Comparing Trump's Pardon of Arpaio and Biden's Pardon of Biden

The more things change, the more things stay the same.

Today, President Biden issued a pardon to his son, Hunter Biden. In many regards, President Biden's pardon of his son resembles President Trump's pardon of Sheriff Joe Arpaio. The headline from the New York Times says it all: "In Pardoning His Son, Biden Echoes Some of Trump's Complaints."

First, President Biden issued this pardon after Hunter was convicted, but before he was sentenced. Biden has short-circuited the judicial process, taken the case out of the hand of the district court judge, and foreclosed any opportunity for appellate review. It is worth noting that both Roger Clinton and Charles Kushner were pardoned long after they had served their sentences. Back in August 2017, President Trump pardoned Joe Arpaio after he was convicted before he was sentenced. At the time, I wrote that the pardon was "premature," as the "preemptive pardon short-circuited the judicial process." There was outrage at the time to Trump's actions. It is enough to copy a paragraph from the Wikipedia page on the pardon:

In response to the pardon, The Washington Post said it was "a controversial decision, one that Trump critics labeled as an example of the president's illiberal, rule-of-law violating, authoritarian impulses." Harvard Law School professor Charles Fried, the former solicitor general for Ronald Reagan, said Trump's use of authority was specifically "to undermine the only weapon that a judge has in this kind of ultimate confrontation." Another Harvard Law School professor, Noah Feldman, said the pardon "would express presidential contempt for the Constitution." According to The New York Times, legal experts found the fact that Trump "used his constitutional power to block a federal judge's effort to enforce the Constitution" to be the "most troubling aspect of the pardon"

Hunter should hope that the District Courts in Delaware and California promptly dismiss the case, and the Trump DOJ does not have an opportunity to continue litigating the matter. But there is adverse precedent. After the pardon of Arpaio, the district judge actually held proceedings about how to deal with the pardon. Lawyers even argued that the court should not accept the pardon! Ultimately, the district court accepted the pardon, thus preventing the sentencing, but did not vacate the final judgment. The Ninth Circuit affirmed. Thus, at least in the California case, though Hunter was pardoned, under the Arpaio precedent, the conviction will stand.

Second, Trump's pardon of Arpaio was criticized because he bypassed the DOJ Pardon Attorney. He unilaterally decided to issue the pardon. Hunter would have never qualified for a pardon set forth by the DOJ Pardon Attorney. Chalk up another victory for the unitary executive.

Third, Trump was widely criticized for issuing a pardon to advance his personal interests. Arpaio was a big supporter of candidate and President Trump. The pardon was largely viewed as payback for a loyal supporter. Biden is in a similar position, though it is in many regards worse. This is not merely a political ally. It is his flesh and blood. Biden wrote, "I hope Americans will understand why a father and a President would come to this decision." Oh yes, we understand this decision quite well. Biden assured the public many times that he would not pardon his son. This promise was no doubt part of his appeal for the 2024 election. Biden ran for President (briefly) on the platform that he was honest, could be trusted, and would not put his personal concerns before the country. Historians can now judge whether Biden kept these promises.

Fourth, President Trump lobbied Attorney General Sessions to drop the Arpaio prosecution. These communications were viewed by critics as a breach of the "independence" between the Department of Justice and the President. Sessions declined to accede to Trump's requests. In 2024, Politico reported that Biden told "confidants that Garland should not have eventually empowered a special counsel to look into his son, believing that he again was caving to outside pressure." Sounds familiar? Biden said much the same in his pardon statement: "The charges in his cases came about only after several of my political opponents in Congress instigated them to attack me and oppose my election." It was Merrick Garland, Biden's Attorney General, who appointed the special counsel, not Republicans in Congress.

I don't see how Garland continues to serve. The President publicly declared that he has lost faith in his Attorney General. I would not be surprised to see Garland resign shortly. What a tragic figure, Garland is. He was nominated for the Supreme Court, never received a hearing, stepped down from the D.C. Circuit to become Attorney General, pledged to restore the rule of law, spent his entire administration enmeshed with special counsels and January 6 prosecutions, and all of those convictions have been, or will be pardoned. If Attorney General Meese was the most influential Attorney General in American history, where would Garland rank?

Fifth, Trump's pardon was viewed as an attack on Judge Susan Bolton. Adam Liptak wrote in the Times, "It was the first act of outright defiance against the judiciary by a president who has not been shy about criticizing federal judges who ruled against his businesses and policies." President Biden's statement managed to criticize the federal judge in Delaware who presided over Hunter's trial: "a carefully negotiated plea deal, agreed to by the Department of Justice, unraveled in the court room – with a number of my political opponents in Congress taking credit for bringing political pressure on the process. " This statement is flat-out false. The plea deal unraveled after it became clear the prosecution and defense did not agree how the plea agreement would be interpreted. Biden has no basis to insinuate that the District Court judge, who was supported by both Delaware senators, was politicized. Would Biden call Judge Norieka, who was appointed by President Trump, a "Trump Judge"? Cue Chief Justice Roberts.

Sixth, Trump's pardon of Arpaio concerned his conviction, and "any other offenses under Chapter 21 of Title 18, United States Code that might arise, or be charged, in connection with Melendres v. Arpaio . . . in the United States District Court for the District of Arizona." In other words, this pardon would prevent a prosecutor from bringing future charges related to that case. Biden's pardon of his son was far, far broader:

For those offenses against the United States which he has committed or may have committed or taken part in during the period from January 1, 2014 through December 1, 2024, including but not limited to all offenses charged or prosecuted (including any that have resulted in convictions) by Special Counsel David C. Weiss in Docket No. 1:23-cr-00061-MN in the United States District Court for the District of Delaware and Docket No. 2:23-CR-00599-MCS-1 in the United States District Court for the Central District of California.

This pardon immunizes Hunter from prosecution for any conduct he committed between January 1, 2014. If Hunter shot someone on Fifth Avenue during that period, he could not be tried for murder in federal court. I haven't studied pardons closely, but I am skeptical there has ever been such a broad, prophylactic pardon over the course of a decade. Even President Ford's pardon of Richard Nixon was limited to offenses "committed or may have committed or taken part in during the period from January 20, 1969 through August 9,1974." And President Andrew Johnson's 1868 pardon and amnesty of former confederates was limited to the offenses of insurrection, rebellion, and treason, during the four-year long Civil War. (Johnson's pardon had the effect of cutting short the pending appeal to the Supreme Court of the criminal prosecution of Jefferson Davis.) Finally, there is a longstanding debate about whether a pardon can be issued without enumerating a specific offense. Professor Phillip Kurland raised this issue after Ford pardoned Nixon. He said, "It is certainly not clear that the power to pardon an individual may properly, i.e. constitutionally, be invoked prior to indictment and conviction."'

Seventh, Trump's pardon was part of a long-term campaign to charge that the DOJ was politicized. Here, Biden said "I also believe raw politics has infected this process and it led to a miscarriage of justice." Again, this is Biden's Attorney General. Biden's remarks about the politicization of his own DOJ provide more credence to what Trump has said, and what he will do after January 20.

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The more things change, the more things stay the same. For what it's worth, this pardon does not prevent Hunter from facing charges in state court. Nor does it prevent the Department of Justice from prosecuting Joe Biden over his documents case. Remember, Ron Hur only declined to prosecute Biden for his "poor memory." If Biden had continued to serve as President, I think that is an admission that he is competent to stand trial. I also think that the statute of limitations would be tolled while Trump is in office. (The proceedings in New York with Justice Merchan will speak to this issue.)