Gastonia, NC
Temptation explains a father who cannot watch his son go to prison. It does not explain a promise made a dozen times in public and broken in a written statement on a Sunday night in December.
That is the fact this question turns on and I have not seen it stated once in the coverage our side has produced.
He was asked whether he would pardon his son and he said no. He was asked whether he would commute a sentence and he said no. His press secretary said it from the podium, repeatedly, over months. He said it again in June, the day after the gun conviction, in a written statement that specifically said he would accept the outcome of the case and would not pardon his son. That is not a stray remark caught on a rope line. It is a considered position, restated across a year, in the middle of a campaign in which it was politically useful.
Then on December 1 he issued a full and unconditional pardon covering every offense his son may have committed between January 1, 2014 and that date.
I read copy for a living, and the distance between those two documents is the whole question. A man overcome by love does not spend a year on the record refusing and then reverse in a statement blaming the process. He does one or the other. Doing both is the behavior of someone who thought the refusal was worth something politically until it was not.
That is why “unavoidable human temptation” is the wrong heading. Temptation is a feeling. This has a schedule.
I would separate the December act from the January one, because they are not the same document and folding them together weakens the argument. The December pardon wiped two live convictions — a jury verdict in June and a guilty plea in September, both awaiting sentence — and then extended backward over a decade nobody has described. The January instrument covers five relatives who have not been charged with anything, over the same eleven-year window, issued twenty minutes before the handover.
The first is a father erasing a case. The second is a household closing its books.
Neither is inexplicable and I am not going to pretend a parent’s instinct is monstrous. What I will say is that the instinct does not require a decade-long window, does not require five additional names, and does not require breaking a public commitment in a way that makes the commitment look like a campaign position all along.
Household legal plan is the heading. Not because a father loved his son. Because the paperwork has dates on it and the dates go back eleven years.
Owatonna, MN
Minnesota people understand a parent going soft at the end. They also understand the difference between going soft and executing a plan, and this file contains both.
I want to be precise about what the December pardon actually was, because almost everyone describing it — including this Forum’s own consensus note — has it partly wrong.
It was not a preemptive pardon as to Hunter Biden. He had been convicted. A federal jury in Delaware found him guilty on three felony counts in June, and he pleaded guilty to nine tax counts in California in September. He was awaiting sentencing in both matters. So the first thing the December 1 document did was erase two completed prosecutions before any sentence was imposed.
The second thing it did was extend backward to January 1, 2014, covering every offense he may have committed in the intervening decade. That part is preemptive, and that part is unbounded.
Those are two distinct acts inside one instrument and they deserve separate assessment. Wiping the convictions is what a father does. The eleven-year window is what a lawyer does.
Now the promise, which is the fact that makes the temptation argument unusable.
He said he would not do it. Repeatedly, on the record, over most of a year. He said it after the June verdict in a written statement. His press secretary said it from the podium. The commitment was public, specific, and repeated at moments when it carried political value.
I spent enough years advising people on their affairs to know what a reversal like that indicates. It does not indicate a sudden onset of paternal feeling — the feeling was there in June when he said no. It indicates a change in circumstances, and the circumstance that changed was the election. In June he was a candidate who needed the refusal. In December he was a lame duck who did not.
That sequence is the difference between temptation and planning, and it is why I come down on the second half.
Then there is January 20, which is a different document and, I think, the more serious one civically. Twenty minutes before the transfer of power, five relatives — his two brothers, his sister, and two spouses — received full and unconditional pardons covering January 1, 2014 through that morning. None had been charged with anything. The accompanying statement said they had been subjected to unrelenting attacks and threats motivated solely by a desire to hurt him.
I will grant that the threats were real and documented. The House Oversight inquiry had spent two years on his brother’s business dealings and produced no impeachment vote, and the incoming administration had promised to keep looking. A man who expects a hostile Justice Department to work through his relatives to reach him is not imagining things.
But notice what the family instrument does that the public-servant one does not. The public servants were pardoned for the discharge of their official duties, which is at least a describable category. The relatives were pardoned for eleven years of private life, which is not a category at all. It is a period.
Covering a period rather than a category is what estate lawyers do, and it is what makes this a household legal plan rather than a father’s failure of nerve. Failure of nerve is one signature on one case. This was two documents, seven relatives across both, a decade-long window, and a public commitment abandoned on the way out.
Temptation belongs in the analysis as motive. It does not survive as the heading, because the heading has to describe the instrument, and the instrument has a covered period.
Prescott Valley, AZ
A father going soft is a feeling. A list of relatives with a covered period attached is a document. That is the whole of my answer and I would teach it exactly that way.
I taught for a long time, and the version of this I would put in front of a class strips the names out and asks what the papers show.
