Can the Just-Pardoned Hunter Biden Claim Privilege Against Self-Incrimination, if Questioned About His Crimes?

A couple of people asked me this; the short answer:

[1.] Because the privilege applies only when a witness reasonably fears prosecution, and the pardon precludes prosecution for any "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," a pardon may indeed eliminate the privilege, and allow a court or congressional committee to order Hunter Biden to testify. "[I]f the witness has already received a pardon, he cannot longer set up his privilege." Brown v. Walker (1896). "[A] witness may be compelled to testify concerning his involvement in a crime when he is protected from later prosecution … by the applicable statute of limitations … or by a pardon." Pillsbury Co. v. Conboy (1983) (Marshall, J., concurring) (citing Brown).

[2.] But the privilege disappears only when there's no realistic prospect of prosecution by any American government, federal or state. So if a witness is asked about something, and the answer might lead to state prosecution for which the state statute of limitations hasn't run, the witness can refuse to testify because of that risk of state prosecution, even if a federal prosecution is taken off the table by the federal pardon. (Recall that a Presidential pardon only pardons for federal crimes.) This is relevant because some conduct can violate both state and federal law.

How this would play out as to any particular investigation of Hunter Biden's behavior, I leave to others.

Comments

[Stupid Government Tricks]

Thanks for the clarification. I'm looking forward to all the juicy bits and the associated political wrangling. Maybe it will distract the critters enough to leave the rest of us alone.

[John F. Carr]

And a person who refuses to accept a pardon may still claim the privilege against self-incrimination. Burdick v. United States. I expect Hunter Biden to accept the pardon.

[Bored Lawyer]

I expect Hunter Biden to accept the pardon.

That's funny.

[Eric Rasmusen]

Thank you for the quick take. We'll no doubt see more thorough commentary on this, but I appreciate speedy ones especially, even tho they risk error.

[JesusHadBlondeHairBlueEyes]

Now do the analysis of how historically broad the pardon is. If that's even constitutional.

[Eugene Volokh]

I would, if I were a historian of pardons, or at least up on the literature on the subject. But I'm not, so at best I could just quote what others say (see, e.g., this Washington Post piece today, which itself relies on others). I feel pretty confident in my summary of the firmly settled legal rule as to pardons and self-incrimination; I can't speak with similar confidence about history.

[Dr. Ed 2]

Does Hunter have to confess to his crimes?

[David Nieporent]

Not if he doesn’t want to. Why?

[Krayt]

We found out, though, when people go after a political opponent deliberately, they may send stuff down to the states, "just in case of a pardon of himself", so they can git 'im some other way.

"Beware, Hunter!" -- Your own party.

This was one of four or five proofs it was about political prosecutions and not disinterested concern for rule of law. A pardon is an uncommon but allowed ending for rule of law, and someone concerned with such would not get scared of it and make sure they can still get him through a different domain.

[Randal]

Oh my lol. Who, exactly, is this "someone" who "sen[t] stuff down" to New York and Georgia?

The Democratic Hive Mind that lives in your head, presumably.

[Krayt]

Memory holing in progress.

This happened. A big stink was made about it, the propriety of it, at the time.

The only mind full of fail is yours. Unless it's being deliberately obtuse, trying to hide actual things. I've encountered your type before, unrepentant partisans, like the ones who pretend the Democratic debates in 2020 didn't include a discusion unit on how to clobber section 230 to arm twist companies into censoring harrasement according to their wishes. Which, of course, got used against politicians, by complaining certain tweets were harrassing.

You are called out for lying for future consumption. Or of just being ignorant.

If the latter, now you know. You're welcome.

[Randal]

I'm sure a big stink was made. You guys like to make big stinks. That has essentially zero correlation with whether or not something actually happened.

Anyway, this big stink contradicts your other big stink about how unfortunate it is that "any random local prosecutor across the country" can take matters into their own hands and launch a prosecution against a former president. Remember how important that was to your bitching about how Trump needed vast immunity? Why do New York and Georgia need to have their prosecutorial decisions "sent down" from on high if at the same time they're out-of-control independent partisan actors?

