ARI SHAPIRO, HOST:
Hunter Biden no longer has to worry about going to prison because his father, President Joe Biden, pardoned him with just weeks left in his presidency. This was after Joe Biden repeatedly promised not to pardon his son. Hunter was convicted in June on federal gun charges. He lied about his addiction to crack cocaine when he purchased a gun. And in a separate case, he pleaded guilty in September for failing to pay more than a million dollars in federal taxes. The younger Biden was due to be sentenced in both cases later this month. Rachel Barkow is a New York University law professor and was a member of the U.S. Sentencing Commission, and she's here to talk more about this pardon and how it could impact future presidential pardons. Professor Barkow, good to have you here.
RACHEL BARKOW: Thanks for having me.
SHAPIRO: Other presidents from Bill Clinton to Donald Trump have pardoned allies, donors, even family members. Does this strike you as different from those?
BARKOW: I think it's different in that President Biden had announced in advance that he wasn't going to do it. And so, you know, one issue for him is that he made a pledge that he wasn't going to do it, and then he went back on that pledge.
SHAPIRO: It also looks like the language in this pardon is very, very sweeping. It protects Hunter Biden from ever facing federal charges for crimes that he could have committed over the last decade. How different is that from typical pardons?
BARKOW: That is different, although it does meet the concern that President Biden indicated that he had with respect to Hunter Biden, which is that he was concerned that he was being singled out and selectively prosecuted in an effort basically to get at President Biden himself. And so if that's your concern, the worry would be that the next administration, for example, could be going on a witch hunt for any number of possible things, and this kind of blanket pardon would avoid the ability for them to do that. Whereas, you know, if he tried to specify just this specific case, it wouldn't immunize him from that kind of - you know, that kind of aggressive behavior in the next administration.
SHAPIRO: I've read that the only comparable pardon with language as sweeping as this was President Gerald Ford's pardon of Nixon. Do you agree with that assessment?
BARKOW: Yeah, that's correct. You know, and similarly, it's about an instance where we might think about, you know, what might be a politically motivated or a politically concerned kind of prosecution. And if you want to make it blanket to avoid, you know, any possibility that that person can still be prosecuted, that's the kind of language you need to use.
SHAPIRO: So when someone with close personal access to the president receives a pardon like this, do you think that shapes Americans' perception of the justice system more broadly?
BARKOW: Unfortunately, yes. You know, I think it starts to look like there's a different set of rules for people who are politically connected and regular people. And it's particularly pronounced in the case of President Biden because he's had a really anemic use of his pardon powers in his time in office. You know, I think he was probably waiting until the election was over, and, you know, for a while, we thought he was going to be running. So my guess is he made a political calculation that if he was going to do anything, he was going to do it at the end.
But what it means is we arrive at today with a really weak record on clemency on his part. So, you know, very few people have received any kind of relief from him. And so it looks like he just singled out his own child. Whereas I'm sure there's a lot of parents in America saying, hey, what about my kid? You know, he/she/they have a meritorious case, and there's been nothing - and, you know, followed all the rules, filed the petition but still no ruling. And that, I think, is the problem, when it looks like you don't have a functioning pardon system for regular people, and it's just...
SHAPIRO: Yeah.
BARKOW: ...People who know somebody.
SHAPIRO: Yeah. I think that's important to highlight because we often hear about pardons when they are high-profile, controversial individuals. But thousands and thousands of other people who may be worthy of a pardon, whose names most of us have never heard, apply every year. And you're saying, in most cases, under the Biden presidency, have been rejected or ignored.
BARKOW: Exactly. And you know, he has a very low grant rate, historically speaking. It's really been mostly symbolic gestures on his part, like the big announcement he had for marijuana - people who had possessed marijuana. You know, that didn't release anybody currently incarcerated. He inherited a backlog of 18,000 petitions when he took office, and really just hasn't made a dent. So it's a stark contrast to see the Hunter Biden pardon when you're looking at how the regular process has unfolded during his administration.
SHAPIRO: And when you look to the future, when we think about somebody like Donald Trump, who has promised to pardon the January 6 insurrectionists, do you think Joe Biden's actions in this pardon of his son affect the way future pardons will be perceived? Does it move the Overton window of what's considered acceptable?
BARKOW: I don't think so. I think that President Trump was going to do whatever he wanted to do no matter what President Biden did. You know, he basically said he was going to. And he himself has a record on pardons from his last time in office that was basically almost entirely cronies of his. So he clearly already has a vision of the pardon power that is about, you know, helping his friends. He had some regular people too, but it was overwhelmingly...
SHAPIRO: Yeah.
BARKOW: ...People who knew him or people on Fox News. So I don't think this changes what he does. I think some - I have seen that some people have said, well, does that mean the Democrats lose the high ground in terms of how they talk about it? And, you know, there may be some truth to that, but I think partly it depends on what President Biden does in the remainder of his term. If he has a really robust clemency set of grants between now and when he's out of office, I think it would help the case to say, no, you know, Hunter was the first of many people that I know...
SHAPIRO: Yeah.
BARKOW: ...Have received unjust sentences.
SHAPIRO: That's NYU law professor, Rachel Barkow. Thanks for joining us today.
BARKOW: Thanks for having me. Transcript provided by NPR, Copyright NPR.
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