By Nick Catoggio
Monday, December
02, 2024
Joe Biden’s pardon
of Hunter Biden has landed at an awkward moment for classical liberals,
when many of us are transitioning from caring a lot about civic norms to caring
not at all.
Where you are in that transition will determine how
outraged you feel about the president’s act of clemency. If you haven’t yet
fully shed your idealism about America following Donald Trump’s reelection,
you’re disgusted. If you have, you’re wondering why the Biden family shouldn’t
exploit the country’s regnant postliberalism to serve its own ends.
I must be near the midpoint of the transition because I
see it both ways.
The case for disgust.
“For my entire career I have followed a simple principle:
just tell the American people the truth,” the president said toward the end of
his statement
announcing the pardon. But he didn’t tell us the truth in this matter. He
lied, brazenly and repeatedly.
“He’s always been a liar,” you might say, fairly
enough. But when he and his staff promised
reporters, over
and over (as recently as last month!),
that he wouldn’t pardon Hunter Biden for federal gun and tax crimes, the
president was telling a lie that carried unusual civic weight. By ruling out
clemency for his son, he was vouching for the integrity of the Justice
Department. So great was his faith in the justness of American law enforcement
amid the right’s populist onslaught, it seemed, that he would decline to
overrule its treatment of his own child.
“Our justice system has endured for nearly 250 years, and
it literally is the cornerstone of America,” Biden said
in May of this year of Trump’s conviction in the Stormy Daniels matter. He
trusted America’s institutions and wanted you to do so too.
Six months later, he hasn’t just overruled that same
justice system; in doing so, he made clear that he, er, doesn’t trust it. “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,” Biden said in his statement. “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.”
The vague, pregnant reference there to “they” has a
Trumpian demagogic stench about it. Biden implies elsewhere in his
statement that he’s referring to his “political opponents in Congress” who
spent years investigating Hunter, but it wasn’t House Republicans who indicted
and successfully prosecuted his son. It was his own Justice Department.
And so Joe Biden, alleged institutionalist, will leave
office affirming MAGA suspicions that federal law enforcement has political
motives and can’t be trusted to behave evenhandedly. When he says at one point,
“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,” he sounds like a Republican hack on a CNN panel grousing about the
charges that Jack Smith brought against Trump. You wanted a more populist
Democratic Party? Congratulations—you’ve got it.
One wonders: If it’s true, as Biden claims, that the DOJ
went harder on Hunter than it would have on a defendant guilty of similar
crimes, why did he vow not to pardon his son in the first place? There is
a case to be made that the department “overcorrected”
in charging Hunter too sternly after a federal judge rejected the
sweetheart deal prosecutors had offered him initially, but that case has been
apparent for months. If the president was stewing all along about the alleged
injustice of it all, why did he ever rule out clemency to begin with?
For that matter, if he believes the punishment didn’t fit
the crimes, why grant Hunter a full pardon instead of commuting his sentences
to something more fair? And not just a full pardon, mind you, but one
of the broadest in American history, immunizing the younger Biden from all
crimes charged and uncharged that he might have committed between January 1,
2014, through Sunday night—a period, not coincidentally, encompassing Hunter’s
shady business dealings overseas. Only Richard Nixon has received clemency as
sweeping.
The easy reply to that is that the president was worried
that Trump’s Justice Department would eventually come for his son if he didn’t
receive full immunity from prosecution. That too, though, was something he
could have considered—and presumably did—when he began promising months ago not
to pardon Hunter. What’s changed now, apart from the reality of a MAGA DOJ
having become far more vivid in the last few weeks?
Frankly, I think Trump’s secret police will have bigger
fish to fry than someone like Joe Biden’s son, who no longer has any political
salience. Trump was always more
likely to pardon Hunter himself than to sic Kash Patel on him, in
fact—which is another reason for disgust at Biden’s pardon.
It’s disgusting in its own right, as an act of blatant
nepotism by a selfish man who sabotaged his party and his country this year by prioritizing his own
interests over theirs. But it’s also disgusting as a political gift to his
nemesis on the eve of the federal government being turned into a subsidiary of
Trump Inc. Had Trump eventually pardoned Hunter, he would have done so to
“balance” pardons of figures like the January 6-ers in hopes of legitimizing
the latter. See, he’s not just doing favors for cronies, his supporters would
have said; by granting clemency to Hunter, he’s striking a bipartisan blow
against “politicized justice”!
