The president could try to head off a new investigation of influence-peddling by granting participants the same sort of expansive pardon he gave Hunter.
The president could try to head off a new investigation of influence-peddling by granting participants the same sort of expansive pardon he gave Hunter.
I explained in a post Monday that the timing of President Biden’s pardon of his son was driven by the schedule in Hunter’s two criminal cases — just as Hunter’s litigation strategy in those cases, particularly the tax prosecution, was guided by the certainty that he would be pardoned. (This was a big part of why some of us confidently predicted a pardon would be granted, regardless of how indignant the president and the White House were in vowing that it wouldn’t.)
That’s not how scandalous pardons are usually timed. They tend to be issued when a president who will not seek office again and has no incentive to worry about political backlash is on his way out the door. (See, e.g., Clinton, Bill.)
I suspect that we’re going to see more scandalous Biden pardons. The breathtaking expanse of Hunter’s pardon doesn’t make sense otherwise.
As I have written in an op-ed for Fox News today, the Hunter pardon goes back to 2014 because the most egregious evidence of Biden family influence-peddling occurred in the 2014–16 window, when Joe Biden was vice president (and, therefore, at his most influential during the scheme, which ran from 2014 through 2019, at least). It was because of this 2014–16 period of maximum criminal exposure that prosecutor David Weiss dragged his feet for years during the investigation: It was a Biden-Harris Justice Department imperative that no cases be charged that would trace criminal activity back to Biden’s time as vice president, so no charges were filed as the relevant statutes of limitations (six years for tax felonies, five years for other kinds of crimes) lapsed.
To put a finer point on it (and repeat what I’ve said before), Hunter Biden was the just ancillary beneficiary of the way Weiss and Attorney General Merrick Garland oversaw the Biden investigation; DOJ’s priority was to protect the president.
That raises the following question: Why worry any longer about 2014–16 if the statute of limitations (SOL) has already expired? I answer that one in the Fox column:
An aggressive, creative prosecutor (perhaps in the mold of Jack Smith, but this time a zealous Republican) could cobble together a theory that Hunter and his cohorts — perhaps including the president and his brother Jim — were in a conspiracy that continued after 2016, perhaps even into 2020 and beyond. The proof for that might not be strong, it might even be non-existent. But in light of the evidence — including the evidence developed by the House Oversight Committee, which found that the Bidens reeled in over $27 million from foreign persons and entities from 2014 to 2019 — there would certainly be a sufficient basis for a criminal investigation.
Let me stop there for a moment in order to stress two things.
First, the concept of a “straddle crime”: Even if an individual crime is time-barred, a prosecutor can charge it as part of an overarching criminal scheme that persisted after the SOL on that individual crime ran out. In RICO cases, for example, you might have an extortion crime that, because it was committed in, say, 2014, could not be prosecuted by itself because the five-year SOL lapsed in 2019. If that same 2014 extortion was committed by a Mafia family, however, and that family’s operations continued beyond 2019 and into the present (i.e., the Mafia enterprise “straddled” the SOL), then the law allows the 2014 extortion to be prosecuted as part of the broader RICO offense.
By analogy, if a prosecutor could establish that there was an overarching Biden influence-peddling scheme, and that its members committed crimes before and after the current SOL deadline (say, 2019 for tax crimes and 2020 for other crimes), a conspiracy case could be brought in which the lapsed offenses could be charged as part of the scheme.
Second, the distinction between charges and an investigation is sometimes less obvious than you might think. A prosecutor is not supposed to bring charges absent sufficient evidence of a crime that is not time-barred. Yet, a prosecutor has much more leeway to investigate when there is evidence of crimes that could, but might not necessarily, lead to charges. That is, the prosecutor doesn’t have to have provable charges to commence an investigation; instead, the prosecutor conducts the investigation to determine whether there are provable charges.
If you are dealing with good-faith prosecutors, this is not a problem. Scrupulous, competent prosecutors are not going to waste time pursuing stale crimes when common sense says such crimes can’t be (or at least shouldn’t be) charged at this late date. There are only limited law-enforcement resources available, and the law-and-order priority generally must be current crime, not comparatively ancient crime.
Nevertheless, I have frequently observed that in lawfare — i.e., in the weaponization of criminal processes for partisan purposes — the process is the penalty. Partisan prosecutors (who shouldn’t be allowed to wield such power) don’t necessarily care whether they can ultimately prove crimes; they are content to put their political adversaries through the investigative wringer for a year or three. I elaborated in the Fox column:
As people in the Trump orbit who’ve been hounded by Democratic prosecutors and committees can tell you, investigations are ruinous. They cost a fortune in legal fees, they dry up business opportunities, and they impose tremendous anxiety on suspects and their families.
That brings us back, finally, to Hunter Biden. It looks to me like the extraordinary pardon, blanketing Hunter in immunity from prosecution for any and all conceivable federal crimes for a period of nearly eleven years, is intended to discourage the Trump Justice Department from investigating. If no crimes can possibly be prosecuted, there is no point in investigating, even on the lawfare pretext that something prosecutable might emerge.
But here’s the thing: This strategy only works if Hunter is just the first of the pardons. Otherwise, Hunter’s pardon is an enticement, not a discouragement, for the Trump DOJ.
Why is that? Immunity.
Because of the sweeping pardon, Hunter no longer has a viable Fifth Amendment privilege from self-incrimination. He is immune from prosecution for any further Biden crimes related to influence-peddling. Hence, he may not refuse to testify if summoned by a grand jury to answer questions about the potentially criminal activities of others — and if the Trump prosecutors were to conclude that Hunter had lied in grand jury testimony, he could be prosecuted for perjury. (A pardon does not cover future crimes, such as perjury allegedly committed after the pardon.)
Hence, if the Trump DOJ decided to play the lawfare game that Democratic prosecutors — including the Biden-Harris DOJ — played so aggressively against people in Trump World, prosecutors could subpoena Hunter into the grand jury, tell him to bring every financial and personal record he has that might be relevant to their inquiry, and grill him about the activities of himself, Jim Biden, their business partners in the “Biden brand” activities, and President Biden himself. Hunter would have no choice: He’d have to testify; he couldn’t take the Fifth.
Consequently, the only way I can see President Biden preventing such an investigation from happening, or at least trying to prevent it, would be to pardon other participants in the influence-peddling — giving them the same sort of expansive pardons that Hunter got.
Would Biden have to pardon himself? I don’t think he’d do that. It would be taken as an admission of guilt. He will soon be an 83-year-old former U.S. president, and a Justice Department prosecutor has already concluded that his deteriorated condition counsels against prosecution (over his unlawful retention of classified information). During the Democrats’ lawfare crusade against him, Trump said many times that no former president should ever have to go through what he went through. One hopes that he meant that.
That said, though, I read Hunter’s pardon as an indication that President Biden and his advisers are very concerned that the Trump Justice Department will investigate the aspects of the Biden influence-peddling scheme that the Biden Justice Department assiduously ignored. If I am right about that, one has to assume that there will be more sweeping pardons of Biden family members and associates implicated in the scheme.