The Situation: Please Don’t Defend This Pardon

The Situation yesterday found me grappling with the prospect of the Senate giving a green light to impeachable offenses. 

Today let’s consider the incumbent president’s forgiveness of past offenses. 

In a presidential proclamation dated Nov. 22, 2024, President Biden declared last week to be “National Family Week”: “My Dad taught me that family is the beginning, the middle, and the end. It is everything,” he wrote. “During National Family Week, we celebrate the love shared by millions of American families, and we recommit to uplifting them, so that more families can build their American Dream together.”

President Biden’s own observance of National Family Week came, ironically, the day after the weeklong celebration ended. On Dec. 1, he pardoned his son, Hunter Biden, for—as he put it—“those offenses against the United States which he has committed or may have committed or taken part in during the period from January 1, 2014 through December 1, 2024, including but not limited to all offenses charged or prosecuted” in two federal cases against him.

The pardon has sparked a furor of predictable criticism and an equally predictable backlash among people who are outraged by the hypocrisy of the criticism or the density of media coverage of the matter. 

But the pardon has also been well received by a certain set of legal commentators, including commentators for whom I have high regard and who I would not have predicted would stand up for family self-dealing by presidents. 

Former U.S. Attorney Barbara McQuade tweets, the “Pardon of Hunter Biden is in the best interests of justice. Based on the facts, most federal prosecutors would have declined to charge him. The botched misdemeanor guilty plea and sentence of diversion were a tell that the special counsel had the same assessment.” My Brookings colleague Norm Eisen adds, “President Biden's pardon of his son Hunter was proper & advances justice. Hunter was charged w/ crimes that no one not named Biden would’ve been prosecuted for—he deserved a no-jail plea & deserves a pardon now.” And Olivia Troye says: “Absolutely the right decision by President Biden to pardon his son Hunter. This politically driven prosecution by this group of heinous individuals solely focused on hurting this family has gone on long enough.”

There are, in my estimation anyway, at least six reasons why these commentators are wrong and this pardon betrayed values that Biden has purported to stand for. 

There is also one important policy instinct behind the action, the concern that Trump means to use the Justice Department to go after political enemies—and has promised further investigation and prosecution of, among many others, Hunter Biden. I will first spell out the reasons I oppose this action—and think less of Biden for having taken it—and then address how Biden might have used the clemency power appropriately to address this very legitimate concern. 

The first and most important reason the Hunter Biden pardon is wrong is that it’s self-dealing to a family member. The proper amount of self-interested pardons is, in my judgment, pretty close to zero. (I say “pretty close” here to account for circumstances like the one I describe below.) No president should use the powers of the office to benefit a close family member. I don’t care if Trump did it first. I don’t care if Trump will do it again, and more flamboyantly and grotesquely, a month and a half from now. And it will not do to howl at me that naming Kash Patel to head the FBI and naming a pardoned felon family member to be ambassador to France is worse. Of course it is worse. The principle that we don’t use government offices to enrich ourselves or benefit our families, however, is not waived because Trump behaves in a more disgusting fashion. I expected Biden to be better than this. He said he was. And then he wasn’t. I get to be angry and disappointed.

Second, the pardon of Hunter Biden is not just a self-interested one in the sense of benefiting a family member. It is a pardon that, at least in theory, could shield President Biden himself from scrutiny. Recall that there’s a whole trail of emails from the younger Biden in which he appears to be influence peddling using his family name, and that at least some of those emails seem to imply that his father—then the vice president—might benefit from the deals he was putting together. I don’t want to overstate this point, since the evidence of Joe Biden’s involvement does not appear strong and I don’t really suspect there’s much fire amid the smoke. That said, the president, in pardoning his son, is to some degree anyway protecting himself from further scrutiny. 

I object to that sort of thing when Trump does it with Mike Flynn and Paul Manafort, and I object to it as well when Biden does a pale shadow of the same sort of activity with Hunter Biden. No, I don’t mean to equate the Hunter Biden pardon with the Manafort or Flynn pardons. They are not equivalent. But they do bear a family resemblance. And the whole family is an ugly business.

Third, count me as a skeptic that this pardon is justified on the merits. Sure, Hunter Biden’s felonies may not have been prosecuted had his father not run for president. But it is no injustice to the man that his crimes came to the notice of law enforcement because of his family’s prominence, which also brought him significant opportunities others don’t have. Many of those prosecuted for crimes during the Trump administration would have gotten away with it too had they kept their heads down and done their crimes more quietly. 

Nor are Hunter Biden’s offenses limited to that single gun charge for which others have escaped charges. The truth of the matter is that Hunter Biden had a sketchy series of deals involving foreign companies seeking influence and he didn’t pay taxes on a remarkable stash of the proceeds. He pleaded guilty to this. While I am not averse to the possibility that Hunter Biden deserves protection from future oppression by a vindictive Trump administration, I don’t see why he deserves forgiveness for crimes for which he has already been charged and convicted and for which he cannot be charged again.

Fourth, Joe Biden said he wouldn’t do it. He said it again and again. Call me old-fashioned, but I still believe that when a president says something, his words should have meaning. That applies to Biden as well as Trump. Yes, Biden is entitled to change his mind, and he has the option of lying as well. I, however, am entitled to judge him for either. 