By pardoning Hunter himself, Joe Biden has done Trump’s
dirty work for him. Now that the sitting president has abused the pardon power
to do favors for a crony, Democrats have no leg to stand on politically when
Trump starts doing the same thing next month.
And of course Biden has confirmed the Trumpian narrative
about “the system” being rigged. Populists believe classical
liberalism is a racket whose norms and institutions pay lip service to
equal treatment for all while catering to the well-connected. The president
placing his lowlife son above the law after two years of Democrats complaining
about Republicans wanting to do the same with their lowlife presidential
nominee is lab-designed to validate those populist prejudices. It’s an
advertisement to Americans to lean into nihilism and stop taking liberal norms
seriously at the very moment, with Trump preparing to take power, that
classical liberals are desperate to rouse the public’s civic consciousness.
“For my friends, everything; for my enemies, the law”:
That’s a maxim that I’ve used repeatedly to describe
postliberal politics, but it describes the Hunter Biden pardon to a T.
There’s no way to digest it without concluding that most of the president’s
chatter about “norms” was an opportunistic exercise in anti-Trump political
branding, not a matter of heartfelt belief.
It’s an egregious betrayal. However much contempt you’re
feeling for him today, it isn’t enough.
On the other hand …
The case for equanimity.
I repeat here the question that I asked
the day after the election of my fellow Never Trumpers: If you’re still
hellbent on saving liberal institutions from postliberalism, who exactly are
you saving them for?
Most Americans don’t care about institutions or norms. In
a political vacuum, where two candidates on the ballot were identical in every
respect except that one was liberal and the other postliberal, maybe the
liberal would win. (Although at this point I wouldn’t bet my life on it.) But
elections aren’t held in vacuums. When the cost of living is up, when the
border is insecure, Americans view liberalism as a luxury, not a necessity.
There’s no clearer takeaway from this year’s result than that.
And that—voters’ indifference to liberalism—is the
optimistic read. The pessimistic one is that they’ve come to actively prefer
postliberals. Lost in the coverage of his coup attempt in late 2020 and early
2021 was the fact that Trump at the time issued some of the
swampiest, most corrupt pardons the country has ever seen. Despite that,
despite the coup plot, despite felony convictions and dozens of outstanding
felony charges, voters didn’t just hand him the presidency last month—they
handed him a plurality of the popular vote.
He’s a “fighter.” He doesn’t let little things like norms
stop him. That’s who most Americans want now.
“A country that reelects Trump (and Kash Patel/Pam Bondi)
is not worthy of Biden sacrificing his son to a sense of justice the country
doesn’t actually believe in,” comedian J-L Cauvin said in
defending Hunter Biden’s pardon. Others have made the same point in stronger language.
It’s fair to call Joe Biden a liar, a hypocrite, and a fair-weather
institutionalist for granting clemency in this case, but if you’re knocking him
for undermining liberal norms, I regret to inform you that those norms were
laid to rest on November 5. There’s no public civic consciousness left to
rouse.
In which case, why shouldn’t the president drop all
pretenses about “norms” and do what he can to protect his son legally from
Trump’s Justice Department? One might ask the same thing about Kamala Harris
conceding the election instead of alleging that the vote was rigged against
her. At what point do we regard Democrats as chumps for not leaning into
the sort of political nihilism that American voters just endorsed?
Again: If liberals are intent on setting a good example,
who is the example supposedly for?
A norm is not a suicide pact, as Jonathan
Last put it on Monday. Norms won’t endure unless both sides—not to mention
the wider electorate—see value in restraining bad behavior. Trump’s side does
not. And the plainer it becomes that there’s no electoral penalty for that,
the harder it’ll be for Democrats not to emulate his worst excesses if they can
gain some advantage by doing so. As much as we might admire Harris morally for
not contesting the election, politics is a field in which someone wins and
someone loses. Based on recent American history, her party would have been more
likely to win the next election if she had been less conscientious last month
about conceding.
“Fine,” you might say, “but Democrats
haven’t gained any political advantage by granting a Trumpy pardon to Hunter
Biden. No one benefits from that except Hunter himself.”
