On December 1, 2024, President Joe Biden unconditionally pardoned his son, Hunter Biden, for offenses “[Hunter] has committed or may have committed or taken part in during the period from January 1, 2014 through December 1, 2024.”[1] The decision sparked outrage across the nation as critics (correctly) pointed out that the President had previously promised not to grant his son reprieve.[2] In an official White House statement, Biden appealed to the American people as “a father and a President,” alleging that Hunter had been the victim of “political pressure” that had infected the judicial process.[3]

Later, on December 12, Biden granted clemency to “close to 1,500 individuals” who were placed on home confinement during the Covid-19 pandemic.[4] He also pardoned another 39 people, most of whom were convicted of non-violent drug offenses.[5] This was the largest single-day exercise of the pardon power in American history, and the White House says that there is more to come.[6]

Biden’s actions are emblematic of a larger problem facing the judicial branch: people simply don’t trust it. Americans have become disillusioned with disproportionately high incarceration rates amongst People of Color.”[7] Scandals and bad press have sacked the public’s opinion of the Supreme Court, with less than half of Americans believing that the Justices are likely to act in the nation's best interest.[8] Further, President-Elect Donald Trump has continued to make disparaging comments claiming that the justice system has been used to persecute him.[9]

This article argues that the President’s decision to pardon his son is the latest in a series of events that have irreparably decayed the courts’ legitimacy. It goes on to demonstrate how advocates for criminal justice reform should use this opportunity to do as much good as possible before it's too late.

Hunter Biden (“Hunter”) faced a total of six felony and six misdemeanor convictions in two separate federal criminal proceedings that took place this year.[10] In June, a Delaware jury found Hunter guilty on three counts relating to the illegal purchase of a gun that took place in October 2018.[11] During the sale, Hunter knowingly made false statements about his status as an unlawful user of a firearm, and the subsequent possession of the weapon was made illegal by his history of narcotics addiction.[12] The sentencing date was originally set for November 13 but was pushed back to December 4 in order to give his attorneys more time to prepare.[13] He faced a maximum of 25 years in prison but was unlikely to receive the full penalty as a first-time offender.[14]

Later, on September 5, 2024, Hunter pled guilty in a California federal court to charges involving at least $1.4 million in evaded taxes.[15] Spanning three felonies and six misdemeanors, he was found to have withdrawn millions from his company outside of the payroll and tax withholding process.”[16] His sentencing was scheduled for December 16, where he faced up to 17 years in prison.

Throughout the prosecutions, President Biden (“Biden”) has been adamant about his intention not to become involved.[17] At the G7 conference in June, he was quoted as saying, “I said I’d abide by the jury decision, and I will do that. And I will not pardon him.”[18] And as recently as November 7, two days after Biden’s party lost the Presidential election, the White House made unequivocal statements negating the possibility of a pardon.[19] 

Less than a month later, Biden claimed to have changed his mind after concluding that “raw politics ha[d] infected this process” and “led to a miscarriage of justice.”[20] To support his claims of political persecution, Biden lamented that “a carefully negotiated plea deal, agreed to by the Department of Justice, unraveled in the courtroom.”[21] The President was referring to an incident in July 2023, where a federal judge rejected a plan for resolution of both the tax and firearm charges.[22] The deal would have had Hunter plead guilty to two counts involving failure to pay taxes in exchange for a recommended sentence of probation.[23] Additionally, all gun charges would be dropped in two years if Hunter followed the terms of a “diversion agreement,” stipulating among other things that he refrain from purchasing firearms and using drugs.[24] The plea was shot down by a federal district court who voiced concerns about being forced to “rubber stamp” the agreement.[25] The decision came amongst claims that the negotiations resulted in a “sweetheart deal.”[26]

Biden seems to disagree with critics, arguing that “[w]ithout aggravating factors like use in a crime, multiple purchases, or buying a weapon as a straw purchaser, people are almost never brought to trial on felony charges solely for how they filled out a gun form. Those who were late paying their taxes because of serious addictions, but paid them back subsequently with interest and penalties, are typically given non-criminal resolutions. It is clear that Hunter was treated differently.”[27]

                  However, according to the United States Sentencing Commission (USSC), 97.6% of those convicted as a felon in possession of a firearm between 2014 and 2018 were sentenced to prison.[28] [29] For those individuals who were only convicted of a crime under 18 U.S.C. 922(g), the average sentence was 59 months.[30] Such a violation was only one of the three felony gun charges for which Hunter was convicted.[31]

Further, the average sentence for tax evasion in 2020 was 16 months.[32] The median loss was $339,071, and only 14.1% of cases involved amounts exceeding $1.5 million.[33] Hunter was convicted of almost that much, with the official conviction being for at least $1.4 million.[34]

While the official numbers make Biden’s claims at least suspect, I do not take a position on whether Hunter was prosecuted more vehemently because of his father’s position as President. Instead, I argue that in pardoning his son, Biden has cast serious doubt on the legitimacy of the court system.

