Comparing Trump's Pardon of Arpaio and Biden's Pardon of Biden

The more things change, the more things stay the same.

Today, President Biden issued a pardon to his son, Hunter Biden. In many regards, President Biden's pardon of his son resembles President Trump's pardon of Sheriff Joe Arpaio. The headline from the New York Times says it all: "In Pardoning His Son, Biden Echoes Some of Trump's Complaints."

First, President Biden issued this pardon after Hunter was convicted, but before he was sentenced. Biden has short-circuited the judicial process, taken the case out of the hand of the district court judge, and foreclosed any opportunity for appellate review. It is worth noting that both Roger Clinton and Charles Kushner were pardoned long after they had served their sentences. Back in August 2017, President Trump pardoned Joe Arpaio after he was convicted before he was sentenced. At the time, I wrote that the pardon was "premature," as the "preemptive pardon short-circuited the judicial process." There was outrage at the time to Trump's actions. It is enough to copy a paragraph from the Wikipedia page on the pardon:

In response to the pardon, The Washington Post said it was "a controversial decision, one that Trump critics labeled as an example of the president's illiberal, rule-of-law violating, authoritarian impulses." Harvard Law School professor Charles Fried, the former solicitor general for Ronald Reagan, said Trump's use of authority was specifically "to undermine the only weapon that a judge has in this kind of ultimate confrontation." Another Harvard Law School professor, Noah Feldman, said the pardon "would express presidential contempt for the Constitution." According to The New York Times, legal experts found the fact that Trump "used his constitutional power to block a federal judge's effort to enforce the Constitution" to be the "most troubling aspect of the pardon"

Hunter should hope that the District Courts in Delaware and California promptly dismiss the case, and the Trump DOJ does not have an opportunity to continue litigating the matter. But there is adverse precedent. After the pardon of Arpaio, the district judge actually held proceedings about how to deal with the pardon. Lawyers even argued that the court should not accept the pardon! Ultimately, the district court accepted the pardon, thus preventing the sentencing, but did not vacate the final judgment. The Ninth Circuit affirmed. Thus, at least in the California case, though Hunter was pardoned, under the Arpaio precedent, the conviction will stand.

Second, Trump's pardon of Arpaio was criticized because he bypassed the DOJ Pardon Attorney. He unilaterally decided to issue the pardon. Hunter would have never qualified for a pardon set forth by the DOJ Pardon Attorney. Chalk up another victory for the unitary executive.

Third, Trump was widely criticized for issuing a pardon to advance his personal interests. Arpaio was a big supporter of candidate and President Trump. The pardon was largely viewed as payback for a loyal supporter. Biden is in a similar position, though it is in many regards worse. This is not merely a political ally. It is his flesh and blood. Biden wrote, "I hope Americans will understand why a father and a President would come to this decision." Oh yes, we understand this decision quite well. Biden assured the public many times that he would not pardon his son. This promise was no doubt part of his appeal for the 2024 election. Biden ran for President (briefly) on the platform that he was honest, could be trusted, and would not put his personal concerns before the country. Historians can now judge whether Biden kept these promises.

Fourth, President Trump lobbied Attorney General Sessions to drop the Arpaio prosecution. These communications were viewed by critics as a breach of the "independence" between the Department of Justice and the President. Sessions declined to accede to Trump's requests. In 2024, Politico reported that Biden told "confidants that Garland should not have eventually empowered a special counsel to look into his son, believing that he again was caving to outside pressure." Sounds familiar? Biden said much the same in his pardon statement: "The charges in his cases came about only after several of my political opponents in Congress instigated them to attack me and oppose my election." It was Merrick Garland, Biden's Attorney General, who appointed the special counsel, not Republicans in Congress.

I don't see how Garland continues to serve. The President publicly declared that he has lost faith in his Attorney General. I would not be surprised to see Garland resign shortly. What a tragic figure, Garland is. He was nominated for the Supreme Court, never received a hearing, stepped down from the D.C. Circuit to become Attorney General, pledged to restore the rule of law, spent his entire administration enmeshed with special counsels and January 6 prosecutions, and all of those convictions have been, or will be pardoned. If Attorney General Meese was the most influential Attorney General in American history, where would Garland rank?

Fifth, Trump's pardon was viewed as an attack on Judge Susan Bolton. Adam Liptak wrote in the Times, "It was the first act of outright defiance against the judiciary by a president who has not been shy about criticizing federal judges who ruled against his businesses and policies." President Biden's statement managed to criticize the federal judge in Delaware who presided over Hunter's trial: "a carefully negotiated plea deal, agreed to by the Department of Justice, unraveled in the court room – with a number of my political opponents in Congress taking credit for bringing political pressure on the process. " This statement is flat-out false. The plea deal unraveled after it became clear the prosecution and defense did not agree how the plea agreement would be interpreted. Biden has no basis to insinuate that the District Court judge, who was supported by both Delaware senators, was politicized. Would Biden call Judge Norieka, who was appointed by President Trump, a "Trump Judge"? Cue Chief Justice Roberts.

Sixth, Trump's pardon of Arpaio concerned his conviction, and "any other offenses under Chapter 21 of Title 18, United States Code that might arise, or be charged, in connection with Melendres v. Arpaio . . . in the United States District Court for the District of Arizona." In other words, this pardon would prevent a prosecutor from bringing future charges related to that case. Biden's pardon of his son was far, far broader:

For 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, including but not limited to all offenses charged or prosecuted (including any that have resulted in convictions) by Special Counsel David C. Weiss in Docket No. 1:23-cr-00061-MN in the United States District Court for the District of Delaware and Docket No. 2:23-CR-00599-MCS-1 in the United States District Court for the Central District of California.

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."'

Seventh, Trump's pardon was part of a long-term campaign to charge that the DOJ was politicized. Here, Biden said "I also believe raw politics has infected this process and it led to a miscarriage of justice." Again, this is Biden's Attorney General. Biden's remarks about the politicization of his own DOJ provide more credence to what Trump has said, and what he will do after January 20.

