The Week Ahead

December 1, 2024

This week, two important legal developments:

• First, there was the Sunday night announcement of President Biden’s decision to pardon his son Hunter. The cases against him are over.

• Second, the Supreme Court will hear oral argument this week in U.S. v. Skremetti, a case involving the right of transgender minors to receive gender affirming medical care.

Hunter Biden

Instead of two sentencing hearings scheduled for later this month, Hunter Biden got a pardon. People have reacted strongly. On the one hand, people are concerned about a president issuing a pardon for his child, especially because Hunter Biden pled guilty to the tax case against him. On the other hand, people have expressed the belief the Joe Biden did the right thing and that the family has endured enough.

I come down closer to the latter side of that equation. The pardon process is supposed to be used to do justice. And this is justice. Hunter Biden would likely not have been charged on these facts if he was anyone else.

The gun charge is possession of a firearm by someone who is a user of or addicted to illegal drugs. Absent aggravating facts, like evidence the person is a danger to the community, this type of charge is not usually brought. It’s easy to understand why. Almost 10% of Americans struggle with drug addiction, and many more use drugs. Prosecuting every one of them would force the Justice Department to abandon far more serious cases. Hunter Biden possessed a gun briefly and never used it in connection with violent crime. He’s been in recovery for more than five years. It’s not the kind of case that gets charged if your name is John Smith.

The tax case involves amounts Hunter Biden acknowledged he owed but said he didn’t pay while he was in the grips of addiction. He pled guilty to the charges. While people who fail to pay taxes are frequently charged under the same provision used for Hunter Biden, the argument here is that given the extenuating circumstance of his addiction and his repayment of amounts owed plus interest and penalties, the prosecution was unwarranted. Hunter Biden’s lawyers argued persuasively that similarly situated cases were handled with administrative or civil penalties, not criminal prosecution. Again, the Justice Department doesn’t have unlimited resources, and they are reserved for the most serious cases—tax cheats who execute complicated schemes, cheat the public, and refuse to pay the amounts they owe. John Smith probably wouldn’t have been charged like Hunter Biden was.

No one loves the optics of a president pardoning his child, especially after he said he wouldn’t. But President Biden was in between the proverbial rock and a hard place, with sentencings in both the gun and the tax cases coming up later this month and the prospect of his son being at the mercy of Trump’s Justice Department after he had already been targeted. The Constitution gives the president a largely unrestricted pardon power. Article II, Section 2, Clause 1 provides that:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Joe Biden exercised that power; he did not abuse it. He did not accept a bribe in exchange for a pardon. He has not tried to pardon himself. He issued a pardon he was entitled to give. But it is a departure for this president, who has been so careful to avoid even the appearance of impropriety and who had said he would not pardon his son, to reverse course. That is reason to pause and reflect on this pardon, but Biden seems to have taken the least bad option, given the situation.

Virtually every president issues pardons that are questioned. Bill Clinton pardoned his brother, Roger, after he completed a sentence for trafficking cocaine. Donald Trump famously pardoned or granted clemency to a number of people, including his son-in-law’s father and future ambassador to France, Charles Kushner, Roger Stone, who was accused of interfering in an investigation that involved Trump himself, Paul Manfort, Trump’s former campaign manager, and former General Michael Flynn. Like the younger Biden, Flynn pled guilty to the charges before he received a pardon.

But it’s not a particularly productive exercise to compare the Hunter Biden pardon to those that have and will be issued by Donald Trump. Joe Biden operates within the law. Donald Trump has explicitly said he will use the criminal justice system for revenge. That has to have weighed heavily on President Biden’s mind, knowing that his son would be in the control of a man who has used him to try and score political points for years. Trump could have ordered more charges against Hunter Biden absent the pardon, or even made his life in federal prison extremely difficult—he would have been imprisoned during a Trump Administration in facilities under Trump’s control. President Biden’s decision is justifiable in those circumstances.

