Special Counsel Weiss Files Opposition to Motion to Dismiss Indictment in California Hunter Biden Case

"The defendant’s motion should be denied since there is no binding authority on this Court which requires dismissal."

In my post last night, I noted that President Biden's issuance of the pardon to his son does not exactly end his pending criminal cases. During the first Trump administration, even after Trump pardoned Joe Arpaio, Michael Flynn, and Steve Bannon, those cases continued.

Yesterday, Hunter's attorney filed a motion to dismiss the indictment.

Defendant Robert Hunter Biden respectfully provides notice of a Full and Unconditional Pardon that requires dismissal of the Indictment against him (D.E. 1) with prejudice and adjournment of all future proceedings in this matter. . . . The President's pardon moots Mr. Biden's pending and yet to occur sentencing and entry of judgment in this case and requires an automatic dismissal of the Indictment with prejudice.

Today, Special Counsel David Weiss has filed an opposition to the motion to dismiss. Something tells me that these briefs were drafted some time ago, in anticipation of a potential Biden pardon. Here is the introduction of Weiss's motion:

On December 1, 2024, media outlets reported that the President had issued a pardon for the defendant. Shortly thereafter, defense counsel filed "Defendant's Notice of Pardon." The defendant did not attach the pardon to its filing and the government has not received a copy of it. In that filing, defense counsel asserted, without any legal support that, "a Full and Unconditional Pardon [] requires dismissal of the Indictment against him," and further that the pardon "requires an automatic dismissal of the Indictment with prejudice." Notice at 1. Defense counsel misrepresents the law. Nothing requires the dismissal of the indictment in this case.

The issues here are very murky, and have been debated for some time. Some scholars view a pardon as effectively wiping out the conviction, as if it never occurred. Other scholars view the pardon as simply denying any consequences that flow from the conviction, yet the conviction remains intact. The ruling in the Arpaio case leans towards the latter position. Hunter favors the former view.

A pardon is surely binding on the executive branch, but is it binding on the courts? Is a pardon the Supreme Court of the Land, in the same sense that a statute or ratified treaty is? Even if the conviction is vacated, could a state charge Hunter with a crime like "felon in possession," or use the federal conviction as the predicate offense for a state RICO charge? There are lots of questions I have been mulling over all day.

It is just about 5:00 pm, and Merrick Garland still has not stepped down. Does Biden now move to have David Weiss removed to protect his son? I hope Garland has that resignation letter ready.

Comments

[Brett Bellmore]

"A pardon is surely binding on the executive branch, but is it binding on the courts? Is a pardon the Supreme Court of the Land, in the same sense that a statute or ratified treaty is?"

I don't see how you could legitimately take any other position. Is a conviction by the courts binding on the executive branch? I'd advise the courts to think hard about that question before deciding they're entitled to ignore pardons.

[шинка]

Makes for an interesting constitutional crisis. In a dispute between the executive and judicial, who is the arbiter? The Court is.

This would mean that a pardon is not supreme and can be overruled by the judiciary. Or it can be outright be rejected.

But it is clear, in all matters of law, the Judiciary is supreme. That means the executive bends the knee on this one.

[Tim]

I think there's a valid version of what Blackman said, and it might be what he meant. (The reference to felons in possession suggests it.)

Think of it this way:
If you were pardoned for a violent crime you were convicted of, and then you're convicted of two more... can you get a sentencing enhancement for being a "career criminal" with three convictions?

I.E does the pardon wipe out the conviction as though it had never occurred (like if an appeals court overturns it), or simply do things like remove the punishments?

[Tim]

I wonder if he just hadn't thought through the wording that he used, where he framed it as binding on one branch but not another.

It seems like the valid version is about what specifically the legal effect of the pardon is, not who it's binding on

[шинка]

^----- This.

There is a lot of discussion to be had about "what is a pardon?" and what is the breadth of its scope and coverage. Is a pardon an expungement? No, it is not. An expungement specifically hides the former crime from the public record, a pardon does not.

So from a legal perspective, a pardoned felon is a "forgiven felon" but the crime is still part of the public record. So is the forgiveness of a crime an expungement?

