Night of the Hunter

Source: REUTERS/Craig Hudson/File Photo/File Photo

You could almost hear the howls of protest begin on Capitol Hill the moment President Biden announced he was granting a pardon to his son, Hunter.

Through his spokesperson, Trump immediately condemned Biden’s act and sought to contrast it with his own prosecutions, proclaiming, “The system of justice must be fixed, and due process must be restored.”

House Oversight Chair James Comer excoriated the president, saying, “Rather than come clean about their decades of wrongdoing, President Biden and his family continue to do everything they can to avoid accountability.”

The shrieks were entirely predictable, and they will only grow in the coming days. Biden’s move provides Trump and his allies with a tool to pound the DOJ and Democrats for years to come. It also offers an opportunity for “whataboutism” when it comes to the abuses of the pardon system we may see during Trump’s second term.

But in fact, President Biden’s pardon was justified and falls within the heartland of executive clemency cases. A clear-eyed analysis of the facts, the law, and, crucially, DOJ standard practice in Hunter Biden’s case establishes this.

It’s crucial to review the course of prosecutorial conduct that culminated in Hunter’s convictions.

Hunter was prosecuted by special counsel David Weiss, a holdover from the first Trump term whom Biden retained in office when almost all United States attorneys were replaced—precisely to avoid charges that he had interfered with Hunter’s investigation. Weiss proceeded to investigate the case for five years, after which, in June 2023, he reached a plea agreement with Hunter.

The drafted agreement provided that Hunter would plead guilty to two misdemeanor counts of willful failure to pay taxes, for which prosecutors would recommend a sentence of probation. For the gun charges, Weiss signed off on a pretrial diversion agreement that required Hunter to remain drug-free and not own any firearms for two years, at the end of which the charges would be dismissed.

Critically, both of these dispositions were consistent with normal DOJ policy for comparable crimes. The department doesn’t prosecute offenders for false statements on firearm purchase forms unless the offender uses the gun to commit another crime or there are other extraordinary circumstances, such as gang activity. I have confirmed this point with numerous experienced prosecutors since Hunter was charged; they all agree that this is standard DOJ policy, although some have suggested (but I have been unable to verify) very rare exceptions.

Similarly, the misdemeanor resolution for the tax charges is consistent with standard DOJ practice for offenders who neglect taxes while battling substance abuse and subsequently repay their debt.

Of course, that’s not how things wound up for Hunter. During a hearing in July 2023 to finalize the terms of the agreement, U.S. District Judge Maryellen Noreika expressed concern that the agreement was written in a way that could be construed as giving her the final determination on whether the terms were satisfied. The judge understandably balked at this unorthodox provision, and the agreement unraveled in court.

The deal then became a political flashpoint. Republicans on Capitol Hill accused Hunter’s plea agreement of being a “sweetheart deal” while seeking to tie his misconduct to efforts to impeach the president. The plea agreement crumbled through no fault of Hunter, who through his counsel tried repeatedly, but without success, to revive it. The month after it fell apart, Attorney General Garland agreed to Weiss’s request to be appointed a special counsel, giving him free rein to continue investigating Biden. Weiss responded by throwing the book at Hunter, indicting him in Delaware for the firearms charges and in Los Angeles for the tax offenses.

A Delaware jury convicted Hunter of lying on the firearms form. The tax charges were due to be tried in Los Angeles in September 2024, but Hunter suddenly decided to “plead to the sheet,” i.e., admit guilt to all charges.

Both cases were awaiting sentencing until last night’s presidential pardon, which brought them both to a swift end.

The pardon is generating controversy, even among Democrats and my former prosecutor peers. I understand their ambivalence, but I think it rests on considerations that don’t undermine the essential fairness and propriety of the pardon. In the few hours since the pardon was announced, these are the main objections I’ve heard, along with my responses:

1. Hunter is guilty.

   I don’t quibble with the notion that Hunter broke tax laws and firearms laws. For that reason, I don’t take issue with the jury’s verdict in Delaware or the implications of his Los Angeles plea. But that’s the beginning of the inquiry, not the end. Pardons are generally reserved for people who have, in fact, committed crimes but who merit clemency for other reasons.

2. Biden promised he wouldn’t pardon Hunter.

   It’s true that the president repeatedly promised he would leave Hunter’s fate in the hands of the justice system. I think that was unwise, which is not to say he wasn’t sincere when he said it. It will likely exact a historical hit on Biden and his reputation for honesty. But it has nothing to do with the validity of the pardon on the facts. And what he said to justify his about-face is no less true: Hunter was “selectively and unfairly prosecuted.” Someone with a different last name would not have faced such severe treatment.

   Similarly, the president’s appeal for public understanding based on his position as a father—“I hope Americans will understand why a father and a President would come to this decision”—sounded a wrong note in my judgment. That may have been a valid explanation for the overzealous prosecution of Hunter itself, but it doesn’t change the merits of the pardon.

3. It’s important for Democrats to play “by the rules” even though the Republicans don’t.

   Of course, the rule of law is the rule of law (or, as Justice Scalia put it, “the rule of law is a law of rules”). But the rules, crucially, include the facts and the law, as well as the cardinal principle of horizontal equity and equal treatment of similarly situated defendants. Insisting on the importance of Hunter’s having been prosecuted when others would not have been is consistent with playing by the rules. Ignoring the specific facts of Hunter’s case is a form of giving in to the lies on the other side.

4. It will take away the moral high ground from Democrats when Trump issues indefensible pardons.

   This is importantly different from the above objection. The core argument here is pragmatic—that the Hunter pardon will impair Democrats’ ability to assail the coming wave of Trump crony pardons and will lead the public to believe that both parties are equally at fault. I think there’s a lot to that argument and the frustration is understandable. The Hunter pardon gives Republicans a strong card to play in any sound bite battle, which is the usual ground of political combat. But as Comer’s critique above illustrates, Republicans were going to play dirty regardless, leveling incendiary claims with no factual basis. The task of trying to respond calmly and on the facts is unchanged, even with the factual nuance that always makes it harder.

   
   The more important response to this objection, however, is that it is itself fundamentally political. I’m confident that the White House thought long and hard about the rhetorical leg up that the decision provides the Republicans. Clemency is inherently subjective, balancing legal, ethical, and often political considerations. In retrospect, for example, Clinton’s outgoing pardon of Mark Rich was probably a mistake, whatever the merits (which did not seem strong to me at the time). So, a decision not to pardon Hunter to avoid political fallout would have been defensible. But it also would have been the political decision, overriding the right result that would occur in a perfect world where everyone played fair. In that sense, there’s an argument that the pardon was imprudent but not that it was unfair or political.

There’s one additional point, which I have argued before, that cuts strongly in favor of the president’s decision. Most federal prosecutors work within a supervisory structure to ensure horizontal equity—that is, like treatment of like offenses—and sensible use of federal charges against the most serious offenders. Had a rank-and-file prosecutor drafted the Biden indictment and sent it up the chain of command, the question would have been whether there were aggravating factors to justify the case. And there weren’t.

But because Garland made Weiss a special counsel and resolved to be hands-off, the usual supervisory structure broke down, allowing the prosecution to proceed inconsistently with DOJ policy.

Viewed through this lens, support for the Hunter pardon is perfectly consistent with opposition to Trump’s expected misuse of pardon power. Singling out Hunter Biden for harsher treatment and perverting justice through cronyism are two sides of the same coin.

Talk to you later.