Hunter Biden Pardon Controversy, Lesson 2: Don’t Insult Judges With Life Tenure

By Paul J. Larkin via The Daily Signal | December 05, 2024

Everyone has heard the old saw “Hell hath no fury like a woman scorned.” Well, perhaps we should add judges with life tenure to the list of those we ought not to anger.

Just before exiting stage left Sunday for Africa to seek refuge from a hungry press, President Joe Biden pardoned his son Hunter Biden for every federal offense that he committed or might have committed for over a decade: from Jan. 1, 2014, to Dec. 1, 2024.

The outcry was fast and furious, in part because Biden (and his aides) had repeatedly assured and reassured the public that he would not relieve his son of responsibility for his wrongdoing. (Here, here, here, etc.) In fact, the president said it so often that his reiterations were reminiscent of Cicero’s closing words in every speech he gave in the Roman Senate: “Delenda est Carthago,” or “Carthage must be destroyed.”

The judge in the younger Biden’s tax case in California joined the outcry Tuesday with a short order criticizing the pardon. More on that in a bit.

Joe didn’t pardon Hunter because his 54-year-old son was innocent of the charged offenses. Nor because Hunter’s crimes were an aberration in an otherwise crime-free life. Nor because the crimes happened long ago. Nor did he do it because Hunter had admitted wrongdoing and had turned his life around since then. Nor because Hunter was responsible for some undeniably noble action, such as putting his own life at risk to save someone’s else’s, proving that he was a new man.

Joe Biden mentioned none of those grounds for pardoning his son.

Instead, Biden blamed others for his son’s predicament: Joe’s political enemies and officials in his own Justice Department. His enemies wouldn’t agree to a non-incarceration disposition of the charges against his son, the president said. The elder Biden’s political foes also were (somehow) trying to coerce federal district courts judges in Delaware and California into sending Hunter to the hoosegow. As for his own DOJ: Biden might have been thinking, “Et tu, Merrick Garland?”

Joe even flubbed the clear, political way to message Hunter’s pardon. He had the opportunity to soften its stark nature by pardoning numerous others as well, such as average Americans and Donald Trump, on the grounds that “The nation needs to put recent history behind us.”

The total amount of flak that Joe would have taken from one or two dozen additional pardons wouldn’t have been much greater (if any) than what he has taken for pardoning his son after repeatedly lying to the nation that he wouldn’t. It also would have given Joe favorable news stories and videos, by allowing his friends in the media (read: 99% of them) the opportunity to show clips of average people being released from prison or going home in time for Christmas.

Yes, everyone (or almost everyone) still would have concluded that Joe lied and was trying to gloss it over by releasing others. But he left the press with nothing to point to other than his pardon of Hunter. Dumb, very dumb, especially for a career politician. Barack Obama was right when he said, “Don’t underestimate Joe’s ability to f**k things up.” Joe just did.

Biden’s explanation for pardoning his son is risible, his rationale more a primal cry of angst and for deliverance than a “justification.” Joe didn’t even persuade The New York Times’ editorial board, which concluded that the pardon of Hunter created a “[d]angerous [p]recedent” that “erode[s] confidence in ideals that justice is blind, that all are equal before the law.” The pardon “has now ‘normalized’ the abnormal,” the editorial said, making “further abuses more likely.”

When The New York Times calls out someone who has made the paper happy by going far Left for nearly four years, you must take its opinion seriously.

Although history will decide whether Biden’s pardon of his son deserves derision, a few people have already offered their opinion. Numerous parties (including me) have excoriated Biden. (Here, here, here, here, etc.)

The California district court in Hunter’s prosecution for tax evasion certainly thought that Joe’s explanation was insulting. That judge wrote a short order Tuesday in which (after tweaking Hunter’s counsel for filing an informal, internet-based copy of the pardon) he called Joe to account for the liberties that he took with the truth in his pardon explanation Sunday.