And can you logically and legally be forgiven for crimes you haven't been accused of? Can a pardon be used as a blanket temporal innocence field thereby chronologically isolating a period of time in which someone could never, ever be accused of, tried for, and convicted for a crime? Can someone help me find some case law that establishes anything like this? I would seriously question the overwhelming broadness of the pardon and its basis in law.

Hooray for broad powers and immunity for the president?

[santamonica811]

I don't think it's ever come up before; but common sense suggests that a pardon that went forward in time would not be given effect by any court. In other words, if Biden said, "My son is pardoned for all federal crimes going back to 2014, and continuing until 2028.", then only crimes done on or before the dates of the pardon would be, well, pardoned. Prosecutors--and then, courts--could and would ignore the "future" aspect of the pardon. Of course, if Biden or Trump or future Prez Cruz could give future pardons of 4 years, I'd see no reason why that president could not give a pardon that lasts forever. "My nephew is pardoned for all his past [federal] crimes, and for any crimes he commits during his lifetime." That simply couldn't stand, for obvious reasons.

[Causter]

Hunter's pardon did in fact go forward in time. Only 12 hours, but still, if he'd decided he'd had enough of the old man and offed him in that time (in DC)... he'd have gotten away with it, in theory. Or whatever other crime, but that was the one that stuck out to me as making the prospective pardon particularly unwise.

[Dr. Ed 2]

From a legal perspective, can one be pardoned for crimes one has not admitted to have committed? That was ignored with Nixon because he was an unindicted co-conspirator. But as to Hunter, we there is no clear articulation of what that boy has done. And Nixon was the only other blanket pardon ever issued.

I know that an immunity agreement only includes the crimes you tell them about -- wouldn't that apply here?

And as to a future date, that is what Martin Luther and the Indulgences were all about.

[Noscitur a sociis]

From a legal perspective, can one be pardoned for crimes one has not admitted to have committed?

Yes.

I know that an immunity agreement only includes the crimes you tell them about

Wrong.

[santamonica811]

NAS,
Ed is not as wrong as he usually is. I believe that it depends on the particular immunity agreement. Ed, the practical reason immunity agreements are generally not limited to crimes you have disclosed is that it would be pretty easy for an enterprising DA to execute a limited-in-scope immunity agreement, and then find other crimes on the margin, *just* outside the crimes admitted to. Smart defense lawyers would warn their clients about this, suspects would refuse to sign, and cases would grind to a halt.

"This agreement covers only the kidnapping of John Smith and crimes related to this kidnapping." Would that cover the illegal purchase of the gun a month earlier, when said gun was used in the kidnapping? Or the purchase of that same gun, when the kidnapper intended to use it, but forgot it the night of the crime? Or if the defendant had stolen the gun 10 years earlier (or some period still within the statute of limitations)?

Would it cover Criminal One killing her cohort, to eliminate witnesses? Killing the cohort a week later? 3 months later? 5 years later?

I've never practiced crim law (other than an externship in the Los Angeles DA's office during law school, which barely counts), so maybe I'm completely wrong about this. Fully prepared to eat crow, if people with actual practical experience chime in.

[John F. Carr]

A standard federal plea bargain includes an agreement by the government not to prosecute any other crimes that the defendant has disclosed. Plea deals are negotiated contracts. The government usually gets a clause to this effect in the contract.

[Dr. Ed 2]

I vaguely remember something about having to tell the Feds everyone you killed, and someone not doing that in the Whitey Bulger mess.

[John F. Carr]

The case Burdick v. United States has been read to say that accepting a pardon is a confession of guilt. This interpretation was rejected in Lorance v. Commandant, 13 F.4th 1150 (10th Cir. 2021).

Burdick was all over the web several years ago when the talk of a self-pardon was in the air. A self-pardon is not a confession of guilt. You can think he's a crook now if you want or deny his guilt after he pardons himself.

[Zarniwoop]

yeah, the Burdick dicta from 1915 does not cover many scenarios. It is trivially easy to provide real life examples where accepting a pardon does not "confess guilt":

1) individual is convicted of rape
2) DNA exoneration, meeting an actually-innocent standard
3) state governor pardons the individual
4) individual walks out of prison

No sane individual thinks that walking out of prison based on DNA exoneration is a "confession of guilt".

https://www.newsobserver.com/news/politics-government/politics-columns-blogs/under-the-dome/article23093865.html

[Michael Ejercito]

I wonder what that Justice was thinking when he wrote that dicta in Burdick.

