The temptation for President Joe Biden to use his pardon power to benefit his only surviving son was strong, and Biden’s misuse of this power pales beside his predecessor’s. But the pardon of Hunter Biden in violation of the President’s repeated pledge not to do it was disappointing. This Article considers three effects of the pardon—rescuing the younger Biden from possible future prosecution, setting aside his convictions, and saving him from a possible prison sentence. It contends that blocking Hunter’s (HB’s) future prosecution was appropriate; that, apart from the President’s broken promise, limiting HB’s sentence was defensible; and that setting aside his convictions was unjustifiable. Nothing required the President to lump all of these effects together in a single package.
I. The Preemptive Pardon
The President pardoned HB not only for the gun and tax offenses of which he was convicted but also “for those offenses against the United States which he has committed or may have committed or taken part in during the period from January 1, 2014 through December 1, 2024.” Although the President had promised not to pardon the crimes with which HB was charged and not to commute his sentence, he hadn’t promised to allow the incoming administration to add new charges based on what HB already had done.
Biden had good reason to expect the incoming administration to wage lawfare against HB, subjecting him to harassment and expense in the absence of significant evidence. On the day former and future president Donald Trump was arraigned for misusing national security information and hiding subpoenaed documents, he declared: “I will appoint a real special prosecutor to go after the most corrupt president in the history of the United States, Joe Biden, and the entire Biden crime family.”
Trump’s choice for Attorney General, Pam Bondi, cheered chants of “lock her up” in 2016 and declared before the election of 2024: “The prosecutors will be prosecuted, the bad ones. The investigators will be investigated.” Senators at her confirmation hearing should ask what crimes she suspects prosecutors committed and whether she has even a scintilla of evidence that they committed them.
Trump thumbed his nose at Congress’s effort to make the FBI nonpartisan by firing one FBI director before the end of his 10-year term and by making clear that he intended to dispatch the replacement he appointed. He has announced he will appoint Kash Patel to that position, and Patel has claimed without significant evidence: “Hunter Biden was shown to have been in bed with criminals from Ukraine and China to lobby the US government through the laundering of money that Hunter Biden received and leveraging his relationship with his dad. This DOJ should charge him, but they won’t. So I think that is where we need to focus.”
The language of HB’s pardon was drawn in part from Gerald Ford’s pardon of Richard Nixon. That pardon forgave “all offenses against the United States which he, Richard Nixon, has committed or taken part in during the period from [Nixon’s inauguration through his resignation].”
In separate articles, legal scholars Aaron Rappaport and Frank O. Bowman III have maintained that pardons like Nixon’s and HB’s are invalid. They note that the Supreme Court looks to English law as it stood in 1789 to determine the scope of the President’s pardon power, and they observe that several 18th-century legal treatises contain statements like this one of William Blackstone: “A pardon of all felonies will not pardon a conviction . . . but the conviction . . . must be particularly mentioned.”
The requirement of specificity noted in Blackstone’s treatise was never thought to block English kings from granting general pardons of unspecified crimes to celebrate their coronations, jubilees, and other events, and the first clemency granted by an American president similarly failed to specify the crimes it forgave. When George Washington pardoned participants in the Whiskey Rebellion in 1795, he granted “a full, free, and entire pardon to all persons . . . of all . . . indictable offenses against the United States” committed in a specified area before a specified date. I’ve maintained that statements like Blackstone’s applied only to cases in which a defendant claimed that the king had forgiven an offense of which the defendant had previously been convicted. Judges were concerned that, when a pardon failed to specify that offense, the king might not have known about it and might have been duped.
Even the harshest critics of the President’s action have acknowledged its validity. The reason might be that my response to Rappaport and Bowman persuaded them. A more likely explanation, however, is that no one has read any of our articles.
Protecting HB from politically motivated prosecution would have been more clearly justified if the President had found a way to protect others who are similarly threatened. This honor roll is long: Anthony Fauci, Nancy Pelosi, Chuck Schumer, Mark Milley, Mark Esper, Barack Obama, Hillary Clinton, Kamala Harris, Jack Smith (and his team), Alvin Bragg (and his team), Fani Willis (and her team), Letitia James (and her team), Juan Merchan, Tanya Chutkan, Brad Raffensberger, Bennie Thompson, Liz Cheney, Adam Kinzinger, Adam Schiff, Jamie Raskin, James Biden, Michael Cohen, Jean Carroll, Miles Taylor, George Conway, Bill Kristol, John Bolton, John Kelly, Merrick Garland, Cassidy Hutchinson—and on and on.
