Hunter Biden’s sudden about-face in a Los Angeles federal courtroom last week — pleading guilty to nine tax-related criminal charges shortly before trial — has raised questions about the prospect of a presidential pardon.
Biden entered an “open plea,” meaning he got nothing in return from prosecutors. This was in sharp contrast to the deal that fell apart in Delaware federal court last summer, which would have resolved the tax charges as well as three gun charges, the latter of which instead went to trial and resulted in a conviction in June.
“Hunter decided to enter his plea to protect those he loves from unnecessary hurt and cruel humiliation,” his lawyer told reporters. The convictions carry maximum sentences of 25 and 17 years, respectively.
Biden’s move could also stem from the fact that the judge in the California case ruled that his lawyers could not introduce expert testimony about his prior drug addiction or tell the jury that he already paid back the $2 million owed in taxes. Yet these are precisely the sort of facts that could justify a pardon — were it not for the fact that Biden is also the president’s son.
Under Justice Department guidelines, which are not binding on presidents, pardons are only available five years after completion of a sentence. But the eligibility factors include things like an “individual’s demonstrated ability to lead a responsible and productive life for a significant period,” whether an offense is “very serious,” the “victim impact” and the individual’s “acceptance of responsibility.” In Hunter Biden’s case, these factors appear to point in his favor.
Consider the Delaware case. Biden was convicted of knowingly lying on federal paperwork when he purchased a gun in a Wilmington store in 2018 when he stated that he was not a drug user, and of illegally possessing the gun for 11 days. At trial, his ex-girlfriend testified that when she first met him in December 2017, he was using crack cocaine every 20 minutes.
Former Rep. Trey Gowdy (R-S.C.), a former federal prosecutor, told Fox News, “I bet you there weren’t 10 cases prosecuted nationwide of addicts or unlawful drug users who possessed firearms or lied on applications.” Sen. Lindsey Graham (R-S.C.) likewise said, “I don’t think the average American would have been charged with the gun thing.”
This came in the midst of a scourge of gun violence in the U.S., the latest episode of which prompted Republican vice presidential candidate Sen. JD Vance (R-Ohio) last week to lament that gun-related murders in public schools are a “fact of life.” Moreover, few gun-rights activists protested when Hunter Biden was indicted for lying on his gun application.
The Los Angeles indictment charged Biden with nine criminal counts — three felonies and six misdemeanors — allegedly arising from “a four-year scheme to not pay at least $1.4 million in self-assessed federal taxes he owed for tax years 2016 through 2019.” But for the tax year 2017, IRS audit rates for people within Biden’s $1 million to $5 million income range hovered at 1.8 percent. This suggests that if it weren’t for the fact that he is Joe Biden’s son, the government probably wouldn’t have bothered looking into his taxes. Certainly, there would not have been a special counsel appointed, which happened under his father’s Justice Department, although the initial probe began under Trump.
The indictment details how Biden didn’t pay his taxes while simultaneously spending money “on drugs, escorts and girlfriends, luxury hotels and rental properties, exotic cars, clothing, and other items of a personal nature.” It goes on to recount how, in his 2021 memoir, “the Defendant described 2018 as being dominated by crack cocaine use ‘twenty-four hours a day, smoking every fifteen minutes, seven days a week,’” but “never told [his] CA accountants about his extensive drug and alcohol abuse in 2018.” Prosecutors surmise that the disclosure “might have prompted greater scrutiny of his claims of hundreds of thousands of dollars in business expenses.” Not a shocking crime by any stretch.
In both cases, Hunter Biden’s crimes seemed inextricably tied to his grief over his brother Beau’s death from brain cancer in 2015 and his subsequent spiral into addiction after years of sobriety. Both involved relatively minor crimes that might not have been charged, but for the accident of his birth.
This is not to say that President Biden (or a President Kamala Harris) should pardon Hunter Biden or that his crimes are not crimes. But a pardon for such a crime would not be unprecedented.
President Bill Clinton pardoned his younger half-brother, Roger Clinton, who pleaded guilty to selling cocaine to an undercover police officer and was later arrested for drunk driving and disorderly conduct. President Donald Trump pardoned Charles Kushner, the father of his son-in-law Jared. The elder Kushner had pleaded guilty to tax evasion and making illegal campaign donations after he had retaliated against his brother-in-law for cooperating with federal authorities in the investigation. Kushner secretly recorded a motel-room encounter between his brother-in-law and a prostitute whom Kushner had hired, and subsequently sent the recording to his own sister. Former New Jersey Gov. Chris Christie, who prosecuted the case, called it “one of the most loathsome, disgusting crimes” he had seen as U.S. attorney.
The federal pardon system is undeniably broken and marred by corruption. But if Hunter Biden snags a pardon, it will not be the miscarriage of justice that we’ve seen all too often in the waning days of a presidential administration.
Kimberly Wehle is the author of the new book, “Pardon Power: How the Pardon System Works — and Why.”