 On December 1, 2024, President Joe Biden granted his son Hunter a full and unconditional pardon “For those offenses against the United States which he has committed or may have committed or taken part in during the period from January 1, 2014 through December 1, 2024”. The pardon clears Hunter Biden of the nine federal tax charges that he plead guilty to in September and his three felony convictions for lying on a federal firearms application. In his statement announcing the pardon President Biden stated that Hunter had been treated differently and unfairly singled out to hurt Biden’s presidential campaign. The president went on to state that, “I believe in the justice system, but as I have wrestled with this I also believe raw politics has infected this process and it led to a miscarriage of justice”.  Reactions From the Right: The reaction from Donald Trump and the MAGA Republicans was predictable. Trump called the pardon an abuse of power and a miscarriage of justice. House Republicans called it proof that Joe Biden couldn’t be trusted and that the Biden family was attempting to coverup criminal behavior. This is pure hypocrisy. In justifying his own questionable pardons while president, Trump stated that the presidential pardon power is complete and free of limitations. Trump has pardoned close friends and associates such as Rodger Stone, Steve Bannon, Michael Flynn and Paul Manafort for various crimes committed in his service. Let’s not forget that Trump pardoned his son-in-law’s father, Charles Kushner who was convicted of tax evasion, witness tampering, and making illegal campaign contributions. To add insult to injury Trump has selected Mr. Kushner to be the next U.S. ambassador to France.  House Republicans have been using their majority over the past two years to investigate Hunter Biden in order to damage President Biden. A since discredited star witness for the Republicans claimed that Joe Biden had financially benefitted from illegal overseas schemes involving Hunter. The House Republicans could never prove any wrongdoing by Hunter Biden, as I have written about in a previous blog .  Reactions From the Left: If you need any further proof that the Democratic Party is adrift, look no further than their response to the Hunter Biden pardon. Party leaders across the country were quick to jump all over Joe Biden for failing to keep his campaign promise not to pardon his son. The hand wringing and moralizing about the degradation of presidential norms and standards is astonishing and speaks volumes about the state of their party. Do they forget who the American people just elected to be the next president of the United States? They have given Trump a pass on every misstep and misdeed, so the bar has already been reset. If the Democrats have a problem with this, they need to have a serious conversation with the American people about standards and norms. Well, what about Joe Biden’s legacy? Biden’s legacy has already been diminished by his decision to run for reelection in 2024 and handing Donald Trump a 2nd term. Pardoning his son will be a mere footnote to the storm that the next Trump Administration will bring.  The Real Issues Raised by Hunter Biden’s Pardon: No one is really very surprised that Joe Biden pardoned his son, and on a personal level they understand it. The issues surrounding the pardon that have caused consternation among legal scholars and politicians are the scope of the pardon and the language used by the president to justify it. The pardon gives Hunter complete immunity for all federal offenses he may have committed back to January 1, 2014. This sets a new precedent and could possibly lead to abuses of the presidential pardon in the future. The pardon may not have caused much of a stir outside of MAGA world if not for the president’s attack on the integrity of the justice system in his statement announcing the pardon. The president’s statement made clear that he thought the prosecution of his son was politically motivated and that Hunter had been unfairly treated by the justice system because he was the president’s son. Democrats fear that Biden’s condemnation of the justice system will bolster Trump’s claims that the Department of Justice had been weaponized against him.  