Photo by Freepik

Bloodthirstiness, Presidential Pardons, and the Quality of Mercy

By Joel Levin

We are surprisingly bloodthirsty people. We impose the longest prison sentences in the world. We are one of only seven countries that inflict more than ten death penalties a year, with the others hardly our demographic, developmental, or political peers (China, Iran, Saudi Arabia, Egypt, Somalia, and Singapore). We marvel at the vengeance done upon those we dislike, cheer not only on the downfall of our adversaries but their severe punishment, applaud their long and drastic prison sentences, and are appalled by those who cry for temperance, moderation, and mercy in punishment. We see that in the approval by tens of thousands online of the murder of Brian Thompson, the CEO of UnitedHealth. Our politics are characterized both on the left and right by calls for vengeance or at least very healthy punishment against their political adversaries or those who commit crimes politically charged. Revenge films remain a cinema mainstay, and forgiveness is a call rarely heard.

Hence, the outcry about pardoning Hunter Biden. The President, his father, pardoned Hunter, the sole person in the entire world able either to forgive or to withhold that pardon for the federal crimes of basically failing to pay taxes, seeking a gun permit when under the influence of drugs, and a general pardon from other crimes – perhaps those investigated without finding probable cause as part of the entire Ukraine fiasco led by Rudy Giuliani and any number of unscrupulous and untethered fools at best – that might somehow after many years of fruitless investigation implicate both Bidens.

Criticism came both from Democrats and Republicans. Take just a tiny sampling of prominent Democrats. Senator Michael Bennett said, “President Biden’s decision put personal interest ahead of duty, eroding Americans’ faith that the justice system is fair and equal for all.” In contrast, Virginia Senator Tim Kane said that Biden “didn’t need to tell the American public, ‘I will not do this,’ and he did. And when you make a promise, you got to keep it “. Of course, the Republican reaction was harsher. Typical was the response of the House Committee on Oversight and Accountability Chair, James Comer, who said that Biden “has lied from start to finish about his family’s corrupt influence peddling activities” (what one might call an evidence-free statement).

Is this justified? Specifically, is it so in light of the reasons Biden gave to justify the pardon?

No reasonable person who looks at the facts of Hunter’s case can reach any other conclusion than Hunter was singled out only because he is my son – and that is wrong. 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. In trying to break Hunter, they’ve wanted to hurt me – and there’s no reason to believe it will stop here. Enough is enough.

Is it persuasive to assume this to be accurate or at least supported by sufficient evidence to justify a political position in its favor?

There might be three different kinds of reasons – putting aside sheer bloodthirstiness for the time being – one might disapprove of the pardon. First, it might be unmerited, or at least premature, as justice must always be carried out, or at least go through its entire process, for anyone thinks of tempering it, and even that temperance ought to be implemented in the rarest of cases. Second, President Biden promised not to pardon his son and a promise of a promise, with (almost) never a justification to break it. Third, President Biden is a president and the father of the pardon’s beneficiaries. That dual position involves an apparent conflict of interest, so he should not be able to make that decision.

While seemingly not only plausible but even convincing, none of these reasons carries any significant weight, either legally or morally. We might think that a single pardon of a low-level criminal defendant for non-violent crimes, whether merited or not, is a harmless and irrelevant event in the greater context of all that is wrong with politics today. However, it isn’t. This is not only because, in our excessively politicized world, every matter seems to matter greatly, but this pardon has implications for how we address pardons and mercy in the future. Before addressing that final topic, though, I want to examine briefly the entire issue of how Biden giving a pardon to Hunter, in this case, somehow gives license to others, here expressly the incoming President Trump, to grant pardons to the Capital rioters and to several people who have supported Trump individually, financially, through family ties, politically, or as part of the greater ultranationalist agenda that Trump advocates—first the merits of a pardon for Hunter.

Hunter Biden was convicted of three related firearms charges, basically undisputed given his admission that he owned a gun while a drug user. He also pled guilty to tax

charges related to failure to pay the proper amount of tax due. Do either of these warrants the possibility of a part? The deep and thorough answer to this is, with all parts, it depends on several factors, most of which are either too complex for this paper or art, unknown, at least to me. However, virtually all tax prosecution tax failures are handled by civil remedies, with penalties and interest added to the failing taxpayer’s delinquent taxpayer bill, and not by criminal prosecution, something pointed out repeatedly to the partisan Republican special prosecutor. Further, as to the gun charges – lying on the application for buying a gun that one was drug-free – this is rarely prosecuted against anyone anywhere. Given the long drug history of Hunter Biden – in his memoir, Beautiful Things, he admits to more than two decades of significant drug abuse and recurring rehabilitation programs, saying that at one point he was “smoking crack every 15 minutes” – he usually would be grouped with other non-violent substance abusers rarely worthy of prison. The potential sentences that Hunter faced altogether added up to more than 17 years of federal incarceration.

