Hunter Biden may no longer have the Fifth Amendment right to remain silent if called to testify under oath for his actions over the past 11 years after President Joe Biden pardoned the first son, legal experts say.
The pardon, announced Sunday, not only absolves Hunter of his recent legal troubles but also grants immunity for any crimes he may have committed between Jan. 1, 2014, and Dec. 1, 2024. The time frame covered by the pardon is essential to Republican-led investigations into Hunter Biden’s foreign lobbying and financial dealings, raising questions about the extent of the president’s involvement in his son’s business interests.
In the hours since the pardon, Republicans, along with legal experts, have elevated the significance of what the younger Biden’s pardon means for their long-standing investigations, contending that it opens up the playing field for lawmakers to question him on nearly everything he has now been pardoned from over the past 11 years.
Under the Fifth Amendment, people can refuse to answer questions if their responses might incriminate them in criminal cases. However, with all criminal liability now erased by the pardon, Hunter Biden could face contempt charges if he refuses to testify before congressional panels.
“Well, this now makes it much easier for a GOP Senate/House to call Hunter as a witness about his and his dad’s connections to Ukraine, etc. because the pardon prevents Hunter from asserting the Fifth Amendment right not to incriminate himself,” Mark Smith, a constitutional attorney and host of the Four Boxes Diner legal analysis show, wrote on X.
Smith also suggested that the pardon “sets a great precedent” for President-elect Donald Trump if he decides to grant mass pardons for defendants who were charged for their actions surrounding the Jan. 6, 2021, riot at the U.S. Capitol, in addition to defendants who have been prosecuted for violations of the Freedom of Access to Clinic Entrances Act, a law conservatives have criticized as unfairly targeting anti-abortion advocates who protest at abortion clinics.
In a separate X post, Harvard Law professor Jack Goldsmith wrote that while a criminal investigation by the incoming Trump administration is off the table for the first son, so is “Hunter’s 5th Amendment claim before congressional investigators.”
The pardon undoubtedly raised the stakes for the president, whose son could be compelled to answer Republican lawmakers’ questions about his foreign business dealings, particularly those involving Ukrainian energy company Burisma and Chinese entities.
But the extent to which the president could find himself in legal jeopardy could be subdued, thanks in part to the Supreme Court’s July 1 decision surrounding Trump himself. In Trump v. United States, the landmark case that fleshed out the scope of presidential immunity, the Supreme Court clarified the broad protections presidents enjoy surrounding their “official acts” taken while in office.
“The Court said that a pardon was a conclusive and preclusive presidential power, and that the president’s exercise of such a power is broadly immune from criminalization, investigation, or prosecution by a subsequent administration,” Goldsmith wrote, adding the high court reached this conclusion when considering the dire consequences of “an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors.”
Therefore, “Biden is the first beneficiary of Trump v. U.S,” Goldsmith said.
It is worth noting that Hunter Biden did not invoke the Fifth Amendment when he testified on Feb. 28 that he did not involve his father in his overseas business affairs. Still, any failure to comply with a future inquiry could lead to charges of contempt of Congress or perjury, and ample precedent has been set for this result during the Biden administration after former Trump administration officials Stephen Bannon and Peter Navarro were jailed for four-month terms for their failure to comply with the now-defunct Jan. 6 committee.
Rep. Jim Jordan (R-OH), a key figure in the House GOP’s impeachment inquiry into the president, wrote on X that the pardon vindicates their investigation, noting that “Democrats said there was nothing to our impeachment inquiry.”
“If that’s the case, why did Joe Biden just issue Hunter Biden a pardon for the very things we were inquiring about?” Jordan asked.
The Washington Examiner contacted Jordan’s office to inquire whether he would seek the first son’s testimony in the 119th Congress, which is due to begin in January 2025.
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Hunter Biden’s legal team has not publicly commented on the pardon, but it has already informed federal judges in Delaware and California that the pardons mean his cases should be dismissed “with prejudice” and should adjourn “any future proceedings.”
With Hunter Biden’s criminal cases soon to be resolved, congressional Republicans could intensify their investigations into his business dealings and the extent of his father’s involvement after the next Congress is sworn in.
