President Biden’s controversial and extreme pardon of his black sheep son did more than call into (further) question his honesty, integrity and trustworthiness. It also highlighted another ugly facet of his failed Presidency.

The power to grant clemency is enshrined in the Constitution is an important failsafe device against legal injustice.  When judges or juries convict an innocent person or impose an unjust sentence, often after unethical prosecutorial conduct, Presidents and governors, in the case of state crimes, possess the  irreversible power to either commute a sentence to issue a pardon, which wipes the slate clean and removes the conviction altogether. Sure the power, like all powers, can be abused, has been abused and will be abused, but it is still necessary. However, President Biden has used that power appropriately less frequently than any modern President, though our criminal laws have multiplied.

“Mr. Biden has granted 25 pardons and commuted the sentences of 131 other people, according to the most recent Justice Department data,” wrote law professors Rachel E. Barkow and Mark Osler in a September 2024 editorial in The New York Times. “That is a mere 1.4 percent of the petitions he has received, based on our analysis…Mr. Biden has issued fewer clemency grants so far than the 238—144 pardons and 94 commutations—issued by Mr. Trump during his first administration,” the Times’ Kenneth Vogel noted this week.

True, there is still time for Biden to do some good with his pardon and clemency powers, but he should have been using them all along. Biden is extending a pattern in which Presidents increasingly eschew the pardon power. “Between 1932 and 1988 the percentage of total cases acted on by the president that had been sent to him with the Justice Department’s blessing averaged around 30%,”  a 2015 piece by the Collateral Consequences Resource Center revealed. “The percentage of cases sent forward with a favorable recommendation dropped to single digits beginning with the presidency of George H.W. Bush, and it has dropped even lower in the past 15 years…The absolute numbers also tell a tale: President [Barack] Obama…granted more sentence commutations than any president since Richard Nixon, but fewer full pardons than any president since John Adams.”

Ah yes, Obama. He was a notable hypocrite on the matter of pardons.

Up until 2015, Prof. P.S. Ruckman wrote the Pardon Power Blog (Yes, like great restaurants and great people, great blogs die) and constantly made the case for Presidents using the P.P., as its friends call it, to mitigate flaws in the justice system

I wrote this about President Bush’s stinginess with the pardon power in 2008:

The Founding Fathers were unapologetic about retaining this traditional kingly prerogative, because they recognized both the necessity of aggressive criminal prosecution and recognized that such a system would spawn its share of  [unjust prosecutions]. Alexander Hamilton wrote, “The criminal code of every country partakes so much of necessary severity that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”…[President Bush}] has granted only three petitions for commutation out of more than 5,000 received. That’s not being “tough on crime;” that is simply avoiding the opportunity to do good when one has the power to do it. The justice system, like any justice system, doesn’t always achieve a just result, and people can suffer terribly. A president, like a governor, has an ethical obligation to use the power of pardon and clemency. Doing the right thing in this case… requires neither sacrifice, political risk nor great effort for the President. It simply requires action. Inaction when action is necessary to do unequivocal good is no better than affirmatively unethical conduct.”

Ruckman wrote (I would link to the blog, but it is gone with the wind):

“…if the media were to inquire about the “typical” pardon half as much as they do the “controversial” ones, they would learn (and educate the American public to) the fact that the typical act of clemency does not spring anyone from prison or overturn the judgment of judges and juries at all! In fact, the typical act of clemency simply restores the civil rights of individuals who have served their time, waited a prescribed period before applying for clemency and have become productive members of society. Which is to say, their pardon was not really much of anything like a “gift.” They earned it. Believe it, dear reader, when a person gets a pardon out of the DOJ in the last 4 decades – it is earned!”…

[D]umping a handful of pardons at Christmas is a very sorry way to demonstrate that [the President] (or the Department of Justice) has anything like a serious clemency program. Instead, it clearly sends the signal that the justice that can only be wrought by acts of mercy is a mere afterthought, inappropriate for the other 11 months of the year, when you see yourself as taking care of “important” stuff….Christmastime pardons send a very wrongheaded – if not outright dangerous – signal to the American people that pardons are something like Christmas gifts, passed out during the holiday season, to those who actually may, or may not deserve them. Which is to say, it is no wonder the DOJ and OPA are so shy about pardons. The very timing of them implies their work re the assessment of pardon applications is a joke.”

Ruckman’s rebuke of Obama applies to all of his successors:

To date, your clemency “policy” deserves nothing but scorn, slight regard and contempt. Like, most presidents before you, you should make pardons (and justice) a year-long concern, and insist that it be the year-long concern of the bureaucrats that are supposed to be working on applications all year long. When there is little evidence that they have more interest in clemency than you, they should be summarily removed, pronto.”

Biden had an opportunity, indeed still has one, to use his pardon power to remove festering wounds to the public’s respect for the rule of law. He could follow up his pardon of Hunter with other pardons that could wipe the slate clean and give the nation a fighting chance to heal its dangerous divisions. Biden’s the lamest of lame ducks. His legacy is pretty much in the crapper already: he might as well be bold. He should pardon or issue clemency to the J-6 rioters before Trump does. He should pardon Donald Trump like Ford pardoned Nixon, and urge the state governors whose prosecutor have been waging lawfare against the President-Elect to do the same. He should go ahead and pardon the cop who shot Ashlee Babbitt on January 6 as well.

Biden should step in and pressure Gov. Hochul of New York to use her pardon power stop the Daniel Penny trial. What the hell, maybe he should pardon crooked ex-Democratic Senator Menendez too, as a token of thanks for his long career in public service before he got greedy. This is truly unimaginable, but it would be brave and appropriate if Biden used his office to get Gov. Tim Walz, the Knucklehead,  to use his clemency power to restore a bit of justice to the four police officers convicted for the death of George Floyd, yes, even Derek Chauvin. They couldn’t get a fair trial and didn’t.

If even some of these pardons issued from the White House, Hunter Biden’s undeserved escape from justice will have resulted in more good than not.