Biden hopes the Trump dismissals will make the scandalous pardon of his son seem less offensive. Instead, it may encourage Trump to rev up the pardon engine.
Well, now we know why Jack Smith closed up shop a week early.
To the surprise of no one who either has witnessed Joe Biden’s half-century political career or has an IQ over eleven, the president lied, again and again, in denying that he would pardon his son. The White House announced on Sunday night, December 1 (the date is important), that Hunter Biden had received a full and complete pardon for all his crimes, going back to January 1, 2014 (another important date).
Fully prepared for the inevitable, Hunter’s lawyers wasted no time, filing a “notice of pardon” in Delaware federal court, where the president’s son was convicted on gun charges. A similar motion will follow (if it hasn’t been file already) in Los Angeles federal court, where Hunter was convicted on tax charges.
The younger Biden’s motions demand the dismissal of the charges and cancellation of all future proceedings in the cases. Saliently — at least if you’ve been following our coverage of the jujitsu between President-elect Trump and District Attorney Alvin Bragg over scheduling in Trump’s Manhattan case — the younger Biden’s lawyers stress that his father’s pardon “moots” Hunter’s “yet to occur sentencing and entry of judgment in this case.” (Emphasis added.)
See, as I’ve repeatedly explained in the contexts of the Biden and Trump cases, while these men have been found guilty (Biden by a Delaware jury after trial and a California judge after a plea; Trump by a Manhattan jury), neither one of them is a convicted felon. In the criminal law, the judgment of conviction is entered onto the court’s record only after the judge imposes sentence. Despite all that has happened in these prosecutions, and in many ways because of all the glee these men’s political rivals take in rhetorically branding them “convicted felons,” they desperately do not want to become convicted felons in the formal, legal, permanent sense.
That is why President Biden pardoned his son now. Hunter faced sentencing in Delaware next Thursday (December 12) and then in Los Angeles the following Monday (December 16). By granting clemency at this point, the president ensures that Hunter will not be sentenced and no judgments of conviction will be entered on the public record. As a matter of law, it’s like these crimes never happened.
If the president had waited any longer, more damning information could have emerged in the pre-sentencing litigation regarding his son’s criminal activities and his own implication in them (recall that the tax charges are based on Hunter’s cashing in on Joe’s political influence).
Hence, President Biden issued the pardon on December 1. Yes, it was a Sunday night at the end of a holiday weekend, when few pay attention to the news and those who do were being inundated with jabbering over Trump’s appointment of Kash Patel as FBI director. But that’s not the only reason to take note of the date.
After Trump’s victory in the presidential election — a sweeping win that erased any Democratic stratagems to use the Trump prosecutions as a rationale to prevent him from taking office — I opined that Biden would make the federal cases against Trump go away in order to lay the groundwork for pardoning Hunter. It had long been obvious that Biden was going to pardon his son, and that this would be scandalous because he incessantly insulted our intelligence by insisting that he wouldn’t pardon his son. Biden knew that if the inevitable pardon stood in isolation, he would be vilified mercilessly (by Republicans, naturally, but now also by Democrats, who are bitter over the election, blame Biden for it, and no longer have a reason to defend him). But if the Hunter pardon could be portrayed as part of a clemency package — one in which the cases against Trump were also dropped — the public might not view it, and the president, so harshly.
There were two possible ways of doing this. The first was for Biden simply to pardon his successor. I still think that would have been seen as an act of statesmanship; but the Democratic base would have both mutinied over clemency for Trump and portrayed the gesture as a crass quid pro quo — a Trump pardon in exchange for muted criticism of the Hunter pardon.
The second way was to dismiss the Trump cases. Since they were brought by the Biden-Harris Justice Department and its special counsel, Jack Smith, it was always within Biden’s power to end them. With Trump’s victory triggering the DOJ’s guidance that a sitting president may not be prosecuted, there was no legal reason not to dismiss the cases. And since the DOJ was in control of the dismissal process, it could be executed without looking too much like Biden was ending the Trump cases to pave the way for pardoning Hunter.
Soon after Trump won, Smith asked the district court in the Washington case and the appellate court in the Florida case to suspend proceedings, and committed that by December 2 (that’s today), he’d let them know the government’s position on what should happen going forward.
It was obvious that Smith was going to move for dismissal of both cases. But Biden’s DOJ had to know that, because of the scheduled sentencings in Hunter’s cases, the president would be pardoning Hunter imminently. It would have looked crass — like a quid pro quo — if Biden pardoned Hunter on December 1 and then Smith dismissed the Trump cases on December 2. So, Smith surprised everyone by dismissing the Trump cases early last week.
They thus look less connected. I believe they are very connected.
There was never a scintilla of doubt that Biden would break his vow not to pardon Hunter once the election was over — as I said back in June when he made the vow. Then, in September, when Hunter suddenly pled guilty to all the charges right as his tax trial was about to start, I explained that this strategy made sense only if he knew he was getting a pardon and therefore had no incentive to negotiate a better plea deal — and I elaborated that the pardon would come after the election but before the sentencing dates so that, as a technical legal matter, Hunter would never be a convicted felon.
The president is hoping the dismissal of the Trump charges makes the public more understanding about the pardon of his son and the mendacious political calculations that enveloped it. It probably will . . . but the Hunter pardon also opens the door for Trump — who has no more elections to worry about — to rev up the pardon engine starting January 20. Democrats should prepare to be enraged, and — when they protest — to hear Hunter Biden’s name quite a lot.