A Special Counsel Turns on the President

This editorial comes courtesy of, in the Sun, the only newspaper of which we’re aware that sided with President Biden for pardoning his son. Such a possibility was anticipated by the Framers. In 74 Federalist Hamilton took New Yorkers through the logic of the pardon power going to one man. Even though, Hamilton warned, “the supposition of the connivance of the Chief Magistrate” — i.e., the President — “ought not to be entirely excluded.”Once one grasps the full profundity of 74 Federalist, it’s hard to abide the bellyaching of the special counsel, David Weiss, in his final report. He knew all too well when he commenced his prosecution that the individual who held the prosecutorial power would not have gone after his own son. He also knew that the president was likely to pardon his son once the election was over. Yet he proceeded to put Hunter Biden in the dock on gun and tax charges.Mr. Weiss knows this, and, as we read his final report, we don’t think he was particularly upset with the president pardoning his son. What upset him was the president criticizing the Justice Department. Then again, too, we still remember the geysers of outrage when, say, President Clinton pardoned Marc Rich and Pincus Green. The fact is that presidential pardons are either often, or always, at the expense of the Justice Department. What we editorialized for when Mr. Biden père lifted the yoke of unfortunate guilt off his son’s shoulders was not that the president used the pardon power too broadly but that he used it too narrowly. We wanted him to pardon, in Donald Trump, his predecessor and all of Trump’s family and throw in Secretary Clinton, too. That would have put him in a position to say to America: You want unity? You want normalcy? Then these fights are behind us.Such acts of presidential mercy were precisely what the Framers had in mind when they made the pardon power one of the least constrained in the Constitution. As Hamilton put it, “Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.” It was the future Treasury Secretary’s wisdom to note how the pardon power could be a useful corrective against harsh sentences.“The criminal code of every country partakes so much of necessary severity,” he added, “that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” On that head, President Carter’s death was a reminder that he was one of the great pardoners. He granted a full pardon to tens of thousands draft dodgers of the Vietnam War era, helping the nation recover from the war.Carter followed in the footsteps of Presidents Lincoln and Andrew Johnson, who offered amnesty to the rebels to help, as the 16th president put it, “bind up the nation’s wounds” after the Civil War. Washington pardoned the leaders of the Whiskey rebellion, noting “a sacred duty” to “mingle in the operations of Government every degree of moderation and tenderness which the national justice, dignity, and safety may permit.”It’s not our intention here to make light of the misdeeds of Hunter Biden or his father — or the Whiskey rebels. They’re serious. Our intention is to mark the constitutional illogic of a prosecutor — no matter how “special” — launching a prosecution that he knows full-well the president opposes. If Americans had wanted, they could have removed the president from office and then prosecuted him ‘til the cows come home. They didn’t have the votes.In the event, Mr. Biden’s pardon of his son offered a way to close the door on a divisive period without allowing rancor and retribution to fester. One can only have imagined how Mr. Biden’s — and the Democrats’ — prospects might have differed had such a merciful approach been adopted toward President Trump in lieu of the “lawfare” that was waged in the courts in recent years, with little to show for it other than the alkaline of bile.

A Special Counsel Turns on the President

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