The Hunter Biden Pardon in Fact Exemplifies the Pardon Power at its Best
It is honestly surprising that the Hunter Biden pardon is still in the news at all. The story does seem to be fading, but the editorial board of The New York Times decided to offer its collective-eyebrow-furrowed take on the situation yesterday, giving the story renewed oxygen. At best, we now seem doomed to have this incident pop up in discussion every now and then, with "even some Democrats agree it was bad" being the regrettable lead-in.
Two days ago, I wrote a long column responding to the hand-wringing about the pardon, while Professor Dorf wrote a thoughtful analysis of "Familial Pardons and Nepotism More Broadly" yesterday. Because the pardon story has a longer tail than I ever could have expected, today I reluctantly add to the word count about what should have been a minor story. As an initial matter, I will add to my analysis of the commentary -- most of it misguided, though with some welcome exceptions -- focusing on the two key complaints: (1) Joe Biden set a bad precedent that harms Democrats and democracy, and (2) Joe Biden said he wouldn't but then changed his mind, and that's bad.
As the title of this column indicates, however, I will then make the further argument that the pardon of Hunter Biden is not only not "just like" Donald Trump's past and planned future pardons but is in fact a nearly textbook example of why the pardon power exists. And as I will note, I draw this conclusion even though I am on the record as saying that the Constitution's grant of the pardon power is not at all absolute and should in fact be reviewable by the judicial system. To be clear, I am in fact saying that even an appropriately limited and reviewable pardon power would readily -- even easily -- encompass the Biden-to-Biden pardon.
But first, let us return to the political/pundit scrum that has emerged since the announcement of the pardon. I will start by enthusiastically complimenting Harry Litman, the former US Attorney and DOJ official who now (among other things) runs the Talking Feds podcast. In a brief cast yesterday, Litman noted that the federal judge who was in charge of the tax part of the Biden case issued a confused ruling suggesting that the pardon was "unconstitutional" (the judge's word) but that he would nonetheless dismiss the case.
Litman's most important contribution was to disagree emphatically (and more than once) with the judge on the fundamental point of the pardon. The judge, Litman explained, had insisted that Hunter Biden was not subject to selective prosecution and was not the target of a political hit job, which was what the President's decree had used to justify the decision. Litman made it very clear that the judge was wrong and the President was right on those basic legal facts. This entire prosecution was "getting the Bidens" from the beginning, which would only have continued without the pardon. There is a reason that the Trump crime family insists on railing about the "Biden crime family," and it is not on the merits.
Litman also acknowledged the reality that there are people who think the pardon looks bad, for both of the reasons that I recounted above. He noted vividly that the Republicans will surely use this as "a two-by-four" to respond to any complaints about anything that Trump does, which they absolutely will do. To be very clear, however, Litman was making a sadly accurate prediction, not endorsing that claim.
And that brings me back to the substance, such as it is, of the two complaints about the pardon. On the "it sets a bad precedent" front, I argued on Tuesday that it is silly to worry about having set the stage for Trump to abuse the pardon power specifically and the rule of law more generally. The rule of law is on the way out, no matter what Joe Biden or the Democrats do now, because Trump and his people have wrongly claimed a mandate (on a 49.8 percent popular vote plurality) and plan to punish his enemies and line their pockets while ignoring any and all legal constraints.
Perhaps the most inadvertently funny version of the bad-precedent argument came in a video from CBC News here in Canada two days ago. One of their best reporters, Andrew Chang, produces a series called "About That" in which he provides extremely clear explanations of issues ranging from housing to tariffs to immigration. Chang is a down-the-middle news reporter, so he sought out commentary regarding the pardon from US sources, most of whom were parroting the new conventional wisdom that the sky is falling and it is all Joe Biden's fault. That is not a criticism of Chang but of the commentators who weighed in.
The guffaw-inducing moment in the piece came from a Washington Post reporter/commentator, who noted the breadth of the Biden pardon and said this: "If you're Donald Trump, you could potentially look at that and say, 'I'm gonna pardon people without specifying crimes.'" The idea that Trump and his people would not have stretched his powers beyond recognition had Biden not given them the idea is bizarre, and that claim even goes beyond the more limited version of the bad-precedent argument in which Biden's action supposedly makes it more difficult for Democrats to argue against future corruption. (For a nice rundown of the ways in which Trump has already abused the pardon power, interested readers might be interested in this clip from Rachel Maddow's show earlier this week.)