Article III of the Constitution provides that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish . . . The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution[ and] the Laws of the United States . . . ”[35] The judiciary has the exclusive authority to try crimes, a principle that is reinforced in the Bill of Rights by specific privileges afforded to the accused.[36]

As part of the broader scheme of checks and balances, the judicial branch was destined to be free from political influence.[37] Alexander Hamilton was a staunch defender of this separation, arguing in Federalist Paper #78 that federal courts “were designed to be an intermediate body between the people and their legislature.”[38]

The justice system’s independence from the political process is strengthened by its ability to render dispositive judgements, preventing parties from relitigating cases when they don’t like the outcome.[39] In Plant v. Spendthrift Farm Inc., for example, SCOTUS shot down legislation that would have required the courts to reinstate cases that had been previously dismissed.[40] Justice Scalia, writing for a 7-2 majority, held that the statute violated the separation of powers by “depriving judicial judgments of the conclusive effect that they had when they were announced.”[41]

The Presidential pardon is the only exception. The Constitution mentions the pardon only once, dictating in Article II, Section II that the President “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”[42] The President’s authority in this regard is extremely broad. In fact, in the 1886 case, Ex Parte Garland, the Supreme Court characterized it as “unlimited,” holding that an individual could be pardoned for “every offence known to the law” before, during, or after they had been convicted or even charged.[43]

The ability to overturn a judicial determination is an immeasurably large responsibility. In accepting the Presidency, individuals are expected to “preserve, protect and defend the Constitution of the United States.”[44] In some sense, though, the pardon power seems contrary to that purpose. The Constitution was drafted to protect the separation of powers; how can the President respect this foundational principle and yet unilaterally overrule a fair jury verdict?

One part of the answer lies in another basic Constitutional invention, the system of checks and balances. The other part lies in the way the question itself was asked. The President can’t (or rather, shouldn’t) overturn a fair jury verdict. The President can (or again, should only be able to) overturn unjust convictions. The pardon is the President's check on the judiciary, and what a mighty check it is.

So, if the pardon power is a check on the judiciary, what was Biden saying when he pardoned his son? In no uncertain terms, the sitting President of the United States was alleging that the judiciary had exceeded its authority under the Constitution. Balancing and maintaining the separation of powers is the only reason that one branch should overrule another. “No reasonable person,” Biden said in his official statement, “who looks at the facts of Hunter’s cases can reach any other conclusion than Hunter was singled out only because he is my son – and that is wrong.”[45]

Hunter’s pardon is the most recent in a series of events that continues to drain the public’s confidence in the judiciary. Skepticism of the Supreme Court boiled to the surface in 2018 with the controversial confirmation of Justice Brett Kavanaugh, who was alleged to have been involved in multiple sexual assaults.[46] In 2022, Justice Clarence Thomas drew severe criticism for failing to disclose flights, vacations, and tuition money that were given to him by Billionaire Harlan Crow.[47] And earlier this year, Justice Samuel Alito refused to recuse himself from cases involving the events of January 6, 2020, after flags used by the rioters were seen flying at his Virginia home.[48]

That’s already enough scandal to give the average American a migraine, but the Court is no quitter. It sent shockwaves through the nation when Dobbs v. Jackson Women’s Health Organization eliminated Constitutional protection for abortion that had been in place since 1973.[49] The Justices doubled down with Loper Bright Enterprises v. Raimondo, putting an end to 40 years of Chevron deference.[50]

SCOTUS, though, is not the only problem. In May, President-Elect Donald Trump (“Trump”) was convicted of thirty-four felonies in New York state having to do with “hush money” paid to actress Stormy Daniels.[51] Immediately following the verdict, Trump called the proceeding a “rigged, disgraceful trial” and noted that the ”real verdict” would be rendered on election day.[52]

In some comments that didn’t age as well as he had likely hoped, Biden touted that “[t]he American principle that no one is above the law was reaffirmed.”[53] He went on to say that “it's reckless, it's dangerous, it's irresponsible for anyone to say this was rigged just because they don't like the verdict.”[54]

So what are we to believe? In the span of six months, the United States has had two Presidents explicitly allege that the justice system is corrupt. Supreme Court justices are accepting thousands of dollars in kickbacks, and decades of Constitutional precedent was written away in a few afternoons. Can you blame Americans for being skeptical of the judiciary?

This sounds bad because it is. But therein lies the silver lining: there isn’t much Biden can do to make things worse. He should be using his position to correct as much injustice as possible before Trump takes office.

He has a good start. On December 12, Biden announced clemency for nearly 1,500 people and pardons for another 39.[55] The historic move commuted the sentences of many who were placed on home confinement under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, which was passed in March of 2020 in the midst of a national emergency.[56] The CARES Act allowed the Director of the Bureau of Prisons (BOP) to extend the maximum amount of time a prisoner may be put on home confinement.[57] Originally, the extension was set to expire thirty days after the national emergency's end date.[58] On April 4, 2023, however, the Department of Justice announced that the BOP may make individualized determinations about the continued conditions of incarceration for those placed home confinement.[59] The people affected by this policy are the target of Biden’s December 12 action.

In its statement, the White House clarified that clemency was granted only to those who had remained in home confinement for at least one year.[60] Further, pardons were allotted to individuals “convicted of non-violent crimes, including drug offenses, [who] have turned their lives around.”[61] The announcement makes December 12, 2024, the largest single-day exercise of the pardon power in American history.[62]

While I took no stance on the propriety of Hunter’s pardon, I take a stance here: this is a good thing.  The United States has the largest population of incarcerated persons in the world, with more than 1.7 million people behind bars.[63] Of these individuals, one in five are locked up for a drug offense, totaling about 360,000.[64] In 2019, Black adults made up 27% of those arrested for drug offenses, an especially problematic reality given that their drug usage rates were commiserate with Whites and that they made up only about 12% of the population.[65] In short, the United States imprisons too many people, especially People of Color.

Biden is in a position now where he can do a great deal of good by pardoning a lot more people. Yes, it will trample on the separation of powers. Yes, it will further reduce confidence in the judicial system. And yes, that was the exact problem with Hunter’s pardon. But the damage has already been done; we can’t sink much lower. We might as well make the best of a bad situation.

With the pardon power, Biden has access to a not-so-secret weapon made unstoppable by the Supreme Court itself. And you know what they say: when SCOTUS gives you lemons, make justice out of juice.