Hunter Biden Below the Law

The right move for the president is to pardon his son and the rest of those targeted by special prosecutors, including President Trump.

Anna Moneymaker/Getty Images
Hunter Biden, son of President Biden, joined by his wife Melissa Cohen Biden, on June 3, 2024 at Wilmington, Delaware. Anna Moneymaker/Getty Images

Hunter Biden’s conviction in his gun case strikes us as a tragic development for him personally and the Constitution generally. If President Biden believes his son is innocent, he should have, in our view, ended the prosecution as the head of the unitary executive branch, in which all power is vested in the president. That’s despite the use of a special prosecutor who unleashed an aggressive prosecution that even Senator Graham has said was uncalled for. 

We carry no particular brief for the president’s son, but it’s not the first time we’ve defended a Democrat against special prosecutors. Yet Mr. Graham, himself a former prosecutor, has said “I don’t think the average American would have been charged with the gun thing.” Mr. Graham’s observation makes sense in part because the gun in question wasn’t — as far as has been reported — used in a crime, or even, to our knowledge, ever fired.

“I don’t see any good coming from that,” Mr. Graham adds. The president’s son was found guilty on three counts — lying to a gun dealer, making a false statement on the application he used to buy the gun, and owning the gun illegally. The point Mr. Graham seems to be making is that these crimes would not necessarily rise to the level of a federal prosecution were it not for the fact that Hunter Biden is the president’s son. 

It speaks to one of the “greatest difficulties” of a prosecutor, as FDR’s Attorney General, Robert Jackson put it in 1940. “No prosecutor can even investigate all of the cases in which he receives complaints,” Jackson added. Hence the need “to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.” Were those criteria met in the case of Hunter Biden?

Concerns over politicized prosecutions certainly resonate in the aftermath of President Trump’s conviction in a case that raised similar doubts over the import of the charges. In both cases, it is difficult to avoid a sense of prosecutors failing to heed Jackson’s warning that a lawyer for the state’s most dangerous temptation is to “pick people that he thinks he should get, rather than pick cases that need to be prosecuted.”

The juxtaposition of the two cases — Donald Trump’s and Hunter Biden’s, both resulting in felony convictions — presents what the Times calls “glaring political contradictions.” As the Times put it, the “claim that the Biden Justice Department is running a political persecution of Mr. Trump” is “undermined by the department’s prosecution of the president’s son.” So, “Republicans have decided to say as little as possible.”

For Mr. Graham’s part, he distinguishes between the gun charges against Hunter Biden and a second set of federal charges, related to tax evasion, which are pending at Los Angeles. “I think any average American who’s done their taxes like Hunter Biden would have probably faced prosecution,” Mr. Graham says. These columns have also cheered on Judge Maryellen Noreika when she scrutinized the generous plea deal prosecutors initially struck with the first son.

That pact would have let Biden fils walk away from any gun or tax charges with a slap on the wrist. Was this a missed opportunity to probe the international business dealings that enriched the first son, as well as the potential role played by Biden père in the enterprise? Questions linger over the millions paid to the Bidens “from foreign entities in Russia, Communist China, Ukraine, Kazakhstan, and Romania,” the House Oversight Committee says. 

The prosecution at Los Angeles could well end up shedding light on these dealings. Yet both cases bring the president’s pardon power to the forefront. Moreover, it calls to mind Jackson’s advice to prosecutors. “Your positions are of such independence and importance,” he said, that “while you are being diligent, strict, and vigorous in law enforcement,” he also urged them to keep in mind that “you can also afford to be just.”

The New York Sun

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