President Joe Biden and President-elect Donald J. Trump now agree on one thing: The Biden justice department has been politicised.

In pardoning his son Hunter Biden on Sunday night, the incumbent President sounded a lot like his successor by complaining about selective prosecution and political pressure, questioning the fairness of a system that Biden had until now long defended.

“No reasonable person who looks at the facts of Hunter’s cases can reach any other conclusion than Hunter was singled out only because he is my son — and that is wrong,” Biden said in a statement announcing the pardon. “Here’s the truth,” he added. “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.”

Biden’s decision to use the extraordinary power of executive clemency to wipe out his son’s convictions on gun and tax charges came despite repeated statements by him and his aides that he would not do so. Just last summer, after his son was convicted at trial, the President rejected the idea of a pardon and said that “I will accept the outcome of this case and will continue to respect the judicial process”. The statement he issued on Sunday night made clear he did not accept the outcome or respect the process.

The pardon and Biden’s stated rationale for granting it will inevitably muddy the political waters as Trump prepares to take office with plans to use the justice department and the FBI to pursue “retribution” against his political adversaries.
Trump has long argued that the justice system has been “weaponised” against him and that he is the victim of selective prosecution, much the way Biden has now said his son was.

Their arguments are, of course, different in important respects. Trump contends that the two indictments against him by Biden’s justice department amounted to a partisan witch hunt targeting the sitting President’s main rival. Biden did not explicitly accuse the justice department of being biased against his family, but suggested that it was influenced by Republican politicians who have waged a long public campaign assailing Hunter.

As it happens, the justice department has rejected both accusations. The prosecutions of Trump and Hunter were each handled by separate special counsels appointed specifically to insulate the cases from politics, and senior department officials have denied that politics entered the equation against either man. There is no evidence that Biden had any involvement in Trump’s cases.

But Biden’s pardon will make it harder for Democrats to defend the integrity of the justice department and stand against Trump’s unapologetic plans to use it for political purposes even as he seeks to install Kash Patel, an adviser who has vowed to “come after” the President-elect’s enemies, as the next director of the FBI. It will also be harder for Democrats to criticise Trump for his prolific use of the pardon power to absolve friends and allies, some of whom could have been witnesses against him in previous investigations.

“While as a father I certainly understand President @JoeBiden’s natural desire to help his son by pardoning him, I am disappointed that he put his family ahead of the country,” governor Jared Polis of Colorado, a Democrat, wrote on social media. “This is a bad precedent that could be abused by later Presidents and will sadly tarnish
his reputation.”

Representative Greg Stanton, Democrat of Arizona, disputed the President’s argument that politics was behind his son’s prosecution. “I respect President Biden, but I think he got this one wrong,” he said online. “This wasn’t a politically motivated prosecution. Hunter committed felonies, and was convicted by a jury of his peers.”

Other Democrats tried to draw a distinction between the Biden and Trump matters. Former attorney-general Eric H. Holder Jr said that no prosecutor would have brought the charges against Hunter and that, therefore, the pardon was warranted.

“Ask yourself a vastly more important question,” he wrote on social media. “Do you really think Kash Patel is qualified to lead the world’s preeminent law enforcement investigative organisation? Obvious answer: hell no.”

To be sure, the cases against Trump and Hunter are hardly comparable. Trump was charged with illegally trying to overturn an election that he lost so that he could hold on to power and, in a separate indictment, with endangering national security and trying to obstruct justice by taking classified documents when he left office and refusing to return them. Those cases are now being dropped because of his election.

Hunter was convicted of lying on a firearms application form about his drug addiction and pleaded guilty to failing to pay taxes that he later did pay, with penalties. At least some legal experts have agreed with the President’s contention that such offences would normally have been resolved without felony charges.

But the President broke his own commitment about intervening in the case. In his statement, he noted that he had said he would “not interfere with the justice department’s decision-making and I kept my word even as I have watched my son being selectively, and unfairly, prosecuted”. He did not acknowledge that he did not keep his word about forgoing a pardon.

