There Is No Historical Precedent For Hunter Biden’s Pardon

At last, Hunter Biden has his full and unconditional presidential pardon, covering all “offenses against the United States which he has committed or may have committed” between the tender ages of 44 and 54. Freshly sober and exculpated, young master Biden is now at liberty to pursue his promising artistic career. I join the readership of The Federalist in well-wishing this walking, talking malum prohibitum.

There is no gainsaying that Hunter’s father, President Joe Biden, has for a change acted strictly within the confines of his constitutional authority. Article II, Section 2, Clause 1 of the Constitution gives the president plenary authority to “grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” Like mercy, the quality of presidential pardons is not strained: They “droppeth as the gentle rain from heaven / Upon the place beneath.”

Reasonable minds may disagree as to whether the Founding Fathers erred in creating such a broad pardon power. George Mason inveighed against it at the Virginia ratification convention in 1788:

I conceive that the President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?

James Madison, principal draftsman of the Constitution, responded that “there is one security in this case to which gentlemen may not have adverted,” that is, impeachment and removal in cases of abuse. I leave it to the reader (and to The Federalist’s outside libel counsel) to determine whether President Biden has in fact sheltered himself by pardoning crimes that he himself advised, thus shielding himself from both inquiry and detection, as both Mason and Madison wisely feared.

Legalities aside, a more interesting question is whether the pardon transgresses against propriety. This, too, is a matter with which serious ethical traditions have long struggled. The Analects relate the following exchange:

The Duke of She said to Confucius, “Among my people there is one we call ‘Upright Gong.’ When his father stole a sheep, he reported him to the authorities.”

Confucius replied, “Among my people, those who we consider ‘upright’ are different from this: fathers cover up for their sons, and sons cover up for their fathers. ‘Uprightness’ is to be found in this.”

The conventional scholarly view is that the character rendered as “cover up” in the foregoing translation (隐) suggests that the mutual obligations of kinship and filial piety obligated the Upright Gong to conceal his father’s crime, not to disclose it to the state. This is surely consistent with the views of the great preponderance of mankind from Creation to the present.

Indeed, the contrary idea — that a man is obliged to sacrifice his own relations in service of a remote and abstract conception of Justice — would strike many an Aztec or Scythian as positively deranged. Fiat justitia ruat cælum may be a fine apothegm for thee and me, but one can hardly fault the Noble Savage (or a resident of a totalitarian Communist state, for that matter) for arching an eyebrow.

The case of Upright Gong is, of course, distinguishable from the Biden pardon in several respects. Here, the son is the accused criminal, and the father has the authority of the Duke of She to bind or loose judgment. The alleged crimes of the son here are venal — e.g., falsification of gun purchase records, tax evasion, and the like — not crimes of moral turpitude like the theft of a sheep. Hunter Biden’s alleged transgressions may be embarrassing, but they do not shock the conscience. (Or at least this is true of the crimes the government pursued; his alleged sex trafficking and other transgressions are plenty shocking.)

We Westerners are perturbed less by Hunter’s behavior than by the sense that President Biden has violated a public duty more sacred even than his obligations to kith and kin. A more apt historical analogy, perhaps, is to Lucius Junius Brutus, as recently suggested in an X post by The Federalist Editor-in-Chief, Mollie Hemingway.

There was a time when schoolboys could recite the outlines of Brutus’ biography. Per Livy’s Ab Urbe Condita, as a child, Lucius Junius witnessed the execution of his father and brothers by the Etruscan monarchy of the Tarquins, saving himself from a similar fate only by “pretend[ing] to be a half-wit” and “submitt[ing] to being known publicly as the ‘Dullard’” (hence the cognomen “Brutus”).

Later, Brutus accompanied the Tarquin scions on an errand to the oracle of Delphi, where the Pythia prophesied that Apollo would grant primacy in Rome to the first to “kiss his mother,” whereupon Brutus, pretending to trip and fall, kissed the earth, “the mother of all living things.”

