Joe Biden Pardoning Hunter Biden: Will It End up with Hunter Testifying against Joe?

This is a pardon not only for Hunter’s minor, malum prohibitum, crime of gun possession and his major, malum in se crimes of failing to file income taxes in some years and trying to deduct prostitute payments as business expenses in other, but for ALL crimes he committed from 2014 to 2024. President Biden wanted to issue a blanket pardon like this because his Attorney-General has refused to investigate or prosecute most of Hunter Biden’s crimes, and the next Attorney-General won’t be partial to Democrats. First, the FBI refused to cooperate with the IRS under the Trump Administration when IRS agents discovered Hunter hadn’t filed his taxes. They slow-walked it till Biden became President, shunted aside the civil service IRS agents who were on the case, purposely botched the search by warning the Bidens first, and then tried to slip a soft gun charge plea bargain past a federal judge. The judge noticed, and refused to approve it. This got into the press, and the IRS agent went as whistleblowers to House Republicans, so Biden appointed the corrupt prosecutor as a special prosecutor this time and had him prosecute the gun charge and a few tax charges more actively, while at the same time the IRS agents faced retaliation and lawsuits.

Behind all this, though, was the fact that the Justice Department tightly shut their eyes to the likelihood that Hunter Biden had illegally acted as an agent of foreign governments, and that Joe Biden was involved with drug-addled Hunter’s ability to get foreign companies needing political favors to pay him hundreds of thousands of dollars. This is presumably what Joe is now pardoning Hunter for, though who knows what other perversions sexual and financial Hunter may have been engaged in during those ten years.

But let us look to the future, not the past. I see two opposite ways this might play out that might make this pardon less useful than Joe think (or than Jill Biden thinks; it’s questionable whether Joe thinks these days.

First, is the pardon binding as a matter of law? I really don’t know. It is well established that the King can pardon someone who has been convicted in the King’s courts, just as he can refuse to have his attorneys prosecute a case. They are the King’s courts, after all. He does not have to give a reason, and it is quite legal for him to pardon his friends and family, or even himself. So it is now with the President, the executive who in the United States has replaced the King. I will continue talking about the King, though, because that is where the rationale and theory of pardons comes from.

I think that the pardon outlives the King, and outlives the President’s term of office. I am not so sure of this, however. Almost always, the King pardons someone after they have been convicted of a crime. That means the doctrine of double jeopardy applies— the person cannot be tried again for the same offense. The next King can therefore not try the person again. If, however, the pardon was issued before conviction, it isn’t so clear. This is more like the King saying he declines to prosecute—- and so long as the statute of limitations has not run out, the King can change his mind about that. A fortiori, the new King could decide to prosecute.

Here, though, the pardon does not even specify a crime. How, then, can it bind a future President? How far could this go? Could President Biden pardon, '“for those offenses which they have committed against the United States” not just one particular person, but any member of the Democratic Party? Could he say, “I pardon for those offenses they have committed against the United States in 2024 anybody in my Administration except those who were disloyal to me”? There are limits to pardons. And, indeed, how can we say that the President is knowingly pardoning someone when he has no idea of what the person has done? Suppose it turns out that Hunter Biden was an Iranian spy, something nobody has ever alleged and which would be a complete surprise to us all. How could the President be said to have knowingly pardoned that?¹

So Trump’s Attorney-General could still prosecute.

Second, however, and more important, prosecution is not what matters now, but investigation. Hunter Biden’s tax cheating is certainly bad enough that if he were an ordinary private citizen he would be in prison by now— though in one of the nicer federal prisons, the ones for white-collar criminals. It wasn’t just a little tax cheating; it was massive in dollars, number of years, and the flamboyance of the false entries. And the IRS likes to make examples of celebrities too, for good, nonpolitical reasons. They know the public pays more attention when a tax cheat goes to prison if he’s a celebrity, and this helps the public resist the temptation to cheat on their own taxes. But even rightwing Republicans don’t have much animus towards poor Hunter Biden, a despicable worm in so many ways, including that he seems to always end up in failure in his seductions, schemes, grubby sex scandals, and drug escapades. He is a self punisher if ever there was one. Rather, what is important in the public interest is to explore how his crimes were covered up by the Justice Department, both before and during the Biden Administration, and how many other people were involved, including, especially the President and the President’s wife (whom many suspect of being the real President).

An investigation does not require a prosecution. Indeed, investigation is easier and quicker if prosecution is not the goal. A prosecutor has to make sure that his evidence is admissible in court under the arcane standards imposed by the Warren Court; a prosecutor just has to find evidence that will tell himself and the public what happened. A prosecutor has to take many months preparing for a trial before a jury, with indictment and motions for disclosures, delays, and all manner of things taking more months. An investigator just has to write up his results.

For an investigation, in fact, the Biden pardon may be extremely helpful. Suppose the pardon is indeed binding, and Hunter can never be prosecuted for any crime committed from 2014 to 2024. In that case, how can he plead the 5th Amendment, the right against self-incrimination, if he is called upon to testify in investigations of other people, people such as his father? He has immunity. He must testify. And if he lies, that is either the crime of lying to the FBI— the “Martha Stewart” felony that was employed against General Flynn— or, if he is under oath, it is perjury. Those crimes are not covered by the pardon, because they did not occur between 2014 and 2024— if he lies, it will be in 2025.

So maybe this pardon is good news after all.

Footnotes

1. Older readers will, like me, think of President Ford’s pardon of former President Nixon back around 1975. It was not for specific crimes either. But neither was it ever tested whether that pardon was binding. Essentially, it was a decision by Ford not to investigate Nixon any further or to criminally prosecute him for the offenses that got Nixon in trouble. Since Nixon was already in disgrace, even Democrats had no great interest in prosecuting him at that point in time, and it was unclear whether there was enough evidence to convict him “beyond a reasonable doubt” of, for example, ordering tapes to be partially erased. President Carter could have prosecuted in 1977 perhaps— if the statute of limitations had not run out— but he chose not to try.