The pardon by President Biden of his son Hunter is likely to be met with cynicism and even contempt. The pardon extends not only to the gun and tax offenses to which the younger Biden had pled guilty but also to any crimes that he “committed or may have committed or taken part in during the period from January 1, 2014, through December 1, 2024.”  President Biden should not expect the benefit of the doubt when the public entertains the suspicion that the pardon resulted from corruption and the use of a constitutional power as a personal privilege rather than sound executive governance. 

There is no question that President Biden had the constitutional authority to pardon his son. Granting a pardon for unspecified offenses, however, would seem to violate the spirit of the pardon power and consequently legitimize suspicions of improper motives. 

The prerogative of a government executive to grant pardons is part of a civilized system of justice. The pardon power has two primary justifications: To mitigate harsh sentences that are out of proportion to the actions of the defendant or which do not adequately account for unique circumstances and to allow the executive to grant pardons in the larger public interest.

The constitutional power of the president to grant pardons is derived from the English and British Royal Prerogative of Mercy. In discussing the pardon power in Federalist 69, Alexander Hamilton noted: “...the power of the President will resemble equally that of the king of Great Britain and of the governor of New York.” The United States Supreme Court formally recognized this provenance in the 1833 case of United States v. Wilson.

Hamilton went on to explain, in Federalist 74, that one of the rationales for the pardon power was that “The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” Hamilton was mindful of the possibility of hard cases in which strict adherence to the criminal law might itself be an injustice.

The reality is that any law, being enacted in the abstract on general principles, will not be comprehensive enough to account for poignant exceptions.

Hard cases have always illustrated the inadequacy of general laws and the harsh and seemingly unjust results that they prescribe. Nonetheless, these types of laws were found, by long experience and sober reflection, to be preferable to the alternatives: either no laws, laws passed for specific cases, or laws that were weak and fragile because they consisted of practically nothing but exceptions.

The common law of England addressed this issue with the Royal Prerogative of Mercy. This gave the monarch the authority to mitigate the harsh consequences in specific cases without abrogating the law and its usefulness in the vast majority of cases. This concept continues in the pardon power granted to the executives of the relevant political entities in the United States.

This first category of rationales for the pardon power, i.e., the prospect of unjust punishment for cases involving hard facts and defendants confronted with impossible circumstances, does not seem to apply to cases in which the defendant was neither charged nor sentenced. The prospect of unjust punishment in such cases is inchoate. In the case of Hunter Biden, the pardons for any crimes that he “may have committed or taken part in” would seem to provide no rational reference to determine if the pardon power was exercised according to its original purposes. It is impossible to say that a sentence that has not been passed for a crime that has not been charged will result in justice “too sanguinary and cruel.” At least when President Clinton pardoned his brother for drug offenses, it was for a known crime with a known sentence.

The first rationale for the pardon power, to avoid unjustly harsh sentences for crimes involving special circumstances, does not seem to apply to Hunter Biden.

The other class of rationales for pardons contains those that are sometimes referred to as pre-emptive pardons and are usually justified with reference to some important interest other than that of the person who is pardoned. They are pre-emptive in the sense that they are granted before a sentence is imposed or even before a crime is charged. The most obvious examples of such pardons are those of Richard Nixon by President Ford and Caspar Weinberger and CIA officer Duane Clarridge by President George H. W. Bush.

Occasions of pre-emptive pardon need not involve the prospect of unjust criminal penalties. The person pardoned may face only those sanctions that are appropriate to the contemplated charges and the attendant circumstances. In such cases, pardons are justified by reference to the public welfare or political tranquility. In the case of President Nixon, President Ford claimed that the motive was to avoid the deepening political polarization that would have accompanied a prolonged trial related to the Watergate scandal. Mr. Ford may have had personal motives for his actions, but nonetheless, he at least made an argument that the pardon was for the benefit of the country. There appears to be no analogous argument available to President Biden.

The pardon of Hunter Biden naturally elicits calls for President Trump to make robust use of the pardon power, particularly in the case of persons convicted of activities at the United States Capitol on January 6, 2021. The exercise of such power by President Trump, however, does not require Mr. Biden’s precedent as justification. Pardoning January 6 protesters would be proper under either of the two rationales that underlie the pardon power.

Many of the defendants whom the Justice Department prosecuted received sentences and endured pre-trial deprivations that could reasonably be considered unconscionable by civilized standards. Likewise, President Trump could determine that broad and conspicuous pardons are in the best interests of the United States, particularly given the suspicions of political biases that accompanied many of the prosecutions.

It is unnecessary to suggest that the January 6 defendants should be pardoned because President Biden pardoned his son. Those defendants can be considered for pardons simply because such would be consistent with the reasons underlying the pardon power.

It may even be unfair to the January 6 defendants to link considerations of pardon in any way to the pardon of Hunter Biden. They have rational and legitimate appeals to justice in their own right. The crimes for which they were charged and the sentences they received are matters of record and can be considered with reason and a sense of probity. The same cannot be said of the son of a president who has been pardoned for crimes that “he may have committed or taken part in.”

The pardon of Hunter Biden is now part of President Biden’s legacy. How it influences that legacy is for posterity to determine, but it does not seem unreasonable to suspect that it may imbue it with the suspicion of corruption.

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