Most people on Trump’s enemies list probably wouldn’t want to be pardoned by name and wouldn’t accept a pardon. People might think they’d done something wrong. And finding general language to encompass all or most of them in a form that wouldn’t imply guilt and wouldn’t require acceptance of the pardon is challenging. But I think a pardon of all past offenses whose investigation or prosecution occurs because the defendant criticized Donald Trump, revealed truthful information about Donald Trump, or participated in a criminal or civil proceeding against Donald Trump would be valid and appropriate. And extending the pardon to anyone who’s prosecuted because she criticized, revealed information about, or participated in a lawsuit against any political figure would be even more appropriate.
II. Erasing HB’s Conviction
President Biden claimed that his son was “selectively, and unfairly, prosecuted” and that “the charges in his cases came about only after several of my political opponents in Congress instigated them.” His pardon statement explained:
Without aggravating factors like use in a crime, multiple purchases, or buying a weapon as a straw purchaser, people are almost never brought to trial on felony charges solely for how they filled out a gun form. Those who were late paying their taxes because of serious addictions, but paid them back subsequently with interest and penalties, are typically given non-criminal resolutions. It is clear that Hunter was treated differently . . . . 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.
Consider the facts of HB’s case, as the President suggested. HB’s gun crimes might not have been prosecuted if they had stood alone, but his tax crimes clearly warranted prosecution.
A. The Gun Crimes
On October 12, 2018, HB declared on a federal form that he didn’t use and wasn’t addicted to narcotics. This declaration enabled him to purchase a revolver. As a jury later found beyond a reasonable doubt, HB knew his statement was false.
HB possessed the revolver less than two weeks and never fired it. He was in a relationship with Hallie Biden, his brother’s widow, and Hallie found the gun in the glove compartment of his truck. According to her testimony, she feared that HB would hurt himself. So she placed the weapon in a leather pouch and deposited it in a trash can outside a supermarket.
When HB found the gun missing the next morning, Hallie acknowledged what she’d done. HB, knowing the weapon could be traced to him, asked her to retrieve it, but it was no longer in the trash can. Hallie asked supermarket employees whether they had gun. They didn’t, and they called the police. Police officers found the person who’d removed the gun, and HB’s prosecution followed.
HB’s gun crimes were felonies, and, the Special Counsel, who had read HB’s memoir, could easily prove his guilt. Adding these charges to the tax charges increased both plea-bargaining leverage and plea-bargaining options. The inclusion of these charges in the package the Special Counsel prosecuted wasn’t surprising.
B. The Tax Crimes
The tax charges to which HB pleaded guilty were more serious. HB deliberately failed to file tax returns, deliberately failed to pay $1.4 million he owed (withholding payments well after he regained his sobriety), and falsely claimed as business deductions his daughter’s law school tuition, his own payments for luxury personal goods, and payments to a porn site, exotic dancers, escorts, and girlfriends. Some of the payments to girlfriends were disguised as salary for work that wasn’t performed. Hunter paid his delinquent taxes only after a friend lent him the money,
Former Attorney General Eric Holder declared: “No US Attorney would have charged this case given the underlying facts. . . . Had [HB’s] name been Joe Smith the resolution would have been—fundamentally and more fairly—a declination.” If Holder’s statement had been true and if crimes as culpable as HB’s were regularly given a pass, the federal criminal justice system would be an even greater disaster than I believe it to be.
Judge Mark Scarsi dismissed HB’s tax case in compliance with the pardon. Noting the pardon statement’s misstatements and its implied criticism of conscientious prosecutors, judges, and jurors, Judge Scarsi declared: “The Constitution provides the President with broad authority to grant reprieves and pardons for offenses against the United States, but nowhere does the Constitution give the President the authority to rewrite history.”
III. Limiting HB’s Sentence
After HB was convicted of his gun crimes by a jury, he pleaded guilty without a bargain to all the tax offenses alleged in his indictment. Earlier, however, HB and the Special Counsel had approved a plea agreement that encompassed both the gun and the tax charges. The parties abandoned this agreement when Judge Maryellen Noreika doubted that the Constitution allowed her to assume the role the parties sought to give her. A judicial hearing on the agreement also revealed that the parties disagreed about whether it barred charges other than the existing charges.
