Pardon Me, Some Observations

Joe Biden likely isn't finished with family pardons. And no, Kash Patel cannot immediately bypass the US Senate to serve as FBI Director.

The reactions to Joe Biden’s expansive pardon of his surviving son, Hunter, are fast and furious. And, like the pardon itself, they are entirely predictable.

Republicans are outraged, mocking Biden for lying about his proclamation that he would do no such thing and for hypocrisy regarding the favorite Democratic talking point that “no one is above the law.” With reasoning I fail to understand, talking heads at MSNBC applaud Biden for his approach to “law and order.” With a pardon?

My favorite response comes from two IRS officials who blew the whistle on their agency’s favorable treatment for the presidential son.

Some observations about the pardon and what it may mean going forward.

First, the President has almost unlimited power to issue pardons and other forms of clemency (commuting sentences) for crimes “against the United States,” except for impeachment. A Constitutional amendment would be necessary to limit this power. It does not extend to federal civil offenses or state crimes. Courts have also said that pardon power is limited to crimes committed, not prospectively. The only open issue is whether a President can pardon him or herself. Some also question whether blanket pardons can be issued without specifying an offense. The answer to both is probably yes, but legal scholars differ, and both remain untested.

Biden is fully within his rights to pardon his delinquent son. Whether it was wise to do so is another matter.

Law professor and pundit Jonathan Turley wrote in 2018 and discussed whether a president could pardon himself. Just replace Trump with Biden, and you probably have your answer:

Article II, Section 2, of the Constitution defines the pardon power as allowing a president to “grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” There is no language specifying who may or may not be the subject of a pardon. The president is simply given the power to pardon any federal crime.

As a textual matter, there is nothing to prevent Trump from adding his own name to the list of pardoned individuals.

I further agree with Turley that pardoning oneself would be “reprehensible and ignoble.” Some would say President Biden already stomped over that threshold by pardoning his whoring, influence peddling, and formerly crack-smoking son after “the Justice Department had impeded, delayed, and obstructed the criminal investigation of the President's son, Hunter Biden,” according to the US House Judiciary Committee.

Hat tip, Josh Hammer, Newsweek

Second, Biden’s pardon of his son is unusually broad. It is a blanket pardon for any crimes he may have committed for nearly 11 years, since January 1, 2014, when Joe Biden was Vice President and President Barack Obama’s point man on Ukraine. Around that time, Hunter was named to the board of Ukraine’s national gas company, Burisma, at a princely fee of $80,000 monthly. You can view the whole influence peddling timeline that points towards the use of Joe Biden’s vice presidency to enrich family members. This is one corrupt family.

Some suggest the broadness of this blanket pardon is not unusual. Josh Blackman, writing for Reason.com, begs to differ:

This pardon immunizes Hunter from prosecution for any conduct he committed between January 1, 2014. If Hunter shot someone on Fifth Avenue during that period, he could not be tried for murder in federal court. I haven't studied pardons closely, but I am skeptical there has ever been such a broad, prophylactic pardon over the course of a decade. Even President Ford's pardon of Richard Nixon was limited to offenses "committed or may have committed or taken part in during the period from January 20, 1969 through August 9,1974." And President Andrew Johnson's 1868 pardon and amnesty of former confederates was limited to the offenses of insurrection, rebellion, and treason, during the four-year long Civil War. (Johnson's pardon had the effect of cutting short the pending appeal to the Supreme Court of the criminal prosecution of Jefferson Davis.) Finally, there is a longstanding debate about whether a pardon can be issued without enumerating a specific offense. Professor Phillip Kurland raised this issue after Ford pardoned Nixon. He said, "It is certainly not clear that the power to pardon an individual may properly, i.e. constitutionally, be invoked prior to indictment and conviction."'

Third, Biden’s pardon short circuits the legal process. Hunter Biden pled guilty to both a federal firearms form violation (lying about his drug use) and lying on his tax returns, after a federal judge questioned a very generous plea deal between US Attorney David Weiss (Delaware) and Hunter Biden’s attorneys, led by Abby Lowell. Biden was scheduled to be sentenced on December 4th and 16th, respectively. Trump’s pardon of his Ambassador-designate to France, former New Jersey developer Charles Kushner (father of Jared), whom then-US Attorney and future Gov. Chris Christie prosecuted, was made after he had served his sentence. It is the same with Roger Clinton, President Bill Clinton’s delinquent brother.

Side note: Much has been said about US Attorney David Weiss, who was originally nominated by none other than President Donald Trump and led the “prosecution” of Hunter Biden. Remember how such state-level nominations, especially for prosecutors and district judges, are handled. They are closely coordinated with the state’s two United States Senators. If they disapprove, the nominee likely won’t get a confirmation vote under the Senate’s “blue slip” process. While Trump’s White House may have insisted on a Republican (there are a few in Delaware), Senators Chris Coons (D), a Biden protege, and the retiring Tom Carper (D) approved of Weiss, no doubt with a nod from the Biden family. Weiss is one of them. Coons remains in the Senate and will soon be joined by Senator Lisa Blunt Rochester, Delaware’s current Democratic US House member (her replacement is Congress’s first transgender Representative, Sarah McBride, another Democrat and a story unto itself).