[Satchmo_Lives]

Didn't the acting associate attorney general, Colangelo, leave the DOJ in 2022 to take an ADA job under Bragg? I guess without evidence we take it on faith he simply wanted the less prestigious and less powerful position with no promise of getting back to DOJ when his mission was complete.

[Randal]

Oh, conspiracy theories, my favorite! Also exactly what I expected. (From Jesus as well.)

Colangelo's résumé doesn't even amount to a conflict of interest. If we apply this standard to Trump's people, what do you think we'll find? He's got felonious, nepotistic ambassadors that gave him money after he pardoned them, as one of the least problematic examples. Why no conspiracy theories around these guys?

[Satchmo_Lives]

As a response to "Why do New York and Georgia need to have their prosecutorial decisions "sent down" from on high..."

I don't know why Colangelo was sent. It certainly wasn't to concoct a legal theory where a misdemeanor ledger entry gets turned into 34 felonies. Only that it appears he was.

Give it all the legal justification you want. The fact is the leading presidential candidate for the opposition had a supposedly false and illegal payment to his lawyer labelled as legal fees. The dead misdemeanor was turned into 34 felonies. You may be perfectly ok with such tactics and have the intellect and knowledge to justify it. I, however, in my admitted ignorance, think no person should be subjected to such perverse legal wrangling.

You mentioned intent earlier--the "intent" to commit another crime. The only evidence offered to frame of mind was Cohen's testimony. Offset by two people not convicted of perjury and not caught misremembering key details of a phone call that supposedly proved his intent.

I guess that is justice in your world. And since people like you are the gatekeepers, my world as well.

[Randal]

Blah blah blah, now you're just back to second-guessing the case itself by joining the partisan loser club along with Brett and Joe. The merits of the case have nothing to do with whether anything was "sent down" by "someone." As I said, I could find things to bitch and moan about in any case, Hunter's included. Wah wah.

None of that has anything to do with your Colangelo conspiracy theory. He'd worked for the New York Attorney General on Trump stuff before. People move between jobs all the time. No doubt he saw an opportunity to go back to New York and work on a high-profile Trump case. So?

"But but but... bias! Scheming! Biden crime family!" I hear you whining. That's all conspiracy theory BS, except for bias, which is probably the most laughable "grievance" you guys have latched on to recently, the idea that prosecutors are supposed to be neutral. Prosecutors aren't neutral lol! They're very much biased against the criminals. Oh my god stop listening to Michael Flynn and Stephen Miller. They're rotting your brain. It's like listening to Russian state media.

[David Nieporent]

The only evidence offered to frame of mind was Cohen's testimony.

That is false. And also… so what? All you're doing is relitigating a jury verdict.

[JesusHadBlondeHairBlueEyes]

There are White House logs of Fani's lover and special counsel visiting the White House.

[not guilty]

Analysis of whether questions propounded to a witness by Congressional investigators are valid is distinct from whether the witness is entitled to invoke the constitutional privilege against self-incrimination. An investigation into the witness's individual affairs is invalid if unrelated to any legislative purpose and is beyond the powers conferred upon the Congress in the Constitution. Watkins v. United States, 354 U.S. 178, 198 (1957).

"There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress. . . . No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress. Investigations conducted solely for the personal aggrandizement of the investigators or to 'punish' those investigated are indefensible." Id., at 187.

[JesusHadBlondeHairBlueEyes]

Dressed up nonsense from a racist partisan.

[not guilty]

What of what SCOTUS wrote in Watkins do you disagree with, JHBHBE? Or, as usual, is name calling all you've got?

Mr. Watkins there did not assert his privilege against self-incrimination, but the Supreme Court nevertheless reversed his conviction for contempt of Congress under 2 U.S.C. § 192 and remanded to the District Court with instructions to dismiss the indictment. 354 U.S. 178, 216 (1957).