In Defense of Biden: On several occasions over the past year President Biden had pledged not to pardon his son for the tax and gun violations he was charged with. Biden should never have made that pledge, but it was in the middle of a presidential campaign, and he fully expected Donald Trump to lose the election. With a Democrat returning to the White House, Biden thought his son would be protected against further criminal investigations and prosecutions. That was upended when Trump won the election, and Republicans won majorities in the House and Senate.  Biden’s apprehension grew as the new president-elect began to nominate MAGA loyalists to key positions in his administration who are hell-bent on dismantling the “deep state” and seeking retribution against Trump’s enemies. The nomination of Kash Patel to head the FBI and Pam Bondi to be Attorney General, convinced Biden that his son’s legal problems would only intensify. Newly emboldened House Republicans have pledged to continue to investigate the “Biden Crime Family” and other foes of Donald Trump. Given these circumstances it is understandable that Hunter’s pardon was written to provide broad protection to cover the timetable outlined by the House investigation into his overseas business dealings. Hunter’s pardon frees up the FBI and House of Representatives to spend their time and taxpayer money on pursuits more aligned with the needs of the American people.  To the charge that Biden’s expansive pardon of his son clears the way for Trump to pardon January 6th defendants, I say nonsense. Trump has been stating for months that he considered the January 6th defendants to be “political prisoners”, and that he would most likely pardon them if reelected. I expect Trump to pardon some, if not all the January 6th defendants, and it will have nothing to do with Hunter’s pardon, despite his claims to the contrary.  The U.S. Constitution gives the president broad powers to grant pardons, so President Biden did nothing illegal in issuing his son a pardon. It was wrong for Biden to claim that the prosecutions of his son were political, impugning the integrity of the Justice Department. But there is no doubt that investigations into Hunter Biden’s overseas activities by House Republicans were politically motivated to damage President Biden. With the pardon of Hunter Biden by the president, Democrats fear that they have ceded the moral high ground. But to whom? Certainly not the Republicans! With the election of Donald Trump our national politics has entered a period when morality takes a back seat to expediency. The Democrats and the rest of the country need to get over the president’s pardon of his son and focus on the real threat to presidential norms and standards.  If you enjoy reading this type of commentary please subscribe to my blog and tell a friend. You will receive an email notification when new blogs are posted. The email will come from the site’s email: armchairamerican1776 American @gmail.com.
Thanks, Armchair American
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 The President of the United States has nearly unlimited power to pardon or commute the sentences of those accused or convicted of federal crimes. This power is embedded in Article 2, Section 2 of the Constitution, which states that the president has the “power to grant reprieves and pardons for offenses against the United States, except in cases of Impeachment”. The framers of the Constitution thought that fear of impeachment, the court of public opinion, or the integrity of the person holding the highest office in the land, would keep any abuses in check. Unfortunately, this has proven not to be the case. The self-serving pardons granted by President Trump in the closing hours of his administration, demand that reforms be explored.  Exercise of the Presidential Pardon: The Constitution provides no standards or guidelines on the use of the presidential pardon, and therefore it can be used for any reason, or no reason. Pardons were deemed necessary to address injustices, at a time when many crimes were punishable by death and haste was of the essence. As Alexander Hamilton argues in Federalist No. 74 (https://guides.loc.gov/federalist-papers/text-71-80), the purpose of the pardon power is to temper justice with mercy, and in order to facilitate reconciliation which is sometimes needed to restore the tranquility of the commonwealth. Examples of this include pardons granted by Abraham Lincoln and Andrew Johnson to Confederate Soldiers, and amnesty granted by Jimmy Carter to Vietnam-era draft evaders.
