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Author: Emma Long, Associate Professor of American History and Politics, University of East Anglia
Original article: https://theconversation.com/hunter-biden-pardon-both-sides-are-finding-fault-with-the-us-president-heres-why-they-are-right-245226
After months of saying he would not, this week Joe Biden this week issued “a full and unconditional pardon” of his son, Hunter. The fairly sweeping pardon applies to all offences Hunter “has committed or may have committed or taken part in during the period from January 1, 2014 through December 1, 2024”.
Critically, decade that stretches back to Biden’s final years as vice-president, covers federal firearm and tax evasion charges to which Hunter recently pleaded guilty. But it also takes in the years in which a range of allegations were previously made that he gained improper financial and business benefits from his father’s position in the administration.
Last year, a House oversight committee report reluctantly cleared both Biden and his son of any illegal activity. But it also revealed some distinctly unflattering aspects of Hunter Biden’s life which have long been used by Republicans to try to tarnish his father’s reputation.
Republican response to the pardon was as swift as it was predictable in a world of manufactured political outrage. “This is one of the most disgraceful pardons even in the checkered history of presidential pardons,” wrote George Washington University law professor and Fox News commentator Jonathan Turley, who called Biden the “liar-in-chief”. Others followed suit, accusing Biden of damaging the reputation of the Department of Justice. All of which might be more meaningful if many of the same “outraged” Republicans hadn’t also defended Donald Trump’s regular and often outrageous lies both while in office and on the campaign trail.
While top Democrats have largely avoided discussing the issue, some within the party expressed disappointment with Biden’s decision. There was acknowledgement of the pressures of a father helping a child but concern that the pardon would further damage respect for the justice system and for public office holders. Colorado senator Michael Bennet argued that Biden’s decision had placed “personal interest ahead of duty and further erodes Americans’ faith that the justice system is fair and equal for all”.
Power of the pardon
The presidential pardon power comes from article II, section 2 of the constitution. This gives presidents the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” The US Supreme Court has recognised that the power is considerably broad and generally not subject to modification by Congress.
Pardons, in effect, wipe the slate clean. As the Supreme Court stated in an 1866 opinion, Ex parte Garland: “It releases the punishment and blots out of existence the guilt, so that, in the eye of the law, the offender is as innocent as if he had never committed the offence.”
Presidential pardons are not uncommon, even for family members. Bill Clinton pardoned his half-brother, Roger, for old drug charges. Donald Trump pardoned Charles Kushner, the father of his son-in-law, for a number of crimes and recently nominated him as US ambassador to France. Unlike Hunter Biden, both men were pardoned after they had served prison sentences.
More broadly, pardons have been offered for groups and individuals. Jimmy Carter pardoned Vietnam war draft resisters and Obama commuted sentences for large numbers of Americans convicted of low level drug offences. Perhaps the most famous, and controversial, pardons include Andrew Johnson’s post-civil war pardon of Confederate president Jefferson Davis and Gerald Ford’s pardon of Richard Nixon for crimes relating to Watergate. Hundreds of pardons and thousands of commutations have been offered by presidents in recent years.
Biden’s motivation
Knowing the pardon of his son would be politically difficult, why did Biden do it?
The most obvious is the personal motive: this was a parent looking out for their child, a sentiment many parents might well recognise.
Surprisingly, Biden took a page out of the Trump playbook and accused those involved of “selectively, and unfairly” prosecuting his son as a way to stymie his presidential ambitions. “There has been an effort to break Hunter … [and in] trying to break Hunter, they’ve tried to break me,” Biden wrote in his statement.
While prosecutors have pushed back forcefully against charges of political motivation, others, including former Obama attorney general Eric Holder and former prosecutor, now Texas congresswoman Jasmine Crockett asserted that in similar cases where a guilty plea was entered and restitution made, a prison sentence would have been extremely unlikely.
EPA-EFE/Jim lo Scalzo
Irrespective of motive, there is concern that this will give greater force to claims by Trump and his allies that the Department of Justice has been politicised and weaponised. His legal team has already moved to use it to dismiss some legal issues against him. There is also concern that this will give Trump the excuse to pardon many of the January 6 rioters.
Biden’s pardon for his son might make it more difficult for Democrats to take the outraged moral high ground but it wouldn’t actually change the outcome. Equally, Trump supporters have been asserting that the Department of Justice has been biased against Trump for years and Biden was never going to convince them otherwise. As such, the benefits of keeping his son out of jail might well have just outweighed the political fallout.
Perhaps more importantly, Trump and many of his cabinet appointees hae said publicly that they will use their offices for retribution against those they believe to have wronged them. So Biden might simply have been seeking to protect his son from further investigation.
He himself is protected under the Supreme Court ruling in Trump v US from this summer. This found that presidents are protected from prosecution for acts undertaken as part of their official duties while in office. But the ruling does not protect family members or former staffers, many of whom may well now feel under threat from the incoming administration. Biden cannot protect them all. But he could protect his son.
Many parents, I suspect, would conclude – with sympathy – that he has done just that.