***

The more things change, the more things stay the same. For what it's worth, this pardon does not prevent Hunter from facing charges in state court. Nor does it prevent the Department of Justice from prosecuting Joe Biden over his documents case. Remember, Ron Hur only declined to prosecute Biden for his "poor memory." If Biden had continued to serve as President, I think that is an admission that he is competent to stand trial. I also think that the statute of limitations would be tolled while Trump is in office. (The proceedings in New York with Justice Merchan will speak to this issue.)

Comments

[Lennyk78]

I'm fine with it. The gun law Hunter was convicted under is unconstitutional anyway. I'm just hoping that Trump follows his promise and pardons every 1/6 defendant, including those who were violent with cops. The cops were "doing their jobs" in the sense that Waffen SS guards were doing their jobs. They deserved to get assaulted, and the semi-retarded cop who shot Babbitt should be prosecuted.

[Malika]

Definitely a Lenny!

[AmosArch]

Hunter actually sounds like a pretty fun guy. Sort of like Bill in the olden days. I have little problem with their personal escapades chasing tail etc. The problem I have is they're massive hypocrites turning around and supporting a system which punishes other men who do 1/1000000000000000000th the stuff they got up to. I guess this pardon is the cherry on top of that sundae.

[ravenshrike]

Right, because gun and tax issues stemming from 2016 certainly deserve a pardon for any possible federal crimes stemming back to 2014. Why does that date sound familiar... Oh yeah, that was the year the worthless meth addict was appointed to the Board of Burisma.

[Lennyk78]

I'm referring specifically to the 4473 violation. I don't know enough about the others to have an opinion.

[AmosArch]

Its okay for Biden to lie repeatedly and pardon Hunter because something something Trump: Dems right about now.

[Krayt]

It's ok to pardon someone the other side went after for political reasons.

The only thing I can do is be a circus sideshow barker, promising a wild show as the sides justify pardoning their tribe's victims, and how dirty and rotten the other side is for doing the same, er, wrongly thwarting justice.

With a side of button pushing.

Just two bits!

[TwelveInchPianist]

"It's ok to pardon someone the other side went after for political reasons."

The other side? Biden is President? It's his DOJ that prosecuted Hunter.

[The Margrave of Azilia]

Maybe also pardon people who committed similar firearms offenses?

And maybe don't pardon *all* federal offenses over a ten-year period. I suppose he'll say he's worried about vindictive prosecutions - and he should know about that.

As to Arpaio, Trump gave a pardon for criminal contempt, of which it seems Arpaio was guilty. While Presidents *can* pardon criminal contempt, that doesn't make it a good idea absent some abuse of power by the judge.

https://supreme.justia.com/cases/federal/us/267/87/

[santamonica811]

1. I suspect that the reason there is little outrage today re the pardon is that it's pretty much what everyone expected.
2. I was most surprised that Biden did not (as you alluded to) pardon people who committed similar firearms offenses. It's my sense that there are very very few of them...at least, ones similar to Hunter, where the gun(s) in question were never used in, say, commission of a crime. So, the explanation for that might be as prosaic as, "We just couldn't find others in Hunter's position, so we had no one we could pardon for this offense."
3. I really don't like it when politicians lie to me. Of course, since I'm not a raving idiot, I expect a fair degree of dishonesty. The more you repeat a lie, the more I think it's fair to hold you to what you said. Obama said, about the ACA (I'm paraphrasing here), "If you like your doctor, you can keep her." I think he said it a grand total of two times. It wasn't true, no one at the time thought it was true, and 99% of the outrage about this provision was manufactured, I felt. He said it a few times = little Santamonica outrage. ????

Biden assured me/us, at least 25 times, that he would not pardon Hunter. So, I'm more pissed off about this lie. (I am consistent. Trump lied about "Mexico will pay for the wall." literally hundreds of times, so that also pissed me off . . . even though I and every other sane person knew he was lying about it.) [I can't really think of a lie that he has said only one or two times...he tends to return to the oldies-but-goodies. But those one-offs would bother me much less, for the aforementioned reason.)

[Hugh]

The timing of Trump's announcement that Joseph Goebbels wannabe Patel will be our next FBI director immediately followed by this pardon is not coincidence. Biden is protecting his son from lawfare.

[AmosArch]

Cue the nazi references. YAWN don't you guys have anything new?

[Noscitur a sociis]

What do you mean? Biden said in his statement that the problem was the decision the prosecutors and judges had already made, not what other people might do in the future. You’re not accusing him of lying, are you? After all, he said in his statement, “ For my entire career I have followed a simple principle: just tell the American people the truth.”

[Brett Bellmore]

"Biden said in his statement that the problem was the decision the prosecutors and judges had already made, not what other people might do in the future."

And then he proceeded to give his son a blanket pardon for absolutely any federal crime he might have committed in the last decade. Including crimes prosecutors and judges had not already made any decisions concerning.

[Armchair]

The prosecutors and judges made those decisions months ago, and Biden had said he wouldn't pardon his son then.

[AmosArch]

If you're just going to immediately use trump to minimize and deflect from Biden you're not that pissed about it. So spare us the righteous principled holding both sides to account act.

[santamonica811]

I'm sorry; what are you whining about now? For the record, I'm a bit annoyed at Biden for repeatedly lying about this pardon. It will always affect my opinion of him, and of his character.
But...The machine has yet to be invented that can measure my indifference regarding the actual pardon itself.)*

* hat-tip: Douglas Adams

[AmosArch]

The previous post and a recurring theme is you buttering yourself up as some principled objective centrist holding every side to account to the nanometer while at the same time exposing yourself as a naked partisan. Like in the very next sentence.

Well you might be fine with Biden lying to your face constantly but that doesn't mean the same dishonesty will pass here uncommented on.

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
But...The machine has yet to be invented that can measure my indifference regarding the actual pardon itself.)*
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

Yeah you don't care at all. The other side can and in some cases has committed 10x the misdeeds. But all that matters is your side wins. You're just like any political couch warrior here or on twitter, etc

[Brett Bellmore]

Hunter was the rare case where proving the offense was drop dead easy. Mostly you're looking at straw purchases where you have to infer that the purchaser of record was just a pass through, because it IS perfectly legal to buy a gun and then immediately decide, nah, and sell it. Just as it's perfectly legal to buy a gun and give it as a gift.

