The Hunter Biden pardon, together with Trump’s abuses, makes an urgent case for reform

In breaking his promise not to pardon his son, Joe Biden joined the ranks of presidents who have proven unable to resist the temptation to abuse the Constitution’s vast clemency powers for personal purposes rather than serving the public interest as intended.

The sweeping “full and unconditional” pardon for Hunter Biden is designed to protect him from prosecution for any federal crimes he may have committed in the last 10 years. It was announced on the heels of Donald Trump’s declaration that he would fire the current FBI Director Chris Wray and attempt to install an unfit, partisan loyalist, Kash Patel, in Wray’s place.

While Biden argues that “Hunter was singled out only because he is my son — and that is wrong,” it is also true that Hunter was singled out for a pardon because he is the president’s son, which is also wrong. Reasonable people can debate the merits of the Justice Department’s prosecution of Hunter Biden during Biden’s tenure, but Biden’s decision to pardon his son was unquestionably personal in nature and strays from the intended purpose of the president’s clemency powers. Even though it may have been understandably motivated by a father’s love, it constitutes an abuse of power.

The pardon power is constrained by the Constitution

The Constitution contains a core command that the president “take Care that the laws be faithfully executed” and that he swear to “faithfully execute the office of President.”

It is the only command that appears in the Constitution twice. Legal scholars have explained that “faithful execution” at the time of the Constitution’s drafting meant exercising power specifically in the public interest and not for “self-dealing, self-protection, or other bad faith, personal reasons.”

The pardon power is no exception.

To aid them in the careful exercise of the power, presidents have typically relied upon legal counsel from the Justice Department’s pardon office to ensure the thousands of pardon requests received are properly vetted and meet public interest standards. This practice is often circumvented when presidents issue controversial pardons, as was the case here. The New York Times noted that in all likelihood, Hunter Biden “would not have qualified for a recommendation from the office, and it does not appear as if he applied for one.”

Fundamentally, the Hunter Biden pardon contradicts the core purpose of the pardon power.

In 1927, the Supreme Court explained that pardons are not a “private act of grace” but instead a tool to further “the public welfare.” In 1974, a federal court devised a “public interest” test to assess the constitutionality of conditions placed on a commutation. “The President,” the court explained, “who exercises that power as the elected representative of all the People, must always exercise it in the public interest.”

The Hunter Biden pardon fails that test. It is, plainly, a use of a core presidential power — one vested in the presidency for the exclusive purpose of serving the public interest — for personal reasons.

The pardon power must be reformed

Some mounting defenses for the Hunter Biden pardon have pointed to Trump’s actions as reasons not to object. Indeed, during his first term, Trump not only corruptly pardoned his daughter’s father-in-law Charles Kushner, and has since named him ambassador to France, but pioneered a new class of “henchmen pardons” that he promises to continue by pardoning January 6th rioters that are categorically more dangerous. Whereas Hunter Biden is unlikely to pose a danger to the public, pardoning felons who assaulted law enforcement on a president’s behalf — and who Trump has repeatedly told have done nothing wrong — is almost certain to license future law-breaking.

But rather than taking each former president’s controversial pardons as a reason to engage in future abuse, it would be more productive to recognize that the pardon power is increasingly being abused as a tool for personal, self-dealing reasons — in contravention of its constitutional purpose — and, thus, should be subject to reasonable constraints.

The Constitution may grant the president vast pardon powers, but Congress can clarify constitutional limits expressed by the Framers and affirmed by federal courts, as well as conduct meaningful oversight. Previous legislative proposals have sought to restrain self-dealing pardons, such as those used to obstruct justice and advance bribery schemes; to aid Congress in its investigations of pardon abuses; and to make clear the unconstitutionality of self-pardons.

According to American University pardon scholar Jeffrey Crouch, only in recent decades have presidents begun wielding the pardon power for such obvious personal reasons, from interfering in investigations to rewarding supporters. “This was not always the case,” he laments. For most of American history, even if controversial, pardons were intended to further the national interest. Without checks from the other branches, it appears unlikely that presidents alone will reverse this trend.

The Hunter Biden pardon, together with Trump’s past and now promised abuses, makes an urgent case for reform.