Joe Biden abused a medieval power to pardon his son
Excerpt
archived 3 Dec 2024 08:50:16 UTC
WHEN SETTING up the checks and balances in the American constitution, the document’s authors knew they wanted the judiciary to be independent of the legislative and the executive branches. But who, then, would check the judges? One answer was that the president would be able to pardon criminals. This awesome power—to override a decision taken by the courts—should be used rarely, because it is at odds with democracy and judicial independence. If it seems a bit medieval to let one man dispense (and dispense with) justice in this way, that is because it is. In British law the “prerogative of mercy” can be traced back to the reign of King Ine of Wessex in the seventh century.
In pardoning his son Hunter, Joe Biden has abused it. The Supreme Court once described the president’s pardon power as “an act of grace”. This pardon probably qualifies as that. Which loving father, having lost one child in a car crash and another to cancer, could resist sparing his addiction-prone son prison time if it were within his power to do so? As a private matter the pardon is understandable, humane even. Yet Mr Biden is also the president, so that is not the standard. The court has also said that presidential pardons can be used to further “the public welfare”. This one harms it.
It is an act of hypocrisy. Asked in June about a pardon for Hunter, the president replied: “I said I’d abide by the jury decision, and I will do that. And I will not pardon him.” This was not a slip. Mr Biden has said the same thing several times. The pardon exposes him as the sort of politician who says one thing and does another. Yet if the harm were just to Mr Biden’s reputation it might be contained. Other presidents have pardoned people close to them: Jimmy Carter pardoned his brother, Bill Clinton his half-brother, Donald Trump his daughter’s father-in-law (and just appointed him ambassador to France). Voters have moved on, and Mr Biden will be a private citizen on January 21st.
Unfortunately, hypocrisy may be the least damaging thing about the pardon. Mr Biden’s refusal to interfere in the Department of Justice’s (DoJ) investigation into his son was cited by some Democrats as evidence their party was different. Unlike MAGA Republicans, whose respect for the rule of law and norms like DoJ independence was selective, their party acted on principle. That argument has been exposed as meaningless, and at a particularly bad time for the high-minded principles Mr Biden once claimed as his own.
When Donald Trump pardons those convicted in relation to the attack on the Capitol on January 6th 2021, as seems probable, what principle will Democrats appeal to? DoJ independence is a relatively new convention, developed in the aftermath of Watergate. The Biden administration paid some respect to this principle, but though an independent counsel brought the federal cases against Mr Trump they nevertheless had the effect, for those sympathetic to him, of appearing to politicise justice. Mr Trump does not even bother with such niceties. His picks to run the DoJ and its constituent parts seem partly chosen for their willingness not even to pretend to act independently of his will.
“The charges…came about only after several of my political opponents in Congress instigated them to attack me and oppose my election,” Mr Biden wrote in the preamble to the pardon. Sound familiar? The prosecution may indeed have been selective and flimsy, but it was conducted by an independent special counsel in front of an independent judge, and won a conviction from an independent jury.
The pardon thereby confirms the cynicism many Americans feel about their politicians and institutions. In his speech to the Democratic National Convention, Barack Obama warned Americans that Republicans will “tell you that government is corrupt; that sacrifice and generosity are for suckers; and that since the game is rigged, it’s OK to take what you want and look after your own.” What is this pardon, if not the president looking after his own? Mr Biden applies one set of rules to himself and his family members, and another to the people he serves. At least Mr Trump makes no secret of what he is.
One of the many disappointments of Mr Biden is that he talked as if Mr Trump was a threat to the republic, yet never acted as if he believed it. He stayed in the race when his own party’s voters were worried he was too old to run; he presided over a party machinery that interfered in favour of Republican election-deniers in the 2022 mid-terms, because it thought they would lose; he stepped down without giving his party time to find its strongest candidate. And he warned about Mr Trump abusing the machinery of justice, then pardoned his son for convictions on tax and gun charges. It is an ignominious coda. Unfortunately, it is also a prelude. ■
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