The Precedented Abuse of the Pardon

It's not this pardon. It's the next ten thousand to worry about

President Biden’s pardon of his son Hunter is, to put it mildly, not a great look. Republicans have predictably highlighted the hypocrisy of the move, as a president who campaigned on upholding the rule of law has at least bent those laws for a blood relative. The more damaging blow, I think, is to Biden’s reputation for probity. The pardon power is part of the rule of law, but there was a consistent promise from the White House that Biden wouldn’t pardon his son.

There are extenuating circumstances. First, it’s his kid. It mattered to the Framers that George Washington would be the president by acclamation not least because he didn’t have children and couldn’t really start a dynasty. If you give someone immense powers, the temptation to use those powers for their family’s benefit is…well, it’s pretty big. One solution to this is to formalize it through a hereditary monarchy; another, surprisingly common, solution is to give a substantial amount of power to people who can’t have power—that is, court eunuchs. That’s a story for another day.

Families are different. That’s the central theme of The Godfather and, less exaltedly, The Fast and The Furious. Bill Clinton pardoned his half-brother; Donald Trump pardoned his … daughter’s father-in-law? I actually don’t know what the word for that relationship is. And Hunter Biden has long been in a state of exception for Biden, inasmuch as the president’s real origin story concerns the loss of his wife and daughter in a car crash that clearly affected Hunter and Beau (a loss compounded by the later loss of Beau).

Still, Biden went back on his word. It’s astonishing to watch a political figure decide to spend down his political capital in such a fire-sale fashion, as the president has done over the past month. The presidential statement puts forward a pretty weak argument to justify the move. I think the central reason for this has more to do with the reason that isn’t advanced: that Donald Trump plainly intends to run a Justice Department that will be not just hacks but attack dogs.

Pam Bondi is better than Matt Gaetz, but that’s a relatively low bar and certainly doesn’t guarantee that Main Justice will be honorably run. The nomination of Kash Patel as FBI director—a nomination not only controversial because of Patel but also because the FBI director post is not vacant and the incumbent’s term is not expiring—demonstrates that we’re on the cusp of a weaponization of federal government that may well rival the Huston Plan, but will be carried out for vastly more venal purposes.

I, personally, can’t really blame Joe Biden for pardoning his son. Blood is blood. I can blame the leadership class who claims to want to preserve a republic for doing very, very little to strengthen institutions that will do that. Over the past few decades, it’s become clear that the imperial presidency is ahead of us, not behind us, and little has been done to prevent that, even though the advent of such a regime will have dire consequences.

So don’t focus on the pardon. Biden’s legacy isn’t your concern. If he trashes it on his own, that is his business. Your task is the future. Focus on themes that used to be conservative-coded, like executive overreach. Realize that this means that simply labeling something as “unprecedented” will have the effect of naturalizing anything with a precedent—but there’s a lot of terrible precedents out there. A good many of those precedents involve celebrating elite impunity. That Hunter’s pardon is precedented makes it much worse than that it isn’t.

And don’t let anyone lazily equate Hunter’s pardon with that of the (top) January 6 figures. Those pardons will be closer (although not exactly) to the pardons of top Confederate officials after the Civil War—impunity for acts against the body politic. That’s a very different sort of corruption than pardoning family members. Familial favoritism is awful, but there’s at least a limit to it. Political subversion respects no such limits.

It’s clearer than ever that building a better polity will mean renovating the structure top to bottom. That’s a generational task. Setting aside one nearly indefensible action and evaluating why such a prerogative even exists, and how it might be reformed or rehabilitated, is much more urgent. My fear is that we’re on the cusp of a world in which presidential pardoning for supporters and family members becomes uncontroversial, which is vastly, vastly scarier.