More on Pardons

Following up on my pardon Substack from last night, in this Substack, I’ll talk about four separate things:

1. The Theory of the Power of the President to Pardon Crimes

2. Charging Hunter with an Innocuous Gun Control Crime Was Indeed Selective Prosecution: The Justice Department Did It As a Way to Give Him Immunity for His Major Crimes

3. Will Hunter Lose His Right to Remain Silent When Called as a Witness against Joe and Jill Biden?

4. Embarassingly Bad Defenses of the Hunter Biden Pardon by Leftwingers

1. The Theory of the Power of the President to Pardon Crimes

The President of the United States can pardon federal crimes, and the Governor of Indiana can pardon Indiana state crimes. These are both descended from thepower of the King of England to pardon English crimes. The King is the sovereign. In his courts, his judges adjudicate disputes between people in his kingdom. Criminal offenses are public offenses, not private ones. A burglary is a crime against the sovereign, representing the public interest, not against the homeowner. The King decides whether to prosecute or not, and the King’s courts decide who is guilty and what the penalty should be, according to the laws. The King can decide not to prosecute, for whatever reason he thinks proper, and the King can decide to be merciful and not execute the punishment which his judge decided was appropriate.

Think of the prosecution decision when you think of the pardon decision. In 2021, President Biden decided not to prosecute Hunter for tax crimes.We do not know if he decided that personally, but people in the Justice Department knew of the results of the IRS investigation and someone there made the decision. Probably multiple people did, since when the potential defendant is the President’s son, it’s unlikely the Justice Department would let some junior lawyer fresh out of law school decide whether to drop the case or not. In any case, the decision is ultimately up to the President, who is the boss of the Attorney General and the dozens of U.S. Attorneys for the various districts around the country. Later, Joe Biden changed his mind and did decide to prosecute Hunter, so as to secure immunity for him via a plea deal. That fell apart when the judge failed to approve it, so Biden dropped that prosecution and started another one using a special prosecutor. That prosecution led to conviction and Biden has now pardoned Hunter for those crimes, and for others. But Biden never had to prosecute at all.

When President Andrew Johnson pardoned all Confederates after the Civil War, or President Ford pardoned ex-President Nixon, or President James Carter pardoned all draft dodgers, those were in effect announcements that the President was going to use his prosecutorial discretion to to prosecute certain crimes. After those Presidents left office, the next Presidents could, if the statutes of limitation had not run out, test those pardons by starting prosecutions. The defendants would have moved to dismiss based on their pardons, and the courts would have had to decide whether the pardons were valid, like pardons after convictions for specific offenses. In all three cases, the blanket pardons were never tested because almost everybody thought that the pardoned persons had suffered enough and that national unity was best served by moving on. Note that in all three cases, the crimes were quasi-political— supporting secession, obstruction of investigation of federal offenses (Nixon could have simply pardoned the Watergate burglars and avoided the intricacies of the cover-up), and evading service in a war that many people opposed.

Thus, the Trump Justice Department could still prosecute Hunter Biden for, say, failure to register as a foreign agent in 2015. Hunter would move to dismiss based on his pardon, and the court would grant or deny his motion. Either way, the decision would be appealed to a regional Circuit Court of Appeals and then to the Supreme Court. I think the pardon is invalid because it is too broad, but I don’t know what the courts would do. I would grant the validity of the pardon if it specified the exact actions for which Hunter was being pardoned, e.g., if it specified he had served as an agent of Ukraine, or had attempted to bomb the Capitol, or had tried to assassinate his father— no matter how heinous the deeds, the President can pardon them— but only if he is willing to tell the public what bad things he is pardoning. The pardon is for a crime, not a person’s entire life.

It is clear that the King, or President, can choose to be merciful and grant a pardon for a specific offense for whatever reason he likes, and he doesn’t even have to explain himself. He can pardon his son; he could even pardon himself. If we don’t like the pardon, our recourse is not in the courts; it is political. Thus, in the present case, the Democratic Party is facing heavy criticism for the pardon, and Republicans will talk about this in the 2026 election.

