Comparing Trump’s Pardon of Arpaio and Biden’s Pardon of Biden
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 sentence. 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 conviction. The Ninth Circuit affirmed. Thus, at least in the California case, though Hunter was pardoned, under the Arpaio precedent, the conviction will stand. He will remain a convicted felon in the legal sense, even if he is pardoned.
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 wil
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