What to do when they go low

Law professor Kim Wehle on the Hunter Biden pardon, why immunity threatens democracy, and why the Democrats need to face up to the end of norms.

When Joe Biden granted clemency to his embattled son Hunter Biden this week, he set off a firestorm of commentary, and not just because the pardon went back on a promise he’d made not to exercise his power on Hunter’s behalf. Many commentators expressed anxiety that Biden’s move had crossed some kind of legal Rubicon, tossing aside norms and opening the door to future abuses of the pardon by, say, Donald Trump. But there was less outrage around Trump’s granting of clemency to associates and allies at the end of his first term, some of whom are returning to positions of power along with the former and incumbent president.

But why the double standard? Is it the usual pearl-clutching? Do Democrats simply face higher expectations? And who, exactly, is responsible for the deterioration of democratic norms as the political parties engage in a decades-long legal and political arms race, where legal maneuverings, elite capture, and mastery of the finer points of parliamentary procedure may impact our politics more than the voice of the people?

To better understand the reaction of the public and press, and to put Biden’s use of the pardon in a clear historical and political context, we reached out to lawyer, legal scholar, and analyst Kim Wehle, who has a new book out, Pardon Power: How the Pardon System Works — And Why, and has been studying the issues around the pardon and expansions of executive power for much of the last decade. We talked about the tense relationship between norms and laws in today’s politics, the rise of oligarchic power, the connection between the pardon and the expansion of presidential immunity in Trump v. United States, why the Democratic Party has failed to meet the moment — and how Democrats can learn to fight the battle they’re actually in rather than the one they imagine.

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So there’s this conversation this week focusing on whether Biden was justified in granting his son a pardon, how broad the power is, and whether it crosses some kind of line and invites Trump to go further.

But that seems in a lot of ways beside the point, and what’s really important is something we've been talking about a lot in our newsletter over the course of the past year — that there’s been a long-running erosion of democratic norms, and people tend not to understand just how much of what they take for granted about American democracy is actually grounded in those norms versus rules or laws. Can you put this in some context?

I teach constitutional law, administrative law, federal courts, and civil procedure. So I've been thinking about the erosion of norms for nine years, and yes, the pardon is just part of it.

What people seem to be forgetting — and it's really astonishing to see the reaction, frankly, to what Biden has done — the critiques of Biden's pardon are the critiques of the pardon power that go back to the Enlightenment. I mean, they go back to the English common law. I mean, Parliament tried repeatedly to clip the wings of the king's pardon power. But that goes back to the Code of Hammurabi. I mean, it goes back to the New Testament, right? Jesus was denied a pardon, and that gave birth to the Christian religion.

I listened to the immunity arguments in Trump v. United States. And when the justices asked about the scope of the pardon power and Jack Smith's counsel didn't push back on the notion that it's completely unlimited, I was a little gobsmacked because there are limits on the pardon power, number one. And number two, there should be more limits. But everyone sort of sat there and watched this unfold. No questions.

When I first started writing about the pardon power, I got some critiques from other law faculty asking, "What do you mean that's not unlimited? Of course, it's unlimited." And then Joe Biden uses it, I think, in a restrained way. I think there are arguments for why this is a legitimate pardon, notwithstanding that it's his family member. And then people are running around saying, "This violates the rule of law." But that's what a pardon does. It wipes out the other two branches of government. And that is a problem under the Constitution.

In a way, this seems in keeping with tensions around other expansions of executive power or, lately the elevation of judicial power in concert with the executive over the legislative branch. I'm not a lawyer, but in lay terms, people seem to assume nowadays that there is a sort of kingship inherent in the power of the executive branch. And there’s an argument that both parties have participated in creating this.