During the evening of Dec. 1, when the media had effectively closed shop for the night and everyone was engaged in some quotidian Sunday-night activity—preparing for the upcoming work week, watching the San Francisco 49ers play the Buffalo Bills, doing some online holiday shopping, or whatever—President Joe Biden was busily engaged in the exercise of his constitutional authority.
That might be the lede for a story about an important foreign or domestic policy decision to benefit the public. Is that what the president did? No; try again. Did he propose a major Middle East peace initiative? No; make another guess. Did he award the Presidential Medal of Freedom to an American who has dedicated his or her life to developing a vaccine or cure for a dreadful ailment, or to comforting the afflicted? Nope.
After steadfastly denying for months that he would do so, Biden signed a clemency warrant granting his son Hunter Biden a “Full and Unconditional Pardon” for every federal offense that Hunter “has committed or may [sic: might] have committed or taken part in from January 1, 2014, through December 1, 2024.”
(Hmm, part of that period falls during then-President Barack Obama’s second term. I wonder if he knew what potential offenses Hunter committed while Obama was president. Perhaps someone should ask him.)
Yep, Papa Joe did a 180 and let Hunter completely off the hook. Once convicted by a jury, once by his entry of a guilty plea, Hunter Biden no longer faces any federal criminal liability for his wrongdoing. The president—also known to Hunter as “the big guy”—didn’t merely forestall a district court from sentencing Hunter to prison by commuting to zero any potential sentence that Hunter could have received.
No, the father-in-chief pardoned Hunter. That pardon erased the legal effect of the guilty verdict that a trial jury returned on the charge that Hunter lied about being a drug user when he purchased a firearm (conduct that would be a crime for people like you and me). Big Daddy also erased the effect of the guilty plea that Hunter entered in connection with tax charges (ditto). Gone, all of it.
To be sure, the fact that Hunter was convicted remains. This is not Oceana, and the pardon power is not a “Men in Black” neuralyzer; Biden cannot erase the past or make us forget it. But he can wipe out the legal effect of those convictions. As far as federal law is concerned, not even the Cheshire cat’s grin remains. Indeed, if Hunter really wanted to strut his stuff, he would ask the federal government to return to him the gun he purchased after lying on his Bureau of Alcohol, Tobacco, Firearms and Explosives form.
Biden’s Dec. 1 statement raises several questions, which are answered below.
- Is such a pardon lawful? That is, can a president pardon family members?
The answer to each question is “Yes.”
Article II of the Constitution spells out the powers vested in the president, and it vests in the president a clemency power. At common law, the Crown could pardon anyone for any crime because the king or queen was the source of all English law and therefore could forgive anyone.
The Framers carried that power forward into our Constitution. The Article II Pardon Clause provides that “[t]he President . . . shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” The president’s clemency power is perhaps the sole surviving royal authority that our legal system authorizes our president to exercise.
In a 2021 law review article, I argued that a president may pardon himself for any crimes that he committed while in office for, essentially. two reasons. One is that the Article II pardon clause contains only two limitations on the clemency power—namely, the president may only pardon someone for a federal offense, and a pardon does not prevent Congress from impeaching and removing from office a federal official pardoned by the president—and neither limitation bars a president from granting himself a pardon.
The other reason is that, however odd it might appear for a president to pardon himself, creating a third (or fourth, fifth, etc.) nontextual exception substitutes Congress or the courts as decision making in place of the president. When it comes to clemency, the buck, and the authority, literally stops with the president.
I also addressed the subissue of whether a president could pardon members of his or her family for their federal crimes, and I again concluded that a president may do so. That is a simple case of the greater power (pardoning oneself) includes the lesser power (pardoning a family member). A president’s issuance of a pardon, as the U.S. Supreme Court has ruled, is final. Neither Congress nor the federal courts has any authority to second guess or limit it.
2. Why did Biden pardon his son after repeatedly saying that he would not do so?
There are two answers: the reasons Biden offered for the pardons, and the real reasons.
Biden explained that Hunter was “selectively, and unfairly, prosecuted” for his false statement and tax crimes. “It is clear that Bunter was treated differently” than other, similarly situated offenders. Hunter was “the victim of unrelenting attacks and selective prosecution” by the Justice Department, “only because he is my son.”