Is that so?
Trump’s not-so-secret weapon has always been the
spectacular volume and diversity of norm-breaking in which he and his henchmen
engage. There’s forever some outlandish tweet being crowded out of the news
cycle by a petty scandal, which is itself being crowded out by reports of
infighting within his team, which is in turn being crowded out by a
hair-raising legal maneuver or power grab or constitutional crisis he’s
contemplating. Americans have grown desensitized to all of it. There’s no more
marginal outrage to be felt in each new excess.
As a case in point, on Saturday Trump named Charles
Kushner as his next ambassador to France. That’s a triple
whammy of norm-busting in one swoop: Kushner is a nepotist (he’s Jared
Kushner’s father), was pardoned by Trump in his first term for various federal
crimes, and has no
apparent qualifications for a diplomatic post with a major ally. But his
nomination isn’t even close to being the
sleaziest Trump made this past weekend. Kushner wasn’t even the only in-law given a
job, in fact. Americans will barely notice his appointment amid the daily
Trump din.
But when Joe Biden, establishment dinosaur and head of
the “norms” party, turns around and hands a pardon to his crooked son, that
feels like a real scandal. Americans aren’t desensitized to the
president’s corruption; look no further than bad-faith Trump apologists like Scott
Jennings, who had the nerve to sanctimoniously call for
resignations over an act of executive sleaze. Biden’s legacy, and possibly
his already low approval rating, will take a serious hit from this.
All of which explains why it’s actually silly to worry
about Hunter’s pardon providing political “cover” for Trump’s forthcoming
corrupt grants of clemency. No matter what Joe Biden did or didn’t do, Trump
was always going to behave corruptly in abusing his pardon power and Americans
were always going to not care. They know what they got when they brought the
Trump circus back to town. When he frees hundreds of January 6 rioters next
month, I’ll be surprised if his job approval drops so much as a point, if it
drops at all.
The Hunter pardon is, perhaps, a small step toward
conditioning Americans to feel as numb to Democratic corruption as they feel
about Trump’s. There’s some cynical political benefit to the wider party in
that, no?
Ending the pardon power.
The same goes for the cries heard on Sunday night after
Biden announced clemency for his son that it’s time for a constitutional
amendment to
limit the pardon power.
That advice is well taken: Thanks to the
Supreme Court, on January 20 Trump will gain the authority to immunize
executive branch officers for whatever federal crimes they commit on his behalf
and to be completely immune from criminal prosecution himself in doing so. In a
virtuous country, the pardon power is a way for the president to show mercy to
repentant convicts. In a country as rotten as ours, it’s a license for the
president to break the law with impunity.
I would get rid of the pardon power altogether if I
could, as we no longer elect people fit to wield it responsibly. But America’s
not going to get rid of it or even to reform it; Republican voters are too
amoral themselves to ever support a constitutional amendment that would limit
Trump’s power to place his henchmen above the law. And, in a way, I can’t blame
them. If they get to abuse the pardon power willy-nilly to free assorted Trump
cronies like Paul Manafort and miscreants like the January 6 rioters while
Democrats face an outcry when they use it occasionally to spring a Hunter Biden
or a Marc
Rich, that’s a good deal for the GOP. It means that the norm against
corrupt pardons operates mostly, although not entirely, to restrain the left.
The only way in theory to get those Republican voters to
see the virtue of limiting the pardon power is for Democratic presidents to
enrage them by abusing it on a Trumpian scale. Again, the Hunter pardon is a
small step in that direction. If the outrage over it ends up generating
bipartisan introspection over executive clemency power, it will have achieved
something civically useful.
But it probably won’t, right? In all likelihood, a
campaign of ever more corrupt pardons by Joe Biden over the final seven weeks
of his term would, rather than inspire bipartisan disgust, generate exactly the
sort of desensitization to corruption that I described earlier. Instead of
rallying around a constitutional amendment to limit presidential clemency, the
two parties will grow inured to them and come to expect corrupt pardons as just
another perk of winning the White House, like getting to nominate federal
judges.
Having leaned as far into political nihilism as we
already have, I don’t think realistically there’s a way to lean out. Both sides
will start leaning in further until the country falls over.
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