I look to Blackstone’s 1776 Commentaries on the Laws of England when I have questions about the common law, not just because it is an authority, but because it is so well written, a pleasure to read. Two chapters are relevant. Chapter 7, Book I, “Of the King’s Prerogative,” says,

In criminal proceedings, or prosecutions for offences, it would still be a higher absurdity, if the king personally sate in judgment; because in regard to these he appears in another capacity, that of prosecutor. . . .As the public, which is an invisible body, has delegated all its power and rights, with regard to the execution of the laws, to one visible magistrate, all affronts to that power, and breaches of those rights, are immediately offences against him, to whom they are so delegated by the public. He is therefore the proper person to prosecute for all public offences and breaches of the peace. . . . And hence also arises another branch of the prerogative, that of pardoning offences; for it is reasonable that he only who is injured should have the power of forgiving. And therefore, in parliamentary impeachments, the king has no prerogative of pardoning: because there the commons of Great Britain are in their own names the prosecutors, and not the crown; the offence being for the most part avowedly taken to be done against the public.

Mainly, pardons are covered in Chapter 31, Book IV, “Of Reprieve and Pardon”. We see here the motivation for the pardon power: to allow someone— the King— by granting mercy to someone who has violated the letter of the law but whom we do not think should be punished, because of their special circumstances and because the letter of the law was not written with those circumstances in mind. It allows for discretion, for bending the law when appropriate:

Law (says an able writer) cannot be framed on principles of compassion to guilt; yet justice, by the constitution of England, is bound to be administered in mercy. . . . This is indeed one of the great advantages of monarchy in general above any other form of government: that there is a magistrate who has it in his power to extend mercy wherever he thinks it is deserved; holding a court of equity in his own breast to soften the rigour of the general law in such criminal cases as merit an exemption from punishment.

An alternative to granting the pardon power to the King would be to grant it to the judges or juries— to let them violate the letter of the law if it doesn’t make for justice in the individual case. And in fact we do allow for jury nullification. This is very dangerous, however, because judges and juries are not visible and accountable like a King is— or, even more, a President up for re-election. If we let judges bend the law willy-nilly, we give them too much power to use their prejudices— against blacks, against rich people, against corporations— to warp the law:

The exclusion of pardons must necessarily introduce a very dangerous power in the judge or jury, that of construing the criminal law by the spirit instead of the letter; ⁾or else it must be holden, what no man will seriously avow, that the situation and circumstances of the offender (though they alter not the essence of the crime) ought to make no distinction in the punishment.

Historically, American courts handed down many more death sentences than they do today, not because judges were necessarily more strict, but because they knew the governor would commute the sentence to imprisonment in many cases.¹

Blackstone also says that the King must know what he is doing when he issues a pardon. If he is wrong about the facts, then the pardon is void and the courts should ignore it.

It is a general rule that wherever it may reasonably be presumed the king is deceived, the pardon is void. Therefore any suppression of truth, or suggestion of falsehood, in a charter of pardon will vitiate the whole; for the king was misinformed.

A blanket pardon like the Biden one is so vague that it is reasonable to presume that the President does not know exactly what he is pardoning, and hence the pardon is invalid. Indeed, another principle of law is to start with a presumption that government officials are honest, even if that is not a realistic presumption. If we do that, we should presume that the President would not intend to grant pardons merely because a person is his relative and so we would presume that unless he specifies an offense and a reason, he didn’t have a correct view of the situation and so did not really intend to pardon bribery, treason, nonregistration as a foreign agent, and so forth. And then in Biden’s case there is the serious possibility of what Sridhar Ramesh suggests humorously:

We should also, in the present strange era, wonder if Joe Biden even was told of the pardon for Hunter. It is seriously possible that his letter announcing he was dropping out of the presidential race was released without his knowledge, and this pardon might be the same. Do we know Joe Biden is of sound mind? This would not matter so much if the pardon had gone through the normal procedures for processing pardon requests, because then various government officials would have vetted the request and given their opinions for and against, and whether the President himself approved it would not matter so much; it would be an act of the Office as much as of the Man. But the Hunter pardon did not go through that process.

