Hunter Biden Pled Guilty So His Corrupt Dad Can Pardon Him

Is a pardon for Hunter Biden a foregone conclusion? It looks like Hunter Biden thinks so. On the day jury selection was scheduled to begin in his federal tax evasion trial, Hunter surprisingly and suddenly pleaded guilty on all nine felony counts with which he had been charged.

A last-minute guilty plea, extended without any reciprocal offer of a sentencing reduction or government dismissal of any of the charges, is rare in federal criminal cases. Hunter’s initial offer of an Alford plea, which would have allowed him to plead guilty while maintaining his innocence, was rejected by the government, with the lead prosecutor telling the judge that Hunter “is not entitled to plead guilty on special terms that apply only to him.”

He now faces up to 17 years of imprisonment in the tax trial as he awaits sentencing for up to 25 years in his Delaware firearms trial that concluded in June. Hunter will learn the severity of his sentences at hearings on November 13 and December 16 — unless, of course, he is saved by a presidential pardon from his dad.

The pardon power is one of the few authorities the U.S. Constitution consigns exclusively to the president. It states the president alone “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

The Supreme Court held as early as 1866 that the scope of the pardon power is unlimited. Although the president may always seek advice on potential pardons from people inside or outside of government, what the Supreme Court called “[t]he benign prerogative of mercy” is “reposed in him” alone and “cannot be fettered by any legislative restrictions.”

Potential pardons are usually vetted by the Office of the Pardon Attorney within the Department of Justice. Normally, a pardon will only be granted if the petitioner has “demonstrated good conduct for a substantial period of time after conviction and service of sentence,” and DOJ regulations require an individual to wait five years after conviction or release from confinement, whichever is later, before filing a petition for pardon. 

Factors the pardon attorney considers in assessing whether to recommend a pardon include the petitioner’s post-conviction conduct, character, and reputation; the seriousness and relative recentness of the offense; acceptance of responsibility, remorse, and atonement; need for relief; and official recommendations and reports. Needless to say, even with his voluntary guilty plea, most of these factors do not favor Hunter Biden.

However, as the Office of the Pardon Attorney has acknowledged, “these rules do not bind the President. The President retains the authority under the Constitution to consider a pardon request from an individual who is ineligible to apply under the regulations or who has not applied at all, and to grant clemency to such a person if he believes such action is appropriate.”

There is thus a long tradition of presidents jumping the gun and granting pardons to individuals who never applied through the formal DOJ clemency process. For example, in the infamous case of President Clinton’s pardon of fugitive financier Marc Rich, “none of the regular procedures . . . were followed.”

In that case, the Office of the Pardon Attorney was not informed that the president was even considering a pardon until less than 12 hours before the expiration of President Clinton’s term. The office was only able to complete a cursory online background check before the pardon was granted. Clinton later confessed that the pardon “was terrible politics” and “wasn’t worth the damage to my reputation.”

A pardon of the president’s own son would be “terrible politics” before the election, a fact that President Biden seemed to recognize when he publicly ruled out pardoning Hunter if he were convicted in his first criminal trial. The White House maintained this position after his recent guilty plea.

Nevertheless, the conditions for a presidential pardon are now more propitious than they may have appeared in June, when Joe Biden last weighed in on the question. After all, Joe Biden is no longer a presidential candidate after being unceremoniously dumped from the Democratic ticket by his own party. Whereas a pardon could have once damaged his campaign or depleted his political capital at the start of a second term, the political impact would be negligible for a man with only weeks left in the White House.

Biden has made his own opinion on the underlying allegations clear, saying in May 2023 that “my son has done nothing wrong.” Hunter’s own lawyers have echoed the president’s narrative of political persecution, claiming that “if Hunter’s last name was anything other than Biden, the charges . . . would not have been brought.”

If a pardon is the ultimate outcome that Hunter expects, his decision to plead guilty makes perfect sense. He has technically accepted responsibility for his actions while saving the time and embarrassment of another criminal trial. Only time will tell, but the smart money is on President Biden granting Hunter a full pardon after the November 5 election.

Jonathan Fahey is a partner and Andrew Pardue is an associate at Holtzman Vogel, a national political, regulatory, and litigation law firm. They can be reached at [email protected] and [email protected].