Familial Pardons and Nepotism More Broadly

In the couple of days after President Biden announced that he had issued a pardon to his son Hunter, I received a number of inquiries from reporters asking whether the U.S. should restrict the ability of presidents to issue pardons. The question is naïve bordering on nonsensical. Should implies can. Only a constitutional amendment could restrict the presidential pardon power, and at no point in the foreseeable future will there be a sufficient bipartisan consensus to amend the Constitution for this purpose or almost any other. The question is thus like asking whether humans should send a rocket ship at faster-than-light speed to colonize a planet revolving around a distant star. Because we cannot do so (faster-than-light travel being against the laws of physics), there's no point in asking whether we should.

One could, of course, treat the question purely hypothetically: If one were designing a constitution, would it make sense to vest the pardon power solely in the president? Would we not be better off with a system in which some apolitical body (like a board of pardons and paroles, as in many states) makes pardon eligibility determinations that are either binding on the chief executive or at least constrain the chief executive's discretion in some way? Given the at-best-mixed experience in the states, would it be possible to keep politics out of such a board?

Those are all interesting questions, but I want to pause to note the occasion for the reporters' inquiries--the implication that the Hunter Biden pardon is somehow a departure from the practice of past presidents or an especially egregious abuse of the pardon power. Really? Really?

Consider that in his last administration, President Trump pardoned a rogues' gallery of cronies, including Steve Bannon, Michael Flynn, Paul Manafort, and Roger Stone. He also seemed to revel in pardoning people who had committed especially egregious crimes, including four former Blackwater security contractors convicted of killing Iraqi civilians in 2007 and racist sheriff Joe Arpaio. (Arpaio's crime of conviction was criminal contempt, but his racist bad acts as Maricopa County Sheriff were, no doubt, what endeared him to Trump). And, oh yes, Trump also pardoned his daughter's father-in-law, Charles Kushner. That one pardon alone--issued to a family member--is surely comparable to the Hunter Biden pardon. And yet because abuse of the pardon power doesn't make the top-100 list of terrible things Trump did as president, it did not occasion anything like the freakout that the Hunter Biden pardon has.

Is there something especially egregious about pardoning a family member--assuming the family member is similarly situated to other people who do not receive pardons--that differentiates it from issuing pardons to other undeserving recipients, such as cronies or, as many observers thought when Bill Clinton pardoned Marc Rich, donors? I don't see it. If anything, issuing a pardon to a close relative, even if not fully justified, inspires understanding. That's why Biden's statement upon pardoning his son concluded that he hoped "Americans will understand why a father and a President would come to this decision" (emphasis added).

Nonetheless, we have a word for doing favors for one's family members--nepotism--that doesn't apply as strongly to doing favors for one's friends, political allies, or donors. Corporate and government anti-nepotism policies typically forbid the hiring of close relatives but are silent about these other sorts of relationships.

Is that justifiable? If so, it could be because of administrability. How does one determine whether someone is a sufficiently close friend to be excluded by a broad anti-nepotism policy? By contrast, it's easy to say that President Kennedy's appointment of his brother as Attorney General, President Clinton's naming of his wife as chair of the health care reform task force, and President Trump's assignment of various official duties to his daughter and son-in-law were instances of nepotism. Even if one thinks (as I do) that Hillary Clinton, at least, was well qualified for the responsibilities she was assigned, it's difficult to maintain that any of these people would have been given their positions were it not for their respective relationships to the president.

Still, is that really worse--or even nearly as bad--as the way in which Trump has been handing out nominations for plum government positions to reward political loyalty? Two of the characters Trump seeks to reward are simply his relatives--(convicted-but-Trump-pardoned-felon) Charles Kushner as ambassador to France and Massoud Boulas as Middle East adviser. Meanwhile, others, like RFK Jr., Linda McMahon, and Kash Patel, seem affirmatively anti-qualified; that is, they will be not merely incompetent or ineffective but they have views and goals that are antithetical to the responsibilities with which they would be tasked.

But perhaps in this, as in all things, Trump is simply an outlier. Even if so, however, consider that presidents routinely give jobs to trusted advisers and friends. Abe Fortas had a sterling résumé, but he got the jobs he did in LBJ's administration and the appointment to the Supreme Court because of his personal bond with Johnson. Jimmy Carter brought his "Georgia Mafia"--Hamilton Jordan, Jody Powell, Jack Watson, and Charles Kirbo (unofficially)--with him to the White House. Some of them were highly qualified. None would have gotten their positions absent their prior connections to Carter.

To be clear, I'm not proposing that anti-nepotism policies should extend beyond relatives to encompass friends. There are many circumstances in which one develops respect for and trust in someone based on their work and so when the principal moves on, it makes sense to tap someone known to be highly qualified rather than gamble on an unknown. But most well-run organizations do not dole out jobs this way. Rather, there is typically a multi-member body that vets proposed officials and compares them with other candidates for the position.

To give an example from a setting with which I'm quite familiar, consider faculty appointments at law schools. Suppose, as happens frequently, law school X hires Professor So-and-so to be its new dean. Dean So-and-so previously was on the faculty at law school Y. Dean So-and-so might well have respect for and want to poach some of the top faculty from Y for X. Even if so, Dean So-and-so cannot simply appoint her erstwhile colleagues. An appointments committee and the full faculty must vote in favor of such a move. Similar procedures can be found in other kinds of organizations.

In the end, then, the problem with nepotism--broadly defined to include not just relatives--in the executive branch of the federal government is that some fateful decisions are made simply by the president. Even in a normal administration, on many matters, formal and informal committees merely provide advice; the president alone is, in George W. Bush's memorable phrase, the decider. To be sure, at least with Cabinet appointments, appointments for other principal officers, and judicial appointments, the requirement of Senate advice and consent provides the possibility of a check against some of the most outrageous presidential decisions (like Matt Gaetz for AG), but even that dispersal of authority is missing with respect to pardons.

I disagree with those scholars and jurists who describe the U.S. Constitution as fully creating a "unitary executive," but they are correct about pardons. That, however, is a bug, not a feature, of the Constitution.