Pardon Me

There are two sides to Joe Biden's pardon of his son Hunter ... and lots of shades of gray

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So this is a tricky one.

It’s tough to defend Joe Biden’s pardon of his son Hunter on the merits. Biden has used his absolute pardon power to grant a reprieve to his son, who earlier this year was convicted of lying on a gun application and pleaded guilty to a series of tax evasion charges. Even if the president believes, as he claims, that the criminal justice system mistreated his son, the fact is Hunter Biden committed multiple felonies — and a jury of his peers found him guilty.

And Biden’s pardon went beyond these two cases — he issued a sweeping pardon that covers any criminal behavior by Hunter Biden dating back to 2014.

Would any ordinary citizen who was not the president's son be handed such a slate-wiping pardon? It seems unlikely. Biden’s decision looks like favoritism for a fallen family member. It furthers the American people’s cynical (and not necessarily incorrect) belief that the rich and well-connected get to live and prosper by a different set of rules than the rest of us. If the rule of law matters in America, then the president of the United States should hand out “get-out-of-jail-free” cards to his offspring (even if they have been unfairly targeted). If anything, the president should go out of his way to avoid the appearance of partiality and favoritism.

What is particularly disturbing to me is that earlier this year, Biden said when asked if he’d pardon Hunter, “I will accept the outcome of this case and will continue to respect the judicial process.” When directly asked if he would grant his son a pardon, Biden repeatedly said, “No.” It’s hard not to conclude that he said that for purely political reasons — and once the political costs had dissipated — he could go ahead and pardon him. He could have said “no comment” when asked about a pardon. Instead, he lied to the American people.

But there’s a darker implication: what if Harris had won in November? What if Biden had stayed on the ticket and won? Would he still have pardoned Hunter? I doubt it, which leads to the dark conclusion that he would have let his son go to jail to avoid the political costs of pardoning him.

Having said that, there’s a counter-argument that I find slightly more persuasive.

First, it’s likely true that Hunter Biden was targeted for prosecution because he was the president’s son — and a host of legal experts have pointed out that traditionally, prosecutors have not brought the type of cases that legally ensnared the younger Biden. For four years, the GOP had gone after Hunter Biden with a venom generally restricted to the most hardened criminals, not a failson who has struggled with drugs and alcohol and the loss of two siblings.

Second, with the announcement by President-elect Trump that he will appoint Kash Patel as the next director of the FBI (after he fires the current director, Christopher Wray, who he nominated in 2017 … after he fired the then-director, Jim Comey), there’s good reason for Hunter Biden to fear what’s coming. Patel has authored an enemies list, dozens of names long, as potential prosecutorial targets. I’d imagine that one of the reasons Biden made this pardon so sweeping was to protect his son from further FBI investigations and prosecutions.

Third (and this is the most powerful point), Joe Biden has lost two children, one as a child in a car accident that killed his wife and the other, tragically, to cancer. His surviving son, Hunter, has struggled his entire life with addiction and a host of personal problems. Is it really shocking, or all that upsetting, that Biden wanted to protect him from going to prison, especially if he clearly believes (and is probably correct) that his son’s legal troubles are a by-product of his political career? Yes, the president has responsibilities beyond his immediate family, but he is still a father.

I can’t fully defend Biden’s actions. He lied to the American people about his pardon plans, and he has injected favoritism and politics into the rule of law at a time when the incoming president is about to do far worse. Still, I’m a father, too, and I would do anything to protect my children. I don’t like what Biden did — but I also struggle to condemn him for it.

At the same time, Jeffrey Toobin gives Biden some excellent advice on redeeming his legacy after this affair.

To state the obvious, the younger Mr. Biden is not the only person who got a raw deal from prosecutors. For better or worse, the lame duck period of modern presidencies has served as pardon season, and the president now has the chance to take some bold steps for people who don’t have friends, or a father, in high places. Mr. Biden could lower the prison sentences in cases involving crack, given the huge sentencing disparity between those and cases involving powered cocaine. He could commute to life in prison the sentences of those on federal death row. He could end the pointless incarceration of elderly and disabled prisoners.

So far, though, he’s done none of that. For now, Mr. Biden’s sympathies extend only to his son.

One Other Thing …

One of the arguments that bandied around since Biden issued the pardon is that this will encourage Trump and the GOP to shred the nation’s democratic norms further — or that it will make it harder for Democrats to attack Trump when he inevitably abuses his pardon power by setting free all the January 6 defendants.

For example, there is this argument from the New Yorker’s Isaac Chotiner.

Biden’s decision allows Republicans to engage in the same cynicism about the system being rigged and corrupt, and Trump being no different than any other politician, that they have engaged in for nearly a decade. This couldn’t be further from the truth—especially the part about Trump’s corruption and self-dealing being no different from the norm—but Biden is doing the work of people who want to wreck the best aspects of America’s democratic ethos. The pardon now gives Trump and his allies the opportunity to call Biden a hypocrite and proceed having their own way with the law.

Forgive my French, but “Donnez-moi a f***ing break.”

The idea that Biden’s pardon will push Trump to step up his norm-shattering or embolden Republicans to defend his corrupt actions is not remotely credible. This pearl-clutching seems to miss the fact that American people had a chance to weigh in on that issue — and they chose to return a convicted felon and insurrectionist to the White House. Donald Trump is plenty emboldened, no matter what Joe Biden does.

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