But here you had the idiot who signed a form that they weren't a drug user, and then extensively documented their drug use...

[Frank Drackman]

in his defense he was on drugs at the time.

[Lennyk78]

Abramski v. U.S. is a particularly egregious case.

The basic set of facts are that a Virginia police officer bought a Glock using his label discount. He checked that he was the actual purchaser on the 4473. He then brought it to a Pennsylvania FFL and transferred it to his uncle, living in Pennsylvania.

He was prosecuted for making false statements on the 4473, as a "straw purchaser," even though the the uncle didn't avoid an NICS check.

All of the gun control groups supported it, not because of any harm or even potential for harm, but because he lied on a form.

[JD85]

The obvious solution is to:

1) Remove making straw purchases illegal, and instead.....
2) Require the sale of all guns to require a background check. Have a little form filled out that says "I sold this gun / gave this gun away as a gift, and the recipient passed a background check".
3) Point 2 requires that ....you make background checks automated and be able to performed online, rapidly. There's no reason it should take 3 days. Make it an online form like when you apply for an updated drivers license or car registration. The gov't already has all the information. This is what allows (2) to be reasonable. Give someone a shotgun as a birthday gift? Have them do the little online check to confirm. Small inconvenience.
3) For people who want to buy a lot of guns over a multi-year period, they can get a background check ID or card (like a driver's license) that's valid for up to 5 years. The gov't would have a track on this ID, and in the event of a criminal charge / conviction that prevents them purchasing guns it could be revoked and forced to be returned. You wouldn't have to, but it would be convenient. Could even have it be an option for already issued ID's like global entry.

I can't see why this would be an objection to anyone, tbh. It's an improvement for those who purchase regularly, an improvement for those who want to buy for the first time (rapid check), an improvement for those who want to safely sell (or make sure others safely sell) their firearms privately, and a minor inconvenience for those who are giving / receiving as a gift.

[Noscitur a sociis]

The main objection I’d see (setting aside any constructional issues) is that this would create a de facto registry.

[Absaroka]

I'd be OK with an option 3 - before a sale, you look at the ID. No ID, no sale. 'Send the serial number to the government' doesn't have to be part of that.

I have previously proposed that driver's licenses have A (for alcohol) and G (for guns) endorsements, added by default at the proper age, and removed for offenses that indicate people can't handle the requisite responsibility (so various alcohol related crimes for A and violent crimes for G).

Sure, crooks would buy guns illicitly and drunks would get booze illicitly, but it might help a little - the drunk couldn't get tanked at the bar - with minimal hassle for the responsible majority.

[Brett Bellmore]

The obvious answer is that there's absolutely no constitutional basis for the federal government having any say in who can buy a gun in the first place, so they should just butt out.

[JD85]

That factually isn't true. The government has, since its founding, required that dangerous persons (e.g. convicted of felony or felony equivalent crimes) not be allowed to own or purchase firearms.

The entire purpose of background checks is to prevent exactly this. It used to be expensive to run, as you'd have to collate information by hand across multiple governmental halos (state, federal, county), but that is no longer the case.

You don't need a registry of who purchased, just the ability to confirm that the person doesn't have any disqualifiers.

Or are you truly arguing that a person who committed a violent crime should be able to purchase firearms after serving their sentence?

[Lennyk78]

No, the "government" has not. States did, but the federal government was understood to have limited powers, and banning possession of anything unconnected to one of the prescribed powers in Article I, Section 8, was not done en masse until the last century.

In any case, yes, I am arguing that a person who committed a violent crime should be able to purchase firearms after serving the sentence, unless you're also willing to prescribe them from having free speech, voting, or having abortions.

If a person is too dangerous to be allowed to own a gun, keep him in jail.

[Lennyk78]

Assuming the NICS is to exist, I have long supported opening it to private sellers. But the Democrats always fight it tooth and nail, because the whole purpose of "universal background checks" is to expense and inconvenience people, not to reduce crime.

[Rossami]

Your "sense" that there are "very very few" people arrested and convicted of gun crimes where the gun in question was never used in commission of a crime is wildly wrong. Just look at the history of stories here about felons rearrested under 'felon in possession' laws.

I was completely unsurprised that Biden failed to pardon people who committed similar offenses - gun control is one of the signature characteristics of Biden's career. I was actually more surprised that in the end he did put family before his 'legacy'.

[Absaroka]

I thought Hunter was charged with 'false statement on 4473' as opposed to 'felon in possession'.

From what I can tell felon in possession cases are fairly common, at least relative to false 4473 prosecutions.

That said, maybe Biden will pardon Bruce Abramski.

[Rossami]

You are correct but that's not a relevant distinction. santamonica said only that "the gun(s) in question were never used in ... commission of a crime" which would be equally true of a 4473 violation as a felon in possession violation.

[Lennyk78]

The real issue is that a 4473 should not be required to buy a gun. The 2nd Amendment doesn't say "shall not be infringed except that the federal government can require a form and then punish you if you lie on it."

[David Nieporent]

The Second Amendment also doesn't say, "shall not require any paperwork." And punishing someone for lying doesn't infringe on any underlying right.

[Lennyk78]

It doesn't need to say that. It serves as a limitation on government power. It's a ceiling, not a floor.

Punishing someone for lying does infringe on an underlying right if you didn't have the right to compel him to speak in the first place.

[Rossami]

This is a bit of a tangent from the original point but being a felon in possession should also not be a crime. Once you've done your time and paid your debt to society, your rights are supposed to be restored - all of them. If you're still too dangerous to be trusted with basic rights (including voting and gun ownership), you're too dangerous to be allowed out of prison

[BadLib]

Obama's "lies" about the "keep your doctor" and Trump's "lies" about "Mexico will pay for the wall" were very, very different than Biden's lie about pardoning his son.

The Obama/Trump outcomes could have happened - they were projections of future event over which Obama/Trump did not have complete control.

It is true that anyone with a brain and even a modicum of knowledge about the economics of the healthcare system would know that it was likely that at least some doctors would sever ties with some patients who switched to low-rent PPACA plans (just as they did when private insurance companies negotiated each year with providers and some doctors would "abandon" patients by dropping out of insurance company networks which had reduced compensation). But the PPACA didn't require any doctor to drop a patient who switched to a low-rent PPACA plan and those patients were at regular risk of being dropped anyway in the annual game of chicken between insurance companies and providers.

