The Pardon Is About More Than Hunter Biden

As of the afternoon of Sunday, Dec. 1, Hunter Biden was awaiting sentencing on federal tax and gun charges in two separate jurisdictions. Several hours later, he would receive an expansive pardon from his father wiping away not just those convictions but also any other offenses “which he has committed or may have committed or taken part in during the period from January 1, 2014 through December 1, 2024.” As one wag pointed out, given that President Biden granted the pardon at around 7 p.m. on Dec. 1, this theoretically left Hunter with several hours in which he could commit any crime he chose. 

The pardon sparked a firestorm of criticism, not only because of the unusually broad language and the unavoidable appearance of corruption in granting a pardon to one’s own son but also because Biden had previously promised that he would not use his presidential powers in such a way. “I believe in the justice system,” Biden wrote in his formal announcement of the pardon, “but as I have wrestled with this, I also believe raw politics has infected this process and it led to a miscarriage of justice.” As if worried that people would forget about him, President-elect Trump quickly chimed in with a post on Truth Social reminding readers of his own promise to pardon defendants prosecuted for their role in attacking the Capitol on Jan. 6. 

I will leave it to others to weigh the wisdom or morality of Biden’s actions. Here, I’m more interested in examining what this pardon, and the pardon power more generally, says about those aspects of the legal system that are most vulnerable to misuse by an incoming president who has promised to do all he can to harass his enemies. I’m not persuaded by the widespread argument that the Hunter Biden pardon will somehow give Trump greater leeway in abusing the pardon power for his own purposes; Trump was already going to do whatever he liked. The implications run far deeper than that. They speak to aspects of the legal system that depend irreducibly on the good judgment of those in power, at a moment when the people about to come into power have given no indication that they possess such judgment. 

The president’s grant of clemency to his son brings a strange end to a strange case. The investigation of Hunter Biden began as a probe of potential tax crimes and money laundering in 2018 and became public in December 2020, shortly after Trump’s loss to Joe Biden in an election that featured regular attacks on Hunter by Trump and his allies. After Biden took office, the new president allowed David Weiss, the Trump-appointed U.S. attorney for Delaware, to stay on in order to continue his stewardship of the Hunter Biden investigation. The probe moved along more or less quietly until 2023, when a newly GOP-controlled House seized on what it saw as Weiss’s insufficient zeal in pursuing charges. In August of that year, Hunter Biden agreed to a plea deal only to have the deal tossed out by a judge mid-hearing due to concerns over its leniency and confusion between the prosecution and defense over the deal’s terms—after which Weiss, newly appointed as a special counsel, secured two separate indictments of the president’s son. This is the sequence of events that the president seems to have in mind when he refers to “raw politics” having “infected” the justice system—and necessitating a pardon.

The first of Weiss’s cases, filed in Delaware, charged the younger Biden with three felony counts related to his having lied about his drug use in connection with the purchase of a handgun in 2018. A jury would find him guilty on all charges in June 2024. The second case, filed in the Central District of California, ended in September 2024 with Hunter Biden pleading guilty to charges of tax evasion and other tax crimes. 

On the surface, there is something odd about Biden’s announcement of the pardon. He begins by announcing his respect for the workings of the legal process—“From the day I took office, I said I would not interfere with the Justice Department’s decision-making, and I kept my word …”—only to immediately undercut that system by wiping away the charges against his son. This may simply be self-serving, and self-contradictory, rhetoric. But it also expresses, perhaps inadvertently, a deeper truth about the pardon power. 

The executive grant of clemency exists in a strange place in American law, simultaneously located at the heart of the legal system and outside it altogether. It boils down to the individual moment of presidential decision-making, unconstrained by more regimented legal structures. It’s this quality that makes the pardon power particularly suited to Biden’s expression of family loyalty that places the duties of a father above the normal values of equal justice under law—as well as Trump’s past uses of the authority to reward those within his inner circle, including defendants who helped block investigations of Trump himself. Biden’s pardon of Hunter necessarily undercuts the legal system by the nature of the pardon power itself. And it’s exactly this nature that once made the power so appealing to Trump as a means for abuse—and soon will do so again.

