The Truth About the Grow­ing Hunter Biden Par­don Scan­dal

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The Truth About the Growing Hunter Biden Pardon Scandal

Dis­il­lu­sioned Amer­i­cans across the nation are still express­ing their dis­taste at Pres­i­dent Joe Biden’s grant­i­ng a uni­ver­sal par­don to his con­vict­ed crim­i­nal son, Hunter, but after sep­a­rat­ing fact from fic­tion, there are poten­tial down­sides for the pres­i­dent and his fam­i­ly from the Hunter Biden par­don and an uncer­tain answer to how this pow­er will be used in the future.

Under­stand­ing this grow­ing scan­dal of Biden Fam­i­ly cor­rup­tion requires under­stand­ing Hunter’s crimes as well as how pres­i­den­tial par­dons work and how they don’t. Media sto­ries have been hit-or-miss in explain­ing this scan­dal and have not yet dis­cussed how this par­don could actu­al­ly blow the doors open on every ques­tion­able event that involves any­one with the last name “Biden.”

Hunter’s sor­did sto­ry reeks of cor­rup­tion, polit­i­cal favoritism, and the worst prac­tices of the Deep State. Delaware U.S. Attor­ney David Weiss tried to sneak in a sweet­heart plea deal to get Hunter out of many of his self-inflict­ed legal woes. (Weiss was appoint­ed by Pres­i­dent Trump, but U.S. attor­neys are effec­tive­ly cho­sen by home-state sen­a­tors, so Delaware’s two Demo­c­rat sen­a­tors – faith­ful allies of Biden – blessed the selec­tion of Weiss if they did not pick him out­right.)

But Judge Maryellen Nor­ei­ka – also appoint­ed by Trump – smelled a rat, find­ing lan­guage buried in a sec­ondary doc­u­ment that a judge often does not see that would close the door on any addi­tion­al crim­i­nal charges, and she blew the lid off the whole scheme. She announced dur­ing a court hear­ing that she had nev­er seen such a deal and asked the fed­er­al pros­e­cu­tors stand­ing before her if they had ever seen such word­ing hid­den in such a sec­ondary doc­u­ment. They admit­ted they had not.

Humil­i­at­ed, Weiss then turned on a dime, bring­ing real charges against Hunter and tak­ing them to tri­al. Even so, Weiss charged Hunter only with crimes that had no con­nec­tion to Pres­i­dent Biden. For exam­ple, there were no For­eign Agents Reg­is­tra­tion Act (FARA) charges, which would have got­ten into why for­eign pow­ers were pay­ing enor­mous sums of mon­ey to Hunter – and through him to the whole Biden clan – which would even­tu­al­ly lead back to qui­et access Hunter pro­vid­ed to his ultra-pow­er­ful father.

Nonethe­less, fed­er­al pros­e­cu­tors pur­sued Hunter on these non-Joe crimes, and those pros­e­cu­tors nailed him. Hunter was sched­uled to be sen­tenced this month on two sep­a­rate crimes.

First, he lied when he pur­chased a gun. When a per­son buys a firearm at a gun store he must fill out Form 4473 issued by the Bureau of Alco­hol, Tobac­co, Firearms and Explo­sives (ATF), which among oth­er things asks about using ille­gal drugs. It’s a felony to lie on that form, and Hunter – who as a grad­u­ate of Yale Law School – knows bet­ter and did so.

Sec­ond, he was charged with tax eva­sion, like­wise sched­uled for sen­tenc­ing this month. The judge over that case – Mark Scar­si, also appoint­ed by Trump – ter­mi­nat­ed all pro­ceed­ings because of the par­don. But before doing so, he back­hand­ed Joe Biden’s state­ment that that no rea­son­able per­son would pros­e­cute Hunter, writ­ing that the cur­rent pres­i­dent was say­ing the “legion of civ­il ser­vants” at the Depart­ment of Jus­tice (DOJ) involved in his son’s pros­e­cu­tion “are unrea­son­able peo­ple.”

That explains the tim­ing of Hunter’s par­don. Issu­ing it on Decem­ber 1 instead of Jan­u­ary 19 or the morn­ing of Jan­u­ary 20 was nec­es­sary to keep the ham­mer from falling on Hunter. Joe could not wait until he was head­ing out the door next month.

But the word­ing of the par­don also rais­es eye­brows, cov­er­ing any crimes that Hunter might have com­mit­ted between Jan­u­ary 1, 2014, and Decem­ber 1, 2024 – almost 11 years. That’s a long time. Fed­er­al law at 18 U.S.C. § 3282 pro­vides that the statute of lim­i­ta­tions – mean­ing the dead­line – to bring fed­er­al charges is lim­it­ed to five years unless a spe­cif­ic crim­i­nal law spec­i­fies a dif­fer­ent num­ber of years. The time­frame in the par­don is very unusu­al in part because of this five-year default rule, lead­ing one to ques­tion why Joe would want to cov­er Hunter for so many years.

It is worth not­ing that Hunter joined the board of Baris­ma Hold­ings – the infa­mous Ukrain­ian ener­gy com­pa­ny – in April 2014. Hunter was giv­en a seat on the board for close to $1 mil­lion a year for a no-show job, amaz­ing because Hunter had no back­ground in the ener­gy indus­try and did not speak Ukrain­ian. This par­don would cov­er that entire peri­od, prompt­ing ques­tions of what sort of back­door deal­ings might have been going on.

