A father’s forgiveness: Power to pardon a ‘benign prerogative’

Adriana E. Ramírez, Tribune News Service

Abraham Lincoln was the first president who controversially used the power of an executive pardon to grant amnesty to a relative — his Confederate sister-in-law, Emilie Todd Helm. Now President Joe Biden recently has offered legal clemency to his tax-evading and fraud-perpetrating son Hunter. “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,” he said in his “executive grant of clemency.” The prosecution was driven by his political opponents. “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.”

What does a presidential pardon really mean? Is the elder Biden’s use of his ability to pardon for personal benefit really that controversial, or is it exactly why pardons exist in the first place — to allow a president to use personal judgment in meting out justice?

In the 74th Federalist Paper, Alexander Hamilton wrote, “It is not to be doubted that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body.” Sometimes, in the Founding Father’s logic, enforcing the law would have worse consequences than forgiving the guilty. George Washington justified his decision to issue the first pardon in 1795 to two men convicted for their parts in Western Pennsylvania’s Whiskey Rebellion, because “The misled have abandoned their errors.”

He explained that “though I shall always think it a sacred duty to exercise with firmness and energy the constitutional powers with which I am vested, yet it appears to me no less consistent with the public good than it is with my personal feelings to mingle in the operations of Government every degree of moderation and tenderness which the national justice, dignity, and safety may permit.”

In Washington’s estimation, absolution would accomplish more than carrying out the letter of the law. A certain degree of “moderation and tenderness” from the executive would balance out the “sacred duty” to enforce rules and regulations as written.

In Lincoln’s case, amnesty was crucial to reforging a nation torn asunder by the Civil War. Lincoln had just used the president’s ability to pardon to issue the Proclamation of Amnesty and Reconstruction in late 1863, which outlined the plan for Reconstruction and offered amnesty to Confederates who swore an oath of allegiance to the Union. Less than a week later, he used its powers to pardon his wife’s sister. Emilie Todd Helm had been married to Confederate Benjamin Helm, who commanded a regiment of Kentuckians known as the Orphan Brigade and died in September 1863 at the Battle of Chickamauga.

Lincoln welcomed his sister-in-law to the White House after she was widowed, leading some prominent generals to criticize him for having “that Rebel in his house.” Lincoln replied, “my wife and I are in the habit of choosing our own guests. We do not need from our friends either advice or assistance in the matter.”

The line between the personal and the political has always been controversial. It was when President Bill Clinton pardoned his younger half-brother Roger for a 1985 cocaine-possession and drug-trafficking conviction.

It was when President Jimmy Carter granted clemency to his brother and when President George H.W. Bush did similarly with his son Neil. It was when President Donald Trump pardoned his daughter’s father-in-law Charles Kushner after he pleaded guilty to 18 federal charges, including tax evasion and witness tampering.

Last week, Trump nominated Kushner to serve as the U.S. ambassador to France, calling him a “tremendous business leader, philanthropist, (and) dealmaker.”

As the White House Historical Association points out, most of the over 22,000 presidential clemency cases granted since 1900 have been “all but anonymous.”

But a president pardoning his son is sure to make headlines, especially given the amount of space Hunter Biden’s actions take up in the contemporary political imagination. In Lincoln’s time, Emilie Todd Helm’s pardon was just as controversial, as she firmly supported the Confederacy, even after Lincoln legally absolved her.

If media accounts from the day are to be believed, her pardon left a bad taste in his supporters’ mouths. And while President Biden risks doing the same in pardoning his son now, he’s simply doing what Lincoln and several other presidents have done. It’s the ugly side of that power — unchallengeable, broad, and unlimited — but one we must tolerate if we are to trust the office of president as outlined in the Constitution.

It doesn’t look or feel good to see Hunter Biden go without facing consequences. But as Hamilton described it, the power to pardon is a “benign prerogative.”