[Noscitur a sociis]

I think it has to be understood to mean that accepting a pardon could be viewed as an admission if guilt by some people.

[TwelveInchPianist]

I wonder what all the people who misunderstood the dicta were thinking.

[TW]

Also there are a lot of cases where a President pardons someone posthumously and the recipient is in no position to make any sort of confession of their guilt.

[Sam Bankman-Fried]

Republicans used to love Dick Cheney and his warmongering and they believed his lackey, Scooter Libby, deserved a full pardon for helping Bush torture and slaughter Muslims while creating new Gold Star families. And so once Trump pardoned him they believed his law license should be reinstated like his criminal behavior never happened.

[Dr. Ed 2]

Libby was pardoned for forgetting that he received an email.

[Sam Bankman-Fried]

Bush gifted America 7000 new Gold Star families!! God I miss torturing and slaughtering innocent Muslims…Jesus approved killing is the best kind!!

[Dr. Ed 2]

DOES an appeals court overturning a conviction eliminate the record of the conviction -- no. It nullifies it.

[John F. Carr]

One of the soldiers Trump pardoned was allowed to pursue a habeas petition after the pardon in an attempt to eliminate the collateral consequences of the conviction. In the end he lost on the merits.

I think he got 19 years plus loss of pay and a dishonorable discharge. The pardon only wiped out the prison time.

[Dr. Ed 2]

Pardon did not wipeout DD, which in the civilian world is a felony conviction?

[John F. Carr]

Quoting Lorance v. Commandant:

Here, Lorance alleged serious collateral consequences stemming from his convictions and subsequent dismissal from the military. Specifically, the pardon did not restore Lorance's back pay, rank, or Veterans Administration benefits, nor did it credit his years of confinement toward active-duty retirement. The pardon additionally did not erase or expunge Lorance's record of convictions. On appeal, Lorance further argues that his convictions may preclude him from becoming an attorney due to character and fitness concerns (Lorance is currently in law school).

[John F. Carr]

I wrote dishonorable discharge but in fact he was dismissed, which is the corresponding penalty for a commissioned officer.

[Noscitur a sociis]

Prof. Blackman’s framing is a bit misleading. No one is suggesting that the prosecution can continue: the only question is whether or not the court should formally dismiss the indictment before closing the case.

[Stephen Lathrop]

Another example to show why decapitated constitutionalism delivers needless paradoxes and stumbling blocks for would-be constitutional interpreters.

[CDL]

Yes, precisely, subject (I'd say) to pleading the pardon according to the proper procedure of the court.

[CDL]

The point, I take it, is whether a pardon is "binding" on an Art III court directly. I can't see why it ought be, given that, if it were, such an exercise of executive power would amount to a direction to such a court in point of the manner in & substance by which it discharges its constitutional duty as an Art III court.

A pardon, inasmuch as its scope be limited to excluding executive enforcement & expurgation of any judicially-determined punishment or other liability for an "offence", would, I take it, ordinarily be required to be properly pleaded before the Court for its intended effect to be amenable to Art III judicial cognisance.

Now, I take it a court might of its own motion order the discontinuation (or permanent staying) of a criminal case or controversy on the ground that the pardon would render any conviction futile. I take it this power wld arise (at least) from the inherent jurisdiction of an Art III court to control the integrity of its own process. I also take it that any exercise of such a jurisdiction would be discretionary & exceptional, & not obviously apt in the case of all pardons (as a rule).

The above is just my reasoning from what I take to be first principles.

[Hugh]

Wow, according to the Professor, a presidential pardon can be perhaps ignored by the courts, and they can convict someone and imprison him or her at will.

So court proceedings can go ahead and convict Hunter Biden, and then argue that since the conviction occurred after the dates stated in the pardon, Hunter Biden goes to jail.

Actually, perhaps a court proceeding can go ahead and convict Hunter Biden, but at that point the pardon goes into effect because it is for acts during a period from which the conviction is based.

So it would be a complete waste of time and money. The only ones disagreeing would be the baying hounds of destruction from the Trump White House and a certain Texas law school.

