The Ethical Context for President Biden’s Pardon of His Son

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 Anyone paying attention the past week has noticed the bi-partisan barrage of criticism to which President Joe Biden has been subjected for exercising the powers of his office to pardon his son.

He has, of course, been lambasted as a hypocrite and liar, especially by Republicans, having previously claimed that he would not pardon his son and would respect the judicial process.

Some Democrats, like Colorado Governor Jared Polis, have expressed disappointment in Biden. Polis accused Biden of putting family over country. Other voices have worried the pardon will erode faith in the rule of law and commitment to the judicial process and also somehow legitimate all of the law-breaking and self-serving abuses of power in which Trump has engaged, also giving him license to engage in more claiming everyone does it, that it’s standard practice.  Certainly, Trump’s political modus operandi has been to re-shape, or more appropriately to distort, norms and standard practices to undermine the practices and processes that provide the checks and balances that curb centralizations of power in personal whims that threaten to erode the rule of law.

Looking at Biden’s pardon from an ethical perspective, however, I believe adds some necessary nuance to the controversy over this act which is quite necessary for addressing the very real and severe political threats of the moment.

So what do I mean when I talk about the “ethical context” for Biden’s decision? Well, let’s start here. Often when people talk about ethics, they tend to refer to a code of principles or set of rules that ought to govern our behaviors, choices, and human interactions to help create the most just and morally-centered society.

But to behave ethically is not simply to adhere unwaveringly and uncritically to a set of rules or principles.  That would make ethics or ethical behavior pretty simple, and we would never use the phrase “ethical reasoning” because critical thinking or reasoning would not even be part of the process. Rather, ethics would be something like a machine. When we confront an ethical dilemma, we simply run it through the ethical sausage grinder and get the answer, the sausage, on the other end; and then we know what to do. Ethics, rather, far from following a rigid set of rules, involves making critical evaluations and engaging in acts of careful and nuanced judgment.

So, ethics involves humans making decisions through a careful process of thinking, reasoning, and evaluation in specific contexts.

Here’s a basic example. We can probably for the most part agree that murder is wrong, as a general rule or principle. But then put it in context. What if you were protecting your child’s life from a deadly assailant, or your own? The ethics guiding behavior quickly become somewhat more complex, no? And surely you can think of your own examples. Stealing as a general rule may be wrong, but what if you’re engaged in some kind of Robin Hood act or need to feed your starving family, or . . . . something else.  You get the point: general ethical principles are perhaps by nature abstract and can’t possibly account for the many nuanced contexts in which we find ourselves making decisions about our actions.

So, let’s look at Biden’s pardon of his son Hunter in the context in which he made this decision.

One key element of the contextual reality in which Biden pardoned his son was that Donald Trump not only has a powerful historical track record of eschewing and defying the rule of law but also has strenuously promised to weaponize the nation’s legal apparatus to seek retribution against his political enemies, meaning those who attempted to hold him accountable for presumably illegal acts (such as Special Counsel Jack Smith), journalists who asked critical questions of him or wrote critical material, or basically anyone who has ever disagreed with him, critiqued him, or impeded his will.

In this context, is it wrong to protect any citizen, even if it’s one’s son, from a prospective abuse of power at the hands of one who has promised to do so?

Already, according to many legal experts, including former Attorney General Eric Holder, Hunter Biden’s case had already been politicized in that Hunter had been targeted for unusual treatment because he is the president’s son.  

So, the ethical task for President Biden in this context is to counter this abnormal politicization, not to act like everything is normal and go about business as unusual. Trump, as we say far too often because it’s sadly far too true, has created many unprecedented conditions and situations.

So often Democrats are accused of bringing a knife to a gun fight when they wrangle with Republicans and basically rolling over because Republicans play fast and loose with rules while Democrats adhere respectfully to the spirit rather than letters of the law.  Just remember Senate Majority Leader Mitch McConnell refusing to hold hearings for and bring President Obama’s Supreme Court nomination of Merrick Garland to a vote based on a constitutional technicality. Obama rolled over, as did all Democrats, out of extreme deference to that technicality. And look where we are with a Supreme Court that now wants to take back, that is taking back, hard-won civil and human rights.

In this instance, in pardoning his son, Biden is actually bringing the gun, the authority his office affords him, to this gun fight. He is challenging the politicization, the weaponization, of the justice system.

Would it be ethical to sit by while American citizens get targeted for retribution by an egomaniacal and felonious leader with no regard for the rule of the law?

Should he say, Well, I know this next guy Trump is going to bulldoze and abuse our system to inflict retribution on American citizens regardless of standard legal precedents and practices, but it would be wrong of me to use the executive power I possess to act to prevent that and uphold the rule of law against violation, abuse, and distortion at the hands of an actor with a rich history of bad behavior–like seeking to overturn an election, implementing a fake elector scheme, and mobilizing an insurrectionist assault on the Capitol?

And we need to keep in mind that the pardon of Hunter was just Biden’s first act. Reports indicate he is seeking to identify others he believes Trump will have in his crosshairs as targets of his unjust retribution campaign. Biden’s actions aren’t just about Hunter; they are about protecting Americans from violent and inhumane transgressions of the rule of law.Biden is simply responding within the bounds of the authority that adheres in his office to the aberrant and abnormal behaviors of Trump who is distorting and, frankly, trammeling basic norms and arguably the rule of law itself, trying to inflict terror on Americans.

Governor Polis has suggested that Biden is putting family over country. His critique for me invokes Sophocles’ ancient Greek tragedy Antigone.  After her uncle Creon has come to power in Thebes through civil war, after King Oedidpus’ own tragic departure, Antigone seeks to bury her brother Polynices, Creon’s political enemy, against her uncle’s wishes and political edict. Typical readings, or misreadings, of the tragedy frame the conflict as one between Antigone’s loyalties to her family and to her country. In many ways, Antigone is just trying to fulfill the law and honor cultural norms in burying her brother against Creon’s mandates that are more personal and tyrannical rather than a matter of the rule of law.

In Biden’s case, when we put this pardon in context, he isn’t putting family over country. He is in fact protecting our country and the rule of law against Trump who has promised to abuse–to weaponize–the resources of the U.S. government against the American people, including Hunter Biden. Protecting our country entails protecting a family member, and vice-versa.

Trump has already eroded the rule of law and the integrity of our judicial processes. We must recognize this reality as the ethical context in which Biden is acting and making decisions. Not pardoning Hunter and seeking proactively to pardon others would be a dereliction of his duty to fight against this erosion of the rule of law and to protect Americans from Trump’s promised abuses of the rule of law to inflict his vengeance on those he perceives to be political enemies.

And when put in ethical context, it’s hard to see Biden’s pardon as hypocritical. Those who engage in ethical reasoning and critical thinking assess situations and information. If new information becomes available or if the situation changes (like Trump getting elected), then critical thinkers re-examine and re-assess situations; they don’t adhere rigidly and uncritically to past positions. Just think about that for two seconds; it’s ridiculous to think people should hold fast to positions when the world changes or when we get new information.

It’s great to see this fighting spirit and this continued resistance to Trump’s efforts to dismantle American institutions.  It would be great see other Democrats rally behind this defense of democratic institutions and the rule of law and bring their ethical gun to the fight. It is surely high noon, and the American corral is not OK.