Trump, being somewhat intellectually challenged, may have actually believed he could figure out how to make Mexico "pay for the wall" through tariffs, declaring war against Mexico, or finding another way to make Mexico so unhappy they were eager to send truckloads of pesos our way to pay for the wall to put an end to the pain. If that was the case, his statements on this were not "lies" but were from ignorance and he may have realized after listening to people with a brain and knowledge that the consequences of whatever he was mulling over in his tiny brain was impractical.

Biden's lie on the other hand was a binary statement he made about something which he had complete control over the outcome. It was a statement of "I will not" which was a personal commitment to NOT do something - that he then did just a few months later. There were not even extenuating circumstances as the facts didn't change between his statement and his contrary action. It was like someone saying "I left my wallet in the car, can you spot me $20 for lunch and I'll pay you back this afternoon" and then that afternoon saying, while looking at their wallet full of $20 bills, "I decided I'm not going to pay you back because I can get away without doing so.". Although Biden's "lie" was perhaps not a "lie" in that he may not have intended to pardon Hunter when he made the statement but decided to do so Sunday morning (and perhaps even, in his mental condition, he truly doesn't remember making the statements although Jill presumably would have reminded him of them) so it was more of failure to follow through on his commitments when he could easily do so.

[David Nieporent]

1) As a nitpick, the Obamacare promise was that if you like your health insurance you can keep it. Not doctor. Obamacare doesn't control your choice of doctors.

2) Defending Trump on the grounds that he might have been too stupid to know better is pretty pathetic.

3) The term "lie" refers to a statement that one knows is false at the time one makes it. (Or perhaps recklessly disregards the likelihood that it's false.) By that standard, both the Obamacare one and the Mexico one were lies. Biden's was only a lie if he never intended to live up to it. If he did at the time he said it, then it's a broken promise rather than a lie. That is not an exoneration of Biden; that is just a terminological distinction.

While any promise carries within it an implied, "Unless circumstances significantly change," it's hard to see how Biden could hide using that excuse here. It's true that nobody thought Trump would be elected, but Trump's election can't affect the things for which Hunter was already convicted. If Biden was (not unreasonably) worried about lawfare from Trump, then he could have pardoned Hunter for other offenses besides the ones he was prosecuted for/convicted of. That would've protected Hunter from Trump while not shielding him from the things he was already convicted of.

[Joe_dallas]

1) As a nitpick, the Obamacare promise was that if you like your health insurance you can keep it. Not doctor. Obamacare doesn't control your choice of doctors.

As a nitpick - your health insurance does control your choice of doctors

[David Nieporent]

It does not, in fact, do so. You are free to see any doctor who will have you, regardless of what plan you have.

[Noscitur a sociis]

1) As a nitpick, the Obamacare promise was that if you like your health insurance you can keep it. Not doctor. Obamacare doesn't control your choice of doctors.

Obama repeatedly said things like

If you like the plan you have, you can keep it. If you like the doctor you have, you can keep your doctor, too. The only change you’ll see are falling costs as our reforms take hold.

and

No matter how we reform health care, I intend to keep this promise: If you like your doctor, you'll be able to keep your doctor; if you like your health care plan, you'll be able to keep your health care plan.

and

I know that there are millions of Americans who are content with their health care coverage — they like their plan and, most importantly, they value their relationship with their doctor. They trust you. And that means that no matter how we reform health care, we will keep this promise to the American people: If you like your doctor, you will be able to keep your doctor, period. If you like your health care plan, you'll be able to keep your health care plan, period. No one will take it away, no matter what.

and

Michelle and I don’t want anyone telling us who our family’s doctor should be – and no one should decide that for you either. Under our proposals, if you like your doctor, you keep your doctor. If you like your current insurance, you keep that insurance. Period, end of story.

and so on. I think that’s fairly characterized as “If you like your doctor, you can keep her” (although he said it a lot more than twice!).

[Randal]

I think you're over-analyzing David's point. I read it in context as:

As a nitpick, the Obamacare promise which turned out to be a lie was that if you like your health insurance you can keep it. Not doctor. Obamacare doesn't control your choice of doctors.

Which is true. You were able to keep your doctor. You just weren't able to keep your health plan necessarily. Which meant that you might have to pay more for your doctor. But you could.

[TwelveInchPianist]

"Which meant that you might have to pay more for your doctor. But you could."

Um, unless you don't have more money.

[Noscitur a sociis]

I also think that the statute of limitations would be waived while Trump is in office.

Uhhh, what?

[JesusHadBlondeHairBlueEyes]

Like how NY Assembly did with that law against Trump that somehow enabled Jean to get a bazillion gazillion dollar award against Trump in a totally not-biased case.

[not guilty]

"Like how NY Assembly did with that law against Trump that somehow enabled Jean to get a bazillion gazillion dollar award against Trump in a totally not-biased case."

That was a legislative action. E. Jean Carroll's counsel lobbied for the law, but survivors of childhood abuse by the Roman Catholic Man-Boy Lust Association also had a lot to do with it.

Congress is unlikely to modify the federal criminal statute of limitations, although it theoretically could do so. The federal courts, however, could recognize equitable tolling of the existing statutes while a criminal defendant is not subject to prosecution. The District of Columbia indictment against Donald Trump was dismissed without prejudice on motion of the government. https://storage.courtlistener.com/recap/gov.uscourts.dcd.258149/gov.uscourts.dcd.258149.282.0_5.pdf If the indictment is revived after Trump leaves office, then the tolling issue can be litigated.

[TwelveInchPianist]

*Biden, I assume.

[Noscitur a sociis]

Thus, at least in the California case, though Hunter was pardoned, under the Arpaio precedent, the conviction will stand. He will remain a convicted felon in the legal sense, even if he is pardoned.

I believe the exact opposite is true: the reason the Arpaio court denied his request to “vacate” the guilty verdict was precisely because it had no legal significance following the pardon.

[MikeFr]

The shocking thing here is not the pardon. It is Biden blatantly violating a promise he has made multiple times in public to the American people.