The ability to pardon is one of the least restrained powers available to the president in the constitutional scheme. It flows directly from the British idea of the monarchical prerogative power—a vision of authority expressed through an individual will. In Federalist #74, Alexander Hamilton describes the pardon as necessarily bound to the conscience of a “single man,” arguing that “the benign prerogative of pardoning should be as little as possible fettered or embarrassed.” In Ex parte Garland, the Supreme Court emphasized that the pardon power is “unlimited” and “cannot be fettered by any legislative restrictions.” 

Garland was decided in 1833. In the century and a half since, the Justice Department has worked to systematize the pardon power through the Office of the Pardon Attorney—but the president always has the option of simply ignoring the processes set up by the office entirely, as Trump did frequently and as Biden may have done here. Other exercises of government power, whether by the president or by other actors in any of the three branches, can be checked, stalled, reviewed, or reversed. Not the pardon.

The power to grant clemency is unrestrained because it derives from individual choice—which, in its most noble expression, takes the form of mercy. “A pardon is an act of grace,” wrote the Supreme Court in U.S v. Wilson. Hamilton takes a similar view, writing that the pardon allows “exceptions in favor of unfortunate guilt” from the “necessary severity” of the criminal code. Pardons, in other words, don’t undo existing legal structures but sit awkwardly alongside them. Hamilton views the criminal law’s harshness as “necessary,” but he wants the ability to identify exceptions, too. Elsewhere, I’ve argued that the pardon power is a kind of mirror of the notorious prewar German jurist Carl Schmitt’s understanding of the state of exception as a void at the heart of law, the place where systematized liberal legal structures collapse into the moment of sovereign decision.

The tendency to describe the pardon in the language of mercy or grace does not, obviously, make all pardons saintly. Biden’s pardon of his son may be an expression of love, but it was also an expression of patrimonial favor that is generally frowned upon in a nominally egalitarian society. In this sense, it fits well with the nature of the pardon as an emotive, even atavistic action outside more regulated legal structures. (Love, the philosopher Hannah Arendt argued, is “perhaps the most powerful of all antipolitical human forces.”) It is also only the latest entry in a long and ignominious tradition. Following the Hunter Biden pardon, commentators were quick to point not only to the lengthy list of self-interested and otherwise corrupt pardons and commutations granted by Trump—including to his daughter’s father-in-law and intended pick for ambassador to France, Charles Kushner—but also to George H.W. Bush’s pardons to a range of characters involved in the Iran-contra scandal and Bill Clinton’s pardon of the financier Marc Rich.

Ultimately, because the pardon comes down to a decision made by the president alone, Americans are dependent on the judgment of the person making that decision. In Trump’s case, the quality of that judgment was almost universally bad: venal, vengeful, self-protective. Trump pardoned close associates as a reward for refusing to testify against him before Special Counsel Robert Mueller. He pardoned defendants because they were friends, or friends of friends, or had been prosecuted by people whom he disliked. He pardoned former service members charged with war crimes and military contractors convicted of the violent murder of civilians. 

The Hunter Biden pardon, meanwhile, has stung members of the political class on the center-left and -right because it seems to speak to such a lack of good judgment on the part of Joe Biden, who sold himself in 2020 as a steady-handed statesman yet whose seeming failures of political judgment—from seeking a second term, to failing to adequately sell the Inflation Reduction Act, to underestimating the American public’s appetite for the antidemocratic politics of Trumpism—are now being blamed, rightly or wrongly, for Trump’s victory this November. 

The Hunter Biden pardon is salt in a wound because it isn’t just a pardon on Joe Biden’s way out the door. It’s a pardon on Biden’s way out the door as he yields power to Trump specifically, whom Biden himself once argued was unsuited to the office because of his disregard of the rule of law, and who previously showed his unsuitedness by wielding that same power abusively. 

