It turns out we didn’t have to wait until Jan. 20 for the tyranny to start. The Democrats were right all along when they warned that a bad outcome would give us a president ready to abuse power to serve his own interests and lie about it. But it’s Joe Biden leading the way.
On a human level it’s easy to empathize with Mr. Biden’s decision Sunday to pardon his son Hunter. The decision will ensure that Hunter avoids prison time for crimes he’s already been convicted of and prosecution for any crimes he committed between 2014 and this Sunday.
Joe Biden is a father, first and foremost. What parent, equipped with a magical power granted to him by a dusty document to wipe away a child’s errant behavior and shield that child—even a grown one—from punishment, wouldn’t be tempted to exercise it? Only a saint would allow the law to take its course out of a sense of duty to a higher moral principle. Joe Biden is no Thomas More.
For him, the degree of parental self-denial required would have been even greater than for most parents. President-elect Trump has made it clear, both in his rhetoric and in a stream of law-enforcement-related cabinet nominations, that he is intent on “retribution” against his political opponents. Having dubbed them the “Biden crime family,” it is a near certainty that Mr. Trump, absent a comprehensive pardon, would have had his Justice Department spend the next four years hounding the younger Mr. Biden. The older one, too, presumably.
President Biden could argue that the lawful-but-unethical pardon precedent is now so deeply established—not least by his predecessor—that granting clemency to his own son could hardly be considered beyond political norms. If you doubt that, consider the pardon granted to Ivanka Trump ’s father-in-law, Charles Kushner , who is now on track to enjoy a stint in the ultimate offender rehabilitation program as U.S. ambassador to France.
And yet, for all that, the Hunter pardon is a lamentable one, another bruising blow to the institutions of American democracy.
For one thing, it pre-emptively collapses expected Democratic criticisms of Mr. Trump’s behavior when he returns to office next month. Accusations that Mr. Trump abuses his office to help friends and family will ring even more hollow after Biden Jr. has been relieved of any accountability for his crimes.
For another, it erases any vestige of trust Americans may have had in their outgoing president. He and his aides repeatedly insisted—during an election campaign—that he wouldn’t pardon his son. That he then went and did it after the election raises political cynicism to a new level.
The larger problem, though, is that the Hunter pardon reinforces the case that the Democrats, for all their claims about the unique threat Trumpism poses to American democracy, have no more respect for basic democratic principles than Mr. Trump does.
They have spent four years in a prosecutorial pursuit of Mr. Trump, much of which was a nakedly political lawfare campaign to undermine and ultimately lock up their political opponent. The Hunter pardon represents something like the inverse of lawfare: the use of executive power to shield the Democrats’ favorites from the reach of justice, thereby upholding the worst sort of double standard and undermining respect for the rule of law itself.
Backdating the pardon to cover all potential crimes from 2014 onward is especially egregious. Most acts of presidential clemency are retrospective, washing away a criminal conviction or foreshortening a prison sentence for a felony. This one looks deliberately designed to block a likely investigative process of real significance. Many legitimate questions remain unanswered about the Bidens’ foreign entanglements in Ukraine and China in the period when Joe Biden was vice president and then out of office after 2017.
At the heart of all this is the constitutional provision that created the presidential pardon prerogative in the first place. In the right hands the power represents the quality of mercy, dropping as a gentle rain from heaven. In the wrong hands it becomes nothing less than executive despotism, showering favors like a medieval monarch on family, friends and retainers.
In Trump v. U.S. , the Supreme Court declared this year that the president’s Article II, Section 2 pardon power falls within his “conclusive and preclusive” official authority. Not only does any president enjoy immunity for official acts, but he can effectively extend that immunity to anyone he likes.
Americans fought a revolution against a monarch they accused of setting himself beyond the reach of justice. How ironic that the ensuing constitutional settlement should contain within it a codification of that same tyrannical idea.