The fun part of this is that Hunter can no longer claim the Fifth Amendment. I look forward to him being hauled up in front of Congress and having to answer every goddamned question. He will have a choice between perjury (which will be a new crime and can be prosecuted) or setting up multiple friends, former business partners, and possibly his father for prosecution.

[santamonica811]

1. Is anyone other than you shocked?
2. I'm not Hunter's attorney. If I were, I'd suggest that he pull a Reagan/Trump, and just answer "I don't recall." to most questions. It has the whiff of truth ("Hey, I did a lot of crack; is it any wonder I don't remember?"). And it kinda stops things in their tracks.

[Noscitur a sociis]

You would instruct him to commit perjury? Yikes.

[Commenter_XY]

No Nas, I believe sm811 is saying that in the absence of a crystal clear recollection by Hunter, a legally correct answer is, "I do not recall, sir".

That isn't perjury. That is greatly inconvenient for the politicians.

[Brett Bellmore]

FYI: You actually CAN be convicted of perjury for testifying that you don't recall something, if there's enough evidence that the claim is implausible.

[Noscitur a sociis]

If you do recall something, “I do not recall” is not a correct answer of any kind, “legally” or otherwise. Now certainly that’s a lie you’re unlikely to be held accountable for, and I don’t doubt there are lawyers who will advise clients to take advantage of that. But I am surprised someone would admit to being one.

[David Nieporent]

It is, in fact, perjury to say, "I don't recall" when one does recall.

[santamonica811]

Yes, of course (also in response to earlier posters). But, given his extensive and lengthy drug addiction; is it REALLY so implausible that he cannot recall a lot of specific details? I mean, one side chuckled happily, and the other side fumed, when Trump repeatedly made this claim, when asked inconvenient questions.

Balancing the integrity of Hunter vs that of Donald Trump? It's a pretty close call. (And, when push comes to shove; I think that most Democrats *and* most Republicans think they are both lying sacks of shit.)

[tekcoyote]

In some cases, if evidence is destroyed or otherwise missing, a jury is instructed to assume that it is incriminating.

It seems that "failing to recall" something is pretty much the same thing.

"Did you snort cocaine the evening of 17 December, 2021?"

"I don't recall."

Aha--so you are presumed to have done so. Missing evidence/testimony = "yes."

[TwelveInchPianist]

The really shocking thing is that he permitted the lawfare against Hunter in the first place. He should have done something about it before it happened, instead of allowing his own DOJ to selectively prosecute his own son.

Many people suspected that Biden's DOJ had been engaging in corrupt and politically motivated lawfare. Hopefully now that Biden's admitted it will be easier to redress.

[Randal]

The shocking thing here is not the pardon. It is Biden blatantly violating a promise he has made multiple times in public to the American people.

How is it shocking? Trump does this kind of thing constantly. We're told that we're taking him too literally when we call him on it. I guess your opinion of Biden is so high that you're shocked he did the same thing even once? Anyway, it was obvious to the rest of us that he was going to pardon Hunter.

[Ken Arromdee]

He can claim the Fifth Amendment if he claims that he fears prosecution in a state court.

[Hugh]

If Biden has guts he will preemptively pardon a whole bunch of other people to protect them from the tide of fascist vengeance Patel and Bondi will be unleashing at Trump's and Blackman's urging. He should issue pardons to Liz Cheney, Cassidy Hutchinson, and everyone else who exposed Trump for the would-be Caudillo he is in 2022. He should issue pardons to all the public health officials who will be targeted by Torquemada mini-RFK and the other jokers and charlatans Trump is putting into positions of authority. There's a lot to do in a short time.

[AmosArch]

Must be opposite world for you when its the Dems who have been prosecuting their political opponents. I didn't recall Trump seeking much vengeance in 2016.

[Randal]

I didn't recall Trump seeking much vengeance in 2016.

You don't? Well, he sought it. He just had AGs that wouldn't go along with it. A mistake he's already made clear that he's learned from with his nominations this time around.

There'll be no one to stop us this time.

[Bruce Hayden]

Most of the counter-DOJ LawFare will be aimed at the National Security organizations, and esp their Counterintelligence units, in both the DOJ and FBI. They were essentially created by the PATRIOT Act, and by 2016 (probably even 2015) were well along the way of being a law unto themselves. First we saw was the Obama WH and DAG giving Dem associated organizations illegal access to FISA databases, that they apparently used for opposition research during 2015 and 2016. Then, we had FBI Counterintelligence Division branch chief Peter Strzok, in early summer of 2016, promising his girlfriend Lisa Page that he would make sure that Clinton didn’t lose. He was in charge of her Midyear Exam email server investigation, and the two of them came up with the justification that Comey used not to have her prosecuted. He also built the justification for the Crossfire Hurricane RussiaGate investigation (though it was apparently actually instigated by his boss, Bill Priestap). Which Strzok was also in charge of. Both Strzok and Page, after being involved in building the foundation for the Mueller investigation, moved over there, long enough to bring along all of their Crossfire Hurricane material, some of which was likely illegally obtained through unlawful FISA accesses. Meanwhile CD agents had successfully forced LTG Flynn Out as NSA (because he knew too much) through a § 1001 perjury trap, and these two organizations had acquired four FISA warrants on CIA asset Carter Page, utilizing what they knew to have been the Clinton funded Steele Dossier.

The last full day in office, President Trump formally ordered declassified a binder of documents implicating the DOJ’s Counterintelligence and Export Control Branch (CECB) and the FBI’s Counterintelligence Division (CD) in their misfeasance, malfeasance, and perfidy in their actions against him and his people, as discovered and documented by a DOJ IG and two SC investigations. To date, almost 4 years later, after that direct, written, POTUS order, those documents have yet to be formally declassified.

So, it shouldn’t be surprising that these two National Security organizations started plotting payback, with the election of Joe Biden as President. CECB Chief Jay Bratt apparently met early on, with WH staff. One thing that he got from the WH was an order for the Archives to cooperate fully with the FBI (CD). What that ultimately meant was that he could go through the FBI CD and have Archives request certain documents from Trump, then have them file a referral (to him) when they didn’t comply quickly enough. He was in the cat bird’s seat, denying Trump’s requests for extensions of time and for rolling production, then using their failure to timely produce those documents as justification for his search warrant. Just to keep everyone’s eyes on the ball - while CECB ran the DOJ side of the MAL raid, CD ran the FBI’S side, flying down from DC for it. Jay Bratt then became Jack Smith’s Deputy Special Counsel, effectively running the FL case against Trump, while maintaining his CECB branch chief post.

