As Joe Biden pardons his son, politicized justice is a rising concern

At the end of Thanksgiving weekend with his family, President Joe Biden wielded his executive power both as America’s leader and as a father.

That action – issuing a broad pardon for his son Hunter – could both tarnish the outgoing president’s legacy and have troubling consequences for a justice system many Americans now view as politicized and ineffective.

There are few limits on presidential pardon power. But President Biden’s announcement on Sunday has provoked bipartisan criticism. The pardon is unusual in that it is both for an immediate family member and exceptionally broad in scope. It also comes after the president said on multiple occasions that, out of respect for the proceedings that found his son guilty of multiple federal crimes, he would leave the convictions in place.

And the pardon comes as politics and the criminal legal system have become increasingly intertwined. Next month, Mr. Biden will cede his office to Donald Trump, who has been subject to multiple federal prosecutions himself and has said he will use the federal justice system to pursue his political enemies. 

All told, the episode represents another blow to public confidence in the justice system – particularly its independence from politics. Mr. Biden’s pardoning of his last surviving son may represent a measure of justice and compassion for some, but for others, it represents more evidence that the system is corrupt and broken.

“Both sides are using the justice system to justify political actions, and that is worrying about our time,” says Jeffrey Cohen, a Boston College Law School professor and former federal prosecutor.

“Everybody can point to things that they view as unjust and a weaponization of the system,” he adds. “I hope we all see that it’s just a race to the bottom, that it’s not good for any of us.”

A guilty plea, fines, and the prospect of decades in prison

Over the summer, a federal jury in Delaware found Hunter Biden guilty on three felony gun charges. Months later, he pleaded guilty to nine tax-related charges, including three felonies. All told, he faced a prospect of decades in prison and over $1 million in fines.

The convictions came after yearslong investigations by the U.S. Department of Justice and Republicans in Congress into alleged crimes committed by members of the Biden family. But in a statement released Sunday, President Biden said both prosecutions were excessive and politically motivated, justifying a pardon.

“No 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,” he wrote.

Still, the statement made clear that President Biden was motivated not just by a perceived injustice, but also by his feelings as a father. Writing that “raw politics” had “infected” the prosecutions, he asked Americans to “understand why a father and a President would come to this decision.”

Many presidents have issued pardons for relatives and political allies. But empathy for Mr. Biden’s decision has been more the exception than the rule, even across party lines.

Mr. Trump, in a social media post on Monday, called the pardon “a miscarriage of justice.” Rep. James Comer, the Republican congressman who has led investigations into members of the Biden family for years, said in a statement, “It’s unfortunate that, rather than come clean about their decades of wrongdoing, President Biden and his family continue to do everything they can to avoid accountability.”

Some Democrats criticized Mr. Biden’s decision. The pardon “put personal interest ahead of duty and further erodes Americans’ faith that the justice system is fair and equal for all,” wrote Michael Bennet, a Colorado senator, on social media. Colorado Gov. Jared Polis echoed that sentiment in a social media post.

“As a father I certainly understand [his] natural desire to help his son by pardoning him,” he wrote. But, “This is a bad precedent that could be abused by later presidents.”

Family matters and broad pardons

Not only has no president pardoned an immediate family member before, but Mr. Biden also issued an unusually sweeping pardon. He granted his son a “full and unconditional” pardon for all offenses he committed or may have committed, since Jan. 1, 2014 – a period including his final two years as vice president and his entire term as president.

During his first term, Mr. Trump pardoned Charles Kushner, the father of his son-in-law Jared Kushner. He had served more than 16 months of a two-year sentence in federal prison and a halfway program for various financial crimes before he was released in 2006.

“The only real precedent for such a broad grant is [Gerald] Ford’s pardon of Richard Nixon” after the Watergate scandal, says Mark Osler, a professor at the University of St. Thomas School of Law.

“Typically, a pardon grant is going to say, ‘For this conviction,’ or ‘For this set of acts,’” he adds. “Here we have none of that.”

A regular citizen in Hunter Biden’s position would likely not have received a pardon, experts say. But the pardon, and its broad scope, is undoubtedly a product of Mr. Trump’s reelection last month. 

The former and future president has spent the last four years fighting four criminal investigations, including two brought by President Biden’s Justice Department into Mr. Trump’s alleged retention of classified documents and his alleged efforts to stay in power after his 2020 election defeat.

Those two cases are now winding down as Mr. Trump prepares to install new Justice Department leadership. Mr. Trump has maintained his innocence in all the cases against him and has said that if he regained the presidency, he would exact retribution on his political opponents. 

In this context, Mr. Biden pardoning his son is both understandable and further damaging to a polarized and distrustful nation, says Cara Foos Pierce, an assistant professor at Southern Methodist University Dedman School of Law, in an email.

“While I understand his strong desire to protect his son from prison,” she adds, “President Biden is sending the message that the law does not apply the same to powerful, politically connected people as it does to everyone else.”

“The idea that you can break the law with no consequences if you are close with the President is damaging to democracy,” she continues.

A weakening firewall between justice and politics

Repairing that damage will be difficult, experts say, but it could begin with Mr. Trump’s next administration, if not sooner. The president-elect, however, has not signaled an interest in extricating the justice system from political fights.

Reinstating an executive order from the final weeks of his first presidency could give him the power to fire rank-and-file Justice Department employees who do not do his bidding. He has threatened to prosecute Jack Smith, the special counsel who brought the federal cases against him, as well as members of the Biden family. So has Pam Bondi, his nominee for attorney general. And Mr. Trump has said that he will issue pardons for at least some defendants convicted for participating in the Jan. 6 insurrection that sought to overturn his election defeat.

Ultimately, Mr. Trump’s drive to surround himself with loyalists complicates efforts to restore perceptions that the justice system will act independently of politics.

Mr. Trump “should fight the urge to put his outspoken supporters in leadership positions in federal law enforcement agencies,” says Professor Pierce. “If he does, he will be showing the country that he cares more about the rule of law than his personal feelings about how the justice system has mistreated him.”

There’s at least one way Mr. Biden could begin the work of repairing trust in federal justice, says Professor Osler: by using the presidential pardon power in a more conventional, impartial way. To date, he has issued fewer pardons and commutations than any other president this century, including Mr. Trump.

The pardon of his son is “going to be a stain on his legacy,” says Professor Osler, a former federal prosecutor and an expert in sentencing and clemency. “The best thing he could do is to show this remarkable tool isn’t just for his family.”