Politics / December 4, 2024

Hunter Biden and the Future of Clemency

Biden knows there is a better way to use it—other people’s children also deserve mercy.

Rachel E. Barkow and Mark Osler
President Joe Biden and son Hunter Biden stepping out of a bookstore while shopping in Nantucket, Massachusetts, on November 29, 2024. Biden on Sunday issued an official pardon for his son Hunter, who is facing sentencing for two criminal cases related to tax evasion and the purchase of a firearm.(Mandel Ngan / AFP via Getty Images)

President Joe Biden’s December 1 pardon of his son Hunter was singular and startling. It stands alone among modern clemency grants because of the family relationship involved, the breadth of the grant, the broken promise not to do it, and the isolation of the grant from other clemency decisions. Much as Bill Clinton is still remembered for his pardon of Marc Rich, decades from now Joe Biden will carry the unfortunate weight of this single moment. He can mitigate the damage, though, by using his remaining weeks to employ the pardon power in a principled and assertive way to make thousands of grants in a wave of deserved forgiveness.

People related to recent presidents (Bill Clinton’s half-brother, Roger; Ivanka Trump’s father-in-law, Charles Kushner) have gotten clemency—but none of them were as close a relation as a president’s son. Biden made no secret of the emotional basis for his pardon: In the statement he made explaining it, he concluded by saying, “I hope Americans will understand why a father and President would come to this decision.” Remarkably, and probably intentionally, he put “father” before “President” in that sentence.

The breadth of the grant was stunning, too, and probably crafted in anticipation of further pursuit of Hunter Biden by the incoming Trump administration. The pardon’s language provides a “full and unconditional pardon.… For those 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.” On its face, this covers even federal crimes that are unknown at this time. The only comparable grant was given to Richard Nixon, and that covered a shorter time period—something Biden’s staff might have been aware of, as the formal language pardoning Hunter Biden tracked the language used by Gerald Ford to relieve Nixon of potential prosecution.

Biden’s insistence for months that he would not give a pardon to Hunter was both awkward and unnecessary. In June of 2024, Biden was unambiguous when interviewed by David Muir of ABC News, and as recently as early November, his press secretary denied for the sixth time that a pardon would be issued. They could have just said that they had not addressed the issue or that clemency decisions were something Biden would focus on later (sadly, a true statement given that he rarely used the power in his time in office).

Obviously, Biden was either lying or changed his mind. Even with that, he should have issued the grant in a much more principled way, showing that Hunter was not the only one for whom Biden had compassion—that he was truly acting as not only a father but also as a president. He could have bundled Hunter Biden’s pardon with pardons and commutations for hundreds or thousands of other deserving people who actually followed the rules and filed a petition with the pardon attorney, petitions that were (unlike Hunter Biden’s) thoroughly reviewed and recommended for a grant. It’s likely that there are several hundred such petitions at the White House, given the age of pending petitions and the hard work of Pardon Attorney Liz Oyer and her staff. By the pardon attorney’s most recent numbers, there are 9,378 pending petitions for clemency right now. Biden has granted only 157 (25 pardons and 132 commutations of sentence), a historically low grant rate for modern presidents.

Biden knows that there is a better way to use clemency than to replicate the “friends and family” approach adopted by Donald Trump in his first term. He was an eyewitness to Barack Obama’s principled (if incomplete) clemency initiative that gave freedom not to family members or cronies but to hundreds of unknown but deserving petitioners serving overly long narcotics sentences.

We and other clemency advocates have been urging him to use this authority from the beginning of his time in office, and although it would have been preferable for him to have prioritized this from the outset, there is still time for him to do better. In September, we highlighted the easiest categories for grants: petitions that already have a positive recommendation from the Pardon Attorney; commuting all federal death sentences to life sentences; extending his marijuana pardon to those convicted of distribution offenses; and giving permanent relief to people already out under the CARES Act, an emergency measure passed during the pandemic that provided temporary release to vulnerable incarcerated people. He could do still more, like providing relief to the elderly individuals who cannot get compassionate release because they fall under an old law regime of parole that is never granted in practice.

Whatever the specific package, he needs to be bold. Hunter should be one of thousands. He can, and should, leave behind a legacy of compassion that extends beyond his own son. Other people’s children also deserve mercy.

Rachel E. Barkow

Rachel E. Barkow is a professor at New York University School of Law.

Mark Osler

Mark Osler is a professor at the University of St. Thomas School of Law in Minneapolis.

More from The Nation

Trump’s Pick for Labor Secretary Won’t Neutralize the Damage His Administration Will Inflict on Workers

Trump’s Pick for Labor Secretary Won’t Neutralize the Damage His Administration Will Inflict on Workers Trump’s Pick for Labor Secretary Won’t Neutralize the Damage His Administration Will Inflict on Workers

Lori Chavez-DeRemer is as good a pick for labor secretary as one could’ve reasonably hoped for. It’s also, unfortunately, smart politics for Trump.

Sasha Abramsky

Chuck Rocha appears on CBS News on November 5, 2024.

Democrats Should Listen to What Chuck Rocha’s Saying About Their Party Democrats Should Listen to What Chuck Rocha’s Saying About Their Party

The strategist who helped Bernie Sanders win the Latino vote took himself out of the race for DNC chair—but he’s still got lots of ideas.

John Nichols

King of Chaos

King of Chaos King of Chaos

When a clown moves into a palace, he doesn't become a king; the palace becomes a circus.

OppArt / Steve Brodner

President Joe Biden walks out of Nantucket Bookworks with son Hunter Biden, grandson Beau and daughter-in-law Melissa Cohen Biden in Nantucket, Massachusetts, on November 29, 2024.

OF COURSE Joe Biden Was Right to Pardon His Son OF COURSE Joe Biden Was Right to Pardon His Son

People need to stop asking Democrats to play by different rules than Republicans, and they need to stop asking Biden to be a worse father than any of us would be in his place.

Elie Mystal

Booked

Booked Booked

In the Constitution.

OppArt / Nasrin Sheykhi

Pete Hegseth hosts FOX News Channel's

Pete Hegseth, Belligerent Drunk, May Be Too Much Even for Trump Pete Hegseth, Belligerent Drunk, May Be Too Much Even for Trump

The Fox News pundit—an alleged sexual assaulter with a drinking problem—has moved into Matt Gaetz territory.

Chris Lehmann