[Jason Cavanaugh]

That's a nice wall of bullshit.

[Bruce Hayden]

Wondered how you’d attack it. Go ahead. Merely calling it what you did, and not offering any real rebuttal, means, to me that you can’t. Do you need the actual date of the text message where Strzok promised Page that he would make sure that Clinton wouldn’t lose? Or, are you going to stick with a categorical nonspecific denial?

[David Nieporent]

Do you need the actual date of the text message where Strzok promised Page that he would make sure that Clinton wouldn’t lose?

That is, of course, a misparaphrase:

Page to Strzok: ”He's not ever going to become president, right? Right?!”
Reply from Strzok: “No. No he won’t. We’ll stop it.”

Which is kind of a normal exchange for law enforcement to have about a suspect. (Not the part about being president specifically; that's pretty uncommon.) And the IG report made clear that there was no evidence political bias affected any decisions made by the FBI in investigating Trump.

[David Nieporent]

So, it shouldn’t be surprising that these two National Security organizations started plotting payback, with the election of Joe Biden as President. CECB Chief Jay Bratt apparently met early on, with WH staff. One thing that he got from the WH was an order for the Archives to cooperate fully with the FBI (CD). What that ultimately meant was that he could go through the FBI CD and have Archives request certain documents from Trump, then have them file a referral (to him) when they didn’t comply quickly enough. He was in the cat bird’s seat, denying Trump’s requests for extensions of time and for rolling production, then using their failure to timely produce those documents as justification for his search warrant. Just to keep everyone’s eyes on the ball - while CECB ran the DOJ side of the MAL raid, CD ran the FBI’S side, flying down from DC for it. Jay Bratt then became Jack Smith’s Deputy Special Counsel, effectively running the FL case against Trump, while maintaining his CECB branch chief post.

Every word of this is a lie, including "and" and "the." Being untimely had absolutely nothing to do with the search of Mar-a-Lago, you troll. Trump had all the time he needed and first refused to produce stuff and then lied and said it had all been produced. There was no rolling production request and no need for one.

[Noscitur a sociis]

We must destroy the rule of law in order to save it!

[Bruce Hayden]

Yes, the Arpaio pardon was political. But so was the prosecution. It was LawFare waged against a popular Republican, because he was tough on crime (and the cartels were in the process of buying the state for the Democrats). Those of us in AZ at the time understood what was happening - we just didn’t, yet have a term for it (LawFare). Arpaio was popular precisely because he was effective, and had to be taken out, before the Dems could take over the top elected offices in the state through massive election fraud in Arpaio’s Maricopa county. I fully expect that if Arpaio had not been ousted through LawFare, Katy Hobbs and the crooked Maricopa County election officials would have been met with MCSD raids, instead of ineffectual after-the-fact lawsuits, and Trump would have easily won the state in 2020, the top three elected officials, elected in 2022, would be Republicans, and they would have had 2 more Senate seats (giving them control during that time). So, Sheriff Arpaio had to be taken out, for political reasons, and he was, by the supposedly apolitical DOJ.

Why does the DOJ bureaucracy (much of it Democrats) get to be political in their prosecutions of Republicans, but the elected President cannot be? This is just the opposite of the way it should be, with a neutral bureaucracy, and a political President. But we know that at least since 2016, at least, DOJ political neutrality has been a relic of the past.

[JD85]

I mean, Arpaio did some heinous things.

Like, you know, refusing to investigate child sexual abuse. He basically put all his efforts into targeting Latino's based on how they looked (which everyone should find objectionable) at the expense of standard police investigations.

He also operated what he called, in his own words, "a concentration camp....called Tent City". A 7 acre outdoor jail where temperatures reached up to 120 and at times the only water available was from vending machines that would run out. There are numerous reports about this camp, you can feel free to read just about any of them (the complaints about wearing pink are silly, but the conditions were terrible).

His successor closed the camp pretty much immediately in 2017. It was just needless cruelty for cruelty's sake.

[Bruce Hayden]

And I know people who chose Tent City over the county jail. Jail is jail. And, yes, they also preferred ADCRR prison over either the MCSP JAIL or Tent City. And his replacement sat on his hands when Katy Hobbs and the corrupt MC election officials stole the 2020 and 2022 elections for the democrats.

[David Nieporent]

Katy Hobbs and the corrupt MC election officials stole the 2020 and 2022 elections for the democrats

Are you mentally ill?

[Randal]

Wow, you've got some serious mental and emotional problems, Bruce! Try checking in to an extended, restorative asylum spa treatment. Those voices in your head aren't the evil souls of Democrats come to torment you and explain their impossibly complicated conspiracies and devious schemes to you for some reason. They're a mental illness that you can beat!

[Brett Bellmore]

On the one hand, Hunter is almost certain to commit fresh crimes that will expose him to new legal jeopardy. He does not have a track record suggesting much capacity for restraint.

On the other hand, his income is going to absolutely implode, because who has any motive to hire him for plush jobs anymore? Dad is soon to lose all capacity to reward them for it, and wouldn't remember getting his cut anyway. Nobody's going to have any reason to pretend he's a great painter, or a brilliant businessman.

So he's not going to be able to afford much crack going forward.

So it will be interesting to see what sort of crimes he does commit, given this reduced cash flow.

[Jerry B.]

Well, he can always fall back on selling his artworks.

[JD85]

Aren't the Biden's incredibly wealthy due to his wife? I doubt he'll have to scrounge for cash for living expenses.

[Brett Bellmore]

No, you're thinking of some other political couple. The Bidens were dirt poor by Congressional standards until he started cashing in after 2016.

I actually think that's part of why the money grubbing was so gross; They'd seen people all around them growing wealthy in politics, while they'd actually honestly earned an upper middle class income, and when they finally gave up and stuck their faces in the money trough, they were terribly crude about it in their efforts to play catch up.

