Patrick Healy, the deputy Opinion editor, hosted an online conversation with the Times Opinion columnists Ross Douthat and David French about President Biden’s decision to issue a broad pardon to his son Hunter Biden.
Patrick Healy: Ross and David, you both have written extensively about the rule of law and presidential power. You both have a good sense of what American voters care about. And you both are fathers. So I’m curious what struck you most about President Biden’s statement that he was pardoning his son Hunter Biden.
David French: As a father, I think it would be very, very hard to watch your son go to prison — especially if you have the power to set him free. I can’t imagine the pain of watching Hunter’s long battle with substance abuse and then watching his conviction in court. But in his role as president, Biden’s primary responsibility is to the country and the Constitution, not his family.
As president, this pardon represents a profound failure. Biden was dishonest — he told us that he wouldn’t pardon Hunter — and this use of the pardon power reeks of the kind of royal privilege that is antithetical to America’s republican values.
Healy: Biden’s decision to rule out the pardon while running for re-election was an enormous misjudgment. At the same time, David — Hunter Biden didn’t harm anyone, and pardons go to people with connections all the time now. I want to understand your umbrage on behalf of “the country and the Constitution” a bit better.
French: When Biden issued the pardon, my first thought was “here we go again.” It’s exactly this kind of self-dealing and favoritism that has created such cynicism in this country, and the fact that pardon abuse is almost routine at this point isn’t a defense of Biden. It’s an indictment of a political class that helped lay the groundwork for Donald Trump — a much worse figure, by the way, but one that did not arise in an otherwise-healthy moment in American democracy.
Ross Douthat: I think it’s important to stress that Biden always kept Hunter close, within the larger aura of his own power, in ways that likely helped his son trade on his dad’s name even as his own life was completely out of control. This pardon is a continuation or completion of that closeness: It’s a moral failure, as David says, a dereliction, but one that’s of a piece with the president’s larger inability to create a sustained separation between his own position and his troubled son’s lifestyle and business dealings and place in the family’s inner circle. A clearer separation would have been better not just for the president and the country, but also for Hunter himself — even if he’s benefiting from it now, at the last.
Healy: Ross, Hunter Biden should absolutely be held accountable for his actions — that’s something that 12-step programs make clear to addicts, in fact: Their addiction is no excuse for breaking the law, for instance. But it seems like you are conflating Biden’s legitimate powers as president with how you think he should have regarded his son in office.
Douthat: I’m not saying that Biden’s pardon of Hunter is categorically worse than prior presidents’ use of the power to help out cronies and donors and the like. But most people regarded, say, Bill Clinton’s pardon of Marc Rich as scandalous even though it fell within the ambit of legitimate presidential powers, and this case is scandalous as well. Whether it’s more corrupt to help a relative than a party donor or donor’s spouse is an interesting subject for debate about the nature of political ethics, but I don’t think we need to resolve that question. We can just say that (1) past presidents have used the pardon power in legal but disreputable ways and (2) pardoning your son is also quite disreputable even if it is constitutional as well.
Healy: Trump has indicated he would pardon Jan. 6 insurrectionists, whose actions I’d argue were more disreputable and dangerous to the Republic than what Hunter Biden did. So I’m curious how you see pardons in light of the rule of law in this country. Does President Biden’s pardon conflict with or undermine the rule of law?
French: While the pardon is legal and a president’s pardon power is quite broad, the rule of law isn’t maintained by merely keeping to the letter of the law. The founders didn’t give presidents the pardon power to be deployed as a favor to friends and family. In fact, during the constitutional ratification debate in Virginia, James Madison said, “If the president be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty.”
So, yes, abuse of the pardon power is serious. Biden’s inability to separate his personal feelings as a father from his moral and constitutional obligations as a president might be understandable on a human basis, but it’s indefensible as a moral and political matter. The fact that Trump has pledged to do worse is not a defense of Biden.
Douthat: The other issue is that the scope of the pardon extends well beyond the specific gun and tax charges, immunizing the junior Biden from potential charges dating all the way back to just before he joined the board of the Ukrainian gas company Burisma. The sympathetic take is that this was necessary to protect Hunter from frivolous prosecutions by the Trump Department of Justice. The more skeptical take is that the president is casting a blanket of protection over potential sordid dealings we may not even know about, in which members of the wider family as well as Hunter might be implicated. At the very least, it creates an appearance of more potential corruption than just helping his son avoid jail time for charges unrelated to his business dealings.
Healy: To your point, Ross, Hunter Biden wanted sweeping immunity from prosecution when he was trying to get a plea deal. He didn’t get it from the Justice Department — but he just got it from his father. That’s pretty ugly politics by the Bidens. Ross, is Biden’s pardon more stupid politically than it is wrong?
Douthat: The pardon power has certainly been used by presidents of both parties for seamy or self-dealing or disreputable-seeming purposes before. So in that sense, you could argue that this case stands out more for the political message it sends — undermining the Democratic Party’s claims to represent the rule of law as against an incoming president who regards himself as a victim of legal persecution and has promised to persecute his enemies right back. And further undermining, one might add, the reputation of a president whose competence to execute the larger responsibilities of his office has been for many months very much in doubt.
French: The pardon is far more wrong than it is politically stupid. Give Trump five minutes, and he’ll say or do something that knocks this pardon off the front page. People will forget the pardon soon enough. But the nation needs integrity, and Biden’s dishonesty contributes to the sense that there isn’t really that much difference between Trump and his opponents.