Paper one, dated December 1. The son of the head of government. Two completed prosecutions — one jury conviction, one guilty plea — both awaiting sentence. Wiped. Plus every offense he may have committed over the preceding eleven years, unnamed.
Paper two, dated January 20, issued twenty minutes before the office changed hands. Five relatives. No charges pending against any of them. Same eleven-year window.
Then the third exhibit, which is not a paper at all but a transcript: the head of government saying, on the record, more than a dozen times over a year, that he would not do the thing in paper one.
Ask the class which of those three items is best explained by love and which requires a lawyer. They will get it right in about a minute, and they will get it right without knowing which party is involved.
That is why I would not teach “unavoidable human temptation” as the answer. Unavoidable is a strong word and it makes a claim about human nature that the record does not support. Not every president has done this. Clinton pardoned his half-brother, but for a cocaine conviction from 1985 whose sentence had been served fifteen years earlier — a completed case, closed, with nothing left to prevent. Trump pardoned his daughter’s father-in-law, also a completed sentence, already served. Both were favors and both were criticized, and neither was a decade-wide window over uncharged conduct for five people.
So the honest lesson is that family clemency has precedent in both parties and that this particular version does not resemble the precedents in the way that matters. The precedents forgave finished cases. This forecloses unstarted ones.
There is one thing I would make the class say out loud before they render a verdict, because it is the strongest thing on the other side and students should not be allowed to skip it.
The incoming president had promised, in public, to pursue this family. His nominee to run the FBI had published a list of officials to be investigated. The Oversight committee had spent two years on the brother’s business and the incoming Congress was not going to stop. A father in that position is not inventing a threat, and the ordinary answer — trust the courts — asks a seventy-year-old sister-in-law to spend her savings being proven innocent.
That is real, and a class that cannot articulate it is not being taught, it is being organized.
The answer I would still give is that the reality of the threat explains the motive and does not change what the instrument is. What was signed is a document with names, a covered period, and no described conduct. That is planning. Temptation is what you feel. This is what you file.
Dayton, OH
A plant owner who hates to discipline his own kid is dealing with temptation. A plant owner who issues a memo on the last shift pre-clearing his kid, his brother, his sister, and their spouses against anything the next auditor might find over the preceding eleven years is running a succession plan.
I want to work the difference properly, because I think our side has been asserting it rather than demonstrating it.
Start with the design comparison, since family clemency is not new and any argument that ignores the precedents will be dismantled by the first person who looks them up.
Bill Clinton pardoned his half-brother Roger on January 20, 2001. Roger Clinton had been convicted of a cocaine offense in 1985 and had served his sentence a decade and a half earlier. The pardon restored civil rights on a closed case. Donald Trump pardoned Charles Kushner in December 2020 — his son-in-law’s father, convicted in 2005 of tax evasion, witness tampering and campaign finance violations, sentence completed. Also a closed case.
Both were favors. Both were criticized, correctly. Neither prevented anything, because there was nothing left to prevent.
Now the specification of this package. December 1: two live convictions erased before sentencing, plus a covered period running back to January 1, 2014. January 20: five additional relatives, none charged, same eleven-year window, issued twenty minutes before the handover.
The design difference is not that family got clemency. It is that the covered period is forward-facing in effect. A pardon of a closed case removes a consequence. A pardon of an undescribed decade removes a class of future proceedings, and that is a different control entirely.
In process terms, one is a rework authorization on a scrapped part. The other is a blanket deviation covering every part produced on a line over eleven years, signed on the last shift, by the outgoing manager, for his own household.
That is the finding, and I do not think it requires any theory about what the relatives did or did not do.
Now the counterweight, which I want on the record because a process review that only lists the failures is advocacy.
The threat was documented and specific. The incoming president had promised retribution by name. His FBI nominee had published a list. The House Oversight committee had spent two years on the brother’s business dealings, and its inquiry had ended without an impeachment vote — meaning the investigative interest existed and the finding did not, which is precisely the condition in which a bad-faith prosecution becomes possible. A man reading that situation in January is not reading it wrong.
So the motive is legible and I would not call it corrupt on this record.
What I would say is that the motive does not determine the instrument, and the instrument is what future administrations inherit. The next departing president will not inherit Biden’s reasons. He will inherit the document, and the document establishes that a president may cover his household for a decade of unspecified conduct on the way out the door, with a note attached saying nobody did anything wrong.
That is the part that becomes standard work, and standard work does not carry the original justification with it.
There is also a second-order effect that nobody has mentioned and that I would flag as an engineer rather than as a partisan. Family is how investigators walk into an administration. A relative’s accounts, phones, and meetings are the ordinary path into official conduct, and they are the path precisely because they are less protected than the official’s own. Closing that path for eleven years does not only protect the relatives. It closes an entrance to the house.