And Biden should go ahead and preemptively pardon a whole raft of people, in addition to the 2022 Select Committee participants and anyone involved from our Health agencies during COVID, pardons should go out to the entire Jack Smith team and anyone who has worked for the FBI for the past ten years. Only in that way can today's equivalent of the corrupted German legal establishment of the 30s and 40s, led by Goebbels-wannabe Kash Patel, perhaps be stopped in its tracks.

"But then Trump has an excuse to pardon the January 6 traitors and seditionists!" He's going to do that anyway whether Biden pardons anyone or not.

Trump is bringing the legal game of thrones to new lows, and the other side needs to start bringing a knife to a knife fight.

[Noscitur a sociis]

We love the rule of law!

[Sarcastr0]

To be fair, I think most of that was rhetorical.

[Joe_dallas]

Hugh
Bravo -that was a near perfect incoherent and inane rant devoid of anything dealing with reality.

[santamonica811]

Joe,
I thought his point was perfectly clear. (And, as Scarc noted, almost certainly largely rhetorical.)

[David Nieporent]

and a certain Texas law school.

My favorite is, "I have been mulling over all day." Well, by all means, that makes one an expert and one should say whatever comes into one's head rather than, say, consulting someone who has actually studied the issue.

[Sam Bankman-Fried]

Then the Trump DOJ would have to stop fentanyl which they failed to do in his first term. Trump’s supporters don’t care about results, they vote for Trump for the “mean tweets” and heated rhetoric.

[The Margrave of Azilia]

Of course, once a court officially learns that the defendant in a case has been pardoned, then further legal proceedings should stop. I don't think that necessarily means dismissing the indictment or taking further action; it should mean *not* taking further action.

A pardon doesn't need to be registered by a court to become effective, like the proclamations of the old kings of France. Such being the case, the only role of a court with regard to pardons is not to interfere with them.

[Joe_dallas]

I agree that legal proceedings should stop upon learning of the pardon, though so form of official documentation should be required as confirmation for the court records.

Separate issue - Gorsuch dissent in Gamble was spot on. The dual soveirgn was a dodge to circumvent the plain meaning of 5A. Assuming argumento that Gamble was decided based on Gorsuch's dissent , would the pardon bar state prosecution of the corresponding state crimes?

[The Margrave of Azilia]

"official documentation should be required as confirmation for the court records"

Certainly; I specified that the court should drop the case once it officially learns of the pardon.

The Supreme Court has evolved since the Wilson case, but I am still a fan.

https://supreme.justia.com/cases/federal/us/32/150/

[TextFirst]

"The defendant did not attach the pardon to its filing and the government has not received a copy of it."

Yeesh. Amateur hour over here, how do you say, "I have a document that says I win" and not give the court a copy of the killshot document+?

[santamonica811]

My guess is that they have no conformed copy yet. Is it your understanding that the defense does, in fact, have such an officially-approved document in hand? Doesn't seem the least bit amateurish to me. I mean, courts *are* allowed to take judicial notice of things. It would not bother me one bit if Hunter's judge demanded official documentation. But it also would not bother me a bit if the judge took notice of the pardon's issuance, got stipulations from both parties that there was a valid pardon, and proceeded from there. At least, that's done routinely in the courthouse where I do most of my legal practice.

[TextFirst]

Are you representing pardons are issued often enough in your courthouse for there to be a routine practice, and the practice is to file papers asking the court to take judicial notice or for the government to stipulate its existence? That's nuts. I'd think before filing "we have a pardon," you would have the pardon. The government lawyer shouldn't stipulate to its existence-- how do they know one exists, because twitter says so? Similarly, this isn't appropriate for judicial notice. Just because something has been reported in the media or is on twitter doesn't mean it's accurate; the court needs a conformed, official copy. I'm sure they'll have their conformed, official copy soon enough and the court can go from there. "I saw a copy of what purports to be the pardon on twitter" doesn't cut it.

[Drewski]

It probably sounds nuts from whatever tiny village in West Estonia you're from, but my local court processes dozens of pardons per month. That's in a mid-sized city. Federal courts don't see so many pardons but that doesn't mean they shouldn't adopt the practices of courts that do.