[LawTalkingGuy]

You think it’s gross because it lacks the sophistication and subtly of other corrupt people?

[LawTalkingGuy]

And not for nothing but Trump is nothing if not a crude money grubber yet I somehow don’t think you describe him as “gross.”

[David Nieporent]

I like how Brett uses vague terms like "money grubbing" and "cashing in" to obscure what Biden actually did, which was all entirely legal and normal: book deals, teaching, and speeches.

Note that this is all after Biden was out of office, so it couldn't have been corruption.

[Randal]

Yes, whereas whatever's going on with Justice Thomas is just normal stuff that friends do.

[Bruce Hayden]

We all knew that Dad Biden would pardon his son. What every good father would do, esp when said son was the bagman for the family’s graft operation, that made Dad, his brother, that son and his sister, wealthy. The only question was when. This was the perfect time. The election was over and everyone was engaging in tryptophan induced comas after Thanksgiving.

[JesusHadBlondeHairBlueEyes]

Does that cover pardon Hunter having sex with his underage niece, or is he still on the hook for that?

Also, Biden needs to pardon himself and the rest of the Biden Crime Family on his way out the door.

[Brett Bellmore]

Obviously, it only covers federal offenses.

[Frank Drackman]

Penetration, however slight, is sufficient to complete the act.

[SRG2]

1. Biden should have waited for sentencing before commuting rather than pardoning.

2. I am not unduly vexed by Biden breaking a promise. Certaintly any Trump supporter here has no grounds for whining about what Biden did - though it won't stop them whining.

3. There were actual human victims of Arpaio's crimes. There weren't any of Hunter Biden. AFAIC that makes Arpaio's pardon far worse.

4. Interesting to note that Blackman, who was once critical of the Arpaio pardon, utters not a word of criticism here.

[Dan Schiavetta]

Indeed.

It was not only humane but fatherly to spare Hunter the abuse he would have endured under what Trump has promised to be a vengeful DOJ. Trump has no experience being in a loving family so he probably can't relate. Hunter's been "clean" for years now and the crime was victimless.

[David Nieporent]

Seems to me that Hunter Biden has already been convicted and therefore DOJ couldn't do anything to him over these crimes. It would've been more reasonable for Biden to pardon Hunter for anything he hadn't already been convicted of, if the only goal was to prevent Trump's insane DOJ picks from going after Hunter.

[Stephen Lathrop]

A scene of political triumph which calls forth among the victors not celebration, not enthusiasm for constructive prospects to come, but seething sickness, suggests a troubled future for this nation.

[Brett Bellmore]

The thing I find interesting is that it's traditional for an outgoing President to issue a batch of controversial pardons on his last day as President. But Joe is going to be President for 49 more days. (This is another Arpaio similarity; Trump didn't drop that pardon in January 2020.)

Why the rush?

Is it possible that the DOJ, knowing Biden was on his way out, and Trump coming in, were preparing to drop a load of fresh charges against Hunter, and Biden had to jump the gun to avert it?

In any event, Hunter still has 49 days while dad is President to commit fresh crimes, and tax season is approaching. Think dad will pardon him again on January 19th, so that Hunter can commit one last tax fraud?

[Noscitur a sociis]

Why the rush?

Because sentencing was coming up.

We’ve got the high ground here, don’t ruin it.

[SRG2]

The Bulwark's take: https://www.thebulwark.com/p/in-defense-of-the-hunter-biden-pardon

Basically, Biden wouldn't trust the incoming Trump admin not to go after Hunter and the prosecution was selective - both reasonable views, IMO.

[Sandra (formerly OBL)]

The Bulwark is defending Biden?!

I totally believed Sarah Longwell when she summarized their reaction as We think it’s bad. Thanks for reading.

[Noscitur a sociis]

I’m not sure that should be characterized as “The Bulwark’s take” versus “some women’s take that was published in the Bulwark (even though she’s not a regular writer there)”. Still pathetic, of course.

[arpiniant1]

Whine whine whine whine whine
Sheriff Joe was a criminal who used the government to punish private citizens.
Hunter cheated on his taxes

Gawd, what morons who have to drop to this level of toadying to traitortrump

[Jmaie]

I'm glad you brought up the tax evasion, I'm for more peeved by that vs. the gun issue...

[LawTalkingGuy]

Very cool to do a “comparison” of pardons to judge which is “worse” and not mention what crimes they were both convicted of. Can’t wait until the February piece comparing Trump’s recent pardon of Robert Bales to Carters commutation of Patty Hearst and why the latter was the greatest attack on the constitutional order to have ever occurred.

[DaveM]

So, lawfare as a political tactic has failed. And not just failed, but has backfired. "He who digs a pit will fall into it, and he who rolls a stone, it will come back on him."

This is a superb outcome.

Just imagine the reverse, where lawfare succeeded in keeping candidates off of ballots, or in creating Constitutional paradoxes that resulted in political chaos, or encouraged national and state prosecutors to file tit-for-tat prosecutions that plunged the nation into a cold Civil War.

Lawfare was the biggest loser of 2024, thank God.

[JoeFromtheBronx]

I'm reminded of My Cousin Vinny.

"Uh... everything that guy just said is bullshit... Thank you."

[LawTalkingGuy]

At least the prosecutor in Vinny tied his argument to the evidence he actually had and dropped charges when his case fell apart. It’s actually crazy that you can write that many words about why the Arpaio pardon isn’t that bad without mentioning he was convicted of willfully ignoring a court order to stop violating people’s constitutional rights.

[Eric Rasmusen]

My take (which I'll have to update afte this good Blackman post) is at https://ericrasmusen.substack.com/p/joe-biden-pardoning-hunter-biden

[SRG2]

good Blackman post

Are you a Blackman sock? lol

[not guilty]

Hunter Biden is a scoundrel. I have reservations about the pardon and about President Biden reneging on his promise not to do so, but I do understand his reasoning.

[Noscitur a sociis]

Everyone who wants to show that they’re not just reflexive partisans, and can stand on their principles and call out wrongdoing on their own side, now’s your chance.