Anoth­er fact worth not­ing is that Joe did not involve DOJ’s Office of the Par­don Attor­ney (OPA). Pres­i­dents receive a moun­tain of requests for clemen­cy, so OPA admin­is­ters that process, tee­ing up rec­om­men­da­tions for the White House. Evi­dent­ly Joe was not con­fi­dent that OPA would con­clude that Hunter deserved a par­don, so he avoid­ed that addi­tion­al neg­a­tive press by ignor­ing DOJ alto­geth­er. He has the right to do so, but it just makes this look even more naked­ly polit­i­cal.

Weiss is now offi­cial­ly protest­ing that the indict­ments against Hunter should not be dis­missed, but his asser­tion should be looked at skep­ti­cal­ly as like­ly a com­bi­na­tion of croc­o­dile tears and rope-a-dope. The president’s pow­er to par­don these charges is essen­tial­ly absolute, and Weiss should know per­fect­ly well that any fed­er­al tri­al judge would imme­di­ate­ly toss an ongo­ing case where the defen­dant has been par­doned.

Final­ly, Con­gress can­not lim­it pres­i­den­tial par­don pow­er. The Con­sti­tu­tion con­fers it direct­ly on the pres­i­dent and spec­i­fies only that it can­not be used to over­come impeach­ments, so Con­gress has no pow­er to lim­it the president’s use of it.

But there are some lim­its to pres­i­den­tial par­dons, and more than one mem­ber of the Biden fam­i­ly might find out that this devel­op­ment could be a mixed bless­ing for the Bidens.

For one, a pres­i­den­tial par­don does not cov­er state crimes. (Or at least the courts have nev­er held that it does, and from a fed­er­al­ism stand­point it would like­ly vio­late state sov­er­eign­ty if the pres­i­dent – a fed­er­al offi­cer – could uni­lat­er­al­ly over­throw a state pros­e­cu­tion of a pri­vate cit­i­zen.) Crim­i­nals often do not con­tain their law­less behav­ior to dis­crete cat­e­gories. Depend­ing on the statute of lim­i­ta­tions for state crimes, it is pos­si­ble – unlike­ly, but pos­si­ble – that between Hunter’s drugs and pros­ti­tutes and guns and shady asso­ciates that state charges could be brought on some­thing.

For anoth­er – and this is a big one – Hunter can now be required to tes­ti­fy before Con­gress or in court. His sole defense against sub­poe­nas thus far has been that he want­ed to invoke his Fifth Amend­ment right not to say any­thing under oath that could incrim­i­nate him. Now that he can­not be charged for any fed­er­al crimes, he can no longer meet the legal thresh­old of show­ing a rea­son­able fear that answer­ing ques­tions would pro­vide evi­dence that could be used in court to con­vict him of a crime.

Iron­i­cal­ly, the only risk of pros­e­cu­tion he would face now would be if he does not tell the truth in tes­ti­mo­ny. If he refus­es to tes­ti­fy, then he can be held in crim­i­nal con­tempt, which could put him behind bars. And if he tes­ti­fies but lies under oath, that’s per­jury, which is a felony pun­ish­able by five years in fed­er­al prison.

So now the bag­man at the cen­ter of all the Biden Fam­i­ly cor­rup­tion scan­dals can­not escape what could be hours of inter­ro­ga­tion under oath. Peter Schweiz­er – eas­i­ly the fore­most researcher on the Bidens’ decades of enrich­ing them­selves – remind­ed read­ers this week of just how bad the family’s mis­deeds over the years have been. Thus read­ers could want what final­ly comes to light to be con­firmed.

Although the Bidens are now polit­i­cal­ly fin­ished, the Amer­i­can peo­ple still deserve the truth, and that truth could shine a light on all sorts of things about all sorts of peo­ple that vot­ers might want to know for the future, pos­si­bly involv­ing oth­er promi­nent Democ­rats.

Joe Biden is thus left with only one play: par­don every­one the Hunter Biden par­don scan­dal touch­es, includ­ing him­self. He could close the door on fed­er­al pros­e­cu­tions for all of those peo­ple going for­ward.

But there is one poten­tial weak­ness for the cur­rent pres­i­dent under such a plan: It is unclear whether a pres­i­dent can par­don him­self. The “Father of the Bill of Rights” in the Con­sti­tu­tion, George Mason, open­ly wor­ried that a pres­i­dent might abuse the par­don pow­er by con­spir­ing to com­mit crimes, then par­don­ing every­one includ­ing him­self. Anoth­er Framer of the Con­sti­tu­tion, Edmund Ran­dolph, expressed a sim­i­lar con­cern. They cer­tain­ly believed a pres­i­dent could issue a self-par­don.

How­ev­er, no pres­i­dent has done it, so no court has ever weighed in on it. There are seri­ous argu­ments on both sides as to whether the president’s pow­er reach­es that far.

And the only way that the­o­ry could be test­ed is if he does so, and then the new Trump admin­is­tra­tion choos­es to bring charges against Joe Biden. After the law­fare of the past four years, it is unclear whether the new Jus­tice Depart­ment would go there. If not, even a non-exis­tent pow­er does exists as a prac­ti­cal mat­ter if it goes unchal­lenged.

So Pres­i­dent Joe Biden’s pri­ma­ry goal for his son will stand: Hunter will not be going to fed­er­al prison any­time soon. But there may be a price to pay for the Biden fam­i­ly, and it remains to be seen what this new prece­dent means for the future.

Bre­it­bart News senior legal con­trib­u­tor Ken Klukows­ki is a lawyer who served in the White House and Jus­tice Depart­ment. Fol­low him on X (for­mer­ly Twit­ter) @kenklukowski.