An 1866 Supreme Court ruling affirmed that the presidential pardon “extends to every offence known to law, and may be exercised at anytime after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgement”. This was how President Ford was able to grant Richard Nixon a full, free, and absolute pardon for all offenses against the United States even before he was charged with any.  It is important to note that presidential pardons only exonerate federal crimes. It can not be used to pardon state or local offenses, and it cannot be used to overturn civil judgments. The president does not have the power to pardon defendants in an impeachment trial or anyone who has been impeached. The pardon may be granted even before legal proceedings have begun, but pardons may not be granted for crimes that have not yet been committed.  Can Presidents Pardon Themselves? The Constitution does not explicitly prohibit it, and no president has tried. But as James Madison wrote, “no man is allowed to be a judge in his own case, because his interest would certainly bias his judgement, and, not improbably, corrupt his integrity”. This is a longstanding common-law principle, and many legal experts agree that a self-pardon would not stand up to judicial scrutiny. Richard Nixon may have sought to pardon himself if not for his Justice Department’s Office of Legal Counsel opinion that a president could not pardon himself. If a president attempted a self-pardon, the matter would most certainly end up in the Supreme Court.  Office of the Pardon Attorney: The Office of the Pardon Attorney, within the Department of Justice (DOJ), was established approximately 125 years ago to assist the president in the exercise of executive clemency. Executive clemency may take several forms. These include full pardon, commutation of sentence, remission of fine or restitution, or reprieve. Requests for executive clemency are directed to the Pardon Attorney for review, investigation, and preparation of the DOJ’s recommendation to the president. The Office of the Pardon Attorney has established procedures and standards for considering pardon petitions ( https://www.justice.gov/pardon).  But the president is not required to follow their recommendations and retains full pardon authority. In fact, President Trump has mostly bypassed the Office of the Pardon Attorney when considering pardon petitions. Instead, petitioners have approached the White House directly through advisor Jared Kushner, Chief of Staff Mark Meadows, White House Council Pat Cipollone, or the president himself.  Pardons as Tools of Justice or Personal Gain? President Trump was not the first, and he certainly won’t be the last president to use the executive clemency system to his own advantage. Under Donald Trump, the executive clemency system has been dominated by inside access, and used to serve his personal goals and whims. Analysis by Harvard law professor Jack Goldsmith found that 86 of Donald Trump’s first 94 pardons were “aberrant”’; meaning that they circumvented the normal review process and benefitted celebrities, or people with political or family ties to the president (https://www.lawfareblog.com/trumps-circumvention-justice-department-clemency-process). In 2020, Donald Trump granted clemency to loyal associates Paul Manafort, George Papadopoulos, Michael Flynn, and Rodger Stone. Donald Trump also pardoned Jared Kushner’s father, a convicted criminal, as well as four Blackwater security guards convicted of murdering civilians in Iraq. These individuals were not wrongly convicted, showed little contrition or remorse for their crimes, and do not serve the public good by being pardoned. The pardon system was not established to foster cronyism and to subvert the rule of law. But this seems to be the case in these instances.  The biggest abuse of the system is the large number of pardons issued in the final hours of a presidency, leaving little time for scrutiny. This is exemplified by Bill Clinton’s pardon of Marc Rich who was indicted for tax evasion and racketeering. Rich and his wife were large donors to Hilary Clinton’s Senate campaign and to the Clinton Library Foundation. The fact that Rich was a fugitive from law living overseas, did not prevent him from getting a “get out of jail free” card.  On his final day in office, President Trump pardoned 74 people and commuted the sentences of 70 others. I’ll let you decide how many of these meet the Constitution’s intent of the pardon clause. Here is a full list of the 144 people receiving clemency: (https://www.nbcnews.com/politics/donald-trump/full-list-trump-s-last-minute-pardons-commuted-sentences-n1254806). Many of these last-minute pardons are rotten to the core, but perfectly legal. So, what can be done about it? Nothing, without some type of reform.  Possible Reforms: If you assume, as Alexander Hamilton did, that all presidents would show “prudence and good sense” in the exercise of the pardon authority, then nothing needs to be done. But as recent history has shown, not all presidents are the principled gentlemen that the framers of the Constitution had envisioned. Here are a few suggestions for reforms that would better align the president’s pardon authority with how it was originally intended:
The president’s pardon authority was not intended to excuse injustice, but to do justice. The Constitution gives the president nearly unfettered authority to issue pardons. There is very little transparency in the process, and many of the most questionable pardons occur in a president’s final hours in office. It is time to reform the pardon system and restore it to the purpose for which it was intended. If you enjoy reading this type of commentary please subscribe to my blog and tell a friend. You will receive an email notification when new blogs are posted. The email will come from the site’s email: armchairamerican1776 @gmail.com. Thanks, Armchair American |
AuthorThe Armchair American. 
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