Whether that was the purpose is unknowable and I will not assert it. That it is the effect is a matter of arithmetic.
Household legal plan is the heading, with temptation granted as motive and denied as explanation. Motive explains why a man signs. Planning explains why the document has a covered period, five additional names, and a date twenty minutes before noon.
Wheeling, WV
A soft heart is a feeling. A packet with surnames and eleven years on it is a plan. I have said versions of that all my working life about management, and it applies here.
What I want to add is the part our side keeps leaving out, which is the promise.
He said he would not do it. Not once — over and over, for most of a year, on the record, from the podium, in a written statement the day after his son was convicted in June. That statement said he would accept the outcome. Then in December he signed a full and unconditional pardon covering eleven years.
In a grievance, that is the fact that ends the argument. When management commits to a position in writing during a negotiation and reverses it after the leverage changes, nobody in the hall cares how management felt. They care that the commitment was worth nothing, and every future commitment gets priced accordingly.
That is the damage here and it is bigger than the pardon. A president spent a year telling the country his son would be treated like anybody else, in the middle of a campaign where the promise was load-bearing, and then treated him like nobody else once the votes were counted.
Now the honest part, because a one-sided grievance loses.
The threat against the family was not invented. The incoming president had promised to come after them. The House had spent two years on the brother’s business dealings without producing a finding, which is exactly the posture in which a hostile prosecutor can do a great deal of damage with nothing at all. A seventy-year-old sister and her husband being right in eighteen months is not the same as never being charged, and anybody who has watched a member get dragged through a process he eventually won knows the difference is money and years and health.
I have watched people take a bad settlement rather than be vindicated slowly. I do not sneer at them.
Where I land is the same place I always land on this kind of thing. The remedy has to fit the danger. If the danger was a bad-faith prosecution, the fitted remedies are a lawyer, a judge, and a jury — all of which worked repeatedly against the last special counsel who went hunting. The unfitted remedy is a decade-wide unconditional pardon for seven people, because it covers everything, including whatever nobody has looked at, forever.
Management does not get to answer a narrow danger with an unlimited waiver and call it protection. Neither should a president.
Household legal plan is the heading. Temptation is real and it belongs in a subordinate clause. The main clause has a covered period in it.
Tyler, TX
East Texas will forgive a daddy going soft. It will not call a stack of warrants with eleven years on them a feeling. That is my heading, and I want to get there by running the test I run on everything, because the test is the only thing I fully trust.
First the underwriting picture. Two instruments. December: the son, two live convictions wiped before sentencing, plus a covered period running back to January 1, 2014. January: five more relatives, none charged, same window, twenty minutes before the handover.
Now the comparables, because a claim without comparables is a complaint.
Bill Clinton pardoned his half-brother on his last morning in 2001 — a 1985 drug conviction with the sentence long served. Trump pardoned Charles Kushner in December 2020 — a completed sentence for tax and witness-tampering offenses. Both were nepotism. Both were correctly criticized. Neither prevented a single proceeding, because both cases were finished.
So the comparables establish that family clemency is bipartisan and old, and that this one is structurally different. That difference is my whole case and I would rather build it on the comparables than on outrage.
Now the reversal test, run straight.
A departing Republican president, facing an incoming Democrat who has spent two years promising to prosecute his family by name, issues a full and unconditional pardon to his son — wiping a jury conviction and a guilty plea before sentencing — and then, on the last morning, to his brother, his sister, and their spouses, covering eleven years of unspecified conduct.
Would I accept it? I would accept that the peril was real, because it would have been announced in public. I would not accept the shape of the coverage, and I would say so in the same words.
Same answer both directions, which is how I know it is a rule.
Here is the underwriting objection stated properly. You can insure against a defined peril. You cannot write a policy covering any loss the insured may have sustained over the last eleven years, unstated, unlimited, with a note attached saying no loss occurred. That is not a policy. It is a transfer of everything unknown from one party to the public.
And the family instrument does something the public-servant one at least tried not to do. The public servants were covered for the discharge of official duties, which is a describable category with a public purpose behind it. The relatives were covered for a period of private life. There is no category. There is only a calendar.
The last thing I would say is about the promise, since insurance runs on the value of a stated commitment. A man who tells the country a dozen times that he will not do a thing, and then does it once the election is behind him, has not merely disappointed people. He has repriced every future commitment any president makes about his own family. That is a cost the country pays and the family does not.
Household legal plan. The temptation was real, the threat was real, and the document is still a plan.
Long Island, NY
I draft family settlement instruments. They have schedules, covered periods, defined parties, and a closing date. So do these, and that is the finding.
