Joe Biden’s unforgivable error wasn’t interfering in the justice system. It was not doing it sooner

In a vacuum, Joe Biden’s decision to pardon his son Hunter for any crimes committed in the past decade is a clear abuse of power. Yet it is easier to forgive in the context of an incoming Trump administration that promises to politicise the American justice system to an unprecedented degree. Biden’s big error is not the pardon itself, but his belated recognition of the fact that when your political opponents seek to pervert it, justice can no longer be blind.
The ability to pardon anyone for crimes is one of the few unchecked powers granted to the president in the US Constitution. As such, it is one that has been most prone to abuse throughout the nation’s history. Most famously, Gerald Ford pardoned Richard Nixon for any crimes he committed as part of the Watergate scandal. It has become an unsavoury tradition for presidents to pardon their cronies in their final days in office, when their decisions are less noticed and have fewer political consequences. George HW Bush pardoned six people involved in the Iran-Contra affair. On his last day in office, Bill Clinton pardoned individuals with whom he had financial ties.
Biden is not the first president to use presidential clemency to help out family members. Clinton pardoned his brother Roger for drug-related offences (though Roger had already served his time). Jimmy Carter pardoned his brother Billy for financial dealings with Libya. And HW Bush pardoned his son Neil for his involvement in a banking scandal. In addition to pardoning his political associates Paul Manafort and Steve Bannon, Donald Trump pardoned his son-in-law’s father, Charles Kushner. Trump has now selected Kushner as the next US ambassador to France.
Hunter Biden’s pardon fits squarely within this tradition of presidents helping out family and friends in their last days in office. Hunter faced up to 25 years in prison for tax offences and for lying about his drug addiction when applying for a firearm licence in 2018. Hunter has a long history of struggles with drug addiction, rooted in his family’s personal trauma: the death of his mother in a tragic car accident when he was a young boy and the more recent death of his brother Beau from brain cancer. In that sense, one can understand why Joe Biden, who could not have prevented such family tragedies, would use his power to ensure that his remaining son stay out of prison. That doesn’t make his decision right, but it is hardly the most egregious pardon in American history.
However, Hunter’s pardon has a broader political significance. Unlike in other cases of presidents pardoning family members, he has been at the centre of Republican attacks for many years. Significantly, the pardon covers any offences that Hunter might have committed since 2014. It stretches back to the period when he traded on his father’s position as vice-president to receive payments from a Ukrainian firm accused of bribery and a Chinese businessman accused of fraud. While Hunter’s dealings were undeniably corrupt, they have been the subject of many right-wing conspiracy theories. These have swirled around a mythical laptop once owned by him said to contain proof that Biden had conspired with his son.
Multiple investigations by Republican-controlled congressional subcommittees have exonerated Biden from any involvement with Hunter’s schemes. But that didn’t stop one leading Republican congressman from portraying the pardon as evidence of “corrupt influence-peddling schemes” by the whole Biden family. Trump immediately denounced the pardon as an “abuse and miscarriage of justice”. Never mind that he committed far greater abuses. Portraying Biden as corrupt contributes to a both-sidesism where whatever outrages committed by Trump are balanced against the offences of Democrats. One reason that voters have overlooked Trump’s corruption in twice electing him president is that so many of them believe that all politicians are essentially corrupt.
In pardoning Hunter, Biden broke his promise not to interfere in the justice system. But he recognised that the justice system had already been politicised. One can quibble with the extent to which the firearm charges against Hunter – and the earlier dismissal of a plea deal by a judge – resulted from “raw politics”, as Biden claims. But what seems certain is that the Trump administration was never going to give Hunter fair and impartial justice. Trump openly brags of enacting retribution on his political enemies. Hunter was likely to be at the top of this list. Had Kamala Harris won the election, would Biden have felt this pardon was necessary?
Biden’s recognition that justice cannot be apolitical in the face of the authoritarian menace of Trumpism came too late. During his term in office, Biden sought to demonstrate his respect for the justice system by allowing it to work its course free of any executive interference. This led to one of Biden’s worst mistakes – one too little talked about. This was his decision to leave the prosecution of Trump for his role in the January 6th insurrection solely in the hands of the justice department. The intention may have been noble, but the result was catastrophic. Special Counsel Jack Smith waited so long to bring charges against Trump that the case could not be heard before the 2024 election. Charges were quietly dropped last month, since Trump would have immediately dismissed them once back in the Oval Office.
Biden recognised the dangers of Trump’s politicisation of justice in order to save his son. But he should have done so sooner – in order to save American democracy. When Trump returns to office, he plans to release all convicted January 6th insurrectionists from jail. He will employ the same instrument Biden used to free his son: the presidential pardon.
Daniel Geary is Mark Pigott Professor in US History at Trinity College Dublin.