Democrats have been warning for months that Donald Trump would bend the Justice Department to his own political will if re-elected. But President Biden's announcement on Sunday that he had issued a sweeping pardon to his son Hunter – for any crimes he may have committed over the course of a decade – suddenly put the president's allies on the defensive.
Biden said he did it after promising not to because he felt his own Justice Department had treated his son unfairly – that “crude politics” was “infecting” Hunter Biden's prosecution for gun and tax evasion offenses and “caused a miscarriage” of justice.”
Trump, who pardoned a number of political allies during his first term and has long condemned the Justice Department as politicized and in need of an overhaul, criticized the decision, saying the pardon was an “abuse and miscarriage of justice” itself.
The pardon immediately fueled an already heated national debate about justice and politics and whether the two can be properly separated — particularly in the coming months as Trump takes office and begins his next administration.
Outside political and legal experts said the episode was a clear reflection of the perilous moment facing the American justice system as Trump takes office having escaped multiple criminal cases against him – and with a long list of political enemies and a short list law enforcement nominees who have vocally supported his retaliation plans.
Before the pardon, Democrats were busy denouncing Trump's nominee as a threat to the intended firewall between politics and law enforcement. They had trounced his first candidate for attorney general, former Rep. Matt Gaetz, and his second candidate for attorney general, the former Florida attorney. Gen. Pam Bondi and his nominee for FBI director, Kash Patel, all portrayed loyalists who would be willing to cross legal boundaries on Trump's behalf.
After the pardon, some Democrats defended Biden's decision while others admitted it was a bad, if not terrible, decision.
Former US Attorney. Gen. Eric H. Holder Jr., who served during the Obama administration, said no U.S. attorney would have charged Hunter Biden based on the facts of his case and the results of a years-long investigation into his actions — making the pardon “justified.” “
Holder said people should focus on Trump and Patel instead.
“Ask yourself a far more important question. Do you really think Kash Patel is qualified to lead the world's leading law enforcement investigative organization?” he wrote on X. “Obvious answer: hell no.”
Rep. Glenn Ivey (D-Md.), who sits on the House Judiciary Committee, said on CNN that there are “legitimate concerns” on the part of the president that Trump could seek retaliation against his political enemies – including Biden's own family. And he said Trump's selection of Patel as FBI director was “a bad omen” for how Trump plans to use the Justice Department to attack his opponents.
But pardoning Hunter Biden does a disservice to Democrats who argue against such retaliation, Ivey said.
“That gives (Trump) reason to believe that, you know, both sides are doing the same thing,” he said. “This will be used against us as we combat the abuses emanating from the Trump administration.”
Bernadette Meyler, a professor of constitutional law at Stanford University who has written extensively about the use of pardons, called it “a troubling moment for the American justice system” as leaders of both major American political parties have now argued that the system is politically biased – so much so that they had to use their executive power to effectively override it.
It “suggests that there's just widespread distrust of the system and the application of the law,” Meyler said, “and I think that's pretty concerning.”
Meyler said the most troubling part of Biden's pardon of his son was his explanation for it – which she said “seemed consistent with Trump's own approach to pardons during his first term.”
Trump used pardons at the time “for very political purposes, particularly to criticize certain laws that he felt were not right, or to target certain types of wrongdoing that he thought should not be criminalized, and also to unite Doing favors he considered friends and politicians “allies,” Meyler said. Trump “really emphasized” that he used the pardon power “as a tool to criticize the legal system,” she said.
Now Biden has done almost the same thing, she said.
Pardoning his son could have been seen as a purely “pragmatic decision” – and more “defensible” – if Biden had simply cited Trump's stated intentions for political revenge against his enemies or if he had simply granted the pardon without comment, Meyler said.
Instead, however, he released a supplemental statement questioning the entire Justice Department — which Meyler said addressed “Trump's claims of a truly biased system” and “repeats what Trump has said about politicized prosecutions.”