What are reasonable grounds for pardon? Indeed, they would include the onerousness of the sentence, the rarity or frequency of such prosecution, the unlikelihood of repetition of the criminal activity, the grounds why a particular person was selected for prosecution, the feature of substance abuse that clouded the defendant’s judgment, and turning a criminal prosecution into a political show. All of these were met here. Thus, Hunter would at least be a candidate under any standard test. That said, so would thousands of others who qualify in various fields but have yet to be well-known to the President. However, the fact that that is a failure in the system would not be a reason to justify avoiding better judgment when it is presented and brought to the decision-maker’s attention.

What, then, of President Biden’s promise not to pardon Hunter? We might believe cynically that political promises aren’t worth much. Indeed, they often are not, but a better test would not be the general low conduct of politicians but the test of either tendered consideration or changed circumstances. In Western contract law, generally, contracts Are valid only if they consider consideration, some quid pro quo, something given in exchange for the promise. Promises in the air are not regarded as binding and are not legally enforceable (all this comes with a complex set of exceptions that anyone making their way through the first year of a law school contract course would be familiar with, but none of them are relevant in any way here). Was consideration given here? No. Promises, repeated several times by Biden, were made after he was President, so voters did not rely on those promises to vote for him (although it would be hard to see how we vote for a promise in a way that, alongside all the other sounds, fury and words of campaigns make it legally binding, but that is not the main point here). We usually do not want to enforce people’s promises in the air, their statements ‘I will do this’ or ‘sell you that’ or ‘engage in this activity’ or ‘hire someone’ or ‘marry someone’ or in any other way require their promises to be enforced when those promises were not accepted in exchange for something else and not expected to be enforceable.

That said, it is better for our politicians to be candid about their intentions and to follow what they say. However, that alone is a reasonably weak constraint given the complexity of political life today. Even 100 years ago, President Wilson ran for reelection in 2016 promising to keep America out of World War I – his campaign slogan was “He kept us out of war.” – but again, events on the ground, or in the guise of changed circumstances, caused him to change his mind. Those events may have been (somewhat) anticipated – more so than the appointment of a man with an existing hit list as the new FBI Director, Kash Patel, who made clear that it was politics and not crime that was to be his raison d’etre for initiating investigations, a new director that would leave, to use a phrase from Watergate, Hunter Biden ‘dangling in the wind’ – and there may even have been some consideration in certain political moves. Still, we usually don’t see it as enforceable or meant to be taken as solemn or binding political promises.

The reasons are not dissimilar from those used to deny specific promises from being binding or enforceable under contract law, particularly those lacking consideration or a quid pro quo or something of value given in exchange. We might murmur disapproval of their being uttered, but we have no legal right to complain if they are rescinded. Of course, not every promise is expected to be made with a certain kind of seriousness or rigor that legally binds. Suppose someone promises to sell you their car for $20,000 on Monday but rescinds it on Wednesday after hearing nothing but silence for 48 hours. In that case, there has been no consideration, solemn promise, contract, remedy, and nothing to complain about. There was merely a statement in the air in the context of a negotiation where such statements have a specific performative aspect different from truth-telling. Indeed, politicians act that way daily. Moreover, where there is a change in circumstances, all bets are off. Here, even though the change is not quite as dramatic as the German attacks on American vessels and the discovery of German plans to help Mexico recover its lost US territories (the Zimmermann Telegram) which pushed Wilson to enter World War I, certainly the ongoing attacks on Hunter Biden, the refusal of the federal judge to accept an agreed-upon plea deal, the vendetta against the so-called Biden Crime Family, and the probability of opening up a Ukraine investigation yet again regardless of its uselessness and danger, an inquiry that could subject the United States to potential international consequences and even catastrophe, all would be grounds to change one’s course and close the books on Hunter Biden. One might note John Maynard Keynes’ famous remark: “When the facts change, I change my mind. What do you do, sir?”

Third, it is evident that President Biden had a conflict of interest when deciding between his duties as President and as a father. Like so many conflicting duties, they only sometimes start out conflicting. We all carry the baggage of numerous duties and responsibilities that generally do not come into opposition. Much of the political debate involves conflicting rights and responsibilities, where each side can make a cogent case to support its view. Still, conflicting rights and duties might lead to entirely different conclusions. We see this often at the heart of our most fundamental controversies. For example, we consider a free and informed electorate essential to our democracy, while we also hold the fundamental right to free speech. These conflict when large individual contributors and corporations – take Elon Musk’s quarter of a billion-dollar contribution to the Republican cause ($277B), for example – control the dissemination of public debate. Should they be allowed to do so unchecked to protect political free speech at the cost of weakening the process of achieving a more balanced and fairer election, one untainted by large contributors’ outsized donations? The US Supreme Court decided in favor of the would-be oligarchical billionaires who dominate politics today in its decision almost a half-century ago, Buckley v. Valeo, which struck down limitations on political contributions. Nevertheless, the conflict between differing sets of rights and goals remains.

The problem here is that the President has a non-delegable duty on the issue of pardons. Under Article II, Section 2, Clause 1 of the US Constitution, The President . . . shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment. Thus, if the Chief Executive steps aside, no one else can exercise that Power and make the decision for or against. Accepting that a conflict would disqualify him voids the possibility of any pardon for entire classes of potential recipients of such a pardon: associates, former colleagues, law or financial partners, family members, major campaign contributors, and any number of people who may enjoy some unique tie to the President.

