Unlike Biden and Trump, Ordinary Americans Have No Margin for Error before Lady Justice*

*Editor’s note: On March 4, 2022, Russia enacted a law that criminalizes public opposition to, or independent news reporting about, the war in Ukraine. The law makes it a crime to call the war a “war” rather than a “special military operation” on social media or in a news article or broadcast. The law is understood to penalize any language that “discredits” Russia’s use of its military in Ukraine, calls for sanctions or protests Russia’s invasion of Ukraine. It punishes anyone found to spread “false information” about the invasion with up to 15 years in prison.

Legal privileges have long been in place for Washington’s elite.

U.S. President Joe Biden’s decision to pardon his troubled son, Hunter, who faced charges in two criminal cases and faced prison is both sensational and predictable.

Even without criminal charges, Hunter Biden has been plagued by all kinds of scandals in recent years touching nearly every aspect of his life.

Yet despite Hunter Biden’s undeniable flaws and the problems he has caused, his father has never abandoned him and has remained protective. Hunter is the only surviving child from Biden’s first marriage. His daughter, Naomi, died tragically in a car accident decades ago, and his second son, Beau, passed away in 2015 from cancer.

The American media have particularly highlighted the fact that Biden broke his repeated promise not to pardon Hunter, almost as if they are surprised by this move. But if we dig into the president’s five-decade political career for all the times he failed to keep his word, we can quickly see that, as is often the case in politics, the president’s record speaks for itself. Therefore, it would actually be strange if Biden suddenly uncompromisingly adhered to his principles, especially when it comes to his own son.

Trump has called Biden’s decision “an abuse and miscarriage of justice.” Meanwhile, Trump himself was recently involved in four criminal cases, including one in which he was convicted by a jury. However, he was never sentenced, and now the Department of Justice is closing all its remaining cases since the U.S. Constitution prohibits the prosecution of a sitting president.**

Biden’s pardon has also drawn criticism from some members of his own Democratic Party. But this is unlikely to bother the outgoing president, who feels deeply hurt by his party, which effectively forced him to abandon his bid for a second term.

Amid all the righteous indignation, people often overlook the underlying issue. The problem isn’t just one decision by a single U.S. president — it’s a feature of the entire American political system, where Washington’s elite have cultivated special legal privileges.

The Constitution grants the president authority to grant pardons, although such decisions often attract controversy, especially at the end of a presidency.*** Between the election and the inauguration, when the outgoing president faces almost no political risk, he can finally make decisions that might have been too politically costly earlier. Hunter Biden’s case fits this pattern. As The New York Times notes, Hunter hardly meets the Justice Department’s criteria for a pardon, which is typically recommended for individuals already serving a sentence. A decision like this before the election could have harmed the Democratic Party.

However, Biden is far from the first president to use this power, even in favor of family members. Trump, for instance, pardoned Charles Kushner, the father of his son-in-law and senior adviser, Jared Kushner, who served time in prison. Trump has now nominated Charles Kushner to serve as U.S. ambassador to France. Similarly, in the final hours of his presidency (1993–2001), Bill Clinton pardoned his brother, Roger, who had served time for drug possession.

In light of all this, while Biden’s decision might not hold up to legal scrutiny, it is defensible when viewed through the lens of his personal circumstances.

All this hardly inspires confidence in the U.S. legal system among average Americans. However, we can leave the debate over the legitimacy of the criminal cases against Hunter Biden and Trump to lawyers. What’s undeniable is that both were convicted of crimes in American courts. Yet neither will ultimately be held accountable — one thanks to presidential power, the other attributable to presidential immunity. In full view of the American public, the political elite have sparred and postured, but in the end, crimes in both camps have gone unpunished. Unlike them, ordinary Americans have no margin for error before Lady Justice.

**Editor’s Note: The action is not mandated by the Constitution. The Justice Department is acting pursuant to a longstanding department policy that bars the prosecution of a sitting president.

***Editor’s Note: U.S. Constitution art. II, cl. 1 provides that the president “shall have Power to grant Reprieves and Pardons, except in Cases of Impeachment.”