It’s Tuesday, the traditional day for elections and for our pause-and-consider newsletter on politics and policy.

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Photo by Craig Hudson/Reuters

It’s Tuesday, the traditional day for elections and for our pause-and-consider newsletter on politics and policy. We think of it as a mini-magazine in your inbox.

BIDEN’S PARDON AND HIS LEGACY
By Lisa Desjardins, @LisaDNews ([link removed])
Correspondent

“The quality of mercy is not strained,” Shakespeare beautifully wrote. ([link removed]) That it, “droppeth as the gentle rain from heaven.”

Presidential pardons are more complicated.

President Joe Biden’s decision to reverse course and issue a sweeping pardon ([link removed]) for his son, Hunter, has sparked debate.

We thought it may be helpful to lay out what Biden has done and what some experts had to say about the decision and how it affects his legacy.

First, a brief glossary:
* Clemency. All presidential approvals in this area can be called “clemency ([link removed].) .”
* Pardon. A presidential pardon forgives someone convicted for a federal crime. It does not wipe the conviction from their record but ends any sentence they are serving for that crime and can restore rights, including the right to vote.
* Commutation. A commutation reduces, potentially eliminating, a sentence or restitution required. There is no forgiveness of the underlying offense, but instead a lowering of the sentence and/or penalty. It does not change other status issues or restrictions, such as a ban from voting or likelihood of deportation.


And now, the Hunter Biden pardon

You can read the full pardon and Biden’s statement here. ([link removed])

A summary: Biden granted a “full and unconditional pardon” to his son Hunter for any federal offense committed over a nearly 10-year period, from Jan. 1, 2014 to Dec. 1, 2024. This pardon applies to his convictions on federal tax and gun charges ([link removed]) as well as any other potential federal charges for any crime during that period.

Biden’s reasoning? The president wrote that he believed Hunter was treated differently than other Americans charged with the same crimes in similar circumstances, including those who have a history of substance use. The president argued this was a politically motivated attack on him, and that it will not stop here, implying he believes the next Trump administration could also focus on his son.

“Enough is enough,” Biden wrote.

How unusual is the Hunter Biden pardon?

We spoke with three experts who represented a spectrum of views, with some nuance.

“It’s almost totally unique,” said Mark Osler, a professor at the University of St. Thomas law school who works with petitioners seeking clemency. “If you line up everything that is different about this one, it’s singular in American history.”

One stand-out factor is the scope of the pardon, which covers nearly a decade for known and hypothetical future charges. It has only one counterpart in history.

“The fact that it is broadly worded is similar to the [Gerald] Ford pardon of [Richard] Nixon,” said Kim Wehle, a professor at the University of Baltimore’s law school and author of "Pardon Power: How the Pardon System Works — And Why." That pardon ([link removed]) covered any acts Nixon took as president.

But the Nixon pardon is for a shorter time frame than Biden’s, and anchored to Nixon’s time in office.

Nonetheless, to Wehle, Biden’s rationale holds.

“To ensure Hunter is not getting additional indictments by an incoming president who is promising to use the Department of Justice for retribution and vengeance, I don’t know how to write the pardon another way,” she told us.

[link removed]
Watch the segment in the player above.

Osler pointed to another, unprecedented feature: Biden is pardoning his child.

“It is a closer and more intimate kind of connection,” he said.

Osler acknowledged that family members have been pardoned before. Trump pardoned his father-in-law, Charles Kushner ([link removed]) , and Bill Clinton did the same for his half-brother, Roger. ([link removed])

“But neither was a son or daughter, that’s really different,” Osler concluded.

Rebecca Roiphe, a professor at New York Law School, has a different view.

“The pardon itself is not that unique,” she said. “There have been presidents who have pardoned relatives or people with whom they had business or personal relationships.”

Roiphe’s expertise includes presidential power and the independence of the justice system in American democracy. She sees Biden’s accompanying statement as more striking than the pardon itself because Biden is questioning the political bias of his own Justice Department.

“You could endlessly debate the question of, ‘Has this prosecution been politicized?’” Roiphe said, “and I don’t think you could reach an answer. … But I think the damage that Trump started by using all of this really charged rhetoric about the Department of Justice without proof is worsened by this situation.”

What does this mean for the DOJ and Biden’s legacy?

Again, some nuance, but the experts here generally agree in this area: The way Biden handled this pardon is poised to harm both his legacy and the Justice Department’s credibility.

“Biden ran on this promise to restore faith in the Department of Justice and the system,” Roiphe told us. “This is not in keeping with that promise.”

“There isn’t direct proof of politicization, and without direct proof those in power should not be hurling that accusation,” she added.

Wehle supports the pardon in general, but also scratches her head at Biden’s statement with it.

“His accompanying signing statement where he went after his own Justice Department is a little strange,” Wehle said. “That lends credence to Donald Trump’s sort of talking points for years that special counsels are political.”

To Osler, there is something more at play as well.

“We're seeing a new and novel way, [to pardon] preemptively,” he said. “Basically a friends and family program. Whether it is outside of the president's power under the Constitution — I don't think it is — it's definitely outside the intended purpose.”

He points out that Biden has granted fewer clemencies than Trump. (The Justice Department keeps clear clemency statistics, which you can access here. ([link removed]) ) And after pardoning his son, Biden now faces questions about this decision, especially from the thousands whom he has rejected or not considered for clemency.

“I know the stories of some of the people in the queue,” Osler said. “They did their time 20 years ago. But the fact that Hunter gets clemency and not many of them — that’s wrong, that’s a duty of the president.”

Biden still has weeks left in his administration and could issue dozens more pardons.

