With pardon of son, Biden shows a way forward for Democrats

I don’t know who needs to hear this, but Donald Trump is going to abuse the power of presidential pardons no matter what.

That Joe Biden pardoned his son is beside the point.

Trump campaigned as a felon and insurrectionist. A majority of voters said that’s jim-dandy. They didn’t care about norms and institutions, much less the rule of law. Forgive me, but I don’t think Biden should sacrifice his son in defense of values that most voters don’t respect.

Yes, I know. The news is being reported as a broken promise. Biden had said repeatedly that he wouldn’t pardon his son on federal gun and tax charges. But now that Hunter Biden is on the cusp of sentencing, his dad changed his mind, at the very least undermining his “legacy” and at the very most letting the president-elect off the moral hook.

I’m not sure what else Trump has to do to convince people that he has no intention of honoring any moral standard, much less the moral standards that usually go into presidential pardons. On the one hand, he’s already pardoned terrible people, including traitors, cheats and liars like Roger Stone, to buy their silence. On the other hand, he has said he would “consider” pardoning the insurgents who sacked the US Capitol in his name – which is code for “I’m totally going to do it.”

The conventional wisdom is that Trump is now justified in doing a bad thing because Biden did a bad thing – and how that’s Biden’s fault. Aside from Trump’s choices being erased from the CV, there’s the fact that a lying, thieving, philandering sadist like Trump never stopped short of doing any bad thing in the absence of a precedent for doing it.

The conventional wisdom also takes the pardon out of context, which is convenient for those who want to tell a story about a political scandal. That context is, sorry to repeat myself, Donald Trump.

First, he nominated a categorically lawless man to be the country’s top lawman. Matt Gaetz is still an alleged statutory rapist and sex trafficker even though he’s out of the running for attorney general. Second, he nominated a scammer, conspiracist and toady to be the next director of the FBI. Kash Patel has explained many times over what he’d do with such power and little of it is legal or constitutional.

Prior to Trump’s victory, I imagine that Biden intended to keep his promise. Hunter Biden was convicted by a jury of his peers, fair and square, though rarely has anyone faced such charges. If Kamala Harris had won the election, Biden could have faith in the legal system. His son was guilty. He would serve his time. That would be the end of it.

But Trump won, and now that he has nominated a bootlicker who can’t possibly be trusted to administer justice impartially, I’d imagine Biden lost faith in the legal system, at least while it’s under the stewardship of a criminal president. It’s a “fact” in Trumpland that convicting Hunter Biden is only the start of bringing down the “Biden crime family.” Pardoning him might mitigate the future abuses of power.

Mitigate but not stop. The Republican chairman of the House Oversight Committee, James Comer, is already talking about launching new inquiries that would piggyback on his panel’s long-standing investigation of Hunter Biden in the hope of ensnaring, you guessed it, his dad. The collapse of morality and lawfulness is so bad that I can’t help thinking Biden might have considered pardoning himself, too.

Is Joe Biden a hypocrite? Sure – if that’s how limited your thinking is. It’s fair to say he said one thing and did another. But don’t mistake hypocrisy with moral equivalence. No one in Biden’s orbit has run afoul of the law. Scores of people in Trump’s orbit have. That’s not because Biden went easy on his people. His own administration prosecuted his own son. The difference is that Biden is a lawful president while Trump was a criminal president and is now a criminal president-elect.

If we can get beyond thinking about hypocrisy, we might see Hunter Biden’s pardon as the kind of thing that the Democrats need to do with political power if and when they have it again. This election revealed that there’s no prize for being the party of norms and institutions – no reward for being a party that acts like it’s above politics. No one believes it or no one cares or worse: Acting like you’re above politics alienates vulnerable people who need the Democrats to act politically.

Fact is, Trump and the Republicans have captured so many of the norms and institutions of this country that continuing to defend them as the Democrats are wont to do actually advances rightwing goals. What’s the point of defending “the rule of law” when “the rule of law” will soon demand the persecution of enemies, real and imagined? The rounding up of undocumented workers? The jailing of journalists?

Over the next four years, and perhaps longer, “the rule of law” is going to be so heavily “right-coded,” to use Stephen Robinson’s useful coinage, that the Democrats will work against their interests, goals and people by trying to maintain an impartial understanding of the term.

Norms and institutions under GOP control are already repressing civil society and the individual’s freedom of speech, freedom of worship, freedom of movement and bodily autonomy. That’s going to get worse under the administration of a lawless and legally immune president.

Democrats who keep yakking about the people’s faith in the justice system, as Colorado Senator Michael Bennet did yesterday, might sound imminently reasonable but also out of touch with reality.

Americans already lost faith in the justice system, because Trump maligned it for years but also because the Biden administration did not prosecute him immediately after the J6 insurrection. Trump is now above the law due to the fear of holding him criminally accountable – due to the Democratic preference for seeming to be above politics.

If this election taught us anything, I hope it’s that Democrats can’t be trusted to use the power they are given by voters to achieve their goals. They hold back in the mistaken belief that voters will reward such restraint. This time no one believed it or no one cared or worse: restraint alienated Democratic voters. So the party was punished.

Biden is now using the power he has to save his son from injustice.

It’s too late to do anything about Trump.

The rest of us will live with that.