The Associated Press reports here that “President Joe Biden pardoned his son, Hunter, sparing the younger Biden a possible prison sentence for federal felony gun and tax convictions and reversing his past promises not to use the extraordinary powers of the presidency for the benefit of his family.” This post discusses President Biden’s decision.
The criminal cases against Hunter Biden. Federal authorities began investigating Hunter Biden for possible tax crimes as early as 2018. The investigation was coordinated through the United States Attorney’s Office in Delaware. After Hunter Biden published a memoir detailing his addiction to crack cocaine, investigators also began to consider whether Hunter Biden had committed any federal gun crimes, such as possession of a gun by a person who is an “unlawful user of or addicted to a controlled substance” in violation of 18 U.S.C. § 922(g)(3).
In 2023, Hunter Biden and David Weiss, the United States Attorney for the District of Delaware, reached an agreement to conclude the investigations. Hunter Biden agreed to plead guilty to two misdemeanor tax offenses, with the prosecution recommending a probationary sentence, and to enter into a deferred prosecution agreement as to a felony charge of possession of a firearm by a drug user. However, the district court judge to whom the matter was assigned was concerned with some unusually broad terms in the deferral agreement. She did not immediately accept the plea deal, and it subsequently fell apart.
Weiss was then designated as a Special Counsel with authority to bring charges outside of Delaware. He charged Hunter Biden with gun crimes in Delaware and with tax crimes in California. A jury convicted Hunter Biden of the gun offenses, while Hunter Biden pled guilty to the tax offenses on the eve of trial. He was to be sentenced later this month in both cases. He faced potential maximum prison terms of 25 years for the gun charges and 17 years for the tax crimes. Of course, his actual sentence would have depended in part on the United States Sentencing Guidelines, and was likely to be far below the statutory limits.
For those wanting more details about the history of Hunter Biden’s legal troubles, ABC News has an extensive timeline here.
The pardon. President Biden’s statement on the pardon is here, along with the pardon itself. The statement indicates President Biden’s belief that Hunter Biden was “singled out” and “treated differently” than other similarly-situated individuals because he is the President’s son. The pardon itself gives Hunter Biden “[a] Full and Unconditional Pardon [f]or those offenses against the United States which he has committed or may have committed or taken part in during the period from January 1, 2014 through December 1, 2024,” specifically including the two pending criminal cases.
The pardon is remarkably broad. This Politico article notes that the pardon extends beyond the conduct underlying the pending prosecutions. It appears to cover any federal offenses Hunter Biden may have committed since 2014. Not coincidentally, that is the year that Hunter Biden joined the board of the Ukrainian oil company Burisma Holdings in what some have argued amounted to an illegal influence-peddling operation. According to the experts quoted in the Politico piece, including a former United States Pardon Attorney, the only precedent for such a broad pardon is when Gerald Ford pardoned Richard Nixon in 1974.
Of course, the pardon is not without limits. It does not prevent Hunter Biden from being prosecuted in state court, though I am unaware of any interest in such a prosecution. It also may leave Hunter Biden a convicted felon. This blog post by Professor Josh Blackman discusses the somewhat similar case of President Trump’s pardon of former Sheriff Joe Arpaio, a case in which the Ninth Circuit ruled that the district court properly denied vacatur of Arpaio’s conviction. I have not researched this issue carefully but suspect that reasonable minds might differ regarding the effect of the pardon in this instance.
An impediment to the development of Second Amendment law? In the gun case, Hunter Biden argued in a pretrial motion to dismiss that the federal statute prohibiting drug users from possessing guns violates the Second Amendment. The trial judge denied the motion. However, the federal courts have divided over challenges to the statute and Hunter Biden may have had a plausible argument on appeal. See, e.g., United States v. Connelly, 117 F.4th 269 (5th Cir. 2024) (holding the statute unconstitutional as applied to nonviolent occasional users of marijuana). The termination of Hunter Biden’s gun case makes it unlikely that his appellate argument will see the light of day. However, there are plenty of other cases involving the same statute percolating through the federal courts. In fact, it may be better for the development of Second Amendment doctrine to have the constitutionality of the statute tested in cases with less political baggage.
Comment and conclusion. It is not unprecedented for a president to use the pardon power to benefit a friend or a family member. Bill Clinton pardoned his half-brother Roger Clinton. Donald Trump pardoned Charles Kushner, the father of Donald Trump’s son-in-law Jared Kushner. Still, President Biden’s actions, especially against the backdrop of his prior promises not to pardon Hunter Biden, may further open the door to pardons that are, or that appear to be, based on personal or political connections rather than impersonal legal considerations. That, in turn, may impact the public’s perceptions of the integrity of the criminal justice system.