After promising he wouldn’t do it, President Joe Biden pardoned his son, Hunter.
In a statement released Sunday evening, Biden said, “I believe in the justice system, but as I have wrestled with this, I also believe raw politics has infected this process, and it led to a miscarriage of justice.”
The president’s sweeping pardon covers not just the gun and tax offenses against the younger Biden, but also any other “offenses 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.”
The presidential pardon power, enshrined in Article II, Section 2 of the U.S. Constitution, grants the president the authority to "grant reprieves and pardons for offenses against the United States, except in cases of impeachment." This power traces its roots to the British monarchy, where sovereigns exercised clemency to temper the harshness of justice. The Founding Fathers adopted the concept, believing it would serve as a tool for justice, mercy, and national reconciliation.
Alexander Hamilton defended the pardon power in Federalist No. 74, arguing that in moments of rebellion or unrest, the executive might need the flexibility to offer clemency to restore peace. He envisioned it as a mechanism to rectify judicial errors and provide leniency where rigid application of the law would result in undue suffering.
However, the pardon power’s broad scope has led to controversial and, at times, abusive applications. Early controversies included President Andrew Johnson's post-Civil War pardons to Confederate soldiers, which many viewed as excessively lenient. In the 20th century, President Gerald Ford’s pardon of Richard Nixon after the Watergate scandal sparked outrage, with critics alleging it undermined accountability for presidential misconduct.
More recently, concerns have arisen over perceived abuses of the pardon power for personal or political gain. For example, President Bill Clinton faced criticism for pardoning financier Marc Rich, a major donor to Democratic causes. Similarly, President Donald Trump’s pardons of political allies, including former campaign officials and individuals convicted of corruption, raised questions about cronyism and self-interest.
The presidential pardon power, while intended to be a tool for justice and healing, highlights the tension between executive discretion and the need for accountability. Its history underscores the importance of ethical stewardship to preserve public trust in this extraordinary authority.
Guest:
Mark Osler is the Robert & Marion Short Distinguished Professor of Law at the University of St. Thomas in Minneapolis, Minnesota.
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*This interview was recorded on Tuesday, December 3, 2024.
