A few weeks ago, President Biden surprised the nation by issuing a pardon to his son Hunter, after spending most of the year insisting he would not. Citing what he perceived as a political prosecution and his love as a father, the president used one the strongest unilateral tools at his disposal: the pardon power. The wide-sweeping nature of the pardon means that his son will be shielded from any prosecution the next administration might have sought. And while pardoning your own family member may seem like an abuse of power, it is exactly within the president’s constitutional power to do such an action.
After a big pardon announcement, it is important to remember that yes, the president can pardon virtually whoever they want and there are no checks on the power. There is nothing Congress, the courts or the public can do to undo a pardon. And yes, the founders wanted it to be this way. They actually conceived the clemency power as a check on the other branches of government. If a law was poorly written by Congress and someone was unfairly punished by the courts for breaking that law, they wanted someone to be able to remedy it with swift, decisive action. They built in some mercy into our judicial system, giving people wrongfully convicted a way out.
Some are comparing this pardon of Hunter Biden to Gerald Ford’s pardon of Richard Nixon, who resigned in the cloud of the Watergate scandal. There are similarities. Both pardons are sweeping in nature, for any crimes either man “committed or may have committed,” giving them broad immunity from prosecution. This is unusual for pardons; most are for specific crimes after someone has been indicted and sentenced. The preemptive nature of these pardons makes them notable.
Yet the purpose at the heart of each of these significant pardons gives us the major difference between the two. First, President Ford cited the need for the country to avoid a public and messy trial. He issued the pardon to end the Watergate scandal and move forward as a nation. While Ford was ridiculed at time, including a sharp drop overnight in his approval rating, many historians and scholars have come to agree that it was a politically difficult decision that was beneficial for the nation. Comparing the situations of Richard Nixon, a disgraced former president facing a major public trial, and Hunter Biden, a private citizen who was facing tax and gun charges, is a fruitless endeavor. A president’s son facing relatively minor nonviolent charges versus a former president using the office to stay in power is an apples-to-oranges comparison.
Others are arguing that President Biden pardoning his son is an abuse of power. In all actuality, the president was acting perfectly within in his constitutionally granted powers. In Article II, Section 2 of the Constitution, presidents have the power to grant “reprieves and pardons for offenses against the United States.” There are no limits on who the president can pardon, other than that it must be for a federal crime and cannot be in cases of impeachment. After that, the president has sole unilateral discretion on how to wield this power. And while it may seem like an abuse of power to use it to benefit your own family members, it is completely within his power to do so. The founders of our country probably did not envision the president using this power on behalf of a family member, but they also did not ever foresee our modern weapons and technology, either.
This is not the first time a president has used this power for a family member. Bill Clinton pardoned his half-brother Roger Clinton on his last day in office. And Donald Trump pardoned his son-in-law’s father, Charles Kushner. We also have seen presidents issue pardons to people close to them, such as when George H.W. Bush granted them to those embroiled in the Iran Contra scandal that he served with in the Reagan administration. Many presidents have used their pardon power to benefit those in their inner circle. Given this historical background, it is no surprise that President Biden used the power to pardon his son. He is still the one in office, for just a month more, and has the powers at his disposal. With many in his party already upset with him for not dropping out of the election earlier and the stated plans of the incoming Trump administration, Biden had little to lose by issuing a pardon to his son.
We are likely to see many more pardons in the coming weeks. December and January have historically been a frequent time of the year to issue pardons. Combine that with a president leaving office like Biden is, and we’re sure to see more come from this president. The incoming president has also promised to issue a flurry of pardons, making it a campaign promise to grant mercy to January 6th defendants.
Like it or not, the power to grant pardons and commutations is a constitutionally granted power given to the president of the United States. You may disagree with who they decide to grant these actions to, but it is wholly within their power to do so. Perhaps it is time to have a conversation about whether we want our president to have such an unchecked power in the future.