MICHEL MARTIN, HOST:
President Biden is pardoning his son Hunter Biden on felony gun and tax charges, something the White House and Biden himself previously said would not happen. Here's Biden in June.
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PRESIDENT JOE BIDEN: I said I'd abide by the jury decision. And I will do that, and I will not pardon him.
MARTIN: Hunter Biden faced sentencing this month on charges related to his answers on a gun purchase form about his addiction to drugs. He'd also pleaded guilty to tax evasion charges. We're going to bring in constitutional law professor and author Kim Wehle to hear more about presidential pardons. It's the subject of her latest book, "Pardon Power: How The Pardon System Works And Why." Professor Wehle, welcome back. Thanks for joining us once again.
KIM WEHLE: Great to be here, Michel.
MARTIN: So first, is there any limit to the president's power to issue pardons? I guess, in essence, can he do this?
WEHLE: He can do it. There have been some minor constraints that the Supreme Court has imposed over the years - for example, can't pardon someone for a crime that has yet to be committed, can't force someone to accept a pardon and then have them testify against their Fifth Amendment privilege against self-incrimination. But generally, no. It's pretty unfettered and unlimited as it stands in this moment.
MARTIN: President Biden says this was justified. And, in essence, he's saying this was justified because his - if her (ph) son was someone else, he would not have been prosecuted to this extent. People may remember that a plea deal was in the works, but then it collapsed. It was certainly - the plea deal was criticized, in fact, including by the person who's been tapped to lead the FBI should this occur. Now, some Republican lawmakers point to the fact that Hunter Biden did plead guilty to those tax evasion charges. Is there a correlation between a pardon and any claim to innocence or guilt?
WEHLE: Well, there's dicta sort of floating around that a pardon is an admission of guilt. When I say this - you know, dicta - things the Supreme Court has said kind of extraneously. But there have been posthumous pardons - pardons for people that were prosecuted based on their race, for example. And I don't think anyone would say that's an admission of guilt, to pardon those people after the fact and, you know, showing that the U.S. got it wrong.
MARTIN: We're hearing, at this point, mainly from Republicans who argue that this - and including the president-elect, who's saying that this is - sets a terrible precedent. This upends the justice system. I want to point out that the former and now-future president did pardon a number of people, and people had raised questions about that. Including, you know, Steve Bannon, you know, Charles - Paul Manafort, the - his son-in-law's father, Charles Kushner, who he has now named ambassador to France. Like, how would you compare those two circumstances, or do you?
WEHLE: Well, yeah, I think Donald Trump kind of pushed the corrupt pardon over even historical limits. You know, presidents have used pardons at the waning year - days of their presidency to pardon - like, Bill Clinton - people that had interests that aligned with Bill Clinton, for example. But here, you know, even Lindsey Graham has publicly stated that someone other than Hunter Biden probably wouldn't be prosecuted for lying about his addiction on a gun form - purchase form, for example. And Donald Trump has been really clear about his plans to use the Justice Department for retribution and vengeance and is, you know, lining up folks to run the FBI and the DOJ to adhere to that.
So I can see why Joe Biden might think the landscape's changed. And he doesn't want more charges brought up against his son and, if he were actually sentenced to prison time, might not want Donald Trump in charge of his custody under the Bureau of Prisons. So this is a man, I think, who's caring about his own son's future. And despite Hunter Biden's, you know, transgressions, I think it's fair to say that if it weren't Hunter Biden, he wouldn't be at the bull's-eye of this kind of political vengeance.
MARTIN: I want to raise something that was written in The Atlantic recently by Paul Rosenzweig, who, I have to say, is a lifelong Republican and considers himself a conservative. He's a member of the Federal Society, for example, a conservative legal organization. He says that the pardon should not stop at Hunter Biden. He wrote this before Hunter Biden was pardoned, but his argument is that Biden should pardon everybody who has been threatened, either explicitly or implicitly, by the incoming regime, as it were. I mean, it includes, you know, FBI agents who investigated the former president and prosecutors who investigated him, members of Congress, members of the media. What do you think about that?
WEHLE: I mean, I tend to agree with him. I mean, the idea that this is an abuse of power by Joe Biden is naive when we look at what Donald Trump pledges to do with the Department of Justice and the FBI and is now armed with immunity from the United States Supreme Court - three justices whom he appointed - that has green-lighted massive abuses of terrifying power of law enforcement and prosecution. So I think that's something he should think about, yes.
MARTIN: Kim Wehle is a law professor at the University of Baltimore Law School. Her latest book, as we said, is "Pardon Power: How The Pardon System Works And Why." Professor Wehle, thank you.
WEHLE: Thank you. Transcript provided by NPR, Copyright NPR.
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