The false statement and tax charges “came about only after several of my political opponents in Congress instigated them to attack me and oppose my election [sic: re-election, he was elected president before any charges were brought against Hunter].”
Hunter’s conviction was the product of “raw politics,” and was “a miscarriage of justice.” Biden was certain that he made the right decision, saying that “[n]o 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[.]” Nonetheless, Biden hoped that “Americans will understand why a father and a president would come to this decision.”
It is difficult to take that argument seriously.
Biden does not deny that his son committed the acts charged against him. A jury convicted Hunter in a Delaware court (a state that, having elected and reelected Joe Biden to the Senate, was hardly a hostile venue). Moreover, Hunter pleaded guilty to the tax charges. As the U.S. Supreme Court has noted, “a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case.”
In short, Biden does not argue that his son was an innocent man. You don’t need to be Sherlock Holmes to realize that the Joe Biden’s silence about Hunter’s innocence is as good an example as there could be of the significance of the dog that did not bark.
Instead, the president criticizes his political opponents for refusing to cut Hunter some slack by accepting a noncriminal disposition of his cases or going along with the original plea agreement in the Delaware false statement case, an agreement that the Justice Department acquiesced in.
But no member of Congress was, or could have been, involved in the Delaware false statement prosecution. Having been a senator for 36 years, Biden knew that.
Moreover, it was the federal district court judge that blew up the plea bargain that lead to Hunter’s false statement conviction because the agreement was so broadly written that it would have excused Hunter from any and all criminal responsibility for any of the crimes charged against him, in that case or any other.
Besides, Joe Biden was the “president,” which means that, as Chief Justice John Roberts put it, “the ‘executive Power’—all of it—is ‘vested in [him],’” which includes the responsibility to “‘take Care that the Laws be faithfully executed.’” If Biden believed that the Justice Department had improperly charged his son with crimes, Biden could have ordered Attorney General Merrick Garland to forego any charges or to dismiss them. Biden surely would have faced political blowback from torpedoing any prosecution of his son, and that might have cost the president any chance at being reelected.
But if Hunter were innocent—which Biden never claimed—or was prosecuted for unconstitutional reasons—again, which Biden never claimed—Biden should have sacrificed his political ambitions long ago to protect his son. That is what America would have expected “a father and a president” to do.
Not taking that step shows that either (1) Biden valued having a second term more than protecting his son from a politically motivated prosecution, or (2) Biden planned all along to wait until after the election to pardon Hunter in order to euchre the public into reelecting him before letting his son walk.
Biden lied to the American public about his decision to pardon his son. I suppose we shouldn’t be surprised about that. The defining feature of a politician is the ability to lie to the public with a straight face. Remember then-President Obama’s assurance that “If you like your health care plan, you can keep it.” Well, I’d like to say that Biden learned how to lie boldly and often while he was Obama’s vice-president, but “Biden has always been a liar,” as a colleague of mine has written.
What makes this example, so galling, however, is that Biden’s explanation of his reasons for the pardon are so transparently fallacious that he must think that the American public is so utterly stupid that he can get away with this tripe.
If Biden had just prevented Hunter from serving time on the ground that “Hunter is the only son I have left, and I can’t let him go to prison,” I would have understood why he commuted any potential sentence. I might have even understood why Joe Biden would have pardoned Hunter if Joe had offered that defense. But to say that his own Justice Department singled out Hunter and bullied him into pleading guilty—well, I’m sorry, but that is not remotely credible. Indeed, it is offensive that Biden thinks that he can snooker me and more than 340 million other people with the utterly flimsy rationale he offered.
As part of his feckless justification for pardoning Hunter, Biden invoked the “reasonable person” standard, claiming that no reasonable person could fail to agree that Hunter was a victim. Biden also appealed to the public to believe that he did only what any father would do in similar circumstances.
What a reasonable person and any father should conclude is this: Biden was about as non-presidential as a person can be. He traded off his name and contacts to enrich his family and allowed Hunter to profit from deals with foreign officials and investors while traveling with his father as vice president. Biden took pride in telling the Ukrainians that they wouldn’t get what they wanted unless and until they dumped the official who was investigating Hunter.
Joe Biden never was the brightest bulb on the porch, but he wasn’t a cheap, classless, corrupt politician. At least, he didn’t appear to be. Now, however, any “reasonable person” knows that he is.
