On December 1, President Joe Biden issued a full and unconditional pardon to his son, Hunter Biden. Of interest to the Second Amendment community is the fact that the pardon forgives a number of gun-related crimes. Also notable is the promise by both the White House and President Biden that he would not pardon his son under any circumstances. There is much speculation as to what the pardon portends as it relates to others being prosecuted for similar crimes.
Let’s look at the facts of the pardon, followed by some thoughtful speculation.
Scope
The pardon covers all “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 the offenses for which Hunter was charged or prosecuted.
This incredibly broad scope appears to attempt to shield Hunter from any future federal prosecutions related to his activities during that period.
Crimes
Hunter Biden was convicted of three federal felony counts for illegally buying and possessing a gun as a user of illegal drugs, and he pleaded guilty to nine tax offenses related to failing to pay $1.4 million in taxes. These convictions were part of an investigation led by Special Counsel David Weiss, who was initially appointed by Trump. Specifically at issue were false statements made on federal form 4473 which is required for every pistol purchase. The gun-related charges are:
- Lying on a federal screening form about his drug use
- Lying to a gun dealer
- Possessing a gun despite restrictions for people addicted to drugs
Reasons
Biden argued that Hunter was selectively and unfairly prosecuted, claiming that the charges were politically motivated to attack him personally and his presidency. The senior Biden claimed, “Without aggravating factors like use in a crime, multiple purchases, or buying a weapon as a straw purchaser, people are almost never brought to trial on felony charges solely for how they filled out a gun form.”
Legal Implications
The pardon effectively ends any federal criminal liability for Hunter Biden for the stated period, however, it does not extend to state crimes. It also limits his ability to claim the Fifth Amendment against self-incrimination for federal crimes, meaning if required to testify under oath, he would have to answer the questions. It does not prevent investigations or inquiries into other related matters, crimes committed since the pardon, or future crimes.
Going Forward
A pardon does not signify innocence; it removes civil disabilities. Does that mean that as a convicted felon Hunter could own guns in the future?
Second Amendment scholars such as Mark Smith of Four Boxes Diner contend that the pardon portends well for gun owners. But it is unclear how a pardon can be referenced as legal precedent. The anecdotal reference is unlikely to hold water in the court of law.
What of Biden’s statement about the rarity of prosecutions?
Lying on form 4473 is a felony punishable by up to 10 years in prison.
According to a Government Accountability Office study, in fiscal year 2017, of which the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) referred about 12,700 to its field divisions for further investigation, U.S. Attorney’s Offices (USAO) had prosecuted 12 of these cases as of June 2018.
More recent data from the ATF suggests a far more aggressive approach in recent years. For the fiscal year 2022, the ATF initiated 34,436 firearms cases and recommended 10,138 for prosecution (29%).
Whether the National Instant Criminal Background Check System (NICS) system is even effective is a question that still arises. In 2017, then Attorney General Jeff Sessions, ordered the FBI and the ATF to conduct a comprehensive review of NICS after the Sutherland Springs, Texas mass shooting. Ultimately The Air Force acknowledged that it failed to submit critical information in the FBI database that would have prohibited the shooter from purchasing a gun.
Currently the federal government is reconsidering the classification of marijuana as a controlled substance. This could have a dramatic impact on tens of millions of gun owners who use marijuana for medical purposes. Every gun owner could become a Hunter Biden unless federal law is further clarified with regard to form 4473.
Ultimately the takeaway for most Americans from the Presidential Pardon is that there are two sets of rules. If indeed the rule is unjust, then it should be reexamined in the light of fairness for all Americans.