The unimplemented plea agreement provided: (1) HB would plead guilty to two tax misdemeanors; (2) the Special Counsel would recommend a sentence for these crimes of two years’ probation; (3) the sentencing judge would be free to impose a different sentence from the one recommended by the prosecutor; (4) prosecution of the gun charges would be deferred for two years; (5) HB would be subject to restrictions during the deferred prosecution similar to those accompanying his tax sentence; (6) if HB complied with these restrictions, the gun charges would be dismissed; and (7) a judge would determine whether HB had complied with the restrictions. This last provision troubled Judge Noreika, who thought it might allow her to determine whether the gun charges should be reinstated—a decision she thought the Constitution assigned to prosecutors rather than her court.
President Biden’s pardon statement declared: “[A] carefully negotiated plea deal, agreed to by the Department of Justice, unraveled in the courtroom . . . . Had the plea deal held, it would have been a fair, reasonable resolution of Hunter’s cases.”
Why, then, didn’t Biden restore the reasonable deal as nearly as he could? Why excuse HB’s crimes altogether? Biden offered no explanation.
Clemency couldn’t have duplicated the plea agreement in every detail, but it could have left HB’s convictions in place (or could have excused only his gun convictions) while limiting his sentence to a probated two-year term. It could have imposed the conditions on probation HB had previously agreed to.
At the time of the President’s December 1 pardon, HB was scheduled to be sentenced for his gun crimes on December 13 and for his tax crimes on December 16. The President could have awaited HB’s sentences and, if he considered them excessive, commuted them. Moreover, the President could have acted earlier to limit these sentences. When President Bill Clinton commuted both the imposed and unimposed sentences of Paul Prosperi, a Georgetown classmate who had participated in Clinton’s unsuccessful campaign for student body president and later donated to his presidential campaigns, the commutation read: “I hereby commute any total period of confinement that has already been imposed or could be imposed . . . that is in excess of 36 months, and I further commute any such period of confinement to be served in home confinement.”
The plea agreement in HB’s case would have imposed minimal punishment. No penalty at all was only slightly less punishment than the agreement would have required. Yet forgiving HB altogether moved the President’s pardon from generous to indefensible, and an overwhelming majority of Americans apparently disapprove of it.
Retaining HB’s convictions along with some minimal punishment might have muted much of the criticism. The President could have noted that the Trump-appointed prosecutor who investigated and charged HB considered this punishment sufficient. The agreement collapsed because a judge questioned its enforcement provisions, not because anyone disapproved the punishment both parties had accepted. A remark Senator Joe Biden made about the clemency President Clinton granted supporters and cronies on the President’s last day in office comes to mind: “I think either the President had an incredible lapse in memory or was brain dead.”
IV. A Silver Lining
At the time of HB’s pardon, President Biden appeared likely to end his presidency having approved less clemency than any president since 1900 other than George H.W. Bush. But 12 days after the pardon, Biden commuted the sentences of 1,499 people who had been released to home confinement during Covid and remained law abiding since, and he pardoned 39 others who long ago had completed their sentences for nonviolent offenses. Biden declared: “I will take more steps in the weeks ahead. My Administration will continue reviewing clemency petitions to advance equal justice under the law, promote public safety, support rehabilitation and reentry, and provide meaningful second chances.”
There is more the President can do. More than 150,000 people are confined in federal prisons, and none were included in his recent clemency grants. Since he became President, Biden appears to have approved the release of only 31 inmates. (See this presentation at minute 4:18 and following.) The White House is reported to have received many favorable recommendations from the Justice Department. Every recommended grant has survived the Department’s thorough investigation and rigorous winnowing, and the President probably should approve them all. He also should grant a blanket preemptive pardon in the form suggested above.
While campaigning for office, Biden promised to end the federal death penalty, and no executions have occurred during his presidency. But 40 federal prisoners are on death row, and the incoming President appears to favor their rapid execution. These prisoners are guilty of mass shootings and other heinous crimes, and commuting their sentences to life without parole would offend many. Biden, however, is the lamest of ducks and could consider that action.
As Christmas approaches and President Biden’s term and political career draw to a close, he is granting clemency more generously. His farewell pardons could be seen cynically as an effort to make his favoritism for his son appear less extreme. HB’s pardon, however, might have prompted the President to reflect on the many American families who have suffered in the same way his family has. He might have been moved to relieve some of their anguish.
