OPINION:
My initial reaction to the issuance of a full pardon by President Biden to his son Hunter was emotional. What father wouldn’t pardon his own son if he could?
I suspect that the president harbored these paternal thoughts even though he had denied numerous times that he was planning to do so. We have come to expect lies from politicians. When the president denied that he planned to pardon his son, he had every reason to believe that he’d be a candidate for reelection — and he wanted his son’s known sordid behavior off the table.
Here is the backstory.
Under the Constitution, the president can pardon anyone for any federal crime. He does not need permission, nor must he offer a justification.
The essence of a pardon is mercy and forgiveness, not justice and punishment. How and when to forgive? That is an ancient question. The short answer is, when it is earnestly sought and least deserved. If a pardon were deserved, it falls under justice, not mercy. Mercy is by its nature undeserved.
Did Hunter deserve a pardon? That is a trick question; under the “justice is deserved, mercy is undeserved” rubric, no one deserves a pardon. Yet our system of law enforcement often makes mistakes, and pardons can correct them. Answering the question about Hunter’s pardon brings us back to why he was prosecuted. What crimes did he commit?
Hunter pleaded guilty to failure to pay income taxes on time, and a jury convicted him of lying about drug use on an application to purchase a handgun. Yet by the time of his guilty plea in the tax case, he had paid his taxes, with interest and penalties. The gun that he obtained after denying that he was a habitual user of drugs was never used. His girlfriend discarded it in a dumpster.
Should he have been prosecuted for these crimes? That question requires us to examine if these are crimes worthy of prosecution. Every classic definition of the concept of crime has three characteristics. The first is that a legitimate authority proscribes the criminal behavior. The second is that the behavior in question caused palpable harm. And the third is that the behavior in question produced an articulable victim.
Can Congress criminalize the late payment of taxes or lying on a piece of paper to exercise a natural right? The Constitution permits Congress to enact and prescribe only two crimes: treason, which is defined in the Constitution as waging war on the states or giving aid and comfort to America’s enemies, and debasement of the money supply that is passing off a forged coin as if it were genuine gold or silver.
For all other crimes, Congress has given itself the power to articulate and punish.
Can Congress give itself powers not delegated to it by the Constitution? The Constitution itself says that it cannot. The 10th Amendment teaches that the powers not delegated to the federal government are reserved to the states. Congress cannot just assume these powers.
Notwithstanding these basic constitutional law principles, as of 2019 — the last time this was calculated — Congress had created 5,199 federal crimes.
The theory of the drafters of the Constitution was not that the new country would be anarchic but rather that the states and not the feds would proscribe crimes. This is consistent with the idea that the federal government is one of limited powers, and the states — which, after all, created the federal government — would serve as a check on its power.
The U.S. didn’t even have a Department of Justice until after the Civil War. Before that, if the feds were victimized and harmed, they asked the state governments in which the acts that caused the harm occurred and in which the victim suffered to do the prosecuting.
The most famous example of all this was the prosecution of farmers in western Pennsylvania who refused to pay federal taxes on their whiskey in the early 1790s. Most were prosecuted in state court. Two were tried for treason in a makeshift federal court in Philadelphia’s old City Hall.
How could a failure to pay taxes be made treasonous? It wasn’t and couldn’t, but the federalists running the government convinced a federal judge and a jury that using force to resist a tax collector is the moral equivalent of waging war against the states.
The farmers who were convicted of treason were pardoned by President George Washington.
Now, back to Hunter.
He harmed no one with his tardy tax payment with interest and penalties. And he harmed no one by falsely obtaining a gun permit and then discarding his weapon. Thus, the three components of crime — legitimate authority, palpable harm and articulable victim — are all absent in the Hunter Biden case.
When President Biden pardoned Hunter, he sounded like Donald Trump. He argued that raw politics had interfered with the ordinary processes of government, resulting in a miscarriage of justice. Stated differently, he argued that if Hunter’s last name were Jones instead of Biden, he’d never have been prosecuted.
I’m happy the president pardoned Hunter. It has generated a debate about the rule of law in America, which we need as the Trump administration enters office. I hope the debate produces a commitment to the recognition and enforcement of constitutional principles that limit Congress to its constitutional role and limit prosecutions to those who have harmed others, as the drafters of the Constitution clearly intended.
But if history is a guide, my hopes and those of Thomas Jefferson are illusory. Jefferson predicted that in the long march of history, governmental power only grows, and individual liberty only shrinks except when there is a revolution.
• To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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