The default of avoiding a conflict of interest in such cases implicitly rejects the usual standard in American Constitutional law that every presumption should favor the accused. Pardons are commonly given just because the system has worked imperfectly – wrong person, wrong charge, wrong punishment, or little harm, bad precedent, or no real victim – and is hardly meant to be a systematic criticism of the justice system given the hundreds of thousands of matters courts decide each year. Of course, mistakes arise, unjust results occur, unwarranted punishment is meted out, grounds for reconsideration exist, differential treatment is noted, and the country may need certain kinds of healing. Exactly that occurred when Carter pardoned Vietnam draft avoiders and Lincoln pardoned those who took up arms against the United States as part of the Confederacy, both for the greater good of the country. That is, guilt is not the only standard. If it were, pardons would be even rarer than they are today (and they are, compared to other democracies, exceedingly rare).

President Biden is one of many presidents who have faced this issue. Lincoln pardoned his Confederate sister-in-law, Clinton pardoned his drug-dealing half-brother, and Trump pardoned his son-in-law’s father (a man who was convicted of 18 counts of falsifying tax returns, retaliating against a witness and making false statements to a federal agency, but who is now the nominee for an office first held by Benjamin Franklin and then Thomas Jefferson, U.S. Ambassador to France). Should any of these Presidents be criticized for the fact that they made a decision that involved a potential conflict of interest – the potential here because it is not clear whether good arguments against a pardon trumped the arguments for the pardon, but those arguments were set aside because of divided loyalty and divided loyalty alone, not necessarily the case in any way in the Hunter Biden pardon – when they then could be permitted to do their duty by doing nothing? Not. President Biden’s reasons are prima facie not only good ones; they are persuasive: selective prosecution, political motivation, ulterior motive to harm another, excessive time for investigation, and a victim with substance abuse issues.

But that is not even the test. The broad discretion we give to those holding the Power to pardon is tied to bestowing mercy, a power meant to err in favor of forgiving and second chances, to correct inequitable treatment when measured against the treatment of others similarly situated, or to move on and let bygones be bygones. The move is from the vengeful to the rational to the charitable to the merciful, with mercy as a legal pardon. As Kenny MacAskill, the former Scottish Justice Secretary, put it in granting a terrorist (the Lockerbie bomber dying of cancer) compassionate release: 

Our justice system demands that judgment be imposed but compassion be available. Our beliefs dictate that justice be served, but mercy be shown. Compassion and mercy are about upholding the beliefs we seek to live by and remaining true to our values.

How, then, should we think of Hunter Biden’s pardon in light of the promises of returning President Trump to pardon the January 6 insurrectionists? We might note the complete false equivalence with the Hunter Biden case. There seems to be no impairment issue, as alcohol and drugs were not offered as a justification for the misconduct. There appears to be a lack of personal and immediate victims, not just a Treasury delayed in getting its tax dollars (Hunter Biden did eventually pay them) or our gun law culture where a former drug user purchased a firearm in light of the entire outrageous architecture of hundreds of millions of guns in the United States and their ease of acquisition. Moreover, no one was singled out for prosecution in a way that seems, unlike other prosecutions, as storming a federal building with arms and then assaulting its employees and officers while destroying property and delaying the Congressional vote for President seems an unarguably criminal matter that would cause anyone engaged in any one of these acts to face immediate arrest and prosecution. It would always be punishable.

While pardons are a general feature of any legal system and mercy of any moral theory, we ought to be less reluctant, that is, more ready, to pardon legal violations that are malum prohibitum rather than malum in se. The first concerns things made illegal by a statute without any necessary moral context, while the second refers to things that are legally and morally wrong. Selling marijuana, failing to possess a car or gun or broker’s license, paying taxes late, bank and securities firms reporting requirements failures, consuming alcohol under age or selling it to someone who is, or gambling, prostitution, disorderly conduct or speeding: these are prohibited, perhaps correctly so, but do not fundamentally involve moral principles, and pardoning them has the whiff of a technical adjustment rather than the odor of an ethical dilemma. Hunter Biden’s defenses fall squarely in the category of things prohibited but not wrong in themselves. In contrast, the assaults on police officers place the January 6 rioters squarely in the less easily forgivable box of things malum in se, where pardons ought to be scarcer.

Finally, none of the January 6 insurrectionists were prosecuted for any ulterior motive, at least at the level of those who stormed the Capital. The compassion President Biden showed his son is quite different from the proclamation of lawlessness that former President Trump wanted to demonstrate on behalf of the insurrectionists.

We need to state the more significant point. Pardons, precisely mercy, generally grow out of moral principles of charity and beneficence. The argument favoring a pardon is not about justice alone, but as Shakespeare’s Portia explained in The Merchant, something entirely different.

The quality of mercy is not strained. It blesseth him that gives and him that takes—mercy seasons justice. Though justice is thy plea, consider this. In the course of justice, none of us should see salvation. We do pray for mercy to mitigate the justice of thy plea.

President Biden did the right thing.