No government action implicates raw emotion more than a president pardoning a family member. Seen from a human perspective, US President Joe Biden’s decision to pardon his sole surviving son, Hunter, whom he has always loved to a fault, is about the most understandable action of his whole presidency.
It would take the superhuman emotional control of a stoic not to save a son from prison — and Joe Biden is no Marcus Aurelius. Bill Clinton and Jimmy Carter each pardoned brothers. Donald Trump pardoned his daughter’s father-in-law (whom he now says he will appoint as ambassador to France). Even Abraham Lincoln pardoned his wife Mary Todd Lincoln’s sister, whose husband had served as a Confederate general.
Yet the unprecedented act of a president pardoning his son is also a kind of tragedy for the republic, precisely because the only real criticism will come from Trump and his loyalists, and in a day or two, the event will be forgotten. The Trump effect has already had such a powerful impact on our collective conception of what counts as acceptable conduct from a public official that we can hardly be shocked or outraged by presidential self-dealing, especially when motivated by indulgent love rather than financial or political gain.
The most salient piece of evidence of this effect is the politicization of criminal investigation and prosecution that the president himself cited as a justification for protecting Hunter. Lest we forget, this degradation of the hard-earned norm of separating politics from the work of the FBI and the Department of Justice started with Trump’s threats as a candidate in 2016 to lock up then-Democratic presidential candidate Hillary Rodham Clinton.
While Trump never made good on that threat, during his first presidency, he repeatedly sought to intervene in criminal matters. He pushed the justice department and then-attorney general William Barr to reduce a stiff sentence recommendation for his crony Roger Stone. Barr himself famously undermined special counsel Robert Mueller’s report on Russian interference in the 2016 election.
Trump was impeached the first time for trying to convince Ukrainian President Volodymyr Zelenskiy to implicate Hunter in criminality. All this was prelude for Trump’s most outrageous acts as president, his efforts to convince officials at the justice department to help him overturn the results of the 2020 election.
Given all this and considering Trump’s announcement of a plan to nominate political operative Kash Patel to run the FBI, Joe Biden’s concerns about further targeting of Hunter are not absurd. Yet it seems like a substantial overstatement for the president to assert that Hunter’s legal troubles to date are entirely the result of unfair targeting. After all, his administration made the belated — and in retrospect, disastrous — decision to seek criminal prosecution of Trump when it became clear he was a credible candidate to challenge Biden for the presidency.
Although there is no doubt that US Attorney General Merrick Garland tried his best to avoid politicizing the department (witness his decision not to pursue the investigation of Trump at the beginning of Joe Biden’s term), once the fateful step of investigating and prosecuting a presidential rival had been taken, it became impossible for Democrats to assert that they had restored or preserved the ideal of nonpolitical criminal investigation and prosecution.
The behavior of the special counsel appointed by Garland to conduct the investigation and prosecution of the president’s son therefore cannot fairly be depicted by Biden as essentially political. A president’s son is a legitimate target of investigation, whether by Congress or by the FBI and federal prosecutors — and it is not as though Hunter was charged with or convicted of crimes he did not commit.
A federal jury convicted Hunter of lying on his application for firearm purchase. The tax charges that were pending against him seem to all appearances to have been well-grounded. Beyond the charges, Hunter’s behavior in relation to his position on the board of the Ukrainian energy company Burisma was problematic at best, even if it might not have been criminal. (This presumably explains why Hunter’s pardon covers conduct back to 2014, the year he joined that board based on scant qualification other than the fact that his father was sitting vice president of the US.)
The upshot is that the whole sorry affair of Hunter’s conduct, its investigation, the criminal conviction and charges, and now his pardon, came to be deeply bound up in the politicization of criminal investigation and prosecution.
Trump was more responsible than anyone else for this historical process; but some responsibility also attaches to the Biden administration. Now we live in a world where Democrats will hardly bat an eye at a presidential pardon for a wayward son, and in which Republican criticisms can easily be dismissed as hypocritical.
That is not where we want our country to be. We need to do everything we can to resist the slide into banana republic status. That includes recognizing the fundamentally troubling reality of a president using the emperor-like power of the pardon for his own child, even when the decision is fully understandable as the action of a public servant who is vulnerable and human in his paternal love.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of To Be a Jew Today: A New Guide to God, Israel, and the Jewish People. This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
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