Hunter Biden's Pardon

Susan Estrich on Dec 5, 2024

Of course he pardoned his son. Joe Biden had already lost one son, as well as his wife and his daughter. He lost his ability to seek reelection, and then Democrats lost the election, for which he was roundly blamed. His son was facing prison time, a disaster for former addicts; as former President Bill Clinton put it, there was "reason to believe" that Hunter would be treated more severely than an anonymous offender would be. So he did what a loving father with the pardon power would do. It's understandable, if not acceptable. What is neither understandable nor acceptable is that he blamed the politicization of the Justice Department.

There has been a lot of talk about the politicization of the Justice Department, and of the rule of law in general, because of Donald Trump's prosecutions -- by state as well as federal authorities. That talk has escalated with the nomination of Kash Patel, an avowed avenger, as head of the FBI. Patel has made no bones about using the power of the FBI to go after political enemies. "Yes, we're going to come after the people in the media who lied about American citizens, who helped Joe Biden rig presidential elections," Patel told Steve Bannon in a 2023 interview. "We're going to come after you. Whether it's criminally or civilly, we'll figure that out. But yeah, we're putting you all on notice."

That the nominee for the head of the FBI talks like that would be enough to scare any father, and it explains -- even if it does not justify -- the breadth of the pardon that Biden issued for his son. He wanted to put his son beyond the reach of Republicans who have made a sport of going after the president's son and showed no signs of stopping.

Do two wrongs make a right? Does politicization become acceptable when you're doing it -- as Patel is promising to do -- but not when it's done to you, as Trump himself has so often claimed?

There is certainly a case to be made that Hunter Biden doesn't deserve to go to prison for crimes that should have been resolved, and likely would have been, if he had a different name, by a plea bargain.

Is it the same case that Trump would have made that he did not deserve to be punished for falsifying business records in New York or for mishandling classified documents or for trying to interfere with the results of a democratic election?

Is there a difference between what Jack Smith did in seeking indictments against Trump and what Kash Patel is threatening to do to Trump's enemies in the media?

The principle that no one is above the law doesn't really answer the questions. Of course no one should be above the law. But that doesn't mean that presidents -- or their families, or their appointees to high office -- should be treated the same as average citizens.

The "special counsel" laws hold these people to a higher standard. We should expect more of those to whom we entrust power. They should be held to a higher standard. Is it fair to expect more of their children as well? After all, they enjoy privileges that average citizens do not. Hunter Biden's crimes did not have anything to do with his father's high office, although the pardon clearly reaches activities that Republicans have alleged, without much traction, extend to his business dealings as the son of the "big guy." Hunter Biden is a close case. Jack Smith is not. Using the power of the Justice Department to go after enemies in the media is not a close case.

My friend Harvey Silverglate wrote a book some years ago entitled "Three Felonies a Day." His thesis was that if you dig deep enough, you can find that average law-abiding citizens in fact commit felonies more often than anyone would acknowledge. Special counsels are appointed to dig that deep, and more often than not, they find things that average citizens are not held accountable for, like falsifying business records. But average citizens do not falsify business records in order to rig an election, which is what Donald Trump did. Average citizens do not have the ability to interfere with democratic elections, which is what Jack Smith accused Donald Trump of doing. Hunter Biden's pardon, whether justified or not, is not an excuse for what Donald Trump hopes to do in politicizing the Justice Department so as to protect himself from being held to a higher standard and using the power of prosecution -- both criminal and civil -- to punish his enemies in the media.

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