Getty ImagesDonald Trump and Joe Biden may not have much in common. But when it comes to their connections to high-profile prosecutions, they have sounded a similar tune – even in the face of outcry from opponents and some in their own parties.
In announcing a “full and unconditional” pardon for Hunter Biden on Sunday night, Joe Biden condemned what he characterised as an unfair prosecution of his son.
“No reasonable person who looks at the facts of Hunter’s cases can reach any other conclusion than Hunter was singled out only because he is my son – and that is wrong,” Biden said.
The president’s criticisms of a politicised system of justice echoed those regularly lobbed by Trump – perhaps most conspicuously in the New York City case involving hush-money payments to adult film star Stormy Daniels. That indictment ultimately led to the former president’s conviction on multiple felony counts of falsifying business records to conceal campaign finance violations.
“What’s going on in New York is an outrage,” Republican Senator Lindsey Graham of South Carolina, a Trump confidante, said of the former president’s hush-money trial. “I think it’s selective prosecution for political purposes.”
What similarities are there between the cases?
The Hunter Biden cases and Trump hush-money case do have notable similarities – ones that have fuelled attacks on the judicial process.
Both were brought to court in 2024, years after the incidents in question. Trump’s payments to Daniels occurred in 2016. The handgun application on which Hunter Biden denied his drug use was from 2018, while his fraudulent tax returns were from 2016 to 2019.
Both cases took sharp twists after it seemed they would not reach trial. It appeared the New York Trump investigation would be dropped when Alvin Bragg was elected to replace Cyrus Vance as Manhattan attorney. A plea deal that would have resulted in Hunter Biden accepting guilt but serving no prison time collapsed at the last minute amid questions from the presiding judge.
Both also involved applications of existing law in novel or unusual circumstances.
The underlying campaign finance crimes in the Trump case were federal, not state, violations that US government attorneys had already chosen not to pursue. Rarely are gun-application cases like Biden’s prosecuted without a connection to more serious misdeeds. And his tax evasion violations were addressed through back-payment and fines – a resolution that typically avoids criminal charges.
In fact, Trump’s legal team drew explicit comparisons between the two cases in a legal filing on Tuesday that cited Hunter Biden’s pardon as reason to dismiss Trump’s New York conviction.
“President Biden argued that ‘raw politics has infected this process and it led to a miscarriage of justice,’” Trump’s lawyers wrote. “These comments amounted to an extraordinary condemnation of President Biden’s own [Department of Justice].”
“This case should never have been brought,” they concluded.
What are the differences?
There are notable differences between the two cases, of course. Hunter Biden never held public office. And the New York hush-money case was just one of multiple prosecutions of the former president, several of which dealt with much more serious and recent alleged crimes. Trump didn’t distinguish between them, however, claiming all of the investigations of him were politically motivated “witch hunts” designed to damage his electoral prospects.
Differences aside, both Trump and the Bidens raised similar questions about whether politics unduly influenced their cases, even as Democrats insisted that the Trump trial was proper, and Republicans viewed the Hunter gun trial and tax evasion guilty plea as justice served.
According to Kevin McMunigal, a law professor at Case Western Reserve University and former assistant US attorney, the claim that politics affects prosecutorial decisions is largely inaccurate. He notes, however, that the public may not appreciate that there is a complicated calculus behind when or whether to charge criminal offences.
“Congress and state legislatures love to pass criminal statutes, and they rarely repeal them because of the politics involved,” he said. “Everyone wants to be tough on crime. You wind up with statute books that are full of crimes, many of which don’t get prosecuted.”
He adds that it is not common knowledge that these statutes are often ignored by prosecutors. “It’s kind of hard for people to get their heads around,” he said.
This lack of understanding could provide reason enough for those on both sides of America’s sharp political divide to perceive a double standard when it comes to the American system of justice – particularly when it involves high-profile cases involving government officials or their families, and especially when it is the politicians themselves who are stoking the fires.
What could Biden’s pardon mean for Trump?
Whether or not the indictments were an appropriate exercise of prosecutorial judgement, both Trump and Hunter Biden were convicted of their crimes.
Due to his pardon, Hunter Biden will face no consequences for that. And as Trump prepares to head back to the White House, it appears increasingly likely that the nature of his high office will protect him from a sentence for his conviction. It has already led to the federal cases against him being dropped.
Public perception of a double-standard for the wealthy and powerful may not be so off base.
American faith in the criminal justice department is being undermined, said John Geer, a political science professor at Vanderbilt University and head of its Project on Unity and American Democracy. He adds, however, that claims of selective prosecution amount to a “pebble thrown in a very large lake”, compared to the broader issues at play.
“Justice has never been blind,” he said. “There have been periods of time when it has been more even-handed than others, however.”
Recent developments, he says, reflect a growing public distrust in political institutions across the board – including Congress, the presidency and the Supreme Court.
Trump has capitalised on this distrust in institutions, railing against the government “swamp” and promising the kind of sweeping reforms his supporters believe more established politicians are unable or unwilling to deliver.
When taken in context, Trump’s ongoing complaints of political prosecutions, and Biden’s recent adoption of similar claims, are a reflection of a larger crisis of American faith in government – one that both politicians have taken advantage of when circumstances put them in uncomfortable legal terrain.
Biden’s use of Trumpian rhetoric to explain his exercise of presidential power to protect his son might only help the incoming president find more support to swing the wrecking ball at the institutions that Biden has long served and pledged to protect.
