U.S. President Joe Biden, accompanied by Hunter Biden and Beau Jr., walks out of a bookstore in downtown Nantucket, Mass., U.S., Nov. 29.Craig Hudson/Reuters
Here come the pardon wars.
By pardoning Hunter Biden, U.S. President Joe Biden did more than spare his son from years in prison. He ignited a firestorm in his last seven weeks in office, likely subverted his fragile legacy and possibly undermined the judicial system. And he almost surely provided Donald Trump with an opening to pardon those involved in the Jan. 6, 2021, uprising at the Capitol – and perhaps himself, as well.
Mr. Trump is already claiming Mr. Biden’s move as precedent. “Does the Pardon given by Joe to Hunter include the J-6 Hostages, who have now been imprisoned for years?” Mr. Trump asked in a post on his Truth Social platform. “Such an abuse and miscarriage of Justice!”
The most astonishing element of this episode is Mr. Biden’s embrace of the belief, firmly held and frequently expressed by Mr. Trump, that the Justice Department is politically compromised. The President, a former chairman of the Senate Judiciary Committee and until last weekend a stalwart defender of the Justice Department’s independence, said that the junior Mr. Biden, who was convicted on federal tax and gun charges, was “treated differently” and “singled out” because he was his son.
That language was hauntingly similar to Mr. Trump’s repeated statements that he was treated differently and singled out by the department, which he now is determined to overhaul. In June, 2023, for example, he explained his indictment for harbouring secret documents as a result of how, as he put it, “the Marxist left” was using the Justice Department, “the corrupt FBI, and the attorney-general and the local district attorneys” to bring charges against him.
Pardons of family members are rare but not unknown. Bill Clinton pardoned his half-brother, Roger, for drug convictions. Mr. Trump pardoned his son-in-law’s father, Charles Kushner, for tax evasion. (The president-elect recently announced Mr. Kushner as the new ambassador to France.)
In both cases, the pardons drew intense criticism and charges of nepotism. Mr. Biden’s action, which came after a Thanksgiving family retreat on Nantucket, did much the same.
There is no precedent for a president pardoning himself, which Mr. Trump will be able to do once he enters the White House on Jan. 20. Largely forgotten is the rationale that Gerald Ford embraced when he pardoned former president Richard Nixon in 1974 for his Watergate-related crimes: the notion, embedded in the 1915 Burdick v. United States Supreme Court decision, that acceptance of a pardon means an acknowledgment of guilt. Mr. Ford kept an excerpt of that ruling in his wallet until the day he died.
“Donald Trump has no respect for precedents, norms, or notions of reciprocity,” said Jon Michaels, a constitutional law scholar at UCLA. “I don’t think Trump needs a justification for deploying the pardon power, or any other constitutional authority, in a manner that advances his personal and political interests.”
For Mr. Biden, the decision represented a struggle between his role as president and his role as paterfamilias of an embattled family that has been wracked with tragedy.
“President Biden has had two lifelong devotions, one to his country, the other to his family,” said John Carney, the Democratic Governor of Delaware and a member of the Biden inner circle in the state. “Since he first went to the Senate when he was 29 years old he’s been steadfast in his commitment to both – starting by taking the train back and forth as a senator so he could be with his kids at night. Folks may disagree with the decision, but I believe it’s just one more example of the President doing everything he can to protect his country and his family at the same time.”
Mr. Trump, most Republicans and some Democrats took a different view.
“While as a father I certainly understand President @JoeBiden’s natural desire to help his son by pardoning him, I am disappointed that he put his family ahead of the country,” Democratic Governor Jared Polis of Colorado wrote in a social-media post. “This is a bad precedent that could be abused by later presidents and will sadly tarnish his reputation.”
Mr. Biden rode into the White House, and served as president, as an American institutionalist – a conventional if slightly antiquarian guardian of democratic values at a time of maximum threat to them, personified in his view by Mr. Trump. It is possible that he concluded over his Thanksgiving holiday that the return of his presidential predecessor means that the old constraints soon will be voided, and that in his last weeks as president he therefore is free to protect his son.
There are, to be sure, vast differences between the Hunter Biden case, on the one hand, and those of the Jan. 6 convicts. Mr. Trump’s alleged federal crimes are likewise not comparable to the crimes of which the junior Mr. Biden was found guilty.
Among the charges against the junior Mr. Biden was that he lied on an application for a firearms permit. The charges against Mr. Trump and the Capitol insurrectionists are that they impeded the peaceful transfer of power and, by some reckonings, attempted to overthrow the government. Mr. Trump is also charged with endangering national security by mishandling secret documents.
“I think everyone knew that Joe Biden would not be able to leave his son to the tender mercies of Donald Trump’s Justice Department,” said James Shannon, a former Democratic Massachusetts state attorney-general.
“It is not a good look to tell a lie, but Hunter Biden’s pardon will look pale in comparison to the pardoning of over 1,000 Jan. 6 rioters and others whom he will cut free from justice in his first week. And Hunter won’t be appointed ambassador to France.”