Joe Biden’s pardon for Hunter defies historical comparison

It’s one thing for a president to pardon his son. It’s another to do it like this.

President Joe Biden’s pardon of his son, Hunter Biden, on Monday (AEDT) is exceptional not just because of the pardon’s recipient – the closest family member to receive a pardon in history – but also for its sheer breadth, according to experts on presidential pardons.

President Joe Biden accompanied by his son Hunter Biden in Nantucket over the Thanksgiving holiday.Credit: AP

Biden didn’t just pardon his son for his convictions on tax and gun charges, but for any “offences against the United States which he has committed or may have committed or taken part in during the period from January 1, 2014, through December 1, 2024”.

That’s a nearly 11-year period during which any federal crime Hunter Biden might have committed – and there are none we are aware of beyond what has already been adjudicated – can’t be prosecuted. It notably covers when he was appointed to the board of the Ukrainian energy company Burisma in 2014 all the way through to Sunday, well after the crimes for which he was prosecuted.

Hunter Biden hasn’t been charged for his activities regarding Burisma or anything beyond his convictions, and nothing in the public record suggests criminal charges could be around the bend. Congressional Republicans have probed the Burisma matter and Hunter Biden extensively and could seemingly have uncovered chargeable crimes if they existed, but haven’t done so.

Hunter Biden after pleading guilty to federal tax charges in September.Credit: AP

Even still, the scope of the pardon is remarkable. Experts say there is little to no precedent for a pardon covering such a wide range of activity over such a long period, with the closest being Gerald Ford’s 1974 pardon of Richard Nixon after Nixon resigned post-Watergate.

Hunter Biden’s pardon “isn’t tied to any special counsel investigation or charging document”, Sam Morison, who spent 13 years working for the Justice Department’s Office of the Pardon Attorney, said via email.

“The only pardon grant that comes close is Ford’s pardon of Nixon for any crimes he may have committed from 1969 to 1974, which on its face would have included crimes [if any] unrelated to Watergate.”

Experts pointed to several broad, pre-emptive and blanket pardons that bear similarities to the one covering Hunter Biden. But they also feature some key differences.

The language of the Nixon pardon cited crimes he “has committed or may have committed” between January 20, 1969, and August 9, 1974 – language similar to Hunter Biden’s pardon.

Pardoned: Former US president Richard Nixon became infamous for the Watergate scandal.Credit: AP

As noted, that is not Watergate-specific, and the dates cover Nixon’s entire presidency. But it’s a period roughly half as long as that covered under Hunter Biden’s pardon.

There’s also the fact that some of Nixon’s actions might already have been exempt from prosecution by virtue of his role as president – something Hunter Biden doesn’t benefit from.

In 1976, Jimmy Carter pardoned most of those who dodged the Vietnam War draft between August 4, 1964, and March 28, 1973. That covered a large group of people, but the pardon was only for violating the Military Selective Service Act and related regulations.

Other presidents have also issued blanket amnesties for large groups of people tied to specific events or specific crimes.

Benjamin Harrison did so in 1893 for Mormon polygamists, noting that they had “abstained from such unlawful cohabitation” by 1890. But that was, likewise, for a specific crime.

US President Andrew Johnson pardoned 13,000 former Confederate soldiers.Credit: LOC

Andrew Johnson issued individual pardons for 13,000 Confederate soldiers after the Civil War, granting them clemency for “all offences by him committed, arising from participation, direct or implied” in the rebellion.

“These individual pardons were issued by Johnson throughout his term, and particularly during its first two years,” Frank O. Bowman, a pardon expert at the University of Missouri School of Law, said in an email. “Hence, they reached back some six to eight years.”

George Washington did so in 1794 for participants of the Whiskey Rebellion, a tax revolt in Pennsylvania. The pardoned conduct was broad – the pardon was for those who had “directly or indirectly engaged in the wicked and unhappy tumults and disturbances lately” and encompassed residents of several counties – but it was at least tied to one event.

A couple of other more recent examples that involve pardoning figures for crimes committed in high-profile scandals bear some similarities to the Hunter Biden pardon.

Michael Flynn was pardoned by Donald Trump at the end of his first presidency.Credit: AP

George H.W. Bush in 1992 pardoned six figures in the Iran-contra affair, including former defence secretary Caspar Weinberger, “for all offences charged or prosecuted by Independent Counsel Lawrence E. Walsh or other member of his office, or committed by these individuals and within the jurisdiction of that office”.

And now-President-elect Donald Trump in 2020 pardoned former national security adviser Michael Flynn for “any and all possible offences” arising from facts or circumstances that were “in any matter related” to special counsel Robert Mueller’s Russia investigation.

Broad clemency

The latter went even further than the former, by pardoning Flynn for conduct even just somehow related to the special counsel’s investigation. At the time, some experts regarded it as the broadest act of clemency since Nixon’s pardon.

“Flynn’s pardon was broad, to be sure, but not nearly as broad as Hunter’s,” Morison said.

There is some question about whether such a broad pardon for unspecified crimes is constitutional, an issue that arose when reports indicated Trump might pre-emptively pardon family members at the tail end of his first term.

The Nixon pardon was not tested in court. But the Supreme Court said amid Johnson’s post-Civil War pardons that a president’s pardon power “extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency or after conviction and judgment”.

There is some subjectivity in comparing these pardons. Hunter Biden’s known actions come up well shy of the magnitude of participating in a rebellion against the US or some of the high-profile scandals mentioned above, for example.

And it’s worth emphasising how extraordinarily political many of Trump’s pardons were – granting clemency to numerous political allies and several people wrapped up in investigations involving Trump, including Flynn. Trump surely stretched the bounds of presidential pardon power.

But there’s no question that Biden’s exercise of his pardon power also stretched those bounds – and on behalf of his son, no less.

“The Nixon pardon is the only precedent in modern times for such a broad pardon, which purports to insulate Hunter Biden from prosecution for crimes that have not even been charged,” said Margaret Love, who served as US pardon attorney under George H.W. Bush and Bill Clinton.

“Some of the Trump pardons were also disruptive of ongoing prosecutions,” Love said, adding that they were at least “directed to specific charged conduct”.

Washington Post

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