Biden’s Pardon for His Son Dishonors the Office

 

Guest Essay

Biden’s Pardon for His Son Dishonors the Office

Dec. 2, 2024

By Jeffrey Toobin

https://www.nytimes.com/2024/12/02/opinion/joe-hunter-biden-pardon-dishonor.html

Mr. Toobin’s book “The Pardon: The Politics of Presidential Mercy” will be published in February.

 

Pardons are the consummate discretionary acts; presidents are never required to issue even a single one, nor are they limited in the number they issue or to whom. In this way, they reveal their roots in the royal prerogative of mercy. There is only one reason presidents, or kings, issue pardons: because they want to.

 

On Sunday night as he boarded a plane to Cape Verde, en route to Angola, President Biden revealed himself as an anguished, and furious, father when he pardoned his son Hunter. Mr. Biden said, as recently as June, that he wouldn’t pardon Hunter or commute his sentence, and his press secretary reiterated that he had no plans to pardon Hunter after last month’s election. In June, a jury had found the younger Mr. Biden guilty of three felony counts relating to lies about his drug use on a federal form to apply to own a firearm. Then, in September, he pleaded guilty to nine federal tax charges in California.

 

Hunter was due to be sentenced in both cases later this month, which undoubtedly served to precipitate his father’s action. Under the federal sentencing guidelines, he was probably facing at least a couple of years in prison. But the pardon from his father wiped out that possibility and gifted the son a clean record, as if he had never been charged in the first place. The pardon goes further. It is “not limited to all offenses charged or prosecuted” and encompasses the period when the younger Mr. Biden joined the board of Burisma.

 

Mr. Biden sought to define his presidency in counterpoint to the corruption and indecency of the first Trump years. With the pardon of his son, Mr. Biden added his name to the roll call of presidents who dishonored their office by misusing the pardon power. By changing his plan to issue this pardon, Mr. Biden himself seemed to recognize how wrong it was, and is.

 

He justified his action on the ground that his son had been “selectively, and unfairly, prosecuted.” In his statement, he said, “No reasonable person who looks at the facts of Hunter’s cases can reach any other conclusion than Hunter was singled out only because he is my son — and that is wrong.” There is something to this argument. The president’s political adversaries have long been obsessed with trying to prove that Mr. Biden was somehow involved with his son’s misdeeds, many of which appear to have stemmed from his long-term addiction to drugs. Despite years of pursuit, including a spurious impeachment investigation, Mr. Biden’s critics never came close to proving that he had anything to do with his son’s criminal behavior, or that he benefited in any way from it.

 

President-elect Trump’s promise to seek retribution against his enemies also probably played a role in Mr. Biden’s decision. The unusually broad scope of the pardon suggests that Mr. Biden was attempting to forestall attempts by the new administration to prosecute his son.

 

The fact remains that Hunter Biden stood convicted of 12 felonies — and he was, in fact, guilty of all of them. Prosecutors played hardball with the younger Mr. Biden, which is something that prosecutors sometimes, even often, do. But those other guilty defendants didn’t have the president of the United States to bail them out. Mr. Biden’s love for his son, as well as his anger about the way he was treated, was understandable, but the president’s consummate act of nepotism has stained the record of the Biden presidency.

 

Mr. Biden’s merciful treatment of his son might be more defensible if he had extended the same kind of grace to others who received rough treatment in the legal system. But to date, he has issued only 26 pardons and 132 commutations. (In eight years, President Barack Obama issued 212 pardons and 1,715 commutations.) Mr. Biden had earlier made two grand announcements about pardons, but they amounted to less than they appeared. Last December, he said that he was planning to pardon everyone who had been prosecuted for simple possession of marijuana under federal or District of Columbia law. This past June, he announced that he was going to pardon members of the armed services who had in previous years been subjected to courts-martial for being lesbian, gay, bisexual, transgender, queer or intersex. But those actions were mostly symbolic. Though thousands of people were theoretically eligible for these pardons, few chose to go through the cumbersome process: about 200 for marijuana and not even 100 for the courts-martial.

 

It’s true that other presidents have exercised the pardon power to reward their relatives and punish their political enemies. In his final days in office, President Bill Clinton pardoned his half brother, who had years earlier been convicted and served a prison sentence for drug trafficking. President George H.W. Bush blamed the independent counsel Lawrence Walsh for his failed re-election campaign and pardoned all of the defendants in Mr. Walsh’s prosecutions in the Iran-contra affair.

 

On his way out of office in 2021, Mr. Trump displayed both nepotism and vengeance. Amid dozens of dubious (and worse) acts of clemency in those final days, he pardoned his son-in-law Jared Kushner’s father, Charles Kushner, who had been convicted of 18 counts of illegal campaign contributions, tax evasion and witness tampering. (Last week, Mr. Trump announced he plans to nominate Mr. Kushner as ambassador to France.) Mr. Trump also pardoned those prosecuted by Robert Mueller, the special counsel who investigated Russia’s role in the 2016 election.

 

Fortunately, Mr. Biden has time to redeem, or at least improve, his legacy on pardons. 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 powdered 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.

 

Jeffrey Toobin’s book “The Pardon: The Politics of Presidential Mercy” will be published in February.