The very idea that the Democrats must keep their hands absolutely clean -- so "clean" that they cannot even do things that are fully legal and defensible -- in the face of the Republicans' circus of corruption is the worst kind of unilateral disarmament. Yes, it looks bad when we find out that a mayor has fixed a friend's traffic tickets, but people are capable of understanding that she would still be justified in saying that her political opponents should not, say, run a human trafficking ring. And even that analogy gives too much ground, because Biden's pardon is not even close to illegal.
Another positive contribution came from a former official in the George W. Bush administration, Paul Rosenzweig, who is now a senior fellow at American University and an editor at Lawfare. In a TV interview on Tuesday evening, Rosenzweig said this: "I don't think that Democratic self-restraint is what is going to stop Trump from acting. If in the end, Trump and the Republican majority think that the filibuster is a barrier to whatever it is that they want, for example, they're going to get rid of it anyway, whether or not the Democrats had done so in the prior Congress."
Rosenzweig's choice of a non-pardon example there is important, because he is directly puncturing the pomposity of those who are acting as if they are defending the republic by forcing Democrats to live by a don't-set-bad-precedent standard. Anyone who thinks Trump and his people will not be knocking down every limitation on their power has, among other things, deliberately ignored Project 2025.
And on pardons specifically, Rosenzweig wrote a column in The Atlantic a week after the election in which he called for Biden to issue a long list of pardons to other people who will be the targets of the new Administration. As he notes, Trump has directly threatened Liz Cheney, retired General Mark Milley, and many others. For those who worry about the non-specificity of the Hunter Biden pardon, exactly how would one craft a specific, narrow pardon for Cheney or anyone else, given that Trump's pick for FBI Director, Kash Patel, has written a literal enemies list and said that he will go after them all for something, details to be determined later?
The wailing on the left, however, is a thing to behold. As I noted two weeks ago, Jon Stewart was at that point shouting at Democrats for not being willing to break norms and play hardball the way that Republicans do. When Biden then did something that was not even close to hardball with this pardon, however, Stewart said, in essence, "but keep your hands clean." Why? Because Biden apparently should only push boundaries "to help the people, not just those people related to you." But of course Biden did a lot of things to help "the people" while noticing that none of them had been harassed for years by a baying Republican mob.
As a housekeeping matter, I should note that in my column two days ago I inadvertently mixed up the attributions for two Washington Post columns, one by its editorial board and the other by columnist Ruth Marcus. I fixed that error as soon as I was aware of it, a correction that also involved attributing the claim that the pardon would "undermine Democrats' defense of [the] justice system" to the editors, not to Marcus. I am happy to have set that right.
Marcus's column emphasized not the bad-precedent argument but the "he said he wouldn't argument," adding that "when it mattered politically," Biden took the easy route by promising not to pardon his son. She then noted that the White House press secretary said "as recently as Nov. 7 — after the election — that Biden had no intention of pardoning his son," which Marcus says undermines the idea that Biden changed his mind when he realized that his son would be at the mercy of Trump and a Republican Congress. She says that that "explanation is less than convincing." I am not sure why changing one's long-held position on a high-profile matter must be done in less than 48 hours after the election or not at all, but it seems at least possible that the nomination of Patel was the final straw in deciding just how unhinged Trump II-era law enforcement will become.
Marcus is hardly the only person to have made that argument or variations on it, however, so I am citing her only because she made the argument so pointedly. In a different vein, yesterday's essay from the editors of The Times was much broader, intoning that the pardon "reinforces the sense that Mr. Trump’s systematic abuse of the pardon system in his first term was not an aberration, that presidents of every party exploit their constitutional privilege to benefit their relatives and cronies, [and] that justice is only for those with the right connections," which manages to be wrong in every way.
The editors of The Times then claim that the pardon "muddles the defenses against future abuses," but that will only be true if we let it be true. People can tell the difference between premeditated murder and accidental death, after all, so we do not say that "everyone who has killed anyone must be treated the same." We never have, and we never should.
Even my favorite YouTube legal commentator, Devin Stone of "LegalEagle," jumped on the bandwagon with a commentary calling the pardon "an abuse of power" and "appalling self-interest," which is simply off base. I understand Stone's motivation, I think, because he is truly committed to preserving and policing legal norms. But as I wrote on Tuesday, and as Rosenzweig argued in the interview that I cited above, times have changed. Rosenzweig had argued in 2017 that Democrats needed to preserve norms, but in 2024 he says that things are meaningfully different. And they are.