When you talk to Trump voters, they’ll often share the conviction that Trump isn’t really all that different from other politicians. He’s just more blunt and direct about his goals and objectives, while his opponents act the same way Trump acts, but they conceal their corruption in high-minded rhetoric. This pardon fits that narrative perfectly.
Douthat: What one might say in Biden’s quasi-defense is that while his pardon confirms a general mood of cynicism, that mood is so deeply entrenched that it’s not likely to be deepened that much further by one more act of self-dealing by an already-unpopular president.
But maybe the more sophisticated reading is the one offered by the writer Noah Millman, who argues that the pardon reflects Biden’s own deep cynicism about the condition of America, and his own participation in the country’s larger disillusioned mood. The president has talked a good game about his deep belief in the resilience of American democracy, but maybe he really thinks that a country that would re-elect Donald Trump is actually too far gone to be much helped, and so he might as well choose familism over patriotism and do his best to just look out for his own. He’s like Benicio Del Toro’s character in the movie “Sicario,” telling a more upright and innocent F.B.I. agent, “This is the land of wolves now” — except his audience is all the voters who were naïve enough to believe him when he promised not to issue this pardon.
French: As Ross said, there is a long history of pardon abuse in the United States, and very few voters give it a moment’s thought. To amplify Ross’s point above about cynicism, to the extent that voters pay attention, it merely confirms their priors. They expect politicians to act like this.
But it’s the decisions that leaders make when voters aren’t focused on the issue that define their integrity. We’re learning how much America has run on an honor system — that, as John Adams argued, our human vices can “break the strongest cords of our Constitution as a whale goes through a net.” When presidents choose self-interest over the public interest, the law doesn’t always provide an answer.
Perhaps it should, however. We’ve seen enough pardon abuse that it’s past time to revoke this particular presidential privilege. I’d love to see a constitutional amendment that further strips presidents of any vestiges of royal prerogatives. That means limiting the scope of the pardon power, and it means limiting presidential immunity from prosecution.
Healy: Listening to Biden over the years, you get the sense he thinks he knows Trump better than most, that he knows how Trump uses power. So on that level, doesn’t the pardon make sense — that Biden knows Trump and the Republicans would likely keep targeting the Biden family and in particular Hunter Biden for disparate treatment in the years ahead, and the pardon power was the only available means of justice, as it were, against Trumpist attacks on Hunter Biden?
Douthat: Well, here the president himself can expect a certain degree of protection from the recent Supreme Court’s decision on presidential immunity, which I suspect was written as much with an eye to protecting Biden from Trump-directed prosecutions (or protecting the presidency itself from an endless cycle of prosecutions) as with the goal of protecting Trump against the charges he has faced and may face in the future. Obviously that protection doesn’t extend to Hunter, and yes, I think the fear of a widened investigation into Hunter’s past and the Biden family business dealings was part of the thinking, part of the self-justication involved. Though I have my doubts as to whether Hunter would have actually been a special target for even a revenge-seeking Trump, since the president-elect seems much more focused on his avenging (or at least avoiding a reprise of) his own first-term experience with the Department of Justice and the F.B.I. than with going after his vanquished Democratic opponents.
French: There was a way for Biden to protect Hunter from politically targeted prosecutions. He could have protected Hunter from prosecution for any other crimes, while leaving the gun and tax convictions intact. In both those cases, there is no credible argument that either of those prosecutions was substantively or procedurally flawed.
Even a selective, prospective pardon could be problematic, but it’s far more defensible than pardoning him for crimes that he’s already been convicted of.
Healy: As we discussed at the start, you are both fathers. To borrow an earlier point of Ross’s, I wonder if we are at such a wolves-are-at-the-door moment in politics that Biden’s decision, as a father protecting his son, is a logical one, as well as one that a lot of people would understand. Now, that may not make it right. But would you pardon your child if you had that power and he or she was being targeted for partisan political attack that might go beyond the bounds of traditional fair treatment under the law? Was this a father’s justifiable recourse?
French: I completely understand the fear of political prosecution in a second Trump term. He’s vowed vengeance, after all, and he’s long been obsessed with Hunter’s business dealings overseas. But I just don’t see the evidence that Hunter’s prosecutions went beyond the bounds of traditional fair treatment.
It is true that some of these charges are rarely prosecuted, but it’s also true that Hunter threw down the gauntlet to law enforcement by essentially confessing to a federal crime in his memoir. He’s the one who effectively told the public he committed a crime. In fact, prosecutors played excerpts from his memoir to the jury. He wrote about his life for profit, and he has no cause to complain when it is used against him in court.
Douthat: I agree with David, you can extend Biden a certain sympathy — as a father, of course you tend to give your son the benefit of the doubt — while still recognizing that objectively he’s pardoning a guilty man, and for all we know enabling further issues or disasters for Hunter down the line.
Though I also suspect that for Biden it’s not just the sense of paternal obligation at work here. It’s also the sense of betrayal he doubtless still feels at being denied a chance to run for a second term by his own party, and then watching that same party stumble to defeat. In other words, it’s not just Trump’s Department of Justice that he’s thinking about while issuing this pardon; it’s also a Democratic Party that in his view knifed him politically, and to no purpose in the end. And when a man feels betrayed by his allies (not just threatened by his rivals), it’s especially unsurprising that he would revert to the most basic human code: Look out for your own.