In one of his last official acts, former President Joe Biden gave us a pardon-palooza on Monday. He issued protective, or “preemptive,” pardons for Dr. Anthony Fauci and Gen. Mark A. Milley, and amnesty for members of Congress who served on the Jan. 6 select committee, their staff and D.C. and U.S. Capitol police officers who testified before the committee.
Then, to the dismay of pretty much everyone, he pardoned five family members, including his brother James B. Biden and his wife, Sara Jones Biden; his sister, Valerie Biden Owens and her husband, John T. Owens; and his brother, Francis W. Biden.
The Fauci, Milley and Jan. 6 pardons are reasonable and predictable. The White House has signaled for weeks that they might be coming. As with the Hunter Biden pardon, these responded to what is unprecedented in American history: a winning presidential candidate running on a platform of promising to use the Justice Department, and the powers of the Oval Office in general, to take revenge on his perceived enemies.
Hunter Biden had already undergone criminal investigation by a U.S. Attorney in Delaware on President Trump’s watch during his first term. After his father became president, Attorney General Merrick Garland named a special counsel to pick up that probe, which produced indictments in two jurisdictions, one jury verdict and one guilty plea. Prosecutors determined that the most serious crimes they could prove beyond a reasonable doubt were the illegal non-payment of taxes (later repaid with interest), lying on a gun application about his drug addiction and criminally owning the gun for a few days afterwards.
The president’s pardon of his son recognized that any further investigation into Hunter Biden would amount to retributive harassment, as Trump’s own Justice Department had found nothing else to charge him with already. Given that these crimes occurred during his relapse into addiction after the tragic death of his brother Beau from brain cancer, and given that these relatively picayune charges would never have been brought against an ordinary defendant not the president’s son, the younger Biden pardon also arguably qualified within the traditional, historical justification for pardons: mercy.
The other Biden family pardons, however, are far less defensible.
The family pardons are “for any nonviolent offenses against the United States which they may have committed or taken part of during the period of January 1, 2014, through the date of this pardon.” In an accompanying statement, Biden said that the family pardons derived from concerns about “baseless and politically motivated investigations wreak havoc on the lives, safety, and financial security of targeted individuals and their families.”
Biden acted well within Supreme Court and historical precedent in issuing pardons for crimes that had not yet been indicted or even investigated. President Gerald Ford famously pardoned President Richard Nixon for any crimes he may have committed while in office, without specifying any crimes in particular, even though Nixon had been under criminal investigation and an indictment was reportedly ready to go.
But beyond that, the family pardons are disturbing.
Biden was undoubtedly concerned that his brother James had been looped into the failed House Republican impeachment probe. Although Republicans found no impeachable conduct by Biden, the effort produced a recommendation to the Justice Department that James Biden be charged criminally for making false statements to Congress about the former president’s meeting with a business associate, Tony Bobulinski, while James and Hunter Biden were pursuing a deal with a Chinese company.
James Biden testified that his brother Joe never met Bobulinski. Congressional Republicans say that was a lie. Hunter Biden testified, “My dad went and shook hands with Tony,” and said that they talked about a relative of Bobulinski who had cancer. Bobulinski also reportedly produced text messages indicating that Joe Biden had joined him at a May 3, 2017 meeting at the Beverly Hills Hilton while he was in Los Angeles for a conference.
House Republicans also seized upon two interest-free loans that James Biden got from his brother — one for $40,000 and another for $200,000. Both were repaid, but Republicans found the lack of documentation fishy, especially as James received $200,000 from a health care company he worked with between his brother’s terms as vice president and president; the money came around the same time as the loan.
If James Biden committed perjury, that is serious business. If there were other crimes in this mix, they were not identified by Republicans in Congress.
Biden’s preemptive pardon to cover up for potential misconduct involving himself is a totally different ballgame from the others. It puts him in the company of Trump at the end of his first term. At that time, Trump was roundly assailed for pardoning such cronies as Michael Flynn, Paul Manafort and Roger Stone, who had been implicated in Special Counsel Robert Mueller’s investigation into Russian influence in the 2016 election — possibly to take away incentives for them to testify against him. Far worse, it paves the way for a future, criminally-minded criminal president to preemptively pardon people in his orbit who are willing to commit crimes for him, knowing the Supreme Court already immunized his own criminal conduct.
There is no publicly apparent reason for Biden’s pardon of the four other family members. But the fact that he protected his own while snubbing countless people involved in the Trump probes — other Jan. 6 committee witnesses, as well as the Manhattan judges, witnesses, jurors and their families who produced successful investigations and verdicts against Trump — is an insult to those who upheld the rule of law at their own risk.
The pardon power has always been susceptible to gross abuse. The Framers of the Constitution knew this, having witnessed the corruption of English kings. They included it in the Constitution anyway, on the theory that, as Alexander Hamilton argued, a president would use the power as the “dispenser of the mercy of government.”
That Biden ignored this central tenet of the pardon power in his waning moments as president is a sad footnote to an already faltering legacy.
Kimberly Wehle is author of the new book “Pardon Power: How the Pardon System Works — and Why.”
