The Real Issue Underlying the Hunter Biden Pardon

Norm-breaking should be unacceptable for everyone, but the outrage is asymmetrical.

(Image via Shutterstock)

I wasn’t planning to write about the Hunter Biden pardon because there’s already been a great deal of ink spilled and airtime devoted to the topic. However, I do think there is a bigger underlying issue that deserves more discussion, one that goes beyond the surface debate over whether the pardon was right or wrong. As is typical these days, we’re spending too much energy on the symptoms and not giving enough thought to the causes of our fractured politics.

On Biden and the Democrats

The obvious problem here, which has already been litigated endlessly in the media, is that Biden pardoned his son after saying repeatedly he wouldn’t do so.

I surely get as a Dad why Biden would want to do this for his son, especially given that the GOP was planning to pursue yet more investigations during Trump’s second term. Kash Patel, the new nominee to lead the FBI, had already promised more prosecutions of Hunter, even though four years of searching through all the Biden business records by a congressional committee didn’t turn up anything illegal beyond the gun and tax issues that were already charged.

Moreover, as Lawfare points out, while the evidence against Hunter is real, it’s also true that tax cases like his more often “end with civil resolution rather than criminal” trials, and the gun charges are hardly ever brought “in the absence of a more serious underlying offense.” Even some Republicans have acknowledged this to be true. In this respect, Hunter would likely never have faced criminal charges or prison time without the “sustained political pressure” brought by Congressional Republicans.

Nevertheless, the pardon blindsided many Democrats, and it does deprive the party of moral high ground. Colorado Senator Michael Bennett noted that Biden’s “decision to pardon his son, no matter how unconditional his love … further erodes Americans’ faith that the justice system is fair and equal for all.”

Personally, I think President Biden should have let the legal process play out and then, if Hunter were sentenced to jail time, he could have commuted the sentence. The convictions would have stayed on Hunter’s record but he wouldn’t have had to go to prison. A commutation seems fair and would have resulted in less outcry, I would think (although it wouldn’t have prevented Patel from pursuing additional investigations, which could be the main reason Biden went through with this).

On the Republicans

To visualize what’s happening on the other side of the aisle, meanwhile, can we do a quick thought experiment? Imagine, first, that Donald Trump’s son was indicted by a Biden or Obama-appointed prosecutor on somewhat uncommon charges of illegally owning a gun and of not paying his taxes. And then assume Trump Jr. was later pardoned by his father.

In the first case, there would have been storms of indignation being shouted daily from every segment of the right wing media. After the pardon, meanwhile, there would probably have been crickets on the right. Or, more likely, cheering.

So I have to ask: Is the GOP actually indignant that the president pardoned his son of charges related to buying a gun and not paying taxes? Because most Republicans didn’t utter a word of complaint when Trump, in his first term, pardoned all sorts of political associates and relatives — everyone from Michael Flynn to Steve Bannon to Paul Manafort to Charles Kushner (Jared’s Dad). They’ve also been silent over Trump’s promised pardons of the January 6th rioters who attacked police officers.

So for anyone who didn’t complain about any of these other Trump actions, can you please spare us the fake outrage now? If you’re upset about the one Biden pardon (which, yes, is a legitimate argument), you should also be upset about Trump’s acts.

Meanwhile, I do agree with the separate issue of angst over the younger Biden’s business dealings, which were an unethical way of profiting from his family name even if it may not have been illegal. But, again, do we know that Republicans are truly upset about this too?

Because, if they are, there’s an obvious way forward. That is, to pass legislation constraining political leaders and family members from benefiting from their office. Catherine Rampell just published an op-ed about this very possibility. I’m pretty sure such a bill would sail through Congress on a bipartisan vote if the GOP got behind it.

But Republicans won’t go down that road, of course, because the Trump family has way more financial conflicts of interest than Hunter Biden ever had, encompassing a cryptocurrency business, Trump Media, foreign support of Trump hotels, and Saudi Arabia’s investment in Jared Kushner’s investment fund, to name just a few.

In the end, as with so many other issues, the GOP comes down on the side of performative indignation over actual governance.

