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Pardon Me: Does Family Loyalty Supersede Justice?
Adapted from the writings of Dayan Yitzhak Grossman
December 12, 2024
AP News reports:
President Joe Biden pardoned his son, Hunter, sparing the younger Biden a possible prison sentence for federal felony gun and tax convictions and reversing his past promises not to use the extraordinary powers of the presidency for the benefit of his family.
The Democratic president had previously said he would not pardon his son or commute his sentence after convictions in the two cases in Delaware and California…
Biden, who time and again pledged to Americans that he would restore norms and respect for the rule of law after Trump’s first term in office, ultimately used his position to help his son, breaking his public pledge to Americans that he would do no such thing.
In a statement released Sunday evening, Biden said, “I believe in the justice system, but as I have wrestled with this, I also believe raw politics has infected this process and it led to a miscarriage of justice.”…
In June, Biden categorically ruled out a pardon or commutation for his son, telling reporters as his son faced trial in the Delaware gun case, “I abide by the jury decision. I will do that, and I will not pardon him.”
As recently as Nov. 8, days after Trump’s victory, White House press secretary Karine Jean-Pierre ruled out a pardon or clemency for the younger Biden, saying, “We’ve been asked that question multiple times. Our answer stands, which is no.”…
“The charges in his cases came about only after several of my political opponents in Congress instigated them to attack me and oppose my election,” Biden said in his statement. “No reasonable person who looks at the facts of Hunter’s cases can reach any other conclusion than Hunter was singled out only because he is my son.
“I hope Americans will understand why a father and a president would come to this decision,” Biden added, claiming he made the decision this weekend.[1]
NBC News, however, reports, without naming its sources, that the president had been considering the pardon since June and deliberately chose to lie about his intentions:
The president has discussed pardoning his son with some of his closest aides at least since Hunter Biden’s conviction in June, said two people with direct knowledge of the discussions about the matter. They said it was decided at the time that he would publicly say he would not pardon his son even though doing so remained on the table.[2]
In this article, we consider several Torah perspectives on choosing between justice and the public good on the one hand and the benefit of one’s own family on the other.
Shimon ben Shetach’s son
The Yerushalmi records:
Shimon ben Shetach’s hands were hot (quick to punish evildoers—Korban Ha’eidah). There came a group of scorners who said, “Let us take counsel, testify against his son, and kill him.” They testified against him, and he was sentenced to be executed. When he was taken out to be killed, they told him, “Our master, we are liars.” His father wanted to return him. He said to him, “My father, if you want salvation to come through you, treat me as a threshold (which is trampled by people).”[3]
In a version of the episode recounted by Rashi, the plotters are identified as the angry relatives of eighty witches whom Shimon ben Shetach had hanged.[4],[5] Interestingly, Rashi’s version omits the Yerushalmi’s assertion that Shimon ben Shetach initially wanted to return his son following the witnesses’ recantation. Indeed, the context of Rashi’s comments is the Gemara’s rule that a person convicted of a capital crime is executed even if the witnesses to his crime recant.[6] Why, then, according to the Yerushalmi, did Shimon ben Shetach seek to save his son until his son told him not to?
The Pnei Moshe (R’ Moshe Margalis) explains that Shimon ben Shetach was indeed unable to dismiss the conviction based on the recantation, but because he now knew that the witnesses had lied, he hoped that other witnesses would testify that the first witnesses had been elsewhere at the time in question, rendering them eidim zomemim (conspiring witnesses).[7]
Another approach to this question, from the contemporary sefer Kinsei Hadayanim, is that Shimon ben Shetach wished to vacate his son’s conviction based on the Gemara’s doctrine of din merumeh (fraudulent verdict):
From where is it derived that if a judge knows that the proceedings are fraudulent, he should not say to himself: Since the witnesses have testified, I will decide the case based on their testimony, and a chain will hang around the necks of the witnesses? The Torah says: Distance yourself from falsehood.[8]
Based on this principle, argue the editors of Kinsei Hadayanim, Shimon ben Shetach could have reversed his son’s conviction. But since an assessment of din merumeh is subjective,
It is easy to imagine what people would say if specifically with regard to the son of the nasi of the Sanhedrin it was discovered that the verdict is fraudulent. What would the other relatives of those women say, and what would the Tzdukim say? Therefore, for the sake of kiddush Hashem and the benefit of Klal Yisrael…his son said to him, “Treat me as a threshold.”[9]
Bein soreir umoreh
The Gemara cites a breisa: “There was never a bein soreir umoreh (the stubborn and rebellious son of Dvarim 21:18) nor will there ever be one in the future.” It proceeds to offer two explanations, the second of which is this:
Or, if you prefer, say: It reflects the view of R’ Shimon, as it was taught in a breisa: R’ Shimon said: Now is it so that just because this boy ate a tarteimar of meat and drank half a log of Italian wine, his father and his mother will take him out to be stoned? (Surely no parent would do so.) Rather, there was never a bein soreir umoreh nor will there ever be one in the future. Why, then, was it written? Expound it and receive reward.
