Biden’s Action Renews Attention to the Pardon Power

COMMENTARY

President Joe Biden’s recent pardon of his troubled son Hunter “for those offenses against the United States which he has committed or may have committed or taken part in during the period from Jan. 1, 2014, through Dec. 1, 2024,” has once again focused the spotlight on the president’s power. As outlined in Article II, Section 2 of the U.S. Constitution, the president has the power “to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”  

In pardoning his son, Biden chose to extend a full pardon rather than a mere commutation of his sentence, and he did so despite previous promises indicating that he would not issue any pardon. In an accompanying statement, Biden indicated that he thought his son had been “selectively, and unfairly, prosecuted” simply because he was his son. He further noted that he believed political pressures originating in Congress had led to the unraveling of a previous plea deal that was fair, and he accused his opponents of attempting to break both him and his son, who, he proudly noted, had remained sober for more than five years.

Biden clearly had the constitutional authority to pardon his son for federal offenses, but the pardon is more problematic than some not only because it contradicted past assurances that the president would not do so but also because he is acting as a lame duck and thus will face no electoral accountability for his actions.

The wording of the pardon (like that which President Gerald Ford once issued to former President Richard Nixon), which not only included Hunter’s tax evasion and misstatements about gun possession but any other federal crimes he may have committed over a 10-year period, will likely fuel suspicions that Hunter and his family might have been engaged in other illegal activities.

It is difficult to put a positive spin on any action that a president takes contradicting a promise to do otherwise. However, President-elect Donald Trump’s nominations of Kash Patel as director of the Federal Bureau of Investigation and of his previous nomination of former Rep. Matt Gaetz, R-Fla., as attorney general (and now Pam Bondi) suggest that Biden had reason to believe that Hunter’s sentencing would be influenced by partisan, rather than by merely legal, considerations.

Biden’s action, however, not only plays into Trump’s narrative that the Justice Department has become politicized, but it may also ease the way for Trump to pardon some or all of the rioters who participated in the attack on the Capitol on Jan. 6, 2021. It might further provide cover for Trump to attempt to do what no previous president has ever done (and which may or may not be legal), to pardon himself, assuring not only that he will stay out of jail for the next four years, but also thereafter.

In Federalist No. 74, Alexander Hamilton argued that the pardon power was intended not simply to remedy perceived individual injustices but also “to restore the tranquility of the commonwealth” in “seasons of insurrection or rebellion.” 

Scholars have observed that recent presidents have increasingly used the pardon power to protect family members (recall President Clinton’s pardon of his half-brother, Roger, for conspiring to distribute cocaine) or members of their administration. George H.W. Bush pardoned Caspar Weinberger and others involved in the Iran-Contra scandal. George W. Bush commuted the sentence of Scooter Libby, who had served as chief of staff to Vice President Dick Cheney. At the end of his term, Trump issued pardons to high-profile supporters like Dinesh D’Souza, Roger Stone, Paul J. Manafort, Steve Bannon and Charles Kushner, the latter of whom he has now nominated as ambassador to France. 

Such pardons should renew discussion of proposals for constitutional amendments that would require a limit to presidential pardons of those who have served in their administrations, permit some form of congressional and judicial advice and consent, or limit pardons on the part of lame duck presidents.

Dr. John R. Vile is the author of “A Companion to the United States Constitution and Its Amendments,” soon to be in an 8th edition, and the “Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789-2023,” now in its 5th edition. He can be reached by email.