There is good reason to think that a pardon of Hunter Biden would not have been as pressing had Trump not been set to take power in January. The president-elect has made excruciatingly clear that he intends to use the Justice Department as a weapon with which to attack his perceived enemies, and Hunter Biden has long been a bête noire of Trump’s supporters. Kash Patel, whom Trump recently named as his pick for FBI director—never mind that the current director, whom Trump also appointed, has two years left on his 10-year term—has specifically pointed to Hunter Biden as someone whose supposed crimes deserve greater legal scrutiny. One way to read the broad language of the Hunter Biden pardon is that Biden is seeking to shield his son from the abusive investigations he suspects will be coming. (Though if this is the case, it’s reasonable to ask: What about blanket pardons for those others whom Trump and his allies have promised to go after, like, say, Mark Milley or Anthony Fauci?)

The pardon power is unique in its location both inside and outside law, but criminal law more broadly rests on discretion, too. This is what makes it dangerous in the hands of someone like Trump. Famously, then-Attorney General Robert Jackson argued in 1940 that the federal prosecutor is powerful precisely because of the importance of this discretion: 

One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. … If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.

According to the New York Times, Christopher J. Clark, an attorney on Hunter Biden’s defense team, quoted this passage to David Weiss in an effort to convince Weiss that the younger Biden was being unfairly persecuted for political reasons. Joe Biden’s statement on the pardon echoes this language, too. 

Were the cases against Hunter Biden examples of unjust political prosecutions? This is a surprisingly difficult question to answer with a firm “yes” or “no.” The evidence against the president’s son appears strong. He does indeed seem to have evaded a significant amount of money in tax payments—though he paid back the IRS during the course of the investigation—and lied about ongoing drug use when purchasing a gun, which a frightened family member disposed of in a potentially dangerous way. These are not entirely harmless crimes, even though Hunter Biden was in the midst of a serious struggle with addiction at the time they took place. 

At the same time, it is also true that many similar tax cases end with civil resolution rather than criminal charges (including, among others, the case of Roger Stone, who owed the IRS $2 million in unpaid taxes). It is also true that the gun charges against Hunter Biden are rarely levied in the absence of a more serious underlying offense, and that the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen cast the constitutionality of the statute in question into doubt. And the path toward filing those charges took several bizarre turns, even before Judge Maryellen Noreika torpedoed the plea deal. According to the New York Times, in 2022, Weiss “told an associate that he preferred not to bring any charges, even misdemeanors, against Mr. Biden because the average American would not be prosecuted for similar offenses.” (An anonymous source described by the Times as a “senior law enforcement official” denied this.) The plea deal, its collapse, and the subsequent charges emerged in the midst of sustained political pressure by House Republicans. 

This isn’t to suggest that the prosecutions of Hunter Biden weren’t meritorious. (Notably, two judges ruled that the political backdrop of the case did not meet the standard for selective and vindictive prosecution.) It’s the opposite: Even though the prosecutions were meritorious, there’s no way to untangle the merit of the charges from the question of the individual discretion of David Weiss and whether the special counsel acted in good judgment. But, conversely, the question of Weiss’s discretion doesn’t necessarily pollute the merit of the charges. The system leaves space for that moment of individual decision. Prosecutorial discretion is bound by far greater constraints than the presidential pardon—a fact highlighted by Judge Noreika’s rejection of the plea deal—but it is still unavoidably present. 

That is an uncomfortable truth to be faced with heading into an administration that has already shown itself to be willing to wield that discretion to ugly ends. As Jackson wrote, when left to the wrong person, the work of a prosecutor can quickly become a process of “picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.” 

The president, as Benjamin Wittes pointed out on Lawfare way back in 2016, has extraordinarily broad legal authority in choosing to direct the activities of law enforcement—making the Justice Department the weak link in the constitutional scheme for a president inclined to abuse his power. That authority is now even broader following the Supreme Court’s immunity ruling this summer. While the Court’s holding of broad presidential immunity from criminal prosecution now provides Biden himself a shield from much of what Trump might try to pin on him, the decision also established that “the Executive Branch has ‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute.” For Trump, that language must be tempting. Hunter Biden is now shielded, but others aren’t. 

The Hunter Biden saga presses on a nerve because it highlights those aspects of the legal system that are most vulnerable to abuse, right as people who have promised repeatedly to abuse that system are about to take control of it. As Trump himself told his followers in 2023: “I am your retribution.” Or, to quote Biden’s announcement of his son’s pardon: “There’s no reason to believe it will stop here.”