[KenveeB]

What kind of pardons? That sounds like an absurdly high number. I've only had a handful in two decades as a prosecutor. Does your state have some law that people are "pardoned" from certain kinds of dismissals, or are we talking about executive pardons like Hunter's?

[John F. Carr]

If the judge feels strongly he could enter a judgment of conviction with unconditional discharge.

[Dr. Ed 2]

Wait -- wasn't Hunter convicted, with this the sentencing?

Then the conviction stands, and the pardon moots it. But one can still legally call him a convicted felon.

[MoreCurious]

Just like a certain president-elect, even though our illustrious SCOTUS has given him immunity, which is just as good as a pardon.

[John F. Carr]

A federal conviction becomes official at sentencing. One could write rules where the conviction is official when the jury verdict is recorded or only after the last direct appeal is over. Sentencing is the line drawn in federal law. Hunter Biden is not yet formally convicted.

[John F. Carr]

The defenant's reply, docket entry 238, purports to include the pardon. It has not yet been copied to CourtListener.

[Mark Regan]

It does include the pardon, as Exhibit A to the reply, docket 238. The reply mentions in passing that there's a copy of the pardon on a DOJ web site
https://www.justice.gov/d9/2024-12/biden_warrant.pdf.

[Bored Lawyer]

Something tells me that these briefs were drafted some time ago, in anticipation of a potential Biden pardon.

Wait, you mean the Special Counsel did not believe President Biden's repeated promises that he would not pardon his son?
[Faints on the couch]

[santamonica811]

(a) funny
(b) a good example to new or future lawyers: When there is a real likelihood of Event X happening, it's good and it's impressive lawyering to anticipate this. If I were the judge in this case, I would make a mental note in regards to the prosecutor(s) on this case, "These are professionals, and I'm going to remember that, next time they appear in front of me on other cases." In other words, the 5 hours it took (in advance) to draft and review their responsive brief was time well spent.

[Lee Moore]

What ? Wait a mo.

Shirley you mean it’s good lawyering to anticipate events with a ready to go filing - IFF you are going to eat the cost, or your client has given you the OK on the costs ?

It seems unlikely in a case like this that the court is going to give you 24 hours to respond. It’s hardly urgent.

New and future lawyers should be aware that clients who are eager for y’all to run up the costs on distant maybes are as rare as hens teeth.

[TwelveInchPianist]

"Even if the conviction is vacated, could a state charge Hunter with a crime like "felon in possession," or use the federal conviction as the predicate offense for a state RICO charge?"

Sounds like a question of state law. It seems like a stretch to read the pardon power as invading states' plenary police power.

[Dr. Ed 2]

"could a state charge Hunter with a crime like "felon in possession," or use the federal conviction as the predicate offense for a state RICO charge?"

Isn't that essentially what Trump's NY State convictions are?

May a state punish someone for violation of a Federal law that the Feds, for what ever reason, don't want to?

[Noscitur a sociis]

Isn't that essentially what Trump's NY State convictions are?

Not in any remotely conceivable sense, no.

[Dr. Ed 2]

Marc Levin, who is a lawyer, argues otherwise -- rather convincingly.

[David Nieporent]

At least you only spelled his first name wrong this time.

[Satchmo_Lives]

I am not a lawyer, but even I see that as ridiculous. I have it on good authority* that only a third of the jury thought his "other crime" was interference in a (federal) election. The other two-thirds thought it was conspiracy to commit fraud or tax violations. And as far as my limited knowledge of the law takes me, 2/3 is plenty to gain a conviction. Right?

If DC or Delaware has a law where Hunter was not allowed to possess a gun, it seems he could be in trouble. It wouldn't be a federal crime they are prosecuting, right?

*Of course I don't have it on good authority. Nobody knows which of three possibilities is the second crime Trump was supposed to have committed because the jury wasn't required to specify.

[David Nieporent]

Trump was not "supposed to have committed" any other crime. (That's not to say that he hasn't committed many other crimes. Just that doing so had nothing to do with this case or this prosecution.) Once again: the element of this crime is intent to commit another crime or to aid or conceal the commission thereof by anyone.

[Satchmo_Lives]

Of course, as a layperson it seems perfectly reasonable to argue an illegal accounting entry (if it really was) can also be a separate charge of conspiracy resulting in 34 felony counts.