[LawTalkingGuy]

Biden lied and then betrayed his side and gave credence to the arguments of the most bad faith cynical actors on the right and reinforced the notion that nothing matters. So fuck him.

That being said, everyone in the right who is enjoying the calling out of blatant hypocrisy or being fake outraged should enjoy this high now. You won’t get a chance to feel morally superior for a long time come January.

Personally I’m looking forward to the defenses of the inevitable Larry Householder and Robert Bales pardon.

[tylertusta]

Once you turn the moral high ground into scorched earth it's not so easy getting it back.

I hope you enjoy whataboutisms.

[LawTalkingGuy]

I like that you wrote this is as if HUNTER BIDEN!!!! hasn’t been and won’t continue to be the biggest “whatabout” from the American right in some time. “What about Hunter Biden” was like half of the agenda of the GOP Congress. I will bet a large portion of my salary that Hunter Biden will be brought up continuously in response to any Trump or subsequent Republican scandal or story no matter how major or unconnected to Hunter Biden it actually is. I think he could even surpass Vince Foster in the annals of right-wing fixations. Indeed there are young republicans coming of age online now who might manage to bring up Hunter Biden into the 22nd century.

[Randal]

And here I was hoping we would get to relitigate Benghazi.

[tylertusta]

If Hillary Clinton were to publish an account on how Benghazi was her fault, and that she hid it for years, then I think people would be very justified in talking about it for a while.

[Randal]

And that's plausible, in your mind, is it? Huh.

[tylertusta]

Do I think that that Hillary is involved in a cover-up of the True Story™ of Benghazi? No. No plausible.

But, if she admitted that there was a coverup, that it was her fault, etc., then it's plausible and appropriate for public officials to talk about it again.

[tylertusta]

You say this like 'fixations' aren't common in politics.

But, yes, Hunter Biden will be brought up to excuse all manner of sins by Republicans. That is unfortunate.

President Biden has a limited window to turn his son's pardon into something very constructive. I'm waiting to see if he actually does it.

[Sarcastr0]

This pardon wasn't in the interests of justice, but I'm not an icy enough person to call it wrong.

[tylertusta]

Based on what we know today, I actually think the pardon was right. It serves the interests of justice, and it serves the interests of the country.

[Kenneth Almquist]

“Biden is in a similar position, though it is in many regards worse. This is not merely a political ally. It is his flesh and blood.”

Blackman doesn’t explain why pardoning a family member is worse that pardoning a political ally. One difference is that pardoning family members is self limiting. Biden has two living children. He has pardoned one of them, but even if he went all out and pardoned both of them that would be only two pardons.

In contrast, the number of pardons issued to political supporters is limited only by the number of supporters the politician has. (In addition to Arpaio, Trump has pardoned Steve Bannon, Paul Manafort, Roger Stone, Michael Flynn, and others.) I think that large numbers of unjustified pardons are significantly more harmful than a handful of unjustified pardons. Take it far enough and you could build a political machine based on the pardon power.

[David Nieporent]

(In addition to Arpaio, Trump has pardoned Steve Bannon, Paul Manafort, Roger Stone, Michael Flynn, and others.)

Also extended family members like Charles Kushner, who he just promised to make an ambassador.

[Social Justice is neither]

And there is the fact that Joe is complicit and central to a large number of his son's crimes. But sure, focus on any factor other than that.

[David Nieporent]

I don't see how Joe Biden could possibly be complicit in Hunter Biden lying on a gun form or not paying taxes. (I suppose he could have bought cocaine for Hunter, or watched approvingly while Hunter was doing lines at Thanksgiving dinner, but otherwise, I don't see how he'd be complicit in that, either.)

[TheAmazingEmu]

I'm disappointed by the pardon decision in this case. That being said, it was done before sentencing because he'll likely leave office first and he needed to do it while still President. I don't really see the relevance of whether it's done before or after sentencing. We've also had Presidents just commute sentences before.

[Noscitur a sociis]

The sentencings were scheduled for later this month, so unless you know something I don’t….

That said no point in wasting time and money on meaningless proceedings. Thought of course that would apply to the actual trials too….

[Randal]

The main purpose to wait until after sentencing is that he could sort of implausibly claim that he didn't renege on his promises because he didn't technically pardon Hunter from his crimes but merely commuted his sentence.

The reason not to do that (besides it probably not being super effective) was to roll the pardon of "other crimes" into a single pardon action in order to deter any continued political investigations into Hunter without having to do so as a standalone pardon into unknown crimes... which would be almost intolerably awkward. We'll see if he issues any of that kind of prophylactic pardon to anyone else like Liz Cheney or whatever. I bet not.

[tekcoyote]

Professor Blackman writes...

"I would not be surprised to see Garland resign shortly."

I would be. Why would he resign? The man has zero shame.

[Randal]

Josh joshy josh josh. I love it when you do this thing of framing your whataboutism as a comparison between the right-winger and the left-winger... and then you have to make up a bunch of the left-winger's allegedly immoral acts in order to make them seem as bad as the right-winger!

President Trump lobbied Attorney General Sessions to drop the Arpaio prosecution... In 2024, Politico reported that Biden told "confidants that Garland should not have eventually empowered a special counsel to look into his son, believing that he again was caving to outside pressure." Sounds familiar?

No, it does not sound familiar, because bitching to confidants about your AG well after the fact is not at all similar to lobbing your Attorney General about whether to prosecute.

Would Biden call Judge Norieka, who was appointed by President Trump, a "Trump Judge"? Cue Chief Justice Roberts.

No, he wouldn't call Judge Norieka a "Trump Judge," and we know that because he hasn't.

You're making things up again, Blackman. Don't be a Fibbing Fran, Blackman.

https://x.com/bookofmormonuk/status/570297238536060928

[Social Justice is neither]

Which crimes was Trump complicit in that he tried to pardon his way out of in this comparison? I get that you all will do anything to defend the Niden crime family but try to not be pathetic while doing so.

[wreckinball]

Expect a whole bunch more pardons to be issued. Family and DOJ and FBI folks.

Garland and Wray for sure. Question is will they resign or just keep their jobs after being pardoned?

Then there will be a whole bunch of hand wringing amongst Dems the media and a few RINOs about pardoning the J6ers.