No precedent for broadness of Biden's pardon of son, attorneys say

The legality of a presidential pardon as broad as that granted to Hunter Biden is unusual and has never been adjudicated, said experts reacting Wednesday to a Los Angeles federal judge's agreement to dismiss the tax and gun case before him while rejecting the way the pardon was communicated to the court and raising the question of whether it might not be completely constitutional.

The court "deems the prospective component of the pardon severable from the component that demands termination of the proceeding," U.S. District Judge Mark C. Scarsi wrote in his order Tuesday evening. He said the tax and gun law violations to which Hunter Biden pleaded guilty were "explicitly ... within the ambit of the pardon ... even if it is unconstitutional in other respects." U.S. v. Biden, 23-CR-00599 (C.D. Cal., filed Dec. 7, 2023).

Commenting Wednesday, civil rights attorney and former federal prosecutor Katie Cherkasky discussed the 11-year span of the pardon and President Joe Biden's reference to offenses that "may have" been committed during that time.

"I don't think there has been anything directly comparable," said the co-founder of Golden Law. "Of course, there has never been a pardon of a child of a president, but it is incredibly expansive. It didn't articulate specific known offenses."

She said the pardon of President Richard Nixon may be analogous "but there's not been anything covering an 11-year timeframe with no limit on the cases." President Gerald Ford's pardon of Nixon covered any crimes he may have committed during his five years as president.

Cherkasky said Scarsi was right to raise the question of constitutionality of some parts of the pardon statement. "The judge said he intends to sever portions he considers unconstitutional. It doesn't make any practical difference, but he wanted to put on the record his concerns with the language of the pardon."

"It's generally thought that the president has basically unlimited pardon power for all past offenses even if they have not been charged. It's an open legal question how far that extends," she said. "There are questions as to whether the president has to have at least some knowledge of what the offenses are. ... This hasn't been addressed by a court. There haven't been any examples of blanket pardons in the past."

Case law on the matter would only arise if a prosecutor attempted to bring charges again for crimes covered by such a pardon. Because that question hasn't been settled, as a defense attorney, Cherkasky said she would advise a client like Hunter Biden to continue claiming the Fifth Amendment right against self-incrimination if called as a witness by Congress or someone prosecuting another party.

Although judges have commented critically, in court proceedings, articles, interviews and in conversations about their views of presidential pardons throughout U.S. history, Scarsi did not criticize the president's authority or choice to pardon his son but rejected the tarnishing of his own Department of Justice prosecutors and two federal judges.

Criticizing a pardon itself, as Judge Emmet Sullivan did in 2020 when President Donald Trump pardoned his former national security adviser Michael Flynn, "may be beyond the bounds," former 9th U.S. Circuit Court of Appeals Judge Alex Kozinski commented Wednesday. "But criticizing a document filed in court that the judge believes is misleading or incorrect is perfectly appropriate. Judges don't do it often enough."

Scarsi made vigorous objections to President Biden's accusations in the pardon statement that the defendant "was singled out only because he is my son."

Noting that he and a federal judge in Delaware had examined and rejected defense arguments that the Hunter Biden prosecution was unfair or politically motivated because of his father's position as president, Scarsi also said that "the President's own Attorney General and Department of Justice oversaw the investigation leading to the charges. In the President's estimation, this legion of federal civil servants, the undersigned included, are unreasonable people."

"The Constitution provides the President with broad authority to grant reprieves and pardons for offenses against the United States, but nowhere does the Constitution give the President the authority to rewrite history," the judge wrote. Scarsi went into detail refuting the president's statements indicating Hunter Biden was treated worse than others who didn't pay taxes on time due to addictions. The defendant had admitted in court filings that he evaded taxes "well after he had regained sobriety" and said he had the money to pay his debt but chose to "spen[d] large sums to maintain his lifestyle."

Kozinski commented, "I do not read the order as criticizing the pardon itself. It's enough to simply say this is not accurate, particularly when it is an attack on the judicial system. It's an uncomfortable situation because judges can't defend themselves. They usually don't issue press releases. But when there is an attack on the judicial process it is the responsibility of the judiciary and everyone else to dispute it, say this is wrong, and here's why it's wrong."

If the case were ongoing there might be some concern, but Scarsi terminated the case, Kozinski noted. "He said this claim of biased prosecution is not just an attack on the judicial system but really an attack on his ruling where he specifically held this is not a biased prosecution or a miscarriage of justice."

Scarsi also objected in detail to the defense's failures to follow normal court procedures, which Cherkasky saw as the judge's objection to the court being disrespected.

Rather than filing a legal version of the pardon, Hunter Biden's lawyers provided a link to a press release on the White House website, and then a "purported copy ... not substantiated by an authenticating declaration," Scarsi wrote.

Even as he signed the order agreeing to dismiss the case, Scarsi said he still had "yet to receive the pardon from the appropriate executive agency" and "did not have a valid pardon document." He directed the clerk "to comply with court procedures for effecting a grant of clemency once the pardon is formally received, which will result in the termination of the case."

The president has not responded to Scarsi's order. His Sunday statement about the pardon stated: "I believe in the justice system, but as I have wrestled with this, I also believe raw politics has infected this process and it led to a miscarriage of justice - and once I made this decision this weekend, there was no sense in delaying it further."