2. Charging Hunter with an Innocuous Gun Control Crime Was Indeed Selective Prosecution: The Justice Department Did It As a Way to Give Him Immunity for His Major Crimes

Hunter was convicted of a gun control crime and tax crimes. The gun control crime is a felony, and it is not malum in se, not morally bad except for him lying when he signed a document saying he was qualified to buy a gun. This would not ordinarily be prosecuted. It is a law that liberals pushed hard for though, and if you are serious about gun control, you should want to start by prosecuting laws like these, and especially in high-profile cases like this. Why, then, was it prosecuted by Biden’s Justice Department when the defendant was Hunter Biden? —because it was a way to go easy on him. President Joe Biden and Attorney-General Merrick Garland wanted to make a plea bargain under which Hunter would plead guilty to this minor, innocuous, crime, in exchange for immunity from prosecution for his major, malum in se, evil-sounding crimes.

It was indeed corrupt to charge Hunter Biden with this minor gun crime— but the corruption was in going easy on him by charging him with this minor crime instead of the major crimes that were the real ones that needed punishment.

The 2023 deal that Judge Cannon refused to approve had the gun crime as camouflage for pardon of Hunter’s tax crimes and for unspecified crimes concerning how he generated the income on which he failed to pay taxes. Jason Foster did a comparison of Hunter's tax crimes and prosecution with a Maryland guy’s, with the same prosecution team.

Readers may also find useful the excellent article by Professor Josh Blackman at Volokh Conspiracy, “Comparing Trump's Pardon of Arpaio and Biden's Pardon of Biden.” I have not yet seen an analysis comparing the Hunter pardon to the various pardons Trump gave for people accused of political crimes, so I do not know if they were all justified. One common mention is Trump’s pardon of Charles Kushner, though, in 2020. That is an odd one because Kushner was convicted over 10 years earlier, and served his entire two-year sentence, so it is not clear what he got out of being pardoned.

3. Will Hunter Lose His Right to Remain Silent When Called as a Witness against Joe and Jill Biden?

This is a question of technical law, and I am not an expert. UCLA Professor Eugene Volokh has a quick take. But I know the principles. First, note that the validity of the pardon is unquestionable for the gun control crime and the particular tax crimes for which he was convicted. Also for certain other crimes, the statute of limitations has already run out. If a court, a congressional committee, or any other entity with subpoena power calls him as a witness and asks him questions about those crimes, he must answer or he can be jailed for contempt. He cannot plead the 5th Amendment. If he does answer, and he lies, he can held in contempt by the entity with subpoena power, or prosecuted for perjury or for making false statements by the Justice Department. This includes lies such as “I don’t remember,” if indeed he is lying when he says he forgets.²

If, however, there is a chance Hunter’s answer might help convict him of a state crime, then he can refuse to answer. Hunter failed to pay his federal income tax in certain years. Did he pay his state tax— Delaware, DC, or whatever? Probably not. I would bet money at high odds that he failed to file state income tax returns, though he might have filed them later when he finally filed his federal returns in an effort to avoid getting prosecuted. Thus, if he is asked, “Did you earn more than zero income in 2015?” he could refuse to answer on the grounds that it might incriminate him for violation of state tax laws.

Also, I don’t think the pardon is valid except for the specific violations for which he was convicted, though I do think it is valid for those even though he hasn’t been sentenced yet. I discuss why I don’t think the pardon is valid in my earlier Substack. Thus, if he is asked, “Did you cheat on your taxes in 2023?”, he can refuse to answer on the grounds that he really hasn’t been pardoned. He can even say, quite legitimately, that he thinks his father’s pardon is valid, but there’s a good chance the courts might disagree and until he’s prosecuted and an appeals court verifies that the pardon is valid, he has a right to remain silent for fear his answer might incriminate him.