No doubt Trump will pick a new replacement for Weiss, as he should. Given the Biden pardon fiasco and history, perhaps Republicans and the media will pay a little more attention to whom Trump eventually nominates and whether Coons and Rochester will go along or keep shilling for the Biden family, which will still have political power in The First State after Joe returns to both his homes in Greenville and Rehoboth.

Have your popcorn ready.

Fourth, Reuters outlines an interesting consequence of the pardon that may result in future Biden family pardons, including the President himself:

If the U.S. House of Representatives or the Justice Department decides to probe the Biden family business dealings, as some Republicans have promised to do, Hunter Biden could potentially be called to testify. Before he was pardoned, he could have declined to do so, citing his Fifth Amendment right against self-incrimination. The pardon could limit his ability to invoke that right, because he no longer faces criminal jeopardy for any federal crimes committed during the period covered. Presidential pardons do not protect people from prosecution for state crimes.

Fifth, might Joe Biden blanket-pardon himself, along with his grifting brothers, Frank and Jim, and any other family members who participated in financial irregularities fomented by Hunter, including ten percent for “the big guy?” If he doesn’t, and either the Trump Department of Justice or a Republican Congress continues to investigate or prosecute Biden family members, would Hunter be forced to testify with no ability to “plead the Fifth,” since self-incrimination would be impossible?

We are entering new territory. Trump might pardon Biden or talk Congress and his new Attorney General out of prosecuting the Bidens. He’s hinted as much, as the country might look unfavorably upon the distraction of a retribution-driven “witch hunt” against the “elderly man with a poor memory” with so much else to do. Politically speaking, with the Bidens finished with politics, there are plenty of other dark places within certain federal agencies to excise cancerous, if not illegal, behavior, especially the Department of Justice and the Federal Bureau of Investigation.

Also, any pardon Joe Biden issues to himself would not preclude Articles of Impeachment from being pursued, at least in the House of Representatives. Biden might still be called to testify in that instance, but I doubt it gets that far, as much as the Jim Jordan-led House Judiciary Committee might want to finish their investigation with a few hides to hang on their wall.

But my money is on a few more family pardons from Joe Biden before he departs office on January 20th—maybe one for himself. And if he doesn’t, Trump might do it in a gesture he would see as magnanimous but might appear as another humiliation for Democrats. Biden might be inclined to reject a pardon, but could he? We’ll see.

Sixth and (almost) finally: Biden’s broad pardon of his son opens the wide berth for Trump to pursue pardons of non-violent “offenders” from the January 6, 2021 riot at the Capitol. They most assuredly won’t be as broad and will occur, with the exception of a few remaining cases, after sentencing. The partisans defending Biden’s pardon will look hypocritical on steroids if they turn around the pearl-clutch at “J6” pardons after Biden clearly used, or allowed to be used, his position as Vice President to enrich his family and, apparently, himself.

ADDENDUM - CAN PATEL BYPASS THE SENATE TO HEAD THE FBI?

Speaking of the FBI, there is silly talk that President could quickly appoint his nominee, Kash Patel, as acting FBI director after he fires incumbent Chris Wray, under the Federal Vacancies Act.

That would require machinations and interesting interpretations of the law, at best, and I think is incorrect.

It is true that Trump could appoint a temporary successor, but it seems Wray would have to resign. Firing him might not be enough to meet the test of filling a vacancy when a Senate-confirmed official “dies, resigns, or is otherwise unable to perform the functions and duties of the office” (5 USC 3345).

Kash Patel

Regardless, the President has the option of temporarily appointing another current Senate confirmed official to serve. Patel is not currently serving in such a position. Some have suggested that Senate-confirmed Republicans serving on multi-members commissions, like the Federal Election Commission, could be an acting FBI director, but that’s true only for vacancies at other multi-member commissions, not the FBI or elsewhere.

Another option would be for Patel, on January 20th, to accept an appointed position with a pay level of GS-15 or higher while his nomination winds its way through the Senate, such as a Deputy Assistant, Chief of Staff, or perhaps a “Counselor” or “Confidential Assistant” to the Attorney General. It’s how then-Chief of Staff Matthew Whitaker was named acting Attorney General after Jeff Sessions resigned during Trump’s first term.

If the Senate hasn’t confirmed him within 90 days, Trump may then appoint Patel to the job, again temporarily, but that might rankle feathers in the Senate, where being bypassed by the President is not looked up favorably (even as it happens). Whitaker was not nominated by Trump to become Attorney General after Sessions resigned; William Barr was.

All this is explained by the Congressional Research Service.

Trump is within his rights to dispense of “company man” Wray as soon as possible, but should leave it up the GOP-controlled Senate to expedite Kash Patel’s nomination. I wish Patel well and support his nomination. He strikes me a well qualified and just what the FBI needs to fumigate it’s seventh floor, and even its regional offices. But no more talk of silly appointment games, please.