Biden’s Missed Opportunity
The Mishandled Pardon of the President’s Son
Welcome to the Civic Way journal, our quick take on the relevance of current events to America’s future governance. The author, Bob Melville, is the founder of Civic Way, a nonprofit dedicated to good government, and a management consultant with over 45 years of experience improving public agencies.
Always forgive your enemies - nothing annoys them so much. – Oscar Wilde
Introduction
This month, President Biden pardoned his son, Hunter Biden. Hunter faced sentencing for a conviction on three federal gun charges and a guilty plea on nine federal tax charges. The President’s broad pardon abolishes those judgements (and potential sentences) and bars liability for any other federal offense committed during a 11 year period starting January 1, 2014.
In his announcement, President Biden said, “I hope Americans will understand why a father and a President would come to this decision … I believe in the justice system, but … I also believe raw politics … led to a miscarriage of justice.” Given the shameful antics of partisans like Representatives Comer and Greene, and unfair coverage of right-wing media outlets like Fox, Biden’s worries are warranted.
Still, it takes little imagination to envision MAGA apologists making a similar argument regarding the January 6thinsurrectionists. It takes even less awareness to realize that the last election did little to alleviate our country’s bitter partisan division. In the context of America’s political rupture, the Hunter Biden pardon looks like a squandered opportunity.
Presidential Pardon Power
Article II, Section 2 of US Constitution empowers the president to "grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." The president’s clemency power takes five forms—pardon, amnesty, remission, reprieve and commutation—but only for federal crimes.
Full pardon – forgives crime, releases person from punishment and restores civil rights (e.g., voting, holding office and sitting on a jury).
Amnesty – provides for pardons of large groups of offenders.
Remission – reduces financial penalties associated with convictions.
Reprieve – grants temporary stays (e.g., inmates for medical reasons).
Commutation – fully or partially reduces sentences for convicted crime (conviction remains).
Pardons and commutations are the most common forms. The president’s clemency power does not extend to impeachments, state offenses or civil offenses.
The president's clemency power is unilateral, relatively broad and cannot be modified without a constitutional amendment. However, it may not be unlimited. An originalist view of the Constitution would suggest that clemency is limited to specific federal offenses. And there may ultimately be some political limits. To minimize future abuses, some have recommended an independent, bipartisan advisory board that would recommend clemency candidates to the president. This could improve transparency and enhance the legitimacy of future presidential pardons.
The History of Presidential Pardons
Presidential pardons have been customary throughout our history, but some presidents have used the power more than others. During the 20th Century, Franklin Roosevelt granted the most clemency actions followed by Wilson and Truman[i]. Since 2000, Obama has granted the most clemency actions and George W. Bush the least[ii]. Trump only granted 237 acts of clemency during his first term[iii].
President Biden has made generous use of the clemency power. In 2022, he pardoned over 6,500 people with federal marijuana possession convictions. In 2024, he issued a blanket pardon to those expelled from the military for their sexual orientation or gender identity. This week, Biden commuted the sentences of 1,499 inmates placed in home confinement during the pandemic[iv].
Biden’s most contentious pardon, however, was for his son, Hunter. Many presidents have issued provocative pardons: Andrew Johnson (thousands of Confederates), Warren Harding (Eugene Debs), Richard Nixon (Jimmy Hoffa), Gerald Ford (Nixon), George H. W. Bush (ex-Defense Secretary), Bill Clinton (disgraced financier) and Donald Trump (political allies and potential witnesses). However, Biden was only third president to pardon a relative[v].
The Rationale for Biden’s Pardon
Few of us can fully understand the motives behind what must have been a grueling decision. We can, however, construct a possible rationale based on what we do know.
First, the President did not think his son’s violations of federal tax and gun laws merited criminal prosecution. In similar tax cases, the US government typically levies administrative or civil penalties[vi]. Moreover, Hunter Biden had already paid the $1.4 million in taxes, plus interest and penalties, before his court appearance. In similar gun cases, the government typically drops the charges altogether[vii].
