WASHINGTON – President Joe Biden’s pardon of his son Hunter Biden was an unusually broad and rare example of executive clemency, according to legal experts.
The president pardoned his son for any federal crimes “he committed or may have committed” between Jan. 1, 2014, through the end of this year. Legal experts compared the blanket pardon to former President Gerald Ford’s pardon of his predecessor, Richard Nixon, who resigned amid the Watergate scandal.
“It’s very broad,” said Margaret Love, the U.S. pardon attorney from 1990 to 1997, who called it “unprecedented” except for Nixon’s. “It does not pardon specific offenses, but rather takes a rather broad time span and pardons anything, any crime that may have been committed during that time span.”
Legal experts said they were struck by the extraordinary scope of the “full and unconditional pardon,” which shields Hunter Biden from any federal charges – including potential future charges – resulting from any of his actions between 2014 and 2024.
“This is very unusual,” said Mark Osler, a law professor at the University of St. Thomas and an expert on pardons. “It’s unusual enough to grant clemency in a case where there hasn’t been a conviction yet. But it’s rarer still to have the breadth of this one.”
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Pardon protects Hunter Biden from unidentified crimes
Hunter Biden was convicted in a Delaware jury trial of buying and possessing a gun while being addicted to drugs. He then pleaded guilty in California to failing to pay taxes for several years during the same period.
The convictions came after a plea bargain fell apart in July 2023 that could have allowed him to avoid prison time, but that congressional Republicans criticized as too lenient.
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U.S. District Judge Maryellen Noreika rejected the plea deal because of a dispute over its breadth. Prosecutors said they could have still investigated Biden for not reporting foreign business deals under the Foreign Agents Registration Act, which Biden’s lawyers opposed.
Besides potential FARA violations, the pardon would cover any other potential federal crimes during the decade cited.
“Where this is pushing the boundary is this is granting a pardon to unidentified crimes,” Osler said.
Love questioned whether Biden’s pardon was made in consultation with the Justice Department, which is the standard practice for presidential pardons.
“It makes me sad, I think, that the power has just been sort of slowly pried lose from the justice system,” Love said. “Not slowly at all, really, quite roughly.”
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Presidents have pardoned relatives
President-elect Donald Trump pardoned several political associates – including former chief strategist Steve Bannon, campaign manager Paul Manafort, former national security advisor Michael Flynn and Republican operative Roger Stone – at the end of his first presidency.
But Biden’s pardon of Hunter Biden was unusual because the president pardoned a relative. No president’s child had ever been charged criminally or convicted of crimes before Hunter Biden, but others have received clemency.
Former President Bill Clinton on his last day in office pardoned his half-brother, Roger Clinton, for a cocaine-related conviction in 1985. Roger Clinton had served more than a year in prison after pleading guilty to conspiring to distribute cocaine.
Trump pardoned his son-in-law’s father, Charles Kushner, who was convicted of preparing false tax returns, retaliating against a cooperating witness, and making false statements to the Federal Election Commission in 2005. Kushner served more than 16 months of a two-year sentence in a federal prison and halfway program. (Trump said over the weekend he’ll make Charles Kushner the next U.S. ambassador to France.)
More:What did Hunter Biden do? Here are the convictions that led to a presidential pardon
Could Trump pardon himself?
Article 2 of the Constitution states the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”
Trump, who faced two federal indictments, has said he could pardon himself, but that remains a subject for legal debate. The power remains disputed among legal experts.
“As has been stated by numerous legal scholars, I have the absolute right to PARDON myself,” Trump said in a 2018 post on X.
Justice Department special counsel Jack Smith dropped charges in both cases because of longstanding policy against prosecuting sitting presidents. But the cases were withdrawn in such a way that they could be revived after Trump leaves office.
A number of law professors say a president can pardon himself, while others disagree.
Osler said Trump could issue a pardon for himself but that the open question would be it a potential future Justice Department would honor or challenge it.
“Certainly Trump can issue a pardon warrant that names himself,” Osler said. “Where the rubber would hit the road is in a future administration if someone wanted to charge him, and his response is, ‘I’ve already received a pardon for those activities.’”
A precedent-setting pardon?
Jeremy Paul, a constitutional law professor at Northeastern University and former dean of its law school, called Biden’s pardon of his son “a broadly written pardon” historically. Like other legal experts, he likened its scope to Ford’s pardon of Nixon.
But Paul called the pardon’s unusual breadth “suitable for the situation,” arguing Trump and his allies have made clear they plan to target political adversaries.
“One of the reasons for the president to have the pardon power is to guard against political prosecution – and really not even just political, but also selective,” said Paul, who agreed with the president’s rationale that Hunter Biden would not have received the gun charge if not for being the president’s son.
Paul added that Biden’s pardon of his son should be viewed as a personal issue, not a political one.
“This isn’t a pardon for one of Biden’s top political allies, or someone who had done things to help Biden get away with anything,” he said. “This is his personal son. And watching your son rot in jail because people went after him because you ran for president − that’s got to be gut wrenching.”
Trump supporters were far more likely than supporters of Vice President Kamala Harris, the Democratic nominee, to say it was acceptable for the candidate to pardon friends, family or political supporters, according to a Pew Research Center poll in September.
About 42% of Trump’s supporters said such pardons would be acceptable, compared to 8% of Harris’s supporters, according to the poll of 9,720 adults, including 8,044 registered voters.
Some Trump critics raised concerns that Biden’s pardon will set a dangerous precedent for Trump to pursue similar pardons in a second presidency, particularly for defendants prosecuted over their roles in the Jan. 6, 2021 attack on the Capitol. Trump has called the Jan. 6 defendants political prisoners and repeatedly teased he might pardon them.
“Biden is doing exactly the wrong thing by pardoning Hunter. This will now give Trump the license to pardon all of his supporters including those from Jan 6th,” said John Bolton, Trump’s former national security adviser.
Paul, however, said he doesn’t worry about the precedent-setting potential of Biden’s pardon because he believes Trump will pardon who he wants in a second term, regardless of any precedent.
“He’s made it pretty clear that he feels pretty free to do what he wants no matter what,” Paul said.
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