In any event, the Stone example reminds me that even some legal thinkers for whom I have great respect are getting this wrong. More importantly, he is not merely repeating the bad-precedent or but-he-promised arguments that I summarized above and on Tuesday. He is saying that the pardon is horrible on the merits. That has it completely backward.
If anyone should be sympathetic to the idea that the pardon power should be read as non-plenary, I might be the top candidate. In 2017, after Trump pardoned the notoriously racist former Arizona sheriff Joe Arpaio, I wrote two columns explaining why the conventional wisdom about the pardon power has to be wrong. The relevant constitutional provision states that the president "shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." It does not say "absolute and unreviewable power," just "power."
As I explained, any 1L could make a decent case for a broad or a narrow construction of that clause, but for some reason the politico-pundit conventional wisdom quickly congealed around the idea that there was nothing that anyone can do about any pardon, no matter how unjustified. I argued that there should be a constitutional argument lodged against Trump's pardons. Does that mean that I should also agree with the judge whom Litman critiqued in the Hunter Biden tax case, who suggested that this new pardon was unconstitutional?
Yes on the procedure, but no on the merits. That is, if it were up to me, there would be boundaries on the pardon power that would make it reviewable, which in turn means that this or any other pardon could be struck down. But the substance of the Biden pardon in fact fits almost perfectly into what even an originalist version of the pardon power should mean. The constitutional challenge would thus easily lose.
My concern in those two 2017 columns was that Trump's abuse of the pardon power could be used effectively to turn the President into an autocrat. He was under investigation in the Mueller probe, and he was making noises about pardoning potential witnesses if they refused to "flip" or even if they committed perjury. That would effectively put the President above the law. Earlier this year, the Supreme Court's ruling in the immunity case did a great deal of damage along those very lines, but the basic point stands: Trumpian pardons to keep himself in power would effectively end the Constitution.
And as I concluded: "The Constitution is not a stupid document written by careless men." They would not have written a single clause into their most important document that negated everything else. Needless to say, the pardon of Hunter Biden does not even come close to posing such a concern. More importantly, my first 2017 column also explained why the pardon power as properly understood should be applied to Biden today.
Looking at Federalist 74, I noted that Publius (Alexander Hamilton) wrote this: "Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed." I pointed out that "as little as possible" is non-absolute, but the point is why the pardon power is to be used at all. Hamilton wrote that the power is supposed to be "benign." I added:
Hamilton spends the relevant paragraph describing why the pardon power was vested in one person rather than in some larger body. He explains that there are times when groups of people, for strategic reasons, take actions that cause the justice system to create injustices. Giving only one person the ability to undo such injustices preserves "an easy access to exceptions in favor of unfortunate guilt," without which "justice would wear a countenance too sanguinary and cruel."
To me, that is the Hunter Biden situation in a nutshell. There are people (many of them Democrats) who for strategic reasons would sacrifice the younger Biden in order to maintain their own good standing as "responsible" people who want "the law to be the law." The elder Biden, however, has access (easy or otherwise) to an exception that would end the public pillorying of a person whose fate has been sealed by his last name.
The Republicans spent the last two years trying unsuccessfully to find evidence against the Bidens in a pointless impeachment inquiry. They still believe that both Bidens are guilty of something. President Biden is not opening the floodgates to anything by noticing that his son, unlike any other criminal defendant, is being dragged through hell by a political lynch mob who "wear a countenance too sanguinary and cruel" as a badge of MAGA honor.
I have no particular feelings about the younger Biden. He is an addict, and I have seen enough addicts to know that he must surely have been awful at many points in his life. He is also a nepo-baby who engaged in at best cringe-inducing business practices that I wish no one would be able to get away with. On the other hand, his critics have included nepo-baby Matt Gaetz and nepo-babies Don Jr. and Eric Trump (who are the sons of the biggest nepo-baby of them all). Turning that -- dare I say it? -- witch hunt into a reason to "respect the system" and allow Republicans to continue to torment Hunter Biden should turn anyone's stomach.
I have never been a fan of Joe Biden, so I am confident that I am seeing
this clearly and not merely jumping to his defense out of reflexive loyalty. Some people have defended Biden by saying things like this: "I understand why a father would do that, and I would, too, even though I think it was wrong." Quite the contrary. If the pardon power did not exist, the Hunter Biden situation would justify creating it.