The American public is divided — I know: duh — over President Joe Biden’s last-minute blanket pardon of his erratic son Hunter. There are two obvious object-level responses to the sight of an outgoing head of state shielding a family member from the operations of criminal justice after explicitly promising many times not to do so:
As a parent that’s almost certainly what I would do in the same position.
This is an unprincipled and heinous use of a pardoning power which is not to be used for purely personal purposes; which is to say, it’s pathological corruption that will rightly haunt Biden’s legacy.
Well, you can have the full meal deal, you know: there is no necessary conflict between these two positions. What strikes me as funny is the meta-level take being pursued by many mainstream American commentators: hey, you know, we really ought to fix the Constitution to make this kind of thing — irreversible, unlimited pardons of federal offences by the president — impossible. This is something — all the wise heads are certain of it — that the Founding Fathers got essentially wrong. Who else in the world has a system like this?
Well, look into the matter and you’ll find that the answer is “virtually everybody everywhere.” The American founders, in developing a new republican system of government, knew that they had to incorporate ideas inherent to government — among which are that prosecutions of crimes cannot be both purely algorithmic and just, that someone has to be the paramount and final decision-maker and that this shouldn’t be an unelected official or functionary inside the justice apparatus, but someone above it.
The presidential pardoning power in the U.S. Constitution is that same one that monarchs possess in monarchies, including ours, and it is a power that those monarchs can exercise, without limit or oversight, usually but not always on the advice of a head of government. In almost every country this power exists and is assigned to a particular apex individual. A sovereign state cannot do without sovereignty, and the power of pardon is one of the defining features of sovereignty.
It is somehow only in the United States and various banana republics that heads of state leaving office pardon hundreds of offenders as a matter of routine — and it is only recently that any U.S. president would make such a nakedly personal use of any power. But the problem, if it’s a problem, ain’t in the Constitution, folks.
There’s no way to disagree with or object to “I’d do it for my son if it were me,” really: I guess I have to say I would have the same feelings if I had a kid. But, you know, how far does this argument against political principles, and against keeping one’s word, really go? What wouldn’t you do for your kid? Steal, maim, betray, kill? Parents who aren’t presidents of anything are tempted at all times to overlook, defend or even facilitate their children’s worst behaviour. These parents know they shouldn’t do that, and that it is ultimately destructive to the child to do that and that they are making problems for others by doing that. Yeah, it happens. You don’t celebrate or justify or honour it.
In this case the external problems have become the nation’s. Hunter Biden is said by his father to have rectified his life and stayed sober: the inarguable fact remains that he behaved for a long time exactly like a spoiled brat who knows his politician father is powerful enough to rescue him from legal problems of his own making. The moral hazard in the unprincipled use of the presidential pardoning power isn’t some bizarre future hypothetical: it is staring every American directly in the face.
— Colby Cosh