While Hunter’s case would not have likely come to the President’s attention but for their relationship, the President had a reasonable basis for believing the case satisfied conventional criteria for leniency. Finally, President Biden has more than ample justification to fear the Trump administration’s continued harassment of his son. No devoted father could ignore the trail of vindictive threats by Trump or his nominees for Attorney General and FBI director.
The Case Against the Family Pardon
First, Hunter Biden is not an entirely sympathetic figure. Any parent can appreciate President Biden’s emotions, such as his pain about Hunter’s past maltreatment and worries about Hunter’s future. However, even if Hunter Biden was targeted for being Joe Biden’s son, he clearly took advantage of being Biden’s son. By trading on this father’s name for money, he exposed himself to scrutiny.
Second, like his initial decision to run for reelection, Biden’s pardon decision seems self-serving. Biden had the clear legal authority to make those decisions, but there is a big distinction between legal authority and moral obligation. In reconciling personal and national interests, a president must put the nation first. As only the third president to pardon a family member, Biden has reinforced the perception of many Americans that the privileged are above the law.
Third, the manner in which Biden made and conveyed his pardon decision seem clumsy if not hypocritical. By reversing an earlier promise not to pardon his son, Biden not only undercut his own credibility but the already-waning faith of ordinary Americans in our system. He made it harder for his allies to criticize Trump for his pardons, including those anticipated during his second term. It also gives anti-democracy partisans more cover for their predictably nauseating rhetoric[viii].
Finally, and most troubling, Biden’s decision to pardon his son could complicate efforts by the courageous defenders of the rule of law. The decision will aid those inclined to defy constitutional norms, punish political opponents, pardon insurrectionists and normalize indecency. If protecting democracy was the raison d'être of Biden’s Presidency, why give Trump’s troops more ammunition for justifying the violation of constitutional guardrails?
Some may argue that Biden’s pardon of his son is no worse than what Trump would do under similar circumstances. After all, Trump has not hesitated to pardon family members like his daughter’s father-in-law (since nominated US ambassador to France). Others insist that President Biden’s pardon of his son pales in significance to Trump’s unscrupulous nominations. Nonetheless, Trump should never be considered the ethical standard for presidential clemency actions or any other conduct.
An Opportunity Lost
The biggest issue regarding the Hunter Biden pardon is not what President Biden decided, or even how he justified that decision, but rather a glaring omission. By failing to couple the pardon of his son with a pardon of his bitterest rival—Trump—Biden failed to take advantage of a rare opportunity calm the nation’s turbulent political waters.
Those who loath Trump would likely feel betrayed by such a pardon. They want Trump held accountable for his most egregious conduct, and, in a perfect world, he would be. However, this is an imperfect world. If good faith efforts to hold Trump accountable don’t succeed (they haven’t yet), continued trials, convictions and appeals may divert the nation from solving much bigger problems. Continued efforts to prosecute Trump could even drive more Americans into the manipulative clutches of right-wing media outlets. Imprisoning Trump could very well hurt the nation much more than it would Trump.
Conversely, granting a pardon to Trump for federal crimes—conditioned on his expression of remorse—might have served Biden and the nation. It might have made the Hunter Biden pardon more palatable. It could have made it politically tougher for Trump to prosecute his adversaries. It could have reminded the American people of Biden’s innate kindness.
When Biden ran for president in 2020, his goal was to defeat Trump, restore civility to our national politics and unify the nation. He gave it his best and had many successes, but our nation remains riven. By initially refusing to honor his one-term pledge, he also tarnished his legacy. Pairing Hunter’s pardon with Trump’s might have helped salvage Biden’s legacy.
Most importantly, pardoning Trump and Hunter Biden at the same time might have helped unify the nation. Pardoning Trump, in and of itself, might not have healed our nation’s wounds—especially if he refused to show any remorse. However, it might have reminded us that we have more important problems to solve. If nothing else, it might have made us feel better about our country’s future.