Trump was pardoned during his first term various members of his own campaign and administrationalso for crimes related to her work for him. They included adviser Stephen K. Bannon, former campaign manager Paul Manafort and former national security adviser Michael Flynn. He also pardoned his son-in-law Jared Kushner's father, Charles Kushner.
In his second term, Trump has promised to pardon many, if not all, of those charged in the storming of the US Capitol on January 6, 2021 – whom he referred to as “hostages” in a letter Post condemning Biden's pardon on Sunday.
Hunter Biden pleaded guilty in Los Angeles and was convicted by a jury of illegally purchasing a handgun in Delaware. Republicans have long suspected that he also acted corruptly in his dealings with foreign corporations and sold his family's influence for cash.
Meyler said the president's justification for pardoning his son reinforces the argument Trump has been making for years that the various federal charges against him – for trying to steal the 2020 election, for hiding secret documents in Mar- a-Lago – the result of a politicized Justice Department, while undermining the Democrats' counterargument that these cases were the result of an impartial prosecution by an independent attorney.
Biden's statement “just makes it very difficult to turn around and say there's no bias in these other cases,” she said, even questioning the nature of the special counsel — which Trump has long criticized.
Mark Geragos, Hunter Biden's attorney, expressed similar concerns about special counsel in response to questions about the pardon. He said that after Trump's secret documents case was partially dismissed because of the appointment of a special counsel, the charges against Hunter Biden should also have been dismissed.
He said Justice Department officials had waived charges against Hunter Biden before special counsel David Weiss decided otherwise – which he said “smacks of politics.”
Weiss argued in a court filing Monday against the dismissal of Hunter Biden's case based on the pardon, saying he was not unfairly targeted.
Jessica A. Levinson, director of the Public Service Institute at Loyola Law School, said Biden's pardon of his son could give Trump additional political cover to pardon his own allies in the future, allowing him to say, “Look, “Everyone does it.” It also bolsters his argument that the Justice Department has been politicized and needs an overhaul, she said, allowing him to say: “Even Joe Biden says there's a problem.”
But the impact of Biden's pardon on Trump's future actions should not be overstated, she said, as Trump has already made clear – including during his first term – that he will politicize the Justice Department and use the pardon power to protect his allies.
“I just don't feel like this now opens the door for Trump to act in a way that he might not have otherwise done,” Levinson said.
Levinson said Biden's actions tarnished Democrats' political message and argued that Trump was uniquely lawless, comparing it to the discovery of classified documents in the home or offices of Biden and former Vice President Mike Pence after Trump was impeached was to have been hiding – such documents in Mar-a-Lago.
The existence of documents in Biden and Pence's possession allowed Trump to say, “Look, everyone's doing it,” Levinson said, even though his underlying actions with the documents in his possession were significantly different than those of Biden and Pence.
Biden's pardon of his son also makes for headlines that put him and Trump on equal footing when it comes to the use of pardons, Levinson said — even if the underlying relevance of those pardons to the proper functioning of the criminal justice system is entirely different.
At such a politically polarized time in the country, that likely means Americans will come to two very different versions of the truth depending on which politician or political party they trust, Levinson said.
“It's so hard because these moments force us to go below the headline and the first paragraph and really dig in and figure out where there are similarities and where there are differences,” she said, “and that's very hard when “We live in a society that tends to be us versus them.”
Margaret Love, who served as a U.S. pardon attorney from 1990 to 1997, said the comprehensive nature of Hunter Biden's pardon was also unique in that it preemptively cleared him of crimes for which he had not even been charged. That's one way it could be challenged — if Trump wants to challenge the limits of the president's pardon power.
In that sense, it could lead to positive change, she said – because the system of pardoning individuals has become a convoluted process in recent years, rather than the clear and orderly process it should be under the office of the pardon prosecutor.
“I hope that this at least provides an opportunity to talk about how the president — how the pardon power — works in our justice system,” Love said. This conversation is long overdue, she said.
Times staff writer Stacy Perman contributed to this report.