Special Counsel Opposes Request To Dismiss Hunter Indictment After Pardon

Special Counsel David C. Weiss said in a Monday court filing that he’s opposed to Hunter Biden’s request to dismiss his criminal cases after receiving a presidential pardon from his father.

“The defendant’s motion should be denied because there is no binding authority which requires dismissal of an indictment after a defendant receives a pardon,” Weiss wrote to the United States District Court for the District of Delaware, where Hunter was found guilty of gun crimes. President Biden, in announcing the pardon, said Hunter was the victim of a political prosecution, but Weiss wrote that the claim was “nonsensical” and when Hunter made the same claims in appeals, 10 judges appointed by six presidents rejected them.

Weiss said that even if Hunter is pardoned, the indictment is still valid, and claims that it was unfair or meritless are “nonsensical,” and that the judge had found that they were supported by “no evidence.” In California, where Hunter pleaded guilty to tax charges, Weiss filed a similar motion.

“If media reports are accurate, the Government does not challenge that the defendant has been the recipient of an act of mercy. But that does not mean the grand jury’s decision to charge him, based on a finding of probable cause, should be wiped away as if it never occurred. It also does not mean that his charges should be wiped away because the defendant falsely claimed that the charges were the result of some improper motive. 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,” it said.

Even before the pardon was received by prosecutors, Hunter’s lawyers had filed a motion arguing that it required the dismissal of the charges. 

Weiss argued that the Department of Justice took a less charitable tact after Donald Trump pardoned Steve Bannon and Michael Flynn.

In those cases, a note was added to the file saying the defendant was pardoned, without the government formally dropping the case, which could suggest that the crimes were real, he wrote. He proposed doing the same for Hunter, and criticized suggestions — echoed by the president as justification for an unconditional pardon of his son–that the prosecution was biased or illegitimate.

Trump pardoned former national security adviser Michael Flynn after losing the 2020 election, and former chief strategist Steve Bannon on his last day in office. Weiss said when it came to following through with the pardons, the DOJ was not eager to wipe the slate clean, and that the cases form a template for how the analogous Hunter case should be handled.

In the case against Flynn, where a judge had taken highly unusual steps to continue to prosecute the former general even after the Trump DOJ said it did not want to, an appeals court laid out a legal basis for treating pardons in the least favorable way to the defendant.

“A ‘pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed, from the punishment the law inflicts for a crime he has committed.’  In other words, ‘a pardon does not blot out guilt or expunge a judgment of conviction.’ Furthermore, a pardon cannot ‘erase a judgment of conviction, or its underlying legal and factual findings,’” the panel wrote.

In the Bannon case, prosecutors wrote that “The Government does not dispute that the pardon … ends the prosecution as to Bannon under Indictment 20 Cr. 412. However, the Government respectfully submits that there is neither a need for an order dismissing the Indictment nor any authority mandating such an outcome on these facts. Instead, the Government submits that the Court can and should direct the Clerk of Court to terminate Bannon as a defendant in this case and have the docket sheet reflect the pardon as the disposition of his charges.”

The judge overseeing the Bannon case said that neither side had shown that its preferred outcome was binding on the court, and that courts had gone both ways. That judge elected to dismiss Bannon’s indictment.