It’s Legal, But is It Kosher?

Presidential pardons, a feature of presidential power outlined in Article ll of the Constitution, have a long and controversial history. Alexander Hamilton advocated for their importance and necessity in the Federalist Papers. Yet many who supported the ratification of the Constitution almost voted against it because of this unique power. Is a president able to undo the outcome of the judicial process? The answer is an unequivocal yes, when it comes to federal crimes, but lacks the power with regard to state crimes. He (or she) also lacks the power to pardon for impeachable offenses, and we may yet face a constitutional crisis in the next administration over whether this can be extended to a self pardon. What is also clear is that the president, other than these few qualifications, is free to pardon, commute, or reprieve without explanation or justification to Congress or the American people.

Almost all presidential pardons are met with concern, skepticism, and controversy. George Washington pardoned some of the ring leaders of the Whisky Rebellion. Andrew Johnson pardoned thousands of Confederate soldiers and officers. George Bush pardoned six leading officials indicted or convicted of their crimes in the Iran Contra affair.  Among the most controversial are pardons and clemency for a president's family members. President Lincoln may have been the first to do so when he granted amnesty and a full pardon to his sister-in-law, Emilie Todd Helm, who was married to a Confederate general. President Bill Clinton pardoned his half-brother Roger Clinton, who had been convicted of selling cocaine to an undercover officer in 1985. President Trump pardoned Charles Kushner, his daughter Ivanka's father-in-law, who in 2004 was convicted of 18 counts of falsifying tax returns, retaliating against a witness, and making false statements about campaign contributions to the Federal Election Commission. Interestingly, Charles Kushner was recently nominated by President Elect Trump to be the ambassador to France. (One wonders what he learned during his 16 months in federal prison to prepare him for that important position? But I digress...)

Though controversial, a president's privilege to grant a pardon to a family member is not unprecedented. But since the announcement earlier this week, that President Biden pardoned his own son, I have been asked by more than a few members of the congregation about how this decision accords with Jewish law. Is it right? Is it fair? Is there any mechanism like this or for this in Judaism? The answer to each of these questions is a simple and unequivocal no. Especially when family members are involved.

Allow me share a few Halachic (Jewish legal) terms and values that should guide our understanding of this unique power in general, and especially when it comes to the exercise of this power with regard to members of our families.

1) The book of Deuteronomy (16:20) contains the famous verse "Justice, justice shall you pursue." A Rabbinic comment explains that the repetition of the word justice is a warning to judges against showing favoritism, which would undermine the legal process. That is why in any society governed by the rule of law, a judge would recuse himself in a case involving a family member or where they had some personal or financial investment. The same goes for a member of the jury. Verses that seek to maintain the integrity and impartiality of those responsible for justice abound throughout the Torah, as well as throughout the classic Jewish law codes.

2) Judaism acknowledges that there is a tension between strict justice (din) and mercy (rachamim). This tension is highlighted throughout the High Holidays and especially in the liturgy for Yom Kippur. We can certainly empathize with a parent who faces an agonizing dilemma: prioritizing the universal principle of justice versus their innate love and mercy for their child. Halachic texts are clear that mercy has its place but cannot override justice to the extent that it corrupts public governance. The controversy and partisan bickering over this particular pardon, and even the criticism of it emanating from some of President Biden’s supporters only confirms that this looks wrong and feels wrong to a large portion of the public.  

3) Maimonides Hilchot Sanhedrin 23:6 emphasizes the need for public confidence in the justice system. The perception of favoritism in Hunter Biden’s case could, and likely will, weaken trust in democratic institutions, a concern halacha would weigh heavily.

4) Many years ago, I learned an important Halachic lesson that profoundly influenced my understanding of Jewish law in general, and the unique responsibility of a posek (one authorized to render Jewish legal decisions) or a dayan (judge).   While too long to fully explain in this Shabbat message, the bottom line is that only authentic sources and the legal process are allowed to decide judicial matters.  The decisions and rulings based upon them are valid and must stand.  To act otherwise is simply tyranny masked in noble language.  To subvert the process is worse, from a Jewish point of view than to reach a good decision using improper means.  And that is what this pardon, like so many others throughout our history have accomplished. While certainly constitutional, that is to say, within a president’s powers, ask yourself the following question.  How do you really feel about this decision?  And how would you feel if President Trump did the same thing?  That pit in your stomach is your answer. It’s legal, but certainly not kosher.