My initial reaction to the issuance of a full pardon by President Joe Biden to his son Hunter was emotional. What father wouldn't pardon his own son, if he could?
I suspect that the president has harbored these paternal thoughts even while he denied numerous times that he was planning on doing so. We have come to expect lying in 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 any person 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 to which is: when it is earnestly sought and least deserved.
For 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, since under the justice-is-deserved-but-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 was he prosecuted. What crimes did he commit?
Hunter pleaded guilty to failure to pay income taxes in a timely manner, and he was convicted by a jury 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 already paid his taxes, with interest and penalties.
And 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 in fact valid crimes, worthy of prosecution.
Every classic definition of the concept of crime has three characteristics. The first is that the criminal behavior is proscribed by a legitimate authority. 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 make criminal the late payment of taxes or lying on a piece of paper in order to exercise a natural right?
The Constitution only permits the Congress to enact and prescribe 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 that are 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 principles of constitutional law, 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 crimes would be proscribed by the states, and not the feds. 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 War Between the States. Prior to that era, if the feds were victimized and harmed, they asked the governments of the states in which the acts that caused the harm occurred and in which the victim suffered to do the prosecution.
The most famous example of all this was the prosecution of farmers who refused to pay federal taxes on their whiskey in Western Pennsylvania in the early 1790s. Most were prosecuted in a Pennsylvania 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 persuaded 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 his father pardoned him, he sounded like Donald Trump! He argued that raw politics had interfered with the ordinary processes of government, and this resulted in a miscarriage of justice. Stated differently, President Biden argued if Hunter's last name were Jones instead of Biden, he'd never have been prosecuted.
I'm happy Joe pardoned Hunter. It has generated a debate about the rule of law in America. We need that debate 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 — along with 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.
Judge Andrew P. Napolitano, a graduate of Princeton University and the University of Notre Dame Law School, was the youngest life-tenured Superior Court judge in the history of New Jersey. He is the author of five books on the U.S. Constitution. Read Judge Andrew P. Napolitano's Reports — More Here.