owed and penalties. He was convicted at trial in the gun case and pleaded guilty in the tax case and was due to be sentenced this month.

Biden’s decision to pardon his son has been extremely controversial. It’s been attacked not just by Republicans but by many on the left. I admit to having mixed feelings about it.

There are a lot of things to criticize about Biden granting this pardon. First, he repeatedly promised he wouldn’t, so granting it now makes it appear he was lying earlier to avoid the political consequences before the election. A president pardoning a member of his own family creates an obvious conflict of interest and appearance of favoritism. It may further undermine the public’s faith in our legal institutions and the rule of law. Tom Nichols had a good article in The Atlantic arguing that it was also a strategic political blunder because Republicans can now defend any future controversial pardons by Trump by saying: “When it comes to pardons, all I know is that I agree with Joe Biden that the Justice Department can’t be trusted to treat Americans fairly. I’m glad he finally saw the light.”

I take those concerns seriously. I do think granting this pardon will tarnish Biden’s legacy, just as other controversial pardons (such as Clinton’s pardon of financier and Democratic donor Marc Rich or George H.W. Bush’s pardon of Iran-Contra defendants) have tarnished the legacies of other presidents. It certainly would have been better if Biden had simply refused to comment in the past rather than repeatedly promising he would not do what he just did. And as a former federal prosecutor, I generally don’t like seeing guilty people — which Hunter is — escape punishment.

On the other hand . . .

I do think some of the criticisms are a bit overwrought. I mean - a politician flip-flopped on a position they previously took? Stop the presses. I hate to contribute to the general public cynicism, but this is hardly a rare event. And Biden could credibly argue he changed his mind based on intervening events, including Trump winning the election and nominating Kash Patel, who has vowed to pursue Trump’s political opponents, to head the FBI.

Granting a pardon to protect a family member does risk demeaning the office of the presidency and the pardon power. But this was not completely unprecedented: Jimmy Carter and Bill Clinton both pardoned their brothers, and Donald Trump pardoned his son-in-law’s dad (and now wants to make him ambassador to France).

I don’t want to make this a “but what about” argument about Trump - the Hunter pardon should be evaluated on its own merits, not based on the fact that Trump did far worse. We want to be better than Trump, not descend to his level. But all the pearl-clutching about Biden demeaning the office of the presidency is a little hard to take seriously when you consider that Trump routinely pardoned those who engaged in crimes on his behalf — such as Roger Stone and Mike Flynn — as well as other political allies and friends.

Trump repeatedly used the pardon power to protect himself, which should be far more scandalous than using it to protect a family member. But those pardons didn’t attract the same level of outrage. This is part of a pattern: Democrats are still expected to “play by the rules,” and when they appear not to it becomes a major scandal. Meanwhile, Trump routinely does so many outrageous and corrupt things that it is no longer a surprise or deemed newsworthy.

Maybe the pardon power needs reform (although that would require a constitutional amendment). But in terms of pardons that appear to dishonor the office of the presidency, or suggest corruption or a conflict of interest for the president, I doubt this one even makes the top ten.

I also think Nichols probably overstates the extent to which this gives Republicans additional ammunition to defend future Trump pardons. If Republicans want to try to equate Biden pardoning his son with Trump pardoning January 6 rioters who stormed the Capitol, assaulted police officers, and tried to overturn an election on his behalf – well, more power to them. The comparison is laughable. No one is going to buy it who is not already aboard the MAGA train.

There are a few other criticisms you might hear that I also don’t think are persuasive. Some argue that Biden’s criticisms of the prosecution are misguided because it was Biden’s own Justice Department that brought the cases. That’s technically true but overlooks the fact that the prosecutor who handled the case, the Delaware U.S. Attorney, was a Trump appointee. After the election Biden and Merrick Garland allowed him to stay on and continue unimpeded because they wanted to uphold Justice Department norms and avoid any appearance of interference. The Biden DOJ did not initiate the prosecutions, it simply allowed an investigation begun under Trump to continue unimpeded.

You’ll also hear people say the pardon undermines the rule of law because Hunter Biden actually committed the crimes and should be punished. But that’s true of almost everyone who receives a pardon. The point of the pardon power is that some people deserve clemency despite having committed a crime.

Some also criticize the breadth of the pardon, which covers not only the specific crimes for which Hunter was indicted but any crimes he may have committed over the past ten years. That’s unusual, but I don’t think Biden had much of a choice. If the pardon were narrower, Republicans and Patel could have continued to pursue Hunter for years over the bogus allegations about influence peddling or his ties to Ukraine, or other concocted claims. If Biden was going to grant this pardon to protect his son from further political prosecutions, it was wise for him to leave no loopholes.

Others have argued that this pardon will give Trump a precedent to point to if he grants controversial pardons in the future, such as for the January 6 rioters. But the idea that this will somehow embolden or encourage Trump strikes me as nonsense. He’s shown no hesitation about abusing the pardon power in the past. Biden pardoning his son isn’t going to lead Trump to do anything he wasn’t already going to do anyway.

If you take the fact that he’s the president’s son out of the equation, Hunter does seem like someone worthy of clemency based on how he has been treated by the justice system. As president Biden pointed out in his statement, the charges for which Hunter was indicted almost never result in prosecution, much less prosecution for multiple felonies. Weiss himself was willing to let Hunter plead guilty to a single misdemeanor that would have resulted in no jail time. But after that plea deal fell through under questioning from the judge, and following widespread Republican criticism of the deal, Weiss indicted Hunter on multiple felonies in two different jurisdictions. This has all the hallmarks of a selective, political prosecution.

Even beyond the criminal charges, Hunter has been investigated and hounded for years by Republicans trying to use him to damage his father. There were wild conspiracy theories about his laptop and supposedly corrupt business dealings with Ukraine - none of which were ever proven. Marjorie Taylor Greene displayed nude pictures of him on the House floor. Republicans made his life hell for the past few years, based solely on who his father is.

And that brings me to my final point: yes, president Biden has pardoned his own son. But it’s also true that the primary reason Hunter was in a position to need a pardon is that he IS the president’s son. That’s what led to his selective, over-the-top prosecution, and to the very real risk that he would continue to be hounded once Trump was in office.

It would be bizarre, and unfair, if the very thing that led Hunter to need clemency was also deemed to make him ineligible for it.

As my readers know, norms about the rule of law and the independence of the Justice Department are very important to me. As I noted above, I take the criticisms of the pardon seriously and think many of them are valid to some degree. I still want Democrats to play by the rules and honor the rule of law.

But at the same time, it’s hard for me to get upset about the pardon. Given these unique circumstances I don’t think Hunter deserved to be sacrificed so Democrats could argue they continue to abide by norms that Trump and his Republican party have so openly trashed and disregarded.

There are a lot of things to criticize about Biden’s decision. But I also think he was in an almost impossible position. Even if granting the pardon was bad, it may have been his least-bad option.

Despite all the legitimate concerns, this feels like justice to me.

Postscript: pardons were a frequent topic of discussion during the first Trump administration and the Mueller investigation. If you are interested in more background on the pardon power generally, what it allows, and other legal issues related to pardons, check out the posts below from the Sidebars archive:

Pardons and Plea Bargains: Q & A

The Looming Presidential Pardons