The Hunter Biden Pardon
Perhaps a story of unintended consequences - we shall see...
Statement from President Joe Biden
December 01, 2024
Today, I signed a pardon for my son Hunter. From the day I took office, I said I would not interfere with the Justice Department’s decision-making, and I kept my word even as I have watched my son being selectively, and unfairly, prosecuted. Without aggravating factors like use in a crime, multiple purchases, or buying a weapon as a straw purchaser, people are almost never brought to trial on felony charges solely for how they filled out a gun form. Those who were late paying their taxes because of serious addictions, but paid them back subsequently with interest and penalties, are typically given non-criminal resolutions. It is clear that Hunter was treated differently.
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. Then, a carefully negotiated plea deal, agreed to by the Department of Justice, unraveled in the court room – with a number of my political opponents in Congress taking credit for bringing political pressure on the process. Had the plea deal held, it would have been a fair, reasonable resolution of Hunter’s cases.
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 – and that is wrong. There has been an effort to break Hunter – who has been five and a half years sober, even in the face of unrelenting attacks and selective prosecution. In trying to break Hunter, they’ve tried to break me – and there’s no reason to believe it will stop here. Enough is enough.
For my entire career I have followed a simple principle: just tell the American people the truth. They’ll be fair-minded. Here’s the truth: 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 – and once I made this decision this weekend, there was no sense in delaying it further. I hope Americans will understand why a father and a President would come to this decision.###
Executive Grant of Clemency
Joseph R. Biden, Jr.
President of the United States of America
To All to Whom These Presents Shall Come, Greeting:
Be It Known, That This Day, I, Joseph R. Biden, Jr., President of the United States, Pursuant to My Powers Under Article II, Section 2, Clause 1, of the Constitution, Have Granted Unto
ROBERT HUNTER BIDEN
A Full and Unconditional Pardon
For those 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, including but not limited to all offenses charged or prosecuted (including any that have resulted in convictions) by Special Counsel David C. Weiss in Docket No. 1:23-cr-00061-MN in the United States District Court for the District of Delaware and Docket No. 2:23-CR-00599-MCS-1 in the United States District Court for the Central District of California.
IN TESTIMONY WHEREOF I have hereunto signed my name and caused the Pardon to be recorded with the Department of Justice.
Done at the City of Washington this 1st day of December in the year of our Lord Two Thousand and Twenty-four and of the Independence of the United States the Two Hundred and Forty-ninth.
This isn’t the first time something like this has happened, indeed, there is precedent from 1974:
“Now, therefore, I, Gerald R. Ford, President of the United States, pursuant to the pardon.power conferred upon me b) Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969, through August 9, 1974.”
THE NIXON PARDON: LIMITS ON THE BENIGN PREROGATIVE by Hugh C. Macgill, at https://digitalcommons.lib.uconn.edu/cgi/viewcontent.cgi?article=1319&context=law_papers
Note that the pardon could be overturned for lack of specificity - if you've read the actual Biden pardon above, that specific crimes are mentioned - and for those, the pardon would hold. As for the unspecified actions, there is lack of specificity which would contravene the original intent behind the pardon power. If such a general pardon were upheld, then an Administration could perform all sorts of illegal actions, and then the culpable actors could be relieved of all responsibility for their bad acts by such a pardon, and that would make for disastrously bad public policy. As Justice Brandeis put it, in his famous dissent in Olmstead v. United States, 277 U.S. 438 (1928): "Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy." Brandeis, J. in Olmstead, at 485, at https://supreme.justia.com/cases/federal/us/277/438/. Alas, the Nixon pardon was never tested in court.
And yet, there may be consequences which Joe Biden and his Administration may not have taken into account:
"In the 1915 case of Burdick v. U.S., George Burdick refused a pre-emptive pardon ... because accepting it would have meant that he could not claim his Fifth Amendment privilege when called to give testimony relating to the pardoned crime before a grand jury." https://www.brookings.edu/articles/presidential-pardons-settled-law-unsettled-issues-and-a-downside-for-trump/
The pardon has immediate effect - and Biden is still in office until 21 January of next year - that's nearly two months. The effect of the pre-emptive pardon is that Hunter may be compelled to answer questions by, say, a House committee - and he wouldn't be able to plead the Fifth Amendment. They could serve him by Friday with the subpoena, and have him in on Monday, December 9 - plenty of time to ask lots and lots of questions. And they could subpoena lots and lots of documents - and a lot of people will still be very much on the hook. There's a good reason that pardons are done on the last day of an Administration...
I suspect, without any evidence, that Trump and Biden have struck a deal not to go after each others' families. Also Trump's DOJ will not target Obama, Clinton, Biden or Harris. That said, they probably will dive deep into Crossfire Hurricane, Burisma, 2020 Election and much more. I personally hope that they do indeed go deep but that the emphasis is more on presenting convincing evidence to the American people so that not only is widespread endemic corruption revealed definitively, but then substantive reforms can be effected. So the emphasis should be on revealing corruption and then repairing the systems as opposed to mass prosecutions and incarcerations. Some, yes, but not thousands even though thousands are warranted. A large component of this will involve dismantling the Administrative State which has no constitutional basis apart from the tacit consent of Congress which in theory oversees its spending and legislative basis. It will be interesting to see what comes out of DOGE.
For example, I doubt they will dismantle the entire IC sphere, nor the Federal Reserve system, both of which are a large part of the problem. But we'll soon see - IF there is a new inauguration on Jan 20th. Deals are being made, though, so probably to get his mandate for substantive reform through they are going to have to have an agreement of various things that will be off limits.
Interesting times!
I asked Grok 2 on X a few questions and got interesting answers about pardons, impeachments and so forth. Some grey areas involve the Nixon pardon which was broad but also never challenged. If it was challenged (pardoning for unspecified, uncharged, not adjudicated crimes etc.) it might not have held up. It would come down to judgment calls in either Senate or SCOTUS. One scenario is feasible, though unlikely:
Biden could be impeached after his Presidency is over for a variety of thing involving Burisma-China bribes, 2020 Election theft, border policies and funding of illegals with housing, transportation etc. Once impeached, his Presidential immunity is stripped and he can be criminally prosecuted especially where there is a clear case of personal action and benefit not directly connected with Presidential duties.
I doubt this will happen since such impeachments will not go through Congress as currently constituted (RINOs etc.) Again, I think the main thing is clarity/exposure followed by substantive reform. That said, hopefully some of the players like Brennan and Comey, possibly even a Pelosi or two, will be hauled up and tried. Gonna be interesting!