[Voize of Reazon]

an illegal accounting entry

34 illegal accounting entries.

[David Nieporent]

There was no "separate charge of conspiracy," so — like you — I don't know what you're talking about.

[Dr. Ed 2]

" 2/3 is plenty to gain a conviction. Right?"

2/3 of 12 is 8.

I am not aware of a jurisdiction that permits a conviction on an 8-4 vote.

[Satchmo_Lives]

Left off /sarc tag

[Dr. Ed 2]

"t is just about 5:00 pm, and Merrick Garland still has not stepped down. Does Biden now move to have David Weiss removed to protect his son? I hope Garland has that resignation letter ready."

The timing on this is funny -- usually you release something late on Friday to bury it -- this is more like Nixon's infamous "Saturday Night Massacre." Unless Biden thinks he is going to die soon, why Sunday morning when everyone has all kinds of time to talk about it?

Is someone seriously considering the 25th Amendment?

[Satchmo_Lives]

[Armchair]

Weiss has to feel pissed at all hell over this.

He bent over backwards to give Hunter a deal. It was a good deal too...no jail time, no felony conviction. It only fell apart because Weiss couldn't ALSO give Hunter immunity from future charges. So, Weiss has to put in all this work...

Only for Joe to go and give Hunter a pardon? Hunter couldn't have just taken the deal Weiss offered? Joe could still give Hunter a pardon later. It would've changed nothing...except for the massive amounts of work Weiss and his team needed to put in, prosecuting two separate cases.

Meanwhile Hunter sits there with that shit-eating grin, knowing he can turn down any deal because he has a daddy pardon ready to go.

[David Nieporent]

Fun fact: Weiss got paid for “all this work”; he wasn’t a volunteer.

(I assure you that lawyers are used to putting in a lot of work on, say, a motion and then seeing the parties settle before the court rules on the motion.)

[Armchair]

Fun fact: a US Attorney generally isn't doing it "just for the pay." Most (if not all) of them could be paid more in the private sector. They tend to do it for other reasons (public service, career building, etc).

And while a lawyer might commonly do a motion that ends up being moot...it's rather different for a lawyer and his entire team to be litigating two entire criminal cases for multiple years, while destroying their reputation....only to know that the criminal in this case has a shit eating grin because daddy is going to pardon him, and you know all your work for years is for shite.

[Noscitur a sociis]

More to the point: the president has tried to obfuscate his own corruption by baselessly impugning Weiss’s integrity. Despicable.

[Armchair]

Indeed. Imagine if Biden handles this differently.

"My son has been found guilty, I promised not to pardon him and allow for the course of justice to take place. However, I've come to understand that the prosecutors and my son had agreed on a deal that both sides felt was fair. It was only because of the political pressure in regards to myself as president that the deal fell through. This I view as unfair. My son shouldn't pay because of who I am.
However, I am in a position to fix this unfairness as president. So, I am commuting my son's sentence in such a way that it matches the original terms of that deal. Thus, justice will be done, and will be fairly done"

Then, it looks even-handed, and Weiss salvages something. No jail time for Hunter. Instead, Joe whines about his own department and lawyers.

[Dr. Ed 2]

Which raises the question of what would the future charges be?

[Paul Elliott]

Can a pardoned person be subpoenaed, given immunity, (why not?) and be forced to rat out his friends?

[David Nieporent]

Sure. So can a non-pardoned person. That's the whole point of the immunity step.

[Bored Lawyer]

Read up on it. Leading case is Kastigar v. United States (1972)
https://supreme.justia.com/cases/federal/us/406/441/

[Please, Daivd, Seek Help]

You seem very fixated on your "Garland is going to resign" theory. It's a little weird. The pardon can be justified or not, the fringe issues around what a pardon is and isn't are appropriate for debate. I have no comment on all the rest. I just find it really very strange that your mind is really very focused on this idea that Garland just has to resign.

You offer a theory (something like "he should be embarrassed his authority is being undermined by the president"). Yeah, maybe. Or maybe not. I don't think we have any special insight as to what he thinks about either the norm-transgressing elements of this, the legal issues, or just whether or not the right result was reached. It seems deeply weird to imagine you have his psychology so dialed in that you don't just expect he's going to resign, you like ontologically can't even imagine a world where he doesn't. Very very weird stuff, dude!

