While few people could claim to be surprised by President Joe Biden’s pardon of First Son Hunter, Special Counsel David Weiss may have thrown a few folks with the responses filed by his office Monday — in both the Delaware gun case and the California tax case — opposing Hunter’s bid to have the charges against him dismissed in both matters.
Now, before anyone gets the wrong idea, these filings by the Government will not affect Hunter’s pardon. He’s got his extraordinarily generously broad Get Out of Jail Free Card in hand, and he will not be spending any time in a cell — at least not for any of his criminal behavior spanning January 1, 2014, to December 1, 2024.
The point the Government is raising in the pleadings is that dismissal is not the appropriate action for the court to take in the face of the pardon; rather, Weiss argues, the court should simply “terminate” Hunter Biden from the proceedings.
If that sounds like a distinction without a difference, it may well be from a practical standpoint. But here’s the reasoning set forth in the pleading filed by the Government in the California case (a similar pleading was filed in the Delaware case) (citations omitted):
As a matter of past-practice in this district, courts do not dismiss indictments when pardons are granted. Rather, in each of the most recent cases where pardons have been granted by former President Obama and former President Trump, the United States District Court for the Central District of California has not dismissed the indictment. Instead, it has been the practice of this court that once an Executive Grant of Clemency has been filed on the docket, the docket is marked closed, the disposition entry is updated to reflect the executive grant of clemency, and no further action is taken by the Court.
…
Specifically, as to whether a pardon must, as the defendant wrongly claims, result in the dismissal of an indictment, the D.C. Circuit decision in In re North, explains why it does not:
An indictment establishes probable cause that the accused has committed a crime. Guilt can be established only by a much higher standard, proof beyond a reasonable doubt.
Because a pardon does not blot out guilt or expunge a judgment of conviction, one can conclude that a pardon does not blot out probable cause of guilt or expunge an indictment.
The Government then goes on to note that Biden moved to dismiss the charges against him multiple times on multiple grounds, including the claim that his prosecution was selective and vindictive (i.e., because he was the president’s son) — all of which were shot down not only by the trial court, but also by the Ninth Circuit Court of Appeals, noting, “In total, eleven (11) different Article III judges appointed by six (6) different presidents, including his father, considered and rejected the defendant’s claims, including his claims for selective and vindictive prosecution.”
We can’t be certain of the motivation for the Government’s opposition to the dismissal — is this simply for show? Has Weiss taken umbrage at the notion that the prosecution (some might argue non-prosecution) of Hunter Biden was political? It’s unclear.
What is clear is that the Government, while it accepts Joe Biden’s act of mercy as to his son, is not cool with the notion that the “charges should be wiped away because the defendant falsely claimed that the charges were the result of some improper motive.” For good measure, the pleading adds, “No court has agreed with the defendant on these baseless claims, and his request to dismiss the indictment finds no support in the law or the practice of this district.”
One gets the sense there’s no love lost between Weiss and Hunter Biden or his legal team.
As of this writing, neither court has taken action in response to the filings. We’ll provide an update when they do.
