Democrats have warned for months that Donald Trump, if elected again, would bend the Justice Department to his own political will. But President Biden’s announcement Sunday that he had issued a sweeping pardon for his son Hunter — for any crimes he may have committed over a decade — suddenly left the president’s allies on the defensive.
Biden said he did it, after promising he wouldn’t, because he felt his own Justice Department had treated his son unfairly — that “raw politics” had “infected” Hunter Biden’s prosecution on gun and tax evasion offenses and “led to a miscarriage of justice.”
Trump, who during his first term pardoned a slate of political allies and who has long condemned the Justice Department as politicized and in need of an overhaul, blasted the decision, suggesting the pardon was an “abuse and miscarriage of Justice” itself.
The pardon immediately fed into an already roiling debate nationally around justice and politics and whether the two can adequately be held separate — particularly in the months ahead, as Trump takes office and stands up his next administration.
Outside political and legal experts said the episode is a stark reflection of the perilous moment that the American justice system faces as Trump takes office after escaping multiple criminal cases against him — and with both a long list of political enemies and a short list of law enforcement nominees who have vocally backed his plans to retaliate.
Prior to the pardon, Democrats had been busy denouncing Trump’s nominees as threats to the intended firewall between politics and prosecutions. They had blasted his first attorney general nominee, former Rep. Matt Gaetz, and his second attorney general nominee, former Florida Atty. Gen. Pam Bondi, as well as his nominee for FBI director, Kash Patel, all as loyalists who would be willing to break legal boundaries on behalf of Trump.
After the pardon, some Democrats defended Biden’s decision, while others acknowledged that it was a bad look, if not a horrible decision.
Former U.S. Atty. 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 “warranted.”
Holder said people should be focused on Trump and Patel instead.
“Ask yourself a vastly more important question. Do you really think Kash Patel is qualified to lead the world’s preeminent 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 is “legitimate concern” on the president’s part about Trump exacting retribution on his political enemies — including Biden’s own family. And he said Trump’s selection of Patel for FBI director was “a bad omen” of how Trump intends to use the Justice Department to attack his opponents.
But a pardon for Hunter Biden doesn’t do Democrats arguing against such retribution any favors, Ivey said.
“This sort of gives [Trump] ground to argue that, you know, both sides are doing the same thing,” he said. “This is going to be used against us when we are fighting the misuses that are coming from the Trump administration.”
Bernadette Meyler, a constitutional law professor at Stanford University who has written extensively about the use of pardons, called it “a disturbing moment for American justice,” in that the leaders of both major American political parties have now argued that the system is politically biased — so much so that they have had to utilize their executive power to essentially overrule it.
It “suggests that there is just widespread distrust in the system and how the law is being applied,” Meyler said, “and I think that’s quite worrisome.”
Meyler said the most worrisome part of Biden’s pardon of his son was his explanation for it — which she said “seemed in keeping” with Trump’s own approach to pardons during his first term.
Trump used pardons then “for very political aims, in particular to criticize certain laws that he felt were not right or targeted certain kinds of malfeasance that he thought shouldn’t be criminalized, and also to do favors for those he felt were friends and political allies,” Meyler said. Trump “really highlighted” his use of the pardon power “as a way of criticizing the legal system,” she said.
Now, Biden has done much the same, she said.
Pardoning his son could have been viewed as a purely “pragmatic decision” — and “more defensible” — if Biden had merely cited Trump’s stated intentions to exact political revenge on his enemies, or if he had simply granted the pardon without commentary, Meyler said.
Instead, however, he issued an adjoining statement calling the entire Justice Department into question — which Meyler said played right into “Trump’s claims of a really biased system” and “echoes what Trump has been saying about politicized prosecutions.”
Trump during his first term pardoned various members of his own campaign and administration, including for crimes associated with their work for him. They included advisor Stephen K. Bannon, former campaign manager Paul Manafort and former national security advisor 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 the people charged in the storming of the U.S. Capitol on Jan. 6, 2021 — whom he called “hostages” in a post condemning Biden’s pardon on Sunday.
Hunter Biden pleaded guilty to tax charges in Los Angeles, and was convicted by a jury of illegally purchasing a handgun in Delaware. Republicans have long suggested he also acted corruptly in dealings with foreign corporations, peddling his family’s influence for cash.
Meyler said the president’s rationale for pardoning his son bolsters the argument Trump has been making for years that the various federal charges brought against him — for trying to steal the 2020 election, for hiding classified documents at Mar-a-Lago — were the result of a politicized Justice Department, while undermining the opposing argument by Democrats that those cases were the outcome of an unbiased prosecution by an independent counsel.
Biden’s statement “just makes it very hard to turn around and say there is no bias in these other cases,” she said, and even calls into question the very nature of special counsels — which Trump has long criticized.
Mark Geragos, Hunter Biden’s attorney, raised similar concerns about special counsels in response to questions about the pardon. He said that after Trump’s classified documents case was tossed out in part over the appointment of a special counsel, Hunter Biden’s indictment should have been tossed as well.
He said Justice Department officials had passed on charging Hunter Biden before special counsel David Weiss decided otherwise — which he said “smacks of politics.”
Weiss in a court filing Monday argued 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 may provide Trump with additional political cover to pardon his own allies moving forward, allowing him to say, “Look, everybody does it.” It also bolsters his argument that the Justice Department has been politicized and needs overhauling, she said, allowing him to say, “Even Joe Biden says there’s a problem.”
However, the effect of Biden’s pardon on Trump’s actions ahead should not be overstated, she said, as Trump had already made clear — including during his first term — that he would politicize the Justice Department and use the pardon power to protect his allies.
“I just don’t feel like this now opens the floodgates for Trump to act in a way that he otherwise might not have,” Levinson said.
Levinson said Biden’s actions do muddy the political message of Democrats arguing that Trump is uniquely lawless, comparing it to the discovery of classified documents in the home or offices of both Biden and former Vice President Mike Pence after Trump was charged for having — and allegedly hiding — such documents at Mar-a-Lago.
The existence of documents in Biden and Pence’s possession allowed Trump to say, “See, everybody does it,” Levinson said, even though his underlying actions with the documents in his possession were distinctly different than Biden’s and Pence’s.
Biden’s pardon of his son similarly allows for headlines that put him and Trump on a level playing field in terms of their use of pardons, Levinson said — even if the underlying relevance of those pardons to the proper functioning of the criminal justice system are starkly different.
At such an intensely polarized time in the country politically, that likely means that Americans will come away with two very different versions of the truth based on which politicians 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 to really dig in and figure out where there are similarities and where there are differences,” she said, “and it’s very hard to do when we live in a society that tends to be us-versus-them.”
Margaret Love, who served from 1990 to 1997 as the U.S. pardon attorney, said the sweeping nature of Hunter Biden’s pardon is unique, too, in that it preemptively clears him of offenses he has not even been charged with. In that way, it could be challenged — if Trump wants to question the limits of the presidential pardon power.
In that sense, it could bring about positive change, she said — because the system of pardoning individuals has devolved in recent years into a muddled process, rather than the clear and orderly one it should be under the pardon attorney’s office.
“I hope at least this will provide an occasion for talking about how the president — how the pardon power — operates in our system of justice,” Love said. That conversation, she said, is overdue.
Times staff writer Stacy Perman contributed to this report.
