After years of legal entanglement, and amid continuing judicial drama, presidential son Hunter Biden yesterday agreed to plead guilty in order to receive lesser punishment for federal tax evasion and firearms charges. The questions remain that, if the plea deal is accepted by the federal judiciary, will Hunter Biden be recommended for and/or receive a presidential pardon?
The use of presidential pardon has been one of the most undisputed powers of the president and is the sole prerogative of that office. President Washington pardoned leaders of the Whiskey Rebellion while Andrew Johnson pardoned Confederate leaders after the American Civil War (it is likely Lincoln would have done the same, albeit for different reasons than Johnson). President Gerald Ford pardoned former President Richard Nixon before the latter’s likely trial and issued a posthumous pardon to General Robert E. Lee. While Nixon’s pardon was controversial, the legitimacy of the president granting said pardons was never really in question. Even Senator Ted Kennedy, who came out strongly against Ford’s action, later said that president Ford had done the right thing in pardoning Richard Nixon. A few years later, President Carter pardoned the Vietnam era draft fugitives in the first days of his tenure.
However, pardons have become increasingly controversial and ethical lines have been crossed where presidents of both major political parties have pardoned family members such as in 2001 where Bill Clinton pardoned his brother Roger. In 2020 President Trump pardoned his father-in-law Charles Kushner. It is highly unlikely either of these individuals would have been pardoned without a personal, familial relationship to the president of the United States. Bill Clinton also pardoned 16 Puerto Rican terrorists as his wife was gearing to run for the U.S. Senate in the State of New York, a state containing a large Puerto Rican population. Clinton also pardoned Marc Rich whose wife had made six figure contributions to Hillary Clinton’s Senate campaign as well as to the Clinton Presidential Library. In 2009, President George W. Bush famously refused to pardon Vice President Cheney’s former Chief of Staff despite pleadings from Cheney to do so.
The Administration has consistently issued statements that Hunter Biden has not done anything legally wrong. Hunter Biden’s public willingness to express guilt over tax evasion and firearms charges may cause the Administration to reevaluate that claim. However, the other alternatives to backtracking on the claim of his innocence are silence or the Constitutional prerogatives of clemency and/or pardon.
Such a pardon is not likely to be issued before the 2024 election. It would be far too controversial. Indeed, the pardons issued by Clinton and Trump for family members were given in the last days of their presidency, likely for these reasons. This contrasts with President Ford and President Carter’s pardons given in the early days of their administrations. Whether Presidents Ford or Carter were right in their pardon, or even correct in their larger policies, does not mistake that they had moral courage and were willing to face the heat for their pardons.
Any president having the power to pardon Hunter Biden is not an issue. But the righteousness of such a pardon is highly questionable based on his personal access to power. This is an access not given to most other Americans who have been convicted of lesser or even greater crimes yet have achieved redemption. Further, such a pardon of Hunter Biden would cast further illegitimacy on the vested powers of any president. Further such a pardon would invite more of the same, or even overreaction, by future administrations and/or Congress in order to continue such controversial pardons or change the balance of Constitutional balance of powers given to us by the Founders.
Our nation is a Republic, if we can keep it, through the righteous exercise of power and restraints on using it. The power of pardoning, albeit responsibly, is one of those responsibilities.
*Views in this article are those of the author and not any government agency.