Must Hunter Biden's indictment be dismissed after presidential pardon? Special counsel doesn't think so
Hunter Biden, son of President Joe Biden, boards Air Force One with the president in February 2023 at the Hancock Field Air National Guard Base in Syracuse, New York. (Photo by Patrick Semansky/The Associated Press)
The special counsel’s office is opposing motions to dismiss the tax-fraud and gun indictments against Hunter Biden, the son of President Joe Biden, arguing that a presidential pardon does not require it.
Lawyers in the office of special counsel David Weiss defended the fairness of the prosecution in Dec. 2 court filings. The pardon does not mean that the grand jury’s charging decision “should be wiped away as if it never occurred,” the special counsel’s office argues in both cases (here and here).
ABC News, the Hill and the Volokh Conspiracy are among the publications with coverage.
When Biden pardoned his son Dec. 1, Hunter Biden had not yet been sentenced in either case. In the tax case, he pleaded guilty in Los Angeles in September to failing to pay at least $1.4 million in taxes, according to Reuters. In the other case, he was convicted in Delaware in June for possessing a firearm while addicted to drugs and lying on a gun form about his addiction.
Writing at the Volokh Conspiracy, Josh Blackman, a professor at the South Texas College of Law in Houston, said the issues regarding the impact of a pardon “are very murky, and have been debated for some time.”
“Some scholars view a pardon as effectively wiping out the conviction, as if it never occurred,” Blackman wrote. “Other scholars view the pardon as simply denying any consequences that flow from the conviction, yet the conviction remains intact.”
The special prosecutor’s office noted in its filings that the government opposed the dismissal of the indictment against Steve Bannon, a former adviser to then-President Donald Trump, after he received a pardon from Trump. Bannon was pardoned while awaiting federal trial on charges that he defrauded donors in a GoFundMe campaign to build a border wall, according to USA Today.
“Courts have not acted uniformly in ending a case against a pardoned defendant,” the government argued in Bannon’s case.
In the U.S. District Court for the Central District of California, where Hunter Biden’s tax sentencing was pending, courts did not dismiss indictments when pardons were granted as a matter of past practice, the prosecutors said. Instead, the federal courts would update the docket to reflect the pardon and take no further action.
The special prosecutor’s office also said the Delaware and California federal courts rejected Hunter Biden’s assertion that his prosecution was selective or vindictive. In the California case, the court “found his vindictive prosecution claims unmoored from any evidence or even a coherent theory as to vindictiveness,” prosecutors wrote.
In his post at the Volokh Conspiracy, Blackman said he has been mulling several questions.
“A pardon is surely binding on the executive branch, but is it binding on the courts?” Blackman wrote. “Is a pardon the Supreme Court of the Land, in the same sense that a statute or ratified treaty is? Even if the conviction is vacated, could a state charge Hunter with a crime, like ‘felon in possession,’ or use the federal conviction as the predicate offense for a state RICO charge?”
Blackman also wondered what would happen if Biden seeks to remove the special prosecutor to protect his son.
“I hope [U.S. Attorney General Merrick] Garland has that resignation letter ready,” Blackman wrote.
Hunter Biden’s motions to dismiss the indictments are here and here.
See also:
With Hunter pardon, Biden joins short list of presidents who absolved family
Former Sheriff Joe Arpaio’s pardon doesn’t require vacating his conviction, judge rules