Trump wasted little time seizing on the pardon to make apples-and-oranges comparisons. “Does the Pardon given by Joe to Hunter include the J-6 Hostages, who have now been imprisoned for years?” he wrote on social media, referring to the rioters who attacked the Capitol on January 6, 2021, to stop Congress from certifying Trump’s defeat.

“Such an abuse and miscarriage of Justice!”

Biden’s pardon will also give ammunition to Republicans who have contended that Hunter was guilty of wrongdoing beyond the charges for which he was actually prosecuted.

A House Republican investigation made clear that the President’s son traded on his father’s name in business, but never proved that Biden took action as Vice-President or President to benefit Hunter.

The pardon Biden issued to his son specifically covers any offences “which he has committed or may have committed or taken part in during the period from January 1, 2014, through December 1, 2024”, not just the tax and gun charges. That will protect Hunter from any further investigation that Trump could have ordered the justice department or Patel’s FBI to conduct once taking office.

But Republicans seized on it to say that the unlimited decade-long sweep of the pardon demonstrated that there must be more there to protect him from.

“The charges Hunter faced were just the tip of the iceberg in the blatant corruption that President Biden and the Biden Crime Family have lied about to the American people,” said Representative James R. Comer of Kentucky, the Republican committee chairman who led the Republican investigation. “It’s unfortunate that, rather than come clean about their decades of wrongdoing, President Biden and his family continue to do everything they can to avoid accountability.”

Some Republicans even imagined ways the pardon could help any future investigation of the outgoing President. David M. Friedman, a long-time Trump lawyer who served as ambassador to Israel in his first term, suggested online that Hunter could now be compelled to testify about matters for which he no longer faces potential criminal liability.

“This means that Hunter cannot plead the Fifth if asked about his business dealings with Ukraine and China, including his Dad’s involvement, because, with his pardon, he has no risk of criminal jeopardy,” Friedman wrote.

Other Presidents have used the pardon power on their way out of office to help people close to them. President George H.W. Bush pardoned former defence secretary Caspar W. Weinberger and other colleagues on charges stemming from the Iran-contra affair. President Bill Clinton pardoned his brother Roger on old drug charges.

And of course, the vast majority of Trump’s pardons and commutations went to people he knew personally or was connected to through allies, according to studies. Among the people he pardoned in his last weeks in office was Charles Kushner, the father of Trump’s son-in-law Jared Kushner who spent two years in prison on tax evasion and other charges. Over the weekend, Trump announced that he would now nominate the pardoned Kushner to be ambassador to France.

In his pardon statement, Biden sought to appeal to empathy for a father of a son who struggled with drug addiction, framing his decision in personal terms as Hunter faced possibly years in prison. “I hope Americans will understand why a father and a President would come to this decision,” he wrote.

If he had left it at that, that might have been one thing. But it was his attack on the prosecution that raised questions of a dual-track justice system. “There has been an effort to break Hunter — who has been five and a half years sober, even in the face of unrelenting attacks and selective prosecution,” the President said. “In trying to break Hunter, they’ve tried to break me — and there’s no reason to believe it will stop here. Enough is enough.”

Except that it will not stop here. Even some supporters of Biden said his decision opened the door for Trump to further warp the system by pointing to his predecessor’s own words and actions. Former Representative Joe Walsh, a leading anti-Trump Republican from Illinois who endorsed Biden for President, said the pardon was “deflating”.

“This just furthers the cynicism that people have about politics,” he said on MSNBC, “and that cynicism strengthens Trump because Trump can just say: ‘I’m not a unique threat. Everybody does this. If I do something for my kid, my son-in-law, look, Joe Biden does the same thing.’ I get it, but this was a selfish move by Biden which politically only strengthens Trump.”

New York Times News Service