[Lee Moore]

I had a quick amateur skim through Burdick v. United States and three passages seemed interesting :

1. Attorney General Taney (afterwards Chief Justice of this Court) argued the case on behalf of the United States. The burden of his argument was that a pardon, to be effective, must be accepted. The proposition was necessary to be established, as his contention was that a plea of the pardon was necessary to arrest the sentence upon Wilson. And he said, speaking of the pardon, "It is a grant to him [Wilson]; it is his property, and he may accept it or not, as he pleases;" and, further:
"It is insisted that, unless he pleads it, or in some way claims its benefit, thereby denoting his acceptance of the proffered grace, the court cannot notice it, nor allow it to prevent them from passing sentence. The whole current of authority establishes this principle."

The last two sentences suggest that a pardon is a “get out of jail free card” that you deploy in court by way of a plea. Which implies to me, at least, that if you receive a pardon for several offenses but are you are only being tried for some of them, you can play your get out of jail free card at the current trial, without committing yourself to playing it in some future case. You have only accepted your pardon in respect of the offenses for which you are being tried, no more. This would seem to strengthen the argument (where you are pardoned for offenses not yet charged) that you can still plead the 5th in some later proceeding.

[Lee Moore]

2. This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession. It is tantamount to the silence of the witness. It is noncommittal. It is the unobtrusive act of the law given protection against a sinister use of his testimony, not like a pardon, requiring him to confess his guilt in order to avoid a conviction of it.

This also seems interesting. In the case of a Hunter-style pardon, where you are being pardoned for any and all offenses you might at some time be charged with, it’s quite hard to see how you can be making a confession of guilt to unspecified offenses. A further piece of evidence perhaps that to the extent that there are untried offenses included in the pardon, you can’t yet have accepted it in all of its potential manifestations, and so are still entitled to plead the 5th . (It also raises the question as to whether the next President can revoke your pardon to the extent that you haven’t yet accepted it. Or is the pardon “personal” to the President who grants it ? I should have thought the latter is more plausible.)

[Lee Moore]

3. [Amnesty and pardon] are of different character and have different purposes. The one overlooks offense; the other remits punishment.

Hmm. If the pardon is just protection against punishment, it’s not obvious why a pardon should have any other effect on your trial, besides sentencing. No reason to nix the indictment, but also no (solid) reason to stop you appealing your conviction if you’re still in time and you wish to do so. It might be argued that if you play your pardon card before you appeal, then you have confessed. But I’m not at all sure an implied confession is the same as a guilty plea. You can certainly argue that you are not confessing, that is just the imputation that others put on it.

Also, suppose you play your pardon card before trial, must the court prevent the trial from happening ? And if so why ? It’s true that at the end even if you are convicted no punishment can be imposed. But there’s still a case or controversy. A conviction or an acquittal is still a decision on the case, and it may have an effect on your reputation, and may even have legal consequences (eg felons and guns.) I know “the process is the punishment” but that’s a meme not law. If the prosecutor wants to prosecute you, why shouldn’t he ? (I mean why shouldn’t he legally. Obviously it’s not likely to be a very sensible use of public funds.)

[Krayt]

Is any of that for any purpose other than to hinder him legally, or have pointless governmental declarations, also to hurt him?

These are not legitimate uses of prosecution. The president pardoned him. Who the hell is a prosecutor choosing to continue for no reason?

"But he has a reason!"

No, the pardon wiped that out. Even to make people look askance at him is not a legitimate reason.

[Lee Moore]

I assume by "legitimate" you mean "proper" rather than "lawful."

So we get to "what are the proper purposes of prosecution ?"

I seem to recall that one of the theoretical objectives of criminal law is declaratory, ie to state to the public that such and such an act is reprehensible / antisocial etc.

In any event, the question of what prosecutions are "proper" is a very large question, which I am not going to attempt.

However on the purely legal question of what is the legal effect of a pardon, it is not obvious to me that it makes the prosecution and trial null. It appears only to make any punishment null.

[Michael Ejercito]

So why not prosecute someone who was acquitted for the same offense, just to send a message?

[CindyF]

If Biden believes Merrick Garland's DOJ is so corrupt, why hasn't he fired Garland? If Biden believes Garland is making prosecution decisions based on political biases, why has he allowed him to continue in that position for so long?