But even if he does, Osler believes the pardon of Hunter will have lasting effects.

“No doubt in my mind that this will be a problem for his legacy,” he said of Biden.

Roiphe went further.

“To the extent to which Biden had a legacy in this area, it’s completely undermined by the statement and the pardon. I mean the legacy of restoring faith in the institutions of democracy.”
More on politics from our coverage:
* Watch: The precedent Biden’s pardon could set for future presidents. ([link removed])
* One Big Question: How much does this pardon affect Biden’s credibility? NPR’s Tamara Keith and Amy Walter of the Cook Political Report with Amy Walter discuss. ([link removed])
* A Closer Look: Why Pete Hegseth, former Fox News host and Trump’s defense secretary pick, is under the spotlight ([link removed]) after fresh concerns about his past.
* Perspectives: Why Trump choosing “deep state” conspiracy theorist Kash Patel to lead the FBI is raising concerns ([link removed]) within the agency.

TRANS HEALTH CARE AT STAKE IN SUPREME COURT CASE

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Oral arguments in the United States v. Skrmetti case are scheduled to begin at 10 a.m. on Wednesday, Dec. 4. Listen to the arguments in the player above.

By Joshua Barajas, @Josh_Barrage ([link removed])
Senior Editor, Digital

Laura Barrón-López, @lbarronlopez ([link removed])
White House Correspondent

The Supreme Court will hear arguments Wednesday ([link removed]) in a case about Tennessee’s law on restricting gender-affirming medical care for transgender people under 18.

The law at the heart of the case: Tennessee’s SB1 ([link removed]) prohibits providers from offering gender-affirming care to minors. The umbrella term involves a spectrum of services ([link removed]) that seek to affirm someone’s gender identity. Tennessee’s ban targets medical care like puberty blockers, hormone therapy, and surgery. (Surgeries are not at issue in this case.)

The key legal question: As Supreme Court analyst Marcia Coyle laid out ([link removed]) , the justices will decide whether the law discriminates on the basis of sex, in violation of the 14th Amendment's equal protection clause.

The United States v. Skrmetti case is the first time the high court, which has a 6-3 conservative majority, will hear a challenge to these restrictions on medical care for trans youth. The justices’ decision, expected in June, could have implications for access to transition-related medical care across the country.

About half the country — 26 states to date — have restricted or banned gender-affirming care for trans youth.

What lies ahead

Oral arguments are happening more than a month before a new president arrives in the Oval Office. President-elect Donald Trump has repeatedly promised to roll back trans rights, deepening the fear ([link removed]) among communities of trans people about the incoming administration.

Among the biggest concerns for kai alviar horton, the executive director of Trans Lifeline ([link removed]) , is trans people in rural America, especially in the South, where there’s often not enough visibility and representation.

One thing this incoming administration does well, they said, is spread hopelessness and “breed this idea of fear and this idea of disgust towards trans people.”

“My biggest fear is that we're going to lose a lot of our community because they don't have what they deserve to be alive,” he added.
[link removed]
Watch the segment in the player above.
Minnesota Rep. Leigh Finke traveled to Washington, D.C., for Wednesday’s arguments. She became the first trans person elected to the Minnesota Legislature in 2022.

Finke said Democrats’ big tent, which includes well-meaning supporters of trans people, do not understand the overall opposition to transness and trans identity.

A conversation about the issue of sports and sports participation “is not what the Republicans want to talk about,” she said.

Finke said there are also several members of Congress who are “questioning the efficacy of certain arguments in defense of trans people in a way that adopts the language of Republicans.” For instance, Democratic Rep. Seth Moulton of Massachusetts has doubled down on controversial comments ([link removed]) that the party’s election loss stemmed from supporting trans girls’ inclusion in women’s sports.

By doing so, “he's trying to have a good faith argument with people who have made it very clear that they are looking to just get trans people out of the public space,” she said.

Going forward, Democrats do not need to adopt the Republican framing of what it means to be trans, Finke added.

“Trans people are who we say we are, and the defense of our rights is going to require us to accept inclusion of trans people.”
More on trans rights from our coverage:
* Listen: Supreme Court considers Tennessee’s ban ([link removed]) on gender-affirming care for transgender minors.
* Watch: Trans Americans share their concerns ([link removed]) about Trump’s threats to roll back rights.
* Leading Misconceptions: Debunking some common myths ([link removed]) about gender-affirming care for youth.

#POLITICSTRIVIA
By Joshua Barajas, @Josh_Barrage ([link removed])
Senior Editor, Digital

Presidential pardon power can be traced back ([link removed]) to the beginning of America.

Tucked into Article II, Section 2, Clause 1 ([link removed]).) of the U.S. Constitution, pardon power was a way to grant the president a check on power over the judicial branch.

Our question: Which founding father introduced the idea of pardon power at the Constitutional Convention?

Send your answers to [email protected] (mailto:[email protected]) or tweet using #PoliticsTrivia. The first correct answers will earn a shout-out next week.

Last week, we asked: Which U.S. president received a live raccoon for Thanksgiving dinner?

The answer: Calvin Coolidge. ([link removed]) Though Coolidge was initially skeptical of accepting turkeys as Thanksgiving gifts while in the Oval Office, he did accept a range of offerings over the years. This included ducks, deer and — yes — a raccoon. The raccoon was not eaten and was known as an escape artist. ([link removed]) The first family kept it as a pet and named it Rebecca. (Here’s a photo of first lady Grace Coolidge holding Rebecca. ([link removed]) )

Congratulations to our winners: Brenda Radford and Michael Prahl!

Thank you all for reading and watching. We’ll drop into your inbox next week.
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