Two political universes, each with its own norms

All of this points to an underlying issue in American politics that has little to do with any actual pardons but which should concern everyone with a stake in democracy. Namely, that norm-breaking should be unacceptable for everyone, but the outrage is asymmetrical. It’s as if the Democratic and Republican parties exist in two political universes with different laws of gravity.

Biden’s pardon was criticized by Democrats, by the mainstream media, and by everyone in the rightwing media from Fox News to talk radio and podcast hosts. Meanwhile, similar acts, or even more outrageous acts, by Trump are criticized by … Democrats and the mainstream media. There is no equivalent outrage on the right.

This is because Democrats are still (mostly, if not perfectly) trying to adhere to political norms, so when they fail there is criticism both from the media and from their own party. The GOP, on the other hand, has largely given up on democratic norms and gets almost no criticism for it from their own side.

After all, pardons aside, Trump also just forced out an FBI director (who has a 10-year term specifically so the individual can remain free of presidential interference) simply because he wants someone at the bureau who won’t be independent. And he appointed a cabinet that (with a few exceptions, such as Marco Rubio) has been described as “an odd list of ideologues and eccentrics chosen for political loyalty more than any substantive qualifications.” I’m pretty sure Biden would have faced tremendous blowback for these same actions, just as he did for his son’s pardon.

The reality is that we’re at a point now in our politics where there is outrage when one party exceeds norms even once, but silence from large swaths of the political scene when the other party puts the same norms through a shredder.

Just ask yourself:

• Why was Kamala Harris expected to immediately concede her election loss, but there was no equivalent expectation that Trump would do the same?

• Why did Democrats acquiesce to Trump’s win and promise a smooth transition when the entire country expected legal battles and violent protests if Harris had won?

As Jonathan Last of The Bulwark noted:

It seems pretty clear to me that voters have established a system in which:

• Republicans can gain power either by winning elections or attempting to overturn elections by force.

• If attempting to overturn an election by force fails, however, voters will not penalize Republicans for the attempt.

The question, then, is if this system applies only to Republicans. Could Democrats attempt to violently overturn a presidential election and have voters look the other way next time around?

Last concluded that “this is a question to which we don’t want to know the answer … Nothing good can follow.”

The Democratic conundrum

And therein lies the challenge.

We don’t want Democrats to abandon norms because down that road is the real end of democracy.

The Financial Times put it this way:

The ultimate risk to the American republic is that Democrats give up their unilateral observance of basic norms. The system can survive, just about, one of the two main parties going feral. It can’t survive both.

This is why Biden received such pushback even from allies about his son’s pardon. Democrats are rightly concerned that any abandonment of norms undercuts the party’s defense of democracy and of America’s 236-year-old constitutional traditions. And yet, if Democrats do stick to these principles, they’re left to compete with an opposition that abandons norms recklessly.

Not only that, but one of the reasons that many GOPers are fine with ditching norms is that they’ve been conditioned now to believe that Democrats must be defeated by any means possible. In some ways, from their perspective, it’s no longer a political competition but a political war.

Don’t believe me?

• Pete Hegseth, Trump’s nominee for Secretary of Defense, in his book, “American Crusade,” called for the “utter annihilation” of the left. Wrote Hegseth: “Our American Crusade is not about literal swords, and our fight is not with guns. Yet.”

• Russ Vought, future Director of the Office of Management and Budget, called Democrats a “corrupt Marxist vanguard” and said Republicans will have to demand “that our leaders destroy this threat at every level with every tool.”

• Steve Bannon, one of the architects of Trumpism, said recently that Democrats “don’t deserve any respect, you don’t deserve any empathy, and you don’t deserve any pity.… You deserve what we call rough Roman justice, and we’re prepared to give it to you.”

There is no easy way forward. Abandon norms and abandon democracy. Respect norms and compete in future elections on a very uneven playing field. At best. Or find a third way that isn’t yet obvious.

So if you want to talk about problems with Biden’s pardoning of his son, sure. There are legitimate arguments to make and I don’t necessarily disagree.

But the reason we’re even having these arguments is because American politics has devolved into a very strange state. Aside from the Civil War era, the nation has never faced such extreme polarization or such a threat to more than two centuries of democratic norms.

The Biden pardon is not a cause of any of this. It’s just one more small symptom of a system gone haywire.