President Biden has issued pardons to just 26 people during his term, and granted the commutation of 132 prison sentences. Though he has been criticized for his reluctance to extend clemency, his choices mostly represented the best form of it, wiping away the criminal stains of everyday people who had been unjustly convicted or reducing prison time for those whose sentences were excessive. And his modest record spoke to Mr. Biden’s attempt to project an admirable restraint in using his absolute, easily abused power to overrule the judgment of the justice system.
Then on Sunday, in direct violation of his own pledges not to do so, Mr. Biden pardoned his own son, Hunter. Though he claimed the decision was made out of fatherly love, his explanation also attacked the investigation of his son and, implicitly, his own Justice Department.
This was a significant misstep that could leave lasting damage. It will not only tarnish Mr. Biden’s own record as a defender of democratic norms, it will also be greedily embraced as justification for Donald Trump’s further abuses of pardon power and broader attacks on the integrity of the justice system.
At the most base level, it 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, that justice is only for those with the right connections. It is easy to imagine the “they did it too” defenses being offered should Mr. Trump pardon the perpetrators of the violent Jan. 6 attack on the Capitol, as he has suggested he will. Hunter Biden’s crimes are not nearly equivalent to the destruction caused by the rioters, but his father’s action muddles the defenses against future abuses.
As Hunter Biden’s firearms and tax cases wound through the courts, the president and his aides repeatedly pledged he would not intervene and would not issue a pardon, even after Hunter Biden pleaded guilty to nine federal tax charges in September. This was consistent with his broader pledge, central to his campaign and electoral mandate, to protect the independence and integrity of the justice system.
On the day after the Jan. 6 riot in 2021, as he introduced Merrick Garland as his choice for attorney general, Mr. Biden condemned Mr. Trump’s interference in the judiciary and said the nation’s democratic institutions were the nation’s guardrails.
“There is no president who is a king, no Congress that’s a House of Lords,” Mr. Biden said that day. “A judiciary doesn’t serve the will of the president or exist to protect him or her. We have three coequal branches of government. Coequal. Our president is not above the law. Justice serves the people. It doesn’t protect the powerful. Justice is blind.”
Presidents have the unlimited right to issue pardons for crimes that could be charged by federal prosecutors. But when they use that power on behalf of their loved ones, or their political allies or their financial supporters, they erode confidence in ideals that justice is blind, that all are equal before the law.
In the modern era, the most notorious (though much contested) example was Gerald Ford’s pardon of Richard Nixon in 1974. Presidents of both parties earned scorn for using the power for seemingly self-serving ends. In 1992, George H.W. Bush pardoned Caspar Weinberger, the former defense secretary, along with five others involved in the Iran-Contra scandal during the Reagan administration, and in 2001, during his last week in office, Bill Clinton pardoned Marc Rich, the fugitive financier whose ex-wife had donated heavily to the Clintons and the Democratic National Committee, along with his half brother, Roger Clinton, who pleaded guilty to cocaine distribution.
But abuse of pardon authority escalated significantly during Mr. Trump’s first term in the White House. He pardoned his advisers — Steve Bannon, Michael Flynn, Paul Manafort and Roger Stone. He pardoned Charles Kushner, the father of his son-in-law, Jared Kushner. He pardoned three service members accused or convicted of war crimes, over the objections of his own leaders in the Pentagon, after campaigns by his allies in conservative media.
Mr. Trump has obviously never demonstrated any interest in the principle that presidents should not use the levers of power — including the Justice Department — to punish enemies and reward friends, supporters and family members. He is already vowing to pardon “a large portion” of the more than 1,500 people who have been federally charged with crimes in relation to participation in the Jan. 6 riot to overturn the results of the 2020 election. Five police officers died in the wake of that attack, four of them by suicide, and Mr. Trump’s clemency would effectively reward violent anti-democratic vigilantes willing to fight on his behalf.
Mr. Biden has been consistent enough in his defense of judicial independence to understand the implications of this abuse. This week, in justifying his decision, he accused his own Justice Department of “selectively and unfairly” prosecuting his son. To use a word that Democrats have often used in warning of the dangers of overlooking Mr. Trump’s defiance of the norms and values of our democracy, Mr. Biden has now “normalized” the abnormal. In doing so, he has made further abuses more likely.
“It further erodes Americans’ faith that the justice system is fair and equal for all,” said Senator Michael Bennet, Democrat of Colorado.
There’s little doubt, as Mr. Biden took pains to note, that the prosecution of Hunter Biden occurred in an environment of significant political pressure from the president’s enemies. The nonviolent firearms charges on which Hunter Biden was convicted are rarely prosecuted on their own, especially against first-time offenders. And it’s clear that many of Mr. Trump’s choices for top executive positions, particularly his pick for F.B.I. director, Kash Patel, are determined to carry out Mr. Trump’s orders to pursue his critics and perceived enemies through the legal system, which raised the possibility that they might have pursued further charges against Hunter Biden, including those that may be unjust.
But that doesn’t change the fact that Hunter Biden, whose long history of exploiting his family’s name and influence consistently crossed all lines of propriety, did indeed break the law. He pleaded guilty to nine federal tax charges after being convicted by a jury of his peers for the firearms-related crimes. It’s not sufficient justification for such a self-interested use of a presidential pardon, particularly one as sweeping as this one, which exonerates Hunter Biden for any crime he might possibly have committed over the past 10 years. (It’s probably the broadest pardon since the one Nixon received.)
Mr. Biden instead should be using his clemency powers to address real inequities in the legal system, and there are a vast number of them. He did issue mass pardons for thousands of people convicted of marijuana possession under federal law (although no one was in prison for that crime alone at the time of the pardon) and for veterans earlier convicted of engaging in gay sex. But there are more than 8,000 petitions for clemency pending with the Justice Department, and the White House should examine as many cases as possible and pardon those more deserving of clemency than the president’s own son.
The post The Dangerous Precedent of Biden’s Pardon appeared first on New York Times.
