President Biden granted blanket clemency to stop his son from being prosecuted by the Trump administration for his foreign business. Experts reached for historical parallels.
Kenneth P. Vogel has reported extensively about Hunter Biden’s foreign business dealings.
That sweeping amnesty is raising awkward historical comparisons and sharp questions about the use of presidential clemency.
It also has inflamed a debate about who deserves mercy and for what, while underscoring the Biden family’s concerns about Hunter Biden’s vulnerability to prosecution related to his foreign business activities. Experts searched for an apt comparison, finding some similarities to the pardons granted by Gerald R. Ford to Richard M. Nixon; Andrew Johnson to former Confederate soldiers; George H.W. Bush to Iranian contra figures; and to those issued to more distant family members by President Bill Clinton and by Donald J. Trump during his first term.
Yet none of those pardons seemed to hit as close to home for the presidents who issued them, nor did they cover as broad a range of activity over as long a period of time, experts said.
“It is extraordinarily hazardous to use the pardon power in a case where the person is an intimate of the president,” said Aziz Z. Huq, a professor at the University of Chicago Law School.
Mr. Huq, who warned against Mr. Trump pardoning himself at the end of his first term, said President Biden’s pardon of his son “really does strike at the rule of law.”
Presidents have unchecked authority to issue pardons, which wipe out convictions, and commuters, which reduce prison sentences. The Justice Department’s Office of the Pardon Attorney is tasked with identifying, vetting, and recommending worthy clemency recipients for the president. The office’s regulations specify that it considers pardon applications only from people who have waited at least five years after their conviction or release from prison.
Hunter Biden had yet to be sentenced, let alone to serve any time, so he would not have qualified for a recommendation from the office, and it does not appear as if he applied for one.
President Biden’s pardon granted immunity for gun crimes for which his son had been convicted in June and tax crimes to which he had pleaded guilty in September. He could have faced more than 40 years in prison. The pardon also immunized him for any other crimes he “may have committed or taken part in” starting from Jan. 1, 2014, through Sunday.
The beginning of that date range is significant. It was a few months before he joined the board of the Ukrainian gas company Burisma Holdings—a position in which Republicans have accused him of violating foreign lobbying laws. They have also used it as a political cudgel against his father.
Prosecutors did not bring charges of violating foreign lobbying laws, but they hinted that they had evidence that might have supported doing so, citing his arrangement with a Romanian real estate magnate, which appears to have started in 2015.
The pardon, which represents a reversal of President Biden’s promise not to grant clemency to his son, is designed to preempt the incoming Justice Department from acting on Mr. Trump’s pledge to prosecute the Bidens.
“One of the reasons the president did the pardon is because it didn’t seem like his political opponents would let go of it; it didn’t seem like they would move on,” Karine Jean-Pierre, the White House press secretary, said on Monday.
‘Different rules’
Frank O. Bowman III, a professor at the University of Missouri School of Law, said, “If we had anyone other than Trump coming in, I would think this is inexcusable.”
“But I don’t know, man. We’re kind of playing with different rules here.”
Mr. Bowman, who is writing a book about the history of presidential clemency, said the pardon fits into a category that grants amnesty for an array of unspecified crimes.
The closest parallel for such a “blanket” pardon, according to experts, was Mr. Ford’s amnesty for Mr. Nixon for any crimes he may have committed during his time in office—a shorter period than that covered by President Biden’s pardon of his son, but also one that included the Watergate break-in and cover-up.
Some experts questioned whether Mr. Ford had overreached because Mr. Nixon had not been charged, let alone convicted, of any crime. There were calls for the Watergate special prosecutor to bring charges to test the validity of the pardon in court, though none were ever filed.
Hunter Biden’s service on the Burisma board, which ended in April 2019, appears to fall outside the statute of limitations for foreign lobbying laws. But it is possible that the Trump administration could choose to pursue other charges against him and see if they could prevail in court, despite the pardon.
“Those same questions could be raised about Hunter Biden’s pardon, and in this context they may well be,” said Margaret Love, who served as U.S. pardon attorney in the 1990s. “Clemency is intended to be for specific offenses against the United States; it is not intended to be a full-blown amnesty for any crimes.”
Lacking specifics
There is limited precedent for the application of such blanket pardons, according to Aaron J. Rappaport, a law professor at the University of California, San Francisco, who has written of a “specificity requirement” in presidential pardons.
“It is hard to know how the Supreme Court would rule on the issue of a blanket pardon,” Mr. Rappaport wrote in an email. “However, I do think that there are serious legal questions about whether such a pardon would be deemed valid if it is extended to non-specified crimes.”
Most experts did not see the pardon’s lack of specificity as an issue.
Samuel T. Morison, a clemency lawyer, wrote in an email that “the terms of the grant will be read essentially like a statute.”
Mr. Morison, who worked for years in the Office of the Pardon Attorney before going into private practice, added that the Bidens may have seen risk in crafting the pardon grant more narrowly.
“I assume that Hunter’s lawyers were worried that an especially vindictive Trump DOJ would have looked for something to charge him with if they were too specific, so they asked for a blanket pardon, subject only to a fairly broad date range,” he wrote in an email.
Kimberly Wehle, a law professor at the University of Baltimore, predicted that if Mr. Trump’s Justice Department were to charge Hunter Biden, he would raise the pardon in a motion to dismiss the case.
Ms. Wehle, the author of a recent book detailing how the lack of constraints on presidential clemency powers invites abuse, said in an email that it was Mr. Trump—not President Biden—who initiated “the norm-violating behavior” by pledging to use the Justice Department to prosecute his enemies.
“This is not a corrupt pardon,” she said in an email. “It’s about taking care of a family member knowing what Trump will do otherwise.”
Jeffrey Crouch, an assistant professor of politics at American University who studies clemency, drew a distinction between what presidents can do and what they should do.
“Legally, the president can pardon pretty much whomever they want,” he said in an email. “Morally, it does raise some questions.”