R’ Yonasan said: I saw a bein soreir umoreh, and I sat on his grave.[10]
Executing sinful relatives
The Torah tells that sheivet Levi, following Moshe Rabeinu’s orders, killed those who were near and dear to them who had sinned with the eigel hazahav:
Moshe stood at the gateway of the camp, and said, “Whoever is for Hashem, join me!”—and all the Levi’im gathered around him. He said to them, “So said Hashem the G-d of Yisrael, ‘Every man, put his sword on his thigh and pass back and forth from gate to gate in the camp. Let every man kill his brother, every man his fellow, and every man his near one.’” The Levi’im did as Moshe said, and about three thousand men of the people fell that day. Moshe said, “Dedicate yourselves this day to Hashem—for each has opposed his son and his brother—that He may bestow upon you a blessing this day.”[11]
At the end of his life, Moshe praised them for this:
The one who said of his father and mother, “I have not favored him”; his brothers he did not give recognition and his children he did not know; for they (the Levi’im) have observed Your word, and Your covenant they preserved.[12]
The Gemara addresses the general question of whether a son may be designated an agent of bais din to carry out punishments upon his father:
They inquired of Rav Sheishess: May a son be made an agent of bais din to punish his father—to strike him or to curse him on its behalf?
Rav Sheishess answered them: And who do you think permitted someone other than a son? Rather, we must say that the honor of Heaven supersedes the isurim against striking or cursing another. Here too, the honor of Heaven supersedes the isurim against striking or cursing one’s father.[13]
The Gemara proceeds with an extensive, but ultimately inconclusive, series of challenges to the view of Rav Sheishess, and finally concludes:
How was the question resolved? Rabbah bar Rav Huna said—and so it was taught in a breisa of the yeshiva of R’ Yishmael—If a man was sentenced for any sin, his son may not be made an agent to strike him or curse him, except for one who instigates others to engage in idolatry, for the Torah says in that case, “You shall not be compassionate nor conceal him.”[14]
[1]Zeke Miller, Alanna Durkin, and Colleen Long. Biden pardons his son Hunter despite previous pledges not to. https://apnews.com/article/biden-son-hunter-charges-pardon-pledge-24f3007c2d2f467fa48e21bbc7262525.
[2]Carol E. Lee and Sarah Fitzpatrick. President Biden Pardons His Son Hunter Biden. NBC News. https://www.nbcnews.com/politics/joe-biden/joe-biden-issue-pardon-son-hunter-biden-rcna182369.
[3]Yerushalmi Sanhedrin 6:3. Our translation of the word askupah follows the its usual meaning and the commentaries of the Korban Ha’eidah and the Or Layesharim.
[4]See Mishnah Sanhedrin 6:4; Yerushalmi Chagigah 2:2.
[5]Rashi Sanhedrin 44b. Cf. Tosfos Chagigah 16b s.v. Av bais din.
[6]See our discussion of this Gemara in Justice of the Peace: Externalities in Jurisprudence. Apr. 29, 2021.
[7]Pnei Moshe ibid.
[9]Kinsei Hadayanim, Kenness Hadayanim 5779, p. 400.
[11]Shmos 32:26-29.
[12]Dvarim 33:9. Chazal understand this pasuk to refer to their killing of their relatives who had sinned with the eigel hazahav–see Sifri ibid. and Yoma 66b (cited in Rashi to Dvarim ibid.).
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