Back in Rome, Brutus witnessed the suicide of the outraged noblewoman, Lucretia, whose violation by Sextus Tarquinius, the son of the king, scandalized the Roman populace. Drawing the dagger from Lucretia’s innocent breast, Brutus unveiled himself as no dullard, declaring:

By this girl’s blood — none more chaste till a tyrant wronged her — and by the gods, I swear that with sword and fire, and whatever else can lend strength to my arm, I will pursue Lucius Tarquinius the Proud, his wicked wife, and all his children, and never again will I let them or any other man be King in Rome.

Brutus made good his oath, dispersing the Tarquins and securing election as one of the first two consuls of the Republic (quite literally the first bearer of the fasces, to the dismay of MSNBC). Tragically, Brutus’ own sons then betrayed the Republic by joining a conspiracy to restore the Etruscan monarchy. Livy reports the motivations of the insurrectionists, which are worth relating at some length:

It began with a group of young aristocrats who had found life under the monarchy very agreeable; accustomed to associate with the younger members of the royal family, they had been able to give a freer rein to their appetites and to live the dissolute and irresponsible life of the court. Under the new dispensation they missed the freedom to do as they pleased, and begun to complain that what might be liberty for others was more like slavery for themselves. A king, they argued, was, after all, a human being, and there was a chance of getting from him what one wanted, rightly or wrongly; under a monarchy there was room for influence and favour; a king could be angry, and forgive; he knew the difference between an enemy and a friend. Law, on the other hand, was impersonal and inexorable. Law had no ears …

To wit, the sons of Brutus were distant mirrors of the dissolute Hunter Biden. Learning of the insurrection from a slave, Brutus exacted the condign punishment of the perpetrators, so that “he who, of all men, should have been spared the sight of their suffering, was the one whom fate ordained to enforce it.” The young men were stripped, flogged, and beheaded under Brutus’s supervision, and “throughout the pitiful scene, all eyes were on the father’s face, where a father’s anguish was plain to see.” And the Law had no ears.

Brutus sets an insurmountably high standard of rectitude and his story is, in all likelihood, a mythological pastiche of real and imagined events. It is admittedly a ludicrous conceit to compare our demented Lear of a president to the legendary founder of the Roman Republic. Yet President Biden has long encouraged us to credit implicitly the “word of a Biden,” as though he were, like Brutus, of ancient and honorable Julian stock.

He waxes eloquent on the “rule of law” and the “continued battle for the soul of the Nation.” He purports to be the great savior of the Republic against would-be tyrants (like another, yet more famous Brutus). By regularly portraying himself as “more the noble Roman than the Dane,” it is President Biden himself and his many surrogates who have invited comparisons to the stoic statesmen of old.

In the public statement issued alongside the pardon, President Biden is at pains to present himself as Upright Joe from Scranton, couched in the sort of therapeutic pablum popular on the political left. He variously casts about to blame his own Department of Justice, his political opponents in Congress, the perceptive federal judge who saw through Hunter’s flimsy excuse for a plea deal, the President-elect, et al. His rhetorical purpose is, palpably, to divert attention from his repeated denials that he would pardon his own son. The account is tawdry, base, low, and beneath the presidency.

I am not insensible to the feelings of an elderly man who has lost two of his four children to untimely death and whose erstwhile political allies have cruelly exposed him to ridicule. Yet as harsh and exacting as the moral injunction may be — and as inadequate as this author may be to remind him of it — President Biden’s duty was to stare unblinking and stoic at his son’s punishment. This moral intuition is shared not only by conservatives but also by those Biden surrogates who have spent the past year vehemently insisting that Biden would never traduce “our Democracy” by pardoning his son.

Instead, like the Tarquins, President Biden has made of himself a king, with plenty of room for “influence and favour” (not to mention 10 percent for “the Big Guy”). Like a king, he well knows the difference between a political enemy and a friend. By contrast, our Law is “impersonal and inexorable,” deaf to the pleas of the troubled Hunter.

History will not judge President Biden well for this.

C. Wallace DeWitt is a lawyer in Washington DC.