Another consideration is the statute of limitations, which says that unless someone is prosecuted within X years he cannot be prosecuted at all. The amount X depends on the crime. For the crime of intentionally failing to pay taxes, the statute of limitations is 6 years. If they try to prosecute after 6 years, you cannot be put in jail.³

I don’t know what the statutes of limitations are for Hunter’s various possible uncharged crimes are. It’s unlikely he’s murdered anyone, but there X would be infinite; there’s no statute of limitations for murder. The likely crimes are things like bribing a federal official, bribing foreign officials, and failure to register as a foreign agent. These are federals crimes that lack a state crime equivalent, so I should think he could not plead the 5th based on them if their statutes of limitations have expired, which they probably have after the 8 years since 2016.

4. Embarassingly Bad Defenses of the Hunter Biden Pardon by Leftwingers

In this first 24 hours after the pardon, I’m seeing some amazing defenses of it on X, Bluesky, and elsewhere. Bluesky is particularly fertile ground. I present these for your amusement. They are edifying too— they show how surprisingly ignorant nice liberals are of facts that conservatives have been reading about regularly for some years now. I would comment on these, except I do want to finish this Substack tonight.

Footnotes

1. The following passage on reprieves— temporary pauses before the imposition of punishment— from Chapter 31 of Blackstone I find very interesting, even though it is digressive here. It is about what to do if a woman says she is pregnant and should not be put to death.

In case this plea be made in stay of execution, the judge must direct a jury of twelve matrons or discreet women to inquire the fact; and if they bring in their verdict quick with child, (for barely with child, unless it be alive in the womb, is not sufficient,) execution shall be stayed generally till the next session; and so from session to session till either she is delivered or proves by the course of nature not to have been with child at all. But if she once hath had the benefit of this reprieve and been delivered, and afterwards becomes pregnant again, she shall not be entitled to the benefit of a further respite for that cause. For she may now be executed before the child is quick in the womb, and shall not, by her own incontinence, evade the sentence of justice.

2. How do you prove he did remember? The same way you prove anything else— by the facts of the situation. Very often a reasonable man you would believe beyond a reasonable doubt that someone is lying— for example, if I answer the question “What is your address?” with “I don’t recall.” It’s up to the twelve jurymen to decide, just like “How do you prove he agreed to commit the murder?” or any other disputed fact.

3. This, too, gets technical. For criminal tax fraud, the statute of limitations is 6 years. For civil tax fraud, however, there is no statute of limitations. X is infinite; they can go after you and make you pay your back taxes plus interest and penalties forever. Since it is a civil offense, though, not criminal, they cannot put you in jail. The distinction between civil penalties and criminal penalties has never made sense to me; they can take all your money either way. I don’t know how the right against self incrimination works, but I think you don’t have it in civil cases.

In some cases, the interest can pile up to be more than the original unpaid taxes. See my "The Meaning of "Value" for Gift and Estate Tax Donee Limitation in Tax Code 26 U.S.C. Section 6324(B): An Amicus Brief for Marshall v. Commissioner" (August 12, 2013). In 1995, J. Howard Marshall II made a gift to Elaine Marshall worth some $43 million at the time of transfer. The IRS assessed gift tax against his estate, which failed to pay. In 2008 the IRS assessed gift tax of $74 million against donee Elaine Marshall, which exceeds $43 million because of the interest accumulated since 1995 but is less than the $81 million the gift would compound to at 5% per year. Does the limitation on donee liability to "the value" of the gift imposed by 26 U.S.C. Section 6324(b) mean to "the original amount of the gift" or to "the value of the gift at the time of eventual tax payment"? In effect, that is the issue in Marshall v. Commissioner, which is now before the 5th Circuit. The SD Texas and the 11th Circuit went one way; the 3rd and 8th Circuits went the other way. This paper is an amicus brief for that case and, I hope, a good example of how economics can inform and simplify law. http://ssrn.com/abstract=2261914).