[not guilty]

Still waiting. What of what SCOTUS wrote in Watkins do you disagree with, JHBHBE?

[Michael P]

The question isn't whether the Court was wrong. The issue is as usual, that you quoted something that is true but fundamentally irrelevant -- in this case, given the breadth of Congress's interests in limiting official corruption through second-hand bribery, improving the rule of law, and so forth.

And then you played your usual act-like-a-jerk cars by insisting that someone answer your red herring of a question.

[Spinach Chin]

Are you implying that it is beyond Congress' investigative authority to look into Biden's hiring by Burisma? Funny that ol' Joe made the pardon so encompassing that it covers his involvement there, innit?

It's likely more than Hunter that broke the law.

[Noscitur a sociis]

Surely any plausible inquiry into Hunter Biden’s conduct would be a valid investigation of potential impeachment of Joe Biden?

[Bored Lawyer]

Well, yes, that assumes Biden is still president by then. But there are lots of other reasons to investigate him that implicate Congressional interests.

[MikeFr]

We were told many times in the immediate post Trump era that it is possible to impeach a president after the end of his term.

[Bored Lawyer]

"it must be related to, and in furtherance of, a legitimate task of the Congress."

This seems like a very easy standard to meet. How hard would it be to come up with such for a Congressional investigation of Hunter Biden's activities? Many of which implicate public issues, such as influence peddling and corruption.

[not guilty]

Well, according to the Watkins Court, in a prosecution of a recalcitrant witness for criminal contempt under 2 U.S.C. § 292, the government must prove beyond a reasonable doubt that the question put to the witness is "pertinent to the question under inquiry" by the investigating committee: "Part of the standard of criminality, therefore, is the pertinency of the questions propounded to the witness." 354 U.S. 178, 202 (1957). Multiple factors bear on whether this is so.

"The first possibility is that the authorizing resolution itself will so clearly declare the 'question under inquiry' that a witness can understand the pertinency of questions asked him." Id., at 209. The precise questions that the alleged contemnor has been charged with refusing to answer are also germane. "Under the terms of the statute, after all, it is these which must be proved pertinent." Id., at 213. Chief Justice Warren elaborated:

Unless the subject matter has been made to appear with undisputable clarity, it is the duty of the investigative body, upon objection of the witness on grounds of pertinency, to state for the record the subject under inquiry at that time and the manner in which the propounded questions are pertinent thereto. To be meaningful, the explanation must describe what the topic under inquiry is and the connective reasoning whereby the precise questions asked relate to it.

Id., at 214-215 (footnotes omitted).

Fishing expeditions and post hoc justifications for the Congressional investigation don't feed the bulldog.

[Bored Lawyer]

That's in a criminal contempt proceeding. In a civil contempt proceeding, the burden of proof is lower. And recall that civil contempt can include "You go to jail until you answer the question(s)."

[F.D. Wolf]

After the Trump tax return cases, it is clear that "legislative purpose" is a very, very low bar. Apparently, Congress's mere declaration that it has a "legislative purpose", no matter how preposterous, is sufficient. Though, after publicly releasing the tax returns, revealing to the Court the Democrats had been lying along about their purpose, perhaps the Court in the future will place some teeth back in requiring a legislative purpose.

But in this case, there would be no such issues. Oversight of the Executive is clearly a legitimate congressional function, as is stewardship of taxpayer dollars being funneled to potentially corrupt foreign regimes.

[arbitrary aardvark]

Perhaps there's a first amendment right to remain silent in court. Lillian Hellman, declining to testify to HUAC, asserted a 1st A claim.

[Not Unreasonable]

Slightly off topic, but I think Joe could have protected Hunter with less damage to Joe’s legacy and the Democratic Party. Hunter pleads guilty to all pending chargers and Joe commutes all the sentences. He wouldn’t be branded as a liar for doing so.

I suppose there would still be a risk of different charges that could be pursued.

