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Publicly, Joe Biden never wavered. Privately, those close to him believed that the President would eventually intervene and end the federal prosecutions against his son.
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Sunday evening’s surprise announcement of a sweeping pardon for Hunter Biden sent Washington ablaze with outrage. Talk turned to what this about-face would mean for the President’s legacy, the impact it might have on the Justice Department’s already battered credibility, and whether President-elect Donald Trump, himself a convicted felon, would accept the pardon as the final word. It all felt very loud, very urgent—and, to some, very predictable.
Yet, when you take a look at Biden’s choice—making use of a power guaranteed in the Constitution with very few limits—it starts to make some sense. Yes, Biden flip-flopped on a pretty absolute pledge not to exercise the right to spare his son. Yes, it flies in the face of Democrats’ long-standing criticism about Trump, that no one should be above the law regardless of ties to the Oval Office. And, yes, this is going to dog Biden’s final weeks in office in ways that could distract from his urgent work to build a legacy after a half-century in public life.
But all those criticisms ignore a bigger truth: Joe Biden faced a trickier decision than whether or not to keep his only living son out of prison. Many will ding it as an entirely selfish move by a guilty father going with his gut. Yet, in a way, this was maybe the most considered decision Biden has made this calendar year—and that includes the jarring announcement in July that he would step aside as the Democratic Party’s nominee.
Here are the six factors that explain why Biden signed the roughly 200-word order:
Trump has made no secret of his desire to keep going after the Bidens.
For years, Hunter Biden and his work for a Ukrainian energy company has been catnip for conservatives—many of whom still believe that the money paid to Hunter for his work on the Burisma board was a bag of cash for the Bidens, with Joe Biden skimming a share from the top. (So much of the GOP case against the Bidens has been debunked and their efforts to impeach Joe Biden fell apart.) With Trump about to be back in charge of the Justice Department and FBI—including an FBI potentially led by an outspoken loyalist who has endorsed Trump’s vow to trample his foes in retribution—there was a quiet fear that the President-elect would make hunting Hunter Biden’s misdeeds a priority—even if Hunter Biden was already serving out a prison sentence. Joe Biden’s signature on an extraordinarily broad pardon rendered those efforts pointless, as no federal charges can be summoned.
Hunter Biden’s cases were handled differently
There is no point disputing this. Most experts conclude that for anyone else facing these charges, the cases would have been likely handled with an in-and-out plea deal, one that was once on the table but rejected by a Trump-appointed judge for its novel sweep. The prosecution became even more novel once the Trump-nominated U.S. Attorney for Delaware won special counsel standing for the Hunter Biden case. With protected standing, Special Counsel David Weiss continued down a path that yielded convictions on three federal felony counts for illegally buying a gun and nine guilty pleas on federal tax charges. Hunter Biden was due to be sentenced on the gun conviction on Dec. 12, followed by a Dec. 16 sentencing on the tax evasion plea. If given the maximum penalties—considered unlikely—he would have faced up to 42 years in prison.
Inaction was never, really, an option
Yes, Joe Biden flip-flopped with zero apology. Yes, he was running around the world—literally—telling everyone the justice system worked for both his son and his rival, Trump. Yes, he would take guff from some of the same folks whose approval Biden has chased for decades. But voters rendered their verdict on Biden’s by-the-books approach when they chose to return Trump to power. Heck, Trump repeatedly floated mass pardons for those involved in the Jan. 6, 2021, attack on Congress. Voters decided that was appealing—or at least not disqualifying—and chose to give Trump the keys again.
If Trump seems to think waving the magic wand of legal do-overs comes with zero costs to him, maybe Biden is rightly betting that he enjoys similar leeway. After all, Trump’s first term included freebies for former Illinois Gov. Rod Blagojevich, former NYPD Commissioner Bernie Kerik, and “junk-bond king” Michael Milken. He also employed his leniency power to spare five staffers and advisers, three uniformed service members accused of war crimes, seven disgraced former members of Congress—all Republicans—and 10 health care providers accused in a massive Medicare fraud scheme.
Given that recent history, imagine if Hunter Biden’s mid-December sentencing included years in prison—for transgressions that experts say are rarely prosecuted. What would the public reaction have been if Joe Biden, in the final days of his presidency, refused to use a get-out-of-jail-free card for his very own son?
Family is central to the Biden brand
Joe Biden spent his half-century in politics insisting that politics had no place in the judicial system, but that belief ran head-first into a competing precept that family stands above all other concerns. The President’s grief over the death of his son Beau Biden has been the overlay of so much of the Biden family’s decision-making in the last decade, and surely factored into the President’s thinking as he weighed the prospect of even more his grandkids spending time without their own father. It was a politically fraught move, but not an unexpected one. After all, when an Iowan asked Biden about Hunter’s work in Ukraine back in December of 2019, the then-former VP called the man “a damned liar” and challenged him to a push-up contest. Joe Biden followed-up with a pledge to keep his own house in order if elected.
And not for nothing, Hunter Biden has been incredibly open about his battles with addiction, and has seemingly turned around his life in the years after some admittedly poor choices. A lengthy jail term would do little to teach Hunter Biden any lessons he hasn’t already internalized. That argument appeared to help Joe Biden get to yes.
Joe Biden could do this without much of a check
The pardon power is absolute and the President’s alone. There’s no sign off needed from Congress and no one in his administration has any real authority to stop him. That’s why, when Biden said “I will not pardon him” on June 13, some were skeptical. A pardon was always an option, no matter how much his aides and allies urged otherwise on All Things Hunt. How else to explain why Joe Biden welcomed Hunter Biden to a state dinner just days after the younger Biden cut a doomed deal with federal prosecutors, led by an Attorney General attending the same event? Despite Hunter Biden’s ghosts, he still has sway inside his father’s inner circle as the eldest living child of a once-imagined political dynasty.
This is going to sting, but maybe just for a beat
The White House released the news late Sunday, just as Biden was about to hop on a flight heading out on his final foreign trip as President. That puts the President out of Washington until Thursday with no formal press conference on the books, a strategy that follows a South America trip last month that came with a similar media brown-out. That leaves a whole lot of time to fill in a Washington subsumed by this apparent violation of Biden’s vow not to do what he just did. And, aboard the presidential flight on Air Force One, the White House’s top spokeswoman doubled-down on the reversal. And on Monday, as she welcomed National Guard members to the White House to tour the holiday decorations, First Lady Jill Biden got pelted with a question about the pardon. “Of course I support the pardon of my son,” Dr. Biden said in the White House’s State Dining Room.
On top of that, Washington faces its seemingly auto-renewal gift of a holiday-themed spending deadline; this year, Congress has until Dec. 20 to kick the can down the road, and there’s a whole lot of disagreement just how far into Trump’s second term they should be looking toward. Put simply: the pardon is not going to stay front of mind for most Americans, and Trump is likely to find a way to hijack the public discourse as Team Joe runs down the clock.
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