• Show Notes

Dear Reader,

If you were president, would you pardon your own child? How about your worst enemy?

Joe Biden might end up doing both.  

Before we get to the thorny material, let’s start with something we can all agree on: the pardon power must be the most fun of all the president’s executive prerogatives. It’s entirely up to you, the heavy hitter behind the Resolute Desk. You don’t need squat from Congress, or the courts, or your own subordinate agencies. (DOJ does have an official Pardon Attorney who’s there if you need advice, but there’s nothing mandatory about it.) It’s point-and-click. No vetting, no review, no recourse. 

Indeed, there’s something uniquely Trumpian about the pardon power, in its brutish, simplistic application. Much as a second grader believes that the president can do whatever he wants – ice cream for dinner, unicorns replace cars, students assign homework to teachers – the pardon power actually works that way. You get out of prison. Because I say so. 

It might surprise you then, given the quasi-dictatorial nature of this raw exercise of power, that Donald Trump actually issued fewer acts of clemency – 237 total – than most of his presidential predecessors. (This includes pardons, which wipe out a case altogether, plus commutations, which keep a conviction in place but reduce or eliminate the accompanying sentence.) Since 1900, only two presidents, George H.W. Bush and George W. Bush, have granted fewer acts of clemency. Barack Obama pardoned or commuted over 1,900 people, and every other non-Bush chief executive dating back to William McKinley doled out clemency at least 400 times. Of course, the raw numbers lie here, to the extent they carry a connotation of cronyism; Obama pardoned or commuted mostly low-level, non-violent drug offenders serving outlandish sentences, while Trump forgave Paul Manafort, Steve Bannon, and other well-connected, bizarrely-clad ass-kissers. 

As he nears the end of his first term, President Biden has begun to take the pardon power out for an earnest spin, carefully following the Obamian path. In December 2023, he issued an open-ended pardon to thousands of people who had been convicted for low-level marijuana offenses. (He had previously granted about a dozen other non-controversial pardons.) But generations from now, few will recall any of Biden’s acts of clemency to date. Instead, history will remember two that await him. 

The easier one to predict is Hunter Biden, who faces one federal indictment in Delaware on a dubious gun charge and another more substantial case for tax fraud in federal court in California. I’ll spoil the ending: he’s getting a pardon, if he needs one. The only real question is when. Again, the answer seems fairly plain: as soon as Joe Biden can afford it politically – more precisely, sometime after November 5, 2024. If the President wins re-election, then he can take his time. Lay back, see if Hunter manages to beat the cases in the normal course, and if not, then ride to the rescue before he has to surrender to the custody of the U.S. Bureau of Prisons. And if Joe Biden loses the election, then count on a pardon before he leaves office in January 2025. The President has declared publicly that Hunter Biden is his “heart” (which is genuinely touching) and that Hunter “has done nothing wrong” (which is somewhere between wishful thinking and outright hogwash). No parent would stand by and allow his child to get locked up – even an adult child, even if he deserved it – if he could prevent it with an unreviewable, irreversible, one-sentence declaration, whatever the merits of the case might be. I’d do it. 

If Biden does end up granting clemency to his son, he’ll join an exclusive club of familial pardoners. On his final day in office in January 2001, Bill Cinton gave his half-brother, Roger Clinton, a free pass on a cocaine conviction from the mid-1980s. And let’s not forget Trump himself, who pardoned Charles Kusher, father of Trump’s son-in-law, Jared. (The technical name for this relationship, between one in-law and another, is machatunim; sometimes Yiddish is the only way to properly express an idea.) Trump’s pardon of Kushner was, of course, entirely well-justified. All poor Charlie had done was to commit massive tax fraud and then innocently hire a prostitute to seduce his own brother-in-law, to intimidate the brother-in-law from testifying in the financial investigation. Pretty standard stuff. 

And then there’s this more perplexing dilemma: might Joe Biden end up forgiving Donald Trump? It wouldn’t take much for the pieces to fall in place. Let’s say Biden wins the 2024 election; that’s currently a 50-50 chance, roughly. And assume Trump eventually gets convicted on one or both of his pending federal indictments (for election subversion in DC and classified documents in Florida) – also well within reasonable contemplation, more likely than not, on balance.

By the time this all comes to pass, including the exhaustion of Trump’s post-trial appeals, it’ll be late 2025 or 2026. Consider the world at that point. You’d have an 83 year-old, second-term Biden in the White House and a 79 year-old, twice-defeated Trump facing the prospect of years behind bars. 

Can’t you envision the public statement?:

My fellow Americans: earlier today, I issued a commutation to former President Donald Trump. His conviction will not be erased; it remains on the books for history and as a permanent reminder of his disloyalty and criminality. But, in the national interest, I have exercised mercy. The courts have done their job and Trump has appropriately been held criminally responsible. Now, he will live out his life under court supervision, and with the earned stigma of being a convicted felon. In the name of national unity, however, I do not think it necessary that he be locked up in federal prison, potentially for the rest of his life. Imprisonment of the former President also would create complications for the Secret Service and the Bureau of Prisons. This is not an exoneration. Donald Trump has wrought great harm to this country and has been found accountable for his actions by a jury of his peers. History will remember what he has done. 

Whenever I’ve floated the hypothetical of Biden granting a commutation to Trump – this is primo green room fodder, by the way – it elicits one of two responses: (1) Oh gosh, I don’t like it – but I can see it, or (2) Are you f***ing nuts, why would he do that? People who have actually worked for or around Biden tend towards the former. 

As strong as the evidence appears to be in the federal prosecutions, Trump’s still got a Turnpike’s worth of offramps that can keep him out of an orange jumpsuit. (Though most federal prisons use drab greens or grays; sorry to disappoint.) He might win the 2024 election, which would essentially kill or indefinitely delay all the criminal cases. Even if Trump loses the presidential race, he will fight vigorously at trial, where he might catch a sympathetic (or fanatical) juror or two who could hang a jury. Even if he gets convicted, a judge would then have to sentence him to prison. After that, he’d get to appeal to an intermediate circuit court, and then perhaps to the U.S. Supreme Court (which, over the past few decades, has been notably hostile to broad or novel applications of federal criminal laws). 

And if all else fails, Trump’s final chance to avoid lockup will run through the man who wields the pardon pen – who also happens to be his own avowed political enemy, a man who Trump has, over the years, publicly called stupid, insane, corrupt, incompetent, senile, and a criminal, to name a few.

Nobody ever said it was easy being president. Even as Joe Biden goes about exercising the most straightforward of executive powers, he faces a vexing conundrum: his most consequential pardons may go to the two people he loves and despises the most. 

Stay Informed,