Bluesky

Ido not believe I have read a worse collection of takes in the weeks since Donald Trump’s reelection than the endless array of white columnists and pundits whining about Joe Biden’s pardon of his son Hunter Biden. The idea that the “rule of law” is somehow undermined—in this lunatic country that just elected a convicted felon who has promised to prosecute his political enemies—by this ordinary use of the extraordinary presidential pardon power, is simply nuts.

And yet, the brigade of institutionalists who have watched with ineffectual shrillness as Trump continues to take a sledgehammer to the very idea of government have gotten deep in their feelings over Biden’s pardon. Here’s the headline from The New Yorker’s Isaac Chotiner:

Biden’s Pardon of Hunter Further Undermines His LegacyBy granting clemency to his son, the President put his family above the American people.

And here’s what the usually clear-headed Tom Nichols wrote in The Atlantic:

The Hunter Biden Pardon Is a Strategic MistakeThe blunder will haunt Democrats during the next Trump administration.

The premise of both of these pieces, and the many, many others like them, is that pardoning one’s own family is inherently corrupt. More importantly, Biden’s detractors argue that his use of the pardon for Hunter somehow cedes the mythical “high ground” to Trump and clears the way for him to pardon the January 6 terrorists.

Fundamentally, these pundits are committing the same mistake that has plagued American media for at least a decade: demanding that Democrats play by a set of rules that Republicans have long rejected. And I am tired of it. I will no longer participate in the masturbatory Kabuki theater of pretending there is some objective set of standards and norms that some political actors must play by while others are free to ignore them.

In case you hadn’t noticed, there are no “rules”—certainly not anymore. There is just power. Right now, Biden has it, and he used it. Would that he had used it a little more often during the last four years, instead of spending most of that time trying to “restore” standards and norms that Trump destroyed.

Trump will have all the power soon, and we don’t have to guess how he’ll use the pardon power, because he’s already used it for his own, corrupt ends. You know what’s “worse” and more corrupt than pardoning your family members? Pardoning your criminal coconspirators. That’s what Trump did. Here is the list of Trump’s pardons from his first term. It includes his former national security adviser Michael Flynn, who lied for Trump to the FBI; former foreign policy adviser George Papadopoulos, who lied for Trump to the Robert Mueller investigation; lawyer Alex Van Der Zwaan, who lied to Mueller; dirty trickster Roger Stone, who literally tampered with witnesses; and Trump’s former campaign manager Paul Manafort, who was engaged in an international conspiracy to obstruct justice and commit tax fraud.

Oh, I’m not done. You want some family pardons? How about when Trump pardoned Charles Kushner, father of his daughter’s husband, who had been convicted on 16 counts of fraud and false statements and retaliating against witnesses? (Trump just picked Kushner to be his ambassador to France, by the way.)

And we all know that Trump would have pardoned his children without a moment’s hesitation had any of them actually been prosecuted for crimes. But Bob Mueller, playing by that old rulebook, refused to do so, and Merrick Garland chose to hide under his desk for four years rather than do his job, so Trump never got the chance.

Again, those are just some of the people Trump has already pardoned. But the institutionalists want to tell me that now he will be “unrestrained” in his use of the pardon power because Biden pardoned his own son? Or that he was somehow afraid of pardoning January 6 insurrectionists before all of this? Does anyone actually believe that?

Trump is going to do what he is going to do—there is no institutional convention that is going to stop him, and the sooner people get that through their thick skulls the better the level of discourse will be in this stupid country. The problem I’m supposed to care about is that Democrats have abandoned some ephemeral high ground that would have allowed them to object to Trump’s pardons of terrorists. Who are these people who think that bitching from a slightly elevated position is more effective at restraining raw political and military power? Do they also think there are magical bears out there who shit rainbows and that we can overcome authoritarian regimes with the power of friendship?

If institutionalists would really like to have an institutional solution to the problem, I have one: The pardon power is anachronistic bullshit and should be stricken from the Constitution.

Speaking as a person who has a passable understanding of how a legal system based on equality under the law and due process (which is not at all the kind of legal system we have in this country) could be made to work, it is simply antithetical to the principles of the rule of law to have one person who can short-circuit the entire justice system on a whim and a signature. Presidents (and governors) should not have the power to overturn convictions based on their feelings. If the justice system gets it wrong (as it does all the time), there should be a process freely and equally available to all to reverse convictions, without needing to have special access to the thought bubbles of the most powerful political figure in the land. To the extent that the system isn’t good enough, it should be made better. Maybe we should do something useful like federally funding the Innocence Project, while also getting rid of the pardon power?

If the institutionalists would like to start a movement to amend the Constitution and remove the presidential pardon power, I’ll be right there with them. If instead they just want to complain when a Democrat uses their power maximally while Republicans use the fullest extent of their powers all the goddamn time, they can entirely miss me with that self-defeating argument.

Of course, Biden is not really using his pardon power “maximally,” and that is the basis for criticism from the left. They argue that Biden should be granting pardons much more widely as a way of helping some of the millions of people who have been wronged by our criminal justice system but don’t have the advantage of sharing the president’s DNA.

I’m sympathetic to that argument, but more than Biden using his pardon power to give boons and prizes to those he deems worthy, I’d rather he had used the executive branch of government, in consultation with the legislative branch, to actually reform the criminal justice system that does so much harm. But Biden didn’t do that. Congress, during the brief two years Democrats controlled both chambers, didn’t do that. Asking Biden to reform the criminal justice system through the use of his pardon power, when he failed to reform it through the use of all of his other presidential powers, seems weird and unhelpful.

Biden is not a criminal justice reformer, and he never has been. This is the guy who wrote the notorious 1994 crime bill and shouted, “Fund the police!” at his State of the Union address, after all. Something Biden has always been, though, is a loving father. Even if you think Biden debased his office by pardoning his son, I do not know any parents who wouldn’t do exactly the same thing. That’s even truer in this situation, where Hunter Biden was only being prosecuted and harassed because he is the son of a president. If my kid were being prosecuted because of my job, and I could make it stop, I’d do it faster than Eddard Stark publicly proclaiming Joffrey Lanni-err-Baratheon to be the true Lord of the Seven Kingdoms.

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

This is a good pardon. Trump’s pardons were bad and will be again. If you can’t spot the difference between pardoning your son who was persecuted because of your job versus pardoning your criminal coconspirators or pardoning terrorists who attacked the Capitol at your request, you should take your head out of your ass.