Joe Biden abused a medieval power to pardon his son
ONe Question facing the framers of America’s constitution was how to check the judges. Part of their answer was the presidential pardon. If it seems a bit medieval to let one man dispense (and dispense with) justice, that is because it is. In British law the “prerogative of mercy” can be traced back to the reign of King Ine of Wessex in the seventh century.
In pardoning his son Hunter for convictions on tax and gun charges, Joe Biden has abused it. The Supreme Court has described the pardon as “an act of grace”; and which loving father, having lost one child in a car crash and another to cancer, could resist sparing his addiction-prone son prison time and, possibly, further prosecutions?
Yet Mr Biden is the president. The court has also said that pardons can advance “the public welfare”. This one harms it.
Mr Biden broke his word. Asked in June about a pardon for Hunter, the president replied: “I said I’d abide by the jury decision, and I will do that. And I will not pardon him.” If the harm from this were just to Mr Biden’s reputation, it might be contained. Other presidents have pardoned people close to them: Bill Clinton pardoned his half-brother, Donald Trump his daughter’s father-in-law (and has just appointed him ambassador to France).
More damaging, Mr Biden’s pardon also blurs a crucial distinction Democrats make between themselves and their MAGA opponents. Several cited Mr Biden’s refusal to interfere in the Department of Justice’s (DoJ) investigation into his son as evidence that, unlike Donald Trump, whose respect for the rule of law and norms like DoJ independence was selective, their party acted on principle. That argument now seems hollow.
When President Trump pardons those convicted over the attack on the Capitol on January 6th 2021, as is likely, what principle will Democrats appeal to? DoJ independence is a relatively new convention, developed in the aftermath of Watergate. The Biden administration paid some respect to this principle. But through an independent counsel, it brought federal cases against Mr Trump which had the effect, for those sympathetic to him, of appearing to politicise justice. Mr Trump does not bother with such niceties. His picks to run the DoJ and its constituent bits seem chosen largely for their willingness to act according to his will. They will now be harder to stop.
“The charges…came about only after several of my political opponents in Congress instigated them to attack me and oppose my election,” Mr Biden wrote in the preamble to the pardon. Sound familiar? The prosecution may indeed have been selective and flimsy, but it was conducted by an independent special counsel in front of an independent judge, and won a conviction from an independent jury.
The pardon thereby confirms the cynicism many Americans feel about their politicians and institutions. In his speech to the Democratic National Convention, Barack Obama warned Americans that Republicans will “tell you that government is corrupt; that sacrifice and generosity are for suckers; and that since the game is rigged, it’s OK to take what you want and look after your own”. With this pardon, Mr Biden applies one set of rules to himself and his family members and another to the people he serves. At best he has sacrificed his legacy to his love for his son; at worst he has endorsed the view that the system is too rotten for principled gestures to count any more.
One of the many disappointments about Mr Biden is that he talked as if Mr Trump was a threat to the republic, yet never acted as if he truly believed it. When his own party’s voters were worried that he was too old to run, he stayed stubbornly in the race. He warned about Mr Trump abusing the machinery of justice, then pardoned his son—but so far none of the other people who might be pursued by a vindictive DoJ. It is an ignominious coda. Unfortunately, it is also a prelude. ■
Correction (January 20th 2025): A previous version of this article wrongly stated that Jimmy Carter pardoned his brother. Sorry.
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