Biden's failure to fire Garland makes one believe he was fine with Garland's actions other than how it affected his own family. With that problem, he could deal with by pardon. The other defendants being politically prosecuted don't have that option....yet.

I hope Trump pardons every Jan 6 defendant, everyone that has been prosecuted for falsifying a 4473 form, and anyone charged with failure to pay federal taxes.

[David Nieporent]

If Biden believes Merrick Garland's DOJ is so corrupt, why hasn't he fired Garland? If Biden believes Garland is making prosecution decisions based on political biases,

Garland didn't make these decisions. That's the entire point of a special counsel.

[TwelveInchPianist]

The buck still stops with Biden, then Garland. Garland could have and should have nixed the prosecution if it was unfair or selective.

Garland can fire Weiss, and Biden can order Garland to fire Weiss.

But none of this has been done.

[Peter Kreeft taught me LOGIC, BEWARE !!!!!!!]

As a lawyer I would contest the pardon based on the proceedings having been conducted on the understanding that pardoning was precluded. Throw out the pardon for its effect in perverting legal proceedings. As with so many godawful stupid things Biden has done his whole lazy, low political career he spoke when he didn't have to.
Let's see what the Stupid One says when Trump pardons all J6-ers on the Biden precedent.

[Dr. Ed 2]

Forget J-6, Biden has eliminated the concept of "conflict of interest" in POTUS Pardons and legitimized Trump pardoning himself.

[Michael Ejercito]

If pardons can be thrown out, why not throw out acquittals as well?

[Brett Bellmore]

Because of the double jeopardy clause, acquittals can't be thrown out. Though they can get pretty darned close to throwing them out by declaring a "mistrial" if they see an acquittal coming.

[Voize of Reazon]

Trump pardons all J6-ers on the Biden precedent.

I doubt that the J6-ers are all his kids, unless he cheated on Melania a lot more than we know about.

[David Nieporent]

1) You're not a lawyer; not even Trump's lawyers are dumb enough to write what you wrote.
2) I do not approve of this pardon, but Donald Trump is going to pardon the J6 criminals on the FYTW precedent, not the so-called "Biden precedent."

[TwelveInchPianist]

"Donald Trump is going to pardon the J6 criminals on the FYTW precedent, not the so-called "Biden precedent."

After yesterday, they're the same thing. That's the gift Biden gave Trump.

[Dr. Ed 2]

It was Massachusetts law instead of Federal law (which didn't even exist when the crimes were committed) but the interesting thing about the pardon given to Daniel Shays and his men was that they had to confess to their crimes.

Not in legalese but a general confession of what they had done in their own words (and from what I have heard) atrocious handwriting.

I'd love to see Hunter Biden have to do this -- sure, you get a blanket pardon -- for everything you confess (in general terms).

I keep thinking that there is another -- different -- crime that Hunter committed that we haven't heard about. That would be reason for the blanket immunity in the plea deal, and why Weiss wants to kill trees in essentially meaningless paperwork.

[Brett Bellmore]

That's my conclusion: Hunter has been a very bad boy in many ways, and while in theory Dad could have specifically pardoned all his (federal) crimes, it would have involved acknowledging what they were, and the pardon could only abolish the legal consequences of his guilt, not the social consequences.

The problem going forward is that the pardon didn't change who Hunter was, so he is pretty much inevitably going to put himself back in legal jeopardy. Perhaps even in the next 48 days; Wanna bet Dad doesn't re-pardon him on January 19th? Just to take care of that tax fraud he'll probably commit in January?

[Michael Ejercito]

Is not a pardon functionally the same as an acquittal?

[MatthewSlyfield]

.

Some scholars view a pardon as effectively wiping out the conviction, as if it never occurred. Other scholars view the pardon as simply denying any consequences that flow from the conviction, yet the conviction remains intact. The ruling in the Arpaio case leans towards the latter position. Hunter favors the former view.

To me, the latter position makes no sense given that a pardon can be issued in advance of a conviction or even an indictment.

[Brett Bellmore]

For that reason I think that a pardon doesn't wipe out the conviction, it wipes out the offense. For federal legal purposes, anyway.