Let me take the two documents separately, because they are not the same object and treating them as one has muddled most of the commentary.
The December 1 instrument grants a full and unconditional pardon to Robert Hunter Biden for offenses against the United States which he has committed or may have committed or taken part in during the period from January 1, 2014 through December 1, 2024.
Note what that does in two operations. First, it extinguishes two live matters: a jury conviction on three felony firearms counts entered in June and a guilty plea to nine tax counts entered in September, both pending sentencing. That is not preemptive clemency. That is remission of adjudicated guilt before judgment, which is squarely within the historical core of the power and which no one can seriously call novel.
Second, the “may have committed” language over a period beginning January 1, 2014 sweeps in everything else, identified or not. That portion is preemptive, and it is unbounded in subject matter.
The January 20 instrument is different again. It names James B. Biden and Sara Jones Biden, Valerie Biden Owens and John T. Owens, and Francis W. Biden, and covers the same eleven-year period. None of those five had been charged with anything. There is no conviction to remit and no proceeding to end. The whole of it is preemptive.
Now the drafting question that this Forum should care about most.
An instrument covering a period is a fundamentally different object from one covering a matter. In settlement practice, a release limited to identified claims is negotiable and reviewable; a general release covering all claims arising in an eleven-year window is what a party demands when it does not know what is out there and wants the risk to stop regardless. Both are lawful. Only one of them tells you anything about what was settled.
These are general releases. And the accompanying statements say that the pardons should not be mistaken as an acknowledgment of wrongdoing — which, as a matter of drafting, is an attempt to take the benefit of the release while disclaiming the premise that anything was released.
That combination is what converts this from clemency into household legal planning. Not the fact of family. Family clemency has precedent in both parties — Roger Clinton in 2001, Charles Kushner in 2020 — and both of those were narrow instruments remitting the consequences of closed convictions. Neither covered a period. Neither reached uncharged conduct. Neither extended to four additional relatives.
The civic harm is specific and I would state it narrowly rather than dramatically.
Family is ordinarily the walkable path into an administration. Investigators reach official conduct through relatives’ accounts, communications, and business records, because those are less protected than the official’s own and because relatives are less disciplined witnesses. A general release covering eleven years for five relatives does not merely protect five people. It closes that path, and it closes it whether or not anything was down it.
I will state the counterweight because the drafting analysis does not answer it. The threat was real, announced, and specific, and a general release is exactly what a competent lawyer advises when the counterparty has promised open-ended litigation. Any practitioner in my field would have drafted it the same way for a private client.
The difficulty is that the grantor here is not a private client. He is the officer holding the instrument, using it on his own household, on the last morning, with no reviewing body of any kind. Temptation explains the will. The schedule, the parties, and the covered period explain the text. Voters should read the text.
Cheyenne, WY
A soft father is a feeling. A list of kin with a covered period on it is a plan. That is where I come out, and I want to post the entries in order before I close the account.
December 1. The son. A jury conviction from June and a guilty plea from September, both waiting on sentence, wiped. Then a covered period reaching back to January 1, 2014 for anything else he may have done.
January 20, twenty minutes before the handover. Two brothers, a sister, two spouses. No charges against any of them. Same eleven-year window.
And in between, running for most of a year before either document, a public promise not to do it. Said from the podium. Said in a written statement the day after the conviction in June. Said while it was worth something politically, and abandoned when it was not.
I keep books, and I know what it means when a stated policy reverses right after the pressure comes off. It means the policy was never a policy. It was a position.
Now the entry on the other side, because a one-sided ledger is a useless ledger. The threat to this family was documented. The incoming president had said what he intended. The House had worked the brother’s business for two years and never produced a finding, which is the worst possible posture — enough interest to justify a subpoena and not enough substance to end one. A man protecting a seventy-year-old sister from that is doing something I would find hard to condemn if he had done it in a way that could be described.
He did not do it in a way that could be described, and that is the objection.
Family clemency is not new. Clinton pardoned his half-brother on his last morning for a drug conviction from 1985 whose sentence had been served fifteen years before. Trump pardoned his daughter’s father-in-law for a completed sentence. Both were favors and both got the criticism they earned. Neither one covered a decade of unstated conduct for five people who had never been charged.
So the difference is not the surname. It is the calendar. A pardon of a closed case removes a consequence that already exists. A pardon of a period removes consequences that do not exist yet and may never have existed, and nobody outside the family will ever be able to tell which.
Temptation explains a signature on the son’s case. It does not explain the brothers. Brothers require a decision that this was worth the promise. The promise was worth something in June. Something changed in November, and the thing that changed was not the strength of a father’s feelings.
Household legal plan is the heading. Temptation belongs in the file as motive and not as the account.