[Commenter_XY]

That is the problem = I suppose there would still be a risk of different charges that could be pursued.

Hunter was a very bad boy. I promise you, there are more potential charges (that will never be brought, post pardon).

[Roger S]

Joe could have ordered the charges to be dropped a couple of years ago.

[Satchmo_Lives]

I am not sure the pardon, beyond protecting Hunter, wasn't also a big "fuck you" to the dems. He could have said I love my son and he has overcome many challenges yada...yada...yada. He didn't.

Lets play a little game.

Who said "...was persecuted and selectively prosecuted because of his name"?

A) Donald Trump
B) Joe Biden
C) All the above

[vaadu]

Hunter's co-conspirators may get worried that he will be compelled to spill the beans. Hunters SS protection end Jan 20.

[Dr. Ed 2]

If Trump is smart, he'll extend it.

[BigT]

Yes, got to keep him breathing so he can commit perjury when he testifies on the Big Guy’s case.

[F.D. Wolf]

[W]e hold the constitutional rule to be that a state witness may not be compelled to give testimony which may be incriminating under federal law unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him. We conclude, moreover, that, in order to implement this constitutional rule and accommodate the interests of the State and Federal Governments in investigating and prosecuting crime, the Federal Government must be prohibited from making any such use of compelled testimony and its fruits. This exclusionary rule, while permitting the States to secure information necessary for effective law enforcement, leaves the witness and the Federal Government in substantially the same position as if the witness had claimed his privilege in the absence of a state grant of immunity.

It follows that petitioners here may now be compelled to answer the questions propounded to them.

Murphy v. Waterfront Comm'n, 378 U.S. 52, 79 (1964), overruling Feldman v. United States, 322 U.S. 487 (1944).

Naturally, it also follows that federal testimony compelled by a grant of immunity cannot be used in a later state prosecution. Kastigar v. United States, 406 U.S. 441, 456-57 (1972) ("The Court [in Murphy] held that the privilege protects state witnesses against incrimination under federal as well as state law, and federal witnesses against incrimination under state, as well as federal law.")

I have no interest in the grotesque spectacle of a former President (or his son) in prison, which, absent the most extraordinary circumstances (i.e., not garden-variety corruption like bribery and influence peddling), but am very much interested in the truth, and I think Congress should compel Hunter Biden to provide it. Now that he has his blanket pardon, he should not be able to hide behind the Fifth Amendment.

[MaddogEngineer]

Not saying state charge aren't theoretically possible, but I'm having a difficult time imagining what they might be. I didn't think you could just take the Fifth without having a specific legal exposure. Also doesn't seem that hard for a determined federal prosecutor to grant the immunity which would protect him from state prosecutions.

[KRB]

I assume that the income that Hunter didn't pay federal taxes on was similarly undeclared to the relevant state(s). Wouldn't that be an obvious basis for a state prosecution under state law?

[Commenter_XY]

Suppose there are Congressional hearings, and Hunter Biden's testimony is compelled? And the Big Guy is shown to be Joe Biden, and yes, he took millions in exchange for exercising his political influence for very questionable people. The pardon covers Hunter Biden, not ex-Pres Joe Biden.

If illegality by Pres Biden is exposed by the compelled testimony, then what? Clearly, Joe Biden is not competent to stand trial.

Any congressional hearing with compelled testimony from Hunter Biden is about two things: transparency, and punishment by process. I could envision something like that happening. Sort of like a truth and reconciliation commission, since actual legal consequences aren't possible.

[TW]

If illegality by Pres Biden is exposed by the compelled testimony, then what? Clearly, Joe Biden is not competent to stand trial.

I don't think that conclusion was actually made by the DOJ when they decided not to prosecute Biden earlier (although they seemed to think that Biden's deteriorated mental faculties might make it less likely that a jury would convict him) but if Biden's lawyer wants to argue - on the record - that their client is not mentally competent, that's an argument that they would be free to make.