Pardoning Hunter Biden Would be An Abuse of Presidential Power | Opinion

Five days before a federal jury convicted Hunter Biden of felony gun charges, President Biden publicly committed not to pardon his son. ABC's David Muir, interviewing the president in Normandy, asked Biden whether he had "ruled out a pardon." Biden's response was swift and flat: "Yes."

Certainly, Biden could pardon his son. The Constitution vests the president with a sweeping authority to "grant Reprieves and Pardons." While subject to certain constitutional constraints, the power is among the president's broadest.

But doing so would be an abuse of presidential power.

While the president should hardly be applauded for declining to abuse the powers of his office, his decision stands in marked contrast to his predecessor's, who regularly handed out pardons to friends, donors, staff, and loyalists—and with an eye towards what they could do for him in return. As a Washington Post investigation of all clemency acts during President Trump's term concluded, "Never before had a president used his constitutional clemency powers to free or forgive so many people who could be useful to his future political efforts."

Biden's decision, reiterated in recent days, helps to clarify the appropriate use—or non-use—of a core presidential power. It offers a reminder of the president's solemn obligation to serve the country's interests, not his own.

Broadly, the U.S. Constitution commands the president to exercise his powers to further the public welfare. Two provisions—the Take Care Clause and the Oath Clause—require, respectively, that the president "take Care that the Laws be faithfully executed" and that he swear to "faithfully execute the office of President." According to legal scholars, the term "faithful execution" at the time of the Constitution's writing specifically meant exercising power in the public interest—and not for "self-dealing, self-protection, or other bad faith, personal reasons." It is the only command that appears in the Constitution twice.

In including the pardon power in the Constitution, the Framers were also explicit that it was to be used to further the public interest, just like all other presidential powers. Alexander Hamilton explained the importance of pardons within a judicial system that was bound to sometimes be "too sanguinary and cruel." He also envisioned their use in times of civil unrest, "when a well timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth." The country's first pardons by George Washington were offered to rebels during the Whiskey Rebellion as a tactic to entice them to lay down their arms. (It worked; the pardons helped to quell the rebellion.)

For most of American history, that pardons might be used for personal reasons instead—say, for helping out campaign donors or political operatives—was unheard of.

On rare occasions when pardons have landed in court, the judiciary has also reaffirmed their public interest function. In 1927, the Supreme Court explained that pardons are not a "private act of grace" but instead a tool to further "the public welfare." (Chief Justice and former President Howard Taft, who had recused himself from the case—he was the president who had granted the pardon in question—later reflected that "[t]he only rule he [a president] can follow is that he shall not exercise it against the public interest.")

In 1974, a federal court devised a "public interest" test to assess the constitutionality of conditions placed on a commutation. "The President," the court explained, "who exercises that power as the elected representative of all the People, must always exercise it in the public interest."

By declining to pardon his son, Biden is simply adhering to the Framers' and the Constitution's intended scope of the pardon power, which does not include its use for attending to one's private interests.

To be sure, Biden has pushed the bounds of executive authority on an array of other fronts. In 2022, he announced a plan to cancel hundreds of billions of dollars in student loans, relying on an expansive interpretation of the president's emergency powers. In 2023, he successfully defended the government's domestic mass surveillance program—a law that as a senator he called an "unconstitutional expansion of the President's powers." His administration has also continued the practice of launching missiles at countries we are not at war with and without required authorization from Congress.

In this case, the President's decision is notable mostly for what it is not: It is a decision not to abuse a presidential power. His commitment not to pardon Hunter Biden should be regarded as the kind of basic restraint we ought to expect from those who are entrusted to serve the people they represent—not themselves.

Grant Tudor is a policy advocate and Amanda Carpenter an editor at Protect Democracy, a nonpartisan, anti-authoritarianism group.

The views expressed in this article are the writers' own.