Authors: Himani Agrawal and Nandini Bhatnagar*
On December 1, 2024, when United States President Joe Biden made the executive decision to pardon his son, Hunter Biden, on accounts of tax evasion and firearms offenses, he sent a message to the world that “rules for thee, but not for me”. While on the surface, this may seem like a story about a father stepping in to protect his son, or a President rightfully using his pardoning power. If we dig deeper, it raises uncomfortable questions about conflict of interest, and trust in the very institutions that are designed to uphold justice in the United States.
The United States Constitution grants the President the authority to issue reprieves and pardons for offenses against the United States, except in cases of impeachment. The president has pardon or clemency power under Article II of the Constitution. The clause says the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” While the president’s powers to pardon seem unlimited, a presidential pardon can only be issued for a federal crime, and cannot be issued for impeachment cases tried and convicted by Congress.
While this clemency power is expected to serve as a critical mechanism for the executive branch to exercise discretion and ensure that checks on the legislative and judicial branches are maintained; concerns have been raised about the misuse of this power for personal benefit. For decades, U.S. Presidents have exercised their clemency powers, but concerns over its misuse have only grown, particularly in cases involving personal or political connections. Since the days of President Nixon, through Clinton, and now Biden, the use of this authority has often sparked controversy.
Another piece of this puzzle is the Attorney General’s office. Originally a part-time position, created under the Judiciary Act of 1979, the role has transformed dramatically over time as the federal government expanded. Initially tasked with offering legal advice to Congress and the President, the role took on much greater responsibility with the creation of the Department of Justice. Today, the department oversees criminal law enforcement, clemency review and legal counsel to the President. Unlike in India, where the President must follow the advice of the Council of Ministers, the American President retains the discretion to act independently. This complicates the balance between impartiality and executive influence.
This concentration of powers – encompassing investigation, prosecution, and pardons – raises concerns about the erosion of checks and balances in the United States justice system. Foreign Affairs expert Abhijit Iyer-Mitra highlights this political dimension, noting that high-profile legal actions often serve the political ambitions of Attorney Generals, as seen in cases like that of the arrest of Indian diplomat Devyani Khobragade by former US Attorney Preet Bharara. A similar dynamic is evident in the recent indictment of the Adani Group, where the prosecutor leading the charge – Breon Peace – is a political appointee. These incidents spark conversations about whether such cases serve genuine justice or just political agendas and challenge the foundational principles of the U.S. constitutional framework, particularly the doctrine of checks and balances and the separation of powers.
Taking a U-turn from his earlier statements of not using extraordinary powers of the presidency for the benefit of his family members, Joe Biden released a statement defending the pardon. In the statement, President Biden has cited “selective prosecution” driven by political motives behind his son’s cases. This underscores a sentiment that justice in the United States may be influenced more by partisan agendas than by evidence or fairness. Such actions also undermine the fundamental notion that underpins the U.S. system of justice ‘that everyone, even presidents and their families’ is equal before the law. This raises a critical question: If the President himself doubts the system’s fairness, why should the world continue to uphold the U.S. Department of Justice (DOJ) as a gold standard of impartiality.
If President Biden’s claims about “raw politics having infected the justice system in the United States” hold true, it raises serious concerns about the susceptibility of the U.S. legal system to political vendettas—or at least the perception thereof. This incident calls for deeper scrutiny of the broader machinery of American justice. Former diplomat Yashvardhan Kumar Sinha captures the irony succinctly, describing it as a “delicious irony” that a U.S. President bypasses the judicial system at home while championing its rigor abroad.
*Nandini Bhatnagar is a Research Assistant at the Chintan Research Foundation, New Delhi and holds a Masters degree in Diplomacy, Law and Business.
