President Joe Biden made history Sunday when he granted a pardon to his son Hunter Biden for criminal convictions on gun and tax charges.
The power to grant pardons for federal crimes is uniquely bestowed by the Constitution on only the US president: “… he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
Presidents have doled out pardons to friends and donors, to political allies, and to make political points, but no president until Biden has pardoned his son.
In a statement, Biden argued his son’s criminal cases “came about only after several of my political opponents in Congress instigated them to attack me and oppose my election.”
He argued Hunter Biden faced prosecution — in particular for the sole charge of lying on a form required to buy a handgun — only because he was the president’s son.
Certainly Republicans have long tried to tie Hunter Biden’s lucrative business career to his father. And don’t forget, it was then-President Donald Trump’s attempt to get Ukraine to investigate Hunter Biden’s ties to a natural gas company that led to his first impeachment.
Hunter Biden’s personal struggle with addiction and his business career, built on his father’s name, have clearly been political liabilities for Joe Biden. The federal investigation into Hunter Biden has been a yearslong event; it began in 2018 during the Trump presidency and continued throughout Joe Biden’s administration. With the pardon, Biden broke a clear public promise not to interfere with the justice system on his son’s behalf, something that will now stain his presidential legacy.
Only two other presidents have pardoned family members, according to Alexis Coe, author of “You Never Forget Your First: A Biography of George Washington.”
► Bill Clinton pardoned his half-brother Roger for drug charges.
► Trump pardoned his son-in-law’s father, Charles Kushner, who had been convicted of witness tampering, tax evasion and illegal campaign contributions. Kushner is now in line to be US ambassador to France.
Coe wrote for CNN in 2023 about the long list of presidential sons, in particular, causing problems for their fathers. She told me the framers did not anticipate the pardon power being used for close relations.
“I can guarantee you that when the framers debated the presidential pardon at the Constitutional Convention, a future in which it would be used as a get-out-of-jail-free card for the first family was not among their concerns,” she said after Biden pardoned his son. “It is supposed to inspire unity and justice,” a last resort for people who have been failed by the system. Now, the risk is a normalization of pardons as a sort of perk of access.
Interestingly, the family member pardon was not the most controversial for either Clinton or Trump.
Clinton’s pardon of the fugitive financier Marc Rich was more shocking than his pardon of his half-brother.
Trump pardoned a long list of political allies, including his former campaign manager Paul Manafort and his former aide Steve Bannon, who was facing trial for defrauding investors in a private border wall. Bannon later was convicted and served time in jail on separate federal charges related to his refusal to comply with a congressional subpoena. He also faces state charges related to the alleged private border wall scheme.
Now the debate over presidents and justice will pivot from the fact that Trump’s election erased many of his legal problems to Biden’s decision to erase his own son’s legal woes after Democrats’ devastating loss. Trump’s sentencing on felony counts in New York has been delayed indefinitely, and federal charges for trying to overthrow the 2020 election and mishandling classified data have been dropped.
Republicans have long argued that there’s a two-tiered system of justice and they are unfairly targeted, although when CNN compiled a list of recent federal prosecutions, there was no evidence that Republican federal lawmakers face criminal investigation at higher rates.
In issuing the pardon for his son, Biden said Americans should still believe in the justice system. But in the case of his son, he said, “I also believe raw politics has infected this process and it led to a miscarriage of justice.”
That’s a severe indictment of the justice system at a time when Trump is promising to significantly change things, including putting loyalists in charge of the Department of Justice and the FBI. Trump, notably, seriously considered whether he could issue himself his own pardon during his first term in the White House.
There is a process by which pardons are supposed to be petitioned for, reviewed and granted, which is funneled through a special office in the Department of Justice.
The office lists various criteria that normal people should meet before requesting a pardon, including good post-conviction behavior, acceptance of responsibility, the need for relief and recommendations from officials, according to a review of pardon authority by the Congressional Research Service.
Biden also used his pardon power much more broadly, to wipe away simple marijuana convictions on federal lands and in Washington, DC, in 2022. That mass pardon was conducted in the weeks before the 2022 midterm election. The singular pardon Sunday occurred in the lame-duck period after Democrats lost the White House in November’s election but while Biden is still president. It’s in these final weeks in office that presidents frequently use their pardon power in the most controversial ways.