In his statement accompanying the pardon, President Biden wrote, “I have watched my son being selectively, and unfairly, prosecuted. Without aggravating factors like use in a crime, multiple purchases, or buying a weapon as a straw purchaser, people are almost never brought to trial on felony charges solely for how they filled out a gun form. Those who were late paying their taxes because of serious addictions, but paid them back subsequently with interest and penalties, are typically given non-criminal resolutions. It is clear that Hunter was treated differently.” All of that is spot on.

He also writes, “No reasonable person who looks at the facts of Hunter’s cases can reach any other conclusion than Hunter was singled out only because he is my son – and that is wrong. There has been an effort to break Hunter – who has been five and a half years sober, even in the face of unrelenting attacks and selective prosecution. In trying to break Hunter, they’ve tried to break me – and there’s no reason to believe it will stop here. Enough is enough.”

With his typical candor, Biden writes that he believes in telling the American people the truth because he believes they are fair-minded. He writes, “Here’s the truth: I believe in the justice system, but as I have wrestled with this, I also believe raw politics has infected this process and it led to a miscarriage of justice…I hope Americans will understand why a father and a President would come to this decision.” I do understand, particularly since, in my judgment, these cases would not have been indicted absent a political motivation to attack a political rival’s son. Look at how quickly MAGA dropped its focus on Hunter Biden once Joe Biden left the ticket.

Just because the trial judges didn’t find selective/vindictive prosecution to the high legal standard required before they can dismiss a case when Hunter Biden’s attorney asked them to do so doesn’t mean the prosecutions weren’t actually tainted by political animus. My office would not have brought these charges, and other former federal prosecutors feel the same way. Former Attorney General Eric Holder tweeted, “Here’s the reality. No US Atty would have charged this case given the underlying facts.” Barb McQuade posted on BlueSky, “Pardon of Hunter Biden is in the best interests of justice. Based on the facts, most federal prosecutors would have declined to charge him.” Former Delaware U.S. Attorney Charlie Oberley, who joined us for “Five Questions” in September 2023 when Hunter Biden’s plea deal fell apart in court said he would not have indicted the case.

There is certain to be political fallout. Trump will use the pardon to justify anything he does down the road. But the reality is, whatever he is going to do—blanket pardons for January 6 defendants and perhaps every single person in federal prison anywhere who is a supporter of his—he would have done anyhow. Charges of politics and corruption will fly for the next few days. But the reality is that Biden lawfully exercised the powers given to him by the Constitution and whether people approve or not, he was within his rights to do so.

Transgender Rights

On Wednesday, the Supreme Court will hear oral argument in a case involving a 2023 Tennessee law that bans gender-affirming care, like puberty blockers and hormone therapy, for transgender patients who are minors. The government intervened in the case and is a party along with three transgender teens and their parents.

A federal judge agreed that the law violated their constitutional rights to equal protection under the law because similar medical treatment is available for minors who are gender conforming. The Court of Appeals reversed, and the plaintiffs and the government petitioned the Supreme Court to hear the case. The case most likely won’t be decided until after the change in administrations. A Trump Justice Department could reverse course once that happens and withdraw its support for the teens. Twenty-five other Republican dominated states have similar laws.

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As we head into the week, it’s clear we’ll be hearing more about Trump’s nominees to key positions while the Supreme Court gets back to work—there are seven cases in addition to Skrmetti on the docket. The Kash Patel nomination continues to provoke outrage, but Tulsi Gabbard (DNI), Pete Hegseth (DOD), Robert Kennedy Jr. (HHS), and others are so far beyond the pale that they too must come under scrutiny. But perhaps most of all, this week, we’ll have to deal with the “newspeak” Trump employs (a term from George Orwell’s 1984), his effort to project his own anti-democratic ambitions onto others. In the wake of Hunter Biden’s pardon, Trump and his party will claim Biden corrupted the Justice Department. Watch carefully and believe the evidence of your own eyes and ears, and encourage others around you to do the same, rather than accepting Trump’s claims at face value.

We’re in this together,

Joyce