Fifth, assuming for a moment that Biden changed his mind and was telling the truth about not pardoning his son the whole time, his stated reasons for going back on his word do a serious disservice to the Justice Department: “From the day I took office,” Biden writes in a Dec. 1 statement, “I said I would not interfere with the Justice Department’s decision-making, and I kept my word even as I have watched my son being selectively, and unfairly, prosecuted.” 

This is a remarkable statement. Recall that the case against Hunter Biden was brought by a prosecutor whom Biden himself retained as U.S. attorney in Delaware. David Weiss was named special counsel by none other than Biden’s own attorney general, Merrick Garland. So when the president accuses the Justice Department of engaging in selective and unfair prosecution, he is pointing a finger squarely at his own administration. What was the great injustice in this case? Biden continues in his statement:

Without aggravating factors like use in a crime, multiple purchases, or buying a weapon as a straw purchaser, people are almost never brought to trial on felony charges solely for how they filled out a gun form. Those who were late paying their taxes because of serious addictions, but paid them back subsequently with interest and penalties, are typically given non-criminal resolutions. It is clear that Hunter was treated differently. 

The charges in his cases came about only after several of my political opponents in Congress instigated them to attack me and oppose my election. Then, a carefully negotiated plea deal, agreed to by the Department of Justice, unraveled in the court room—with a number of my political opponents in Congress taking credit for bringing political pressure on the process. Had the plea deal held, it would have been a fair, reasonable resolution of Hunter’s cases.

Note that all of this was no less true back when the president was saying that he would not interfere in the department’s work in his son’s case as it is now. I have little doubt that congressional pressure played a role in scuttling the plea deal, and little doubt either that many figures in the political system were braying for Hunter Biden’s blood. That is ugly stuff. 

It is also true, however, a jury convicted the younger Biden on the count on which he went to trial, and that he pleaded guilty to several others. So to the extent that the case for a pardon hinges on the president’s objections to the way his own Justice Department exercised prosecutorial discretion in the face of political pressure, that case was every bit as strong back when Biden was promising not to use presidential power to aid his child as it is now. 

What has changed since those promises? Exactly one thing: Then Biden was either running for reelection or hoping his vice president would succeed him. Now he is not, so the action is now costless—save to his reputation. Cool cool. Just don’t ask me to pretend it’s in the interests of justice or that there’s anything high-minded about it. 

Sixth and finally, the pardon is wildly broad. It wipes the slate clean for the president’s son not merely on the two cases the department filed against him but for any other crimes “he has committed or may have committed or taken part in” (emphasis added) over a 10-year period. 

My concern about this does not actually have to do with Hunter Biden; if he went on some secret crime spree, heretofore unknown, and gets away with it as a result of this wording, whatevs. It’s not the worst thing in the world. 

But the pardon sets a very bad precedent that Trump will surely emulate by way of wiping the slate clean for the career criminals in his orbit. Yes, I know, he could do that anyway. But it makes it so much easier to write a blanket pardon for people who have done dirty work on your behalf if you can truthfully declare that you’re only doing for a patriot what Biden did for his son. If I were a White House lawyer working for Trump, I would make sure to use Biden’s exact wording every time I drafted a pardon for the president to use to shield a crony from prosecution. 

There is, as I say, a single policy instinct that lies behind this pardon with which I agree: Trump is a vindictive guy. He will come into office having promised to go after, among other people, Hunter Biden. He has even promised a special counsel to investigate the so-called “Biden crime family.” 

Hunter Biden is unusual among the people whom Trump has targeted in this fashion in that he has actually committed crimes. That fact does not, in my judgment, make him less worthy of protection from frivolous, politically motivated investigation.

Writing in the Atlantic shortly after the election, my colleague Paul Rosenzweig urged that Biden should offer pardons to a wide swath of people whom Trump has threatened with retribution: 

He should offer pardons, in addition to [Liz] Cheney and [Mark] Milley, to all of Trump’s most prominent opponents: Republican critics, such as Adam Kinzinger, who put country before party to tell the truth about January 6; their Democratic colleagues from the House special committee; military leaders such as Jim Mattis, H. R. McMaster, and William McRaven; witnesses to Trump’s conduct who worked for him and have since condemned him, including Miles Taylor, Olivia Troye, Alyssa Farah Griffin, Cassidy Hutchinson, and Sarah Matthews; political opponents such as Nancy Pelosi and Adam Schiff; and others who have been vocal in their negative views, such as George Conway and Bill Kristol.

Whether this is a good idea or not is a complicated subject—one to which I may return at a later date. For present purposes, however, suffice it to say that the problem Rosenzweig identifies is very real, and the notion that the outgoing president could use the pardon power to ameliorate Trump’s capacity for precisely the sort of harassment he has promised is one I take seriously. 

Had Hunter Biden’s name appeared on a list of, say, 100 people to whom Biden was offering preemptive pardons because Trump had specifically named them as someone he meant to target, I would not object. But note then that this pardon would be no different from the ones he was offering to others. It wouldn’t be because Hunter Biden is the president’s son. And it wouldn’t pardon him for crimes obtained by the incumbent president’s own Justice Department. 

It wouldn’t, in short, make family “the beginning, the middle, and the end.” And that is the point. 

The Situation continues tomorrow.