Whereas Joe wrote that Hunter was “late paying [his] taxes because of serious addictions,” Judge Mark Scarsi pointed out that Hunter represented that he “was severely addicted to alcohol and drugs” until June 2019 and that Hunter “admitted that he engaged in tax evasion certainly thought that Joe’s explanation was insulting. That judge wrote a short order Tuesday in which (after tweaking Hunter’s counsel for filing an informal, internet-based copy of the pardon) he called Joe to account for the liberties that he took with the truth in his pardon explanation Sunday.

Whereas Joe wrote that Hunter was “late paying [his] taxes because of serious addictions,” Judge Mark Scarsi pointed out that Hunter represented that he “was severely addicted to alcohol and drugs” until June 2019 and that Hunter “admitted that he engaged in tax evasion after this period of addiction by wrongfully deducting as business expenses items he knew were personal expenses, including luxury clothing, escort services, and his daughter’s law school tuition.” (Emphasis in original.)

Scarsi said Hunter Biden also “admitted that he ‘had sufficient funds available to him to pay some or all of his outstanding taxes when they were due,’ but that he didn’t make payments toward his tax liabilities even ‘well after he had regained his sobriety,’ instead electing to ‘spen[d] large sums to maintain his lifestyle’ in 2020.” (Brackets in original.)

The president also claimed that no “reasonable person … can reach any other conclusion than” that Hunter “was singled out only because he is” Joe’s son. Yet, as the district court’s Scarsi noted, not only were “the President’s own Attorney General and Department of Justice personnel overseeing the investigation leading to the charges,” but “two federal judges expressly rejected” Hunter’s claims that he was prosecuted only because his father was president. As the judge concluded, “[i]n the President’s estimation, this legion of federal civil servants, the undersigned included, are unreasonable people.”

Ouch!

That is not even the worst of the criticisms that the senior Biden deserves. Joe must think that 340 million-plus Americans are so terminally stupid that they won’t realize that he lied to them over and over and that his rationale for those lies is a sham. It’s bad enough for a president to lie to the American public as repeatedly, as deeply, and as brazenly as Joe did. But it’s truly insulting to send this message: “You are so stupid that you will buy what I’m selling.”

After deriding the explanation Biden gave for pardoning his son, the California judge offered his views on the legality of the scope of Hunter’s breathtaking pardon. The judge mused whether the breadth of the pardon might be a sleight-of-hand move by Joe to prospectively immunize Hunter for any crimes that he might commit before 12 noon on Jan. 20, 2025.

Questioning whether Joe had such authority, Scarsi decided to read the pardon as ending Dec. 1, to avoid any potential constitutional problems with a president’s excusing his son from the law.

While I don’t read the pardon as reaching any criminal conduct after Dec. 1, Scarsi was right to be troubled by the prospect that a president could try to exempt someone from the criminal law. As I explained in a 2023 article, the president can’t legally or linguistically pardon someone prospectively. Doing so would be tantamount to granting someone an exemption from criminal law that is generally applicable to everyone.

The British Crown and Parliament fought over that issue for some time, each one seeking to protect its own turf. Ultimately, Parliament prevailed, passing the English Bill of Rights of 1689, which barred the Crown from exempting anyone from the criminal law without Parliament’s authorization.

The “take care clause” of Article II carries forward that prohibition into our Constitution as part of the president’s obligation to “take Care that the Laws be faithfully executed.” The California district court was correct not to read Hunter’s pardon as a prospective “Get Out of Jail Free” card until Trump is sworn into office, and there is more support for the district court’s action than the judge thought.

Finally, for those who ask “What is Lesson 1?,” it is this: Don’t insult the public’s intelligence by thinking that you can fool all of the people all of the time.

You have a bust of Abraham Lincoln in your Oval Office, Mr. President. Perhaps you should have listened to Lincoln’s advice.

Paul J. Larkin is a senior legal research fellow in the Meese Center for Legal and Judicial Studies at The Heritage Foundation. 

Original article link