When his father pardoned him for nearly 11 years of charged and uncharged criminal acts, Hunter Biden’s Fifth Amendment right against speaking on issues that may incriminate him faded, but didn’t vanish.
President Joe Biden on Sunday pardoned his son for offenses “he has committed or may have committed or taken part in” from Jan. 1, 2014, through Sunday.
The pardon reverses the younger Biden’s convictions this year for felony tax and gun crimes in federal courts. It also gives Hunter Biden immunity from being charged federally for any other potential crime during that 11-year span.
Where there’s no potential of incrimination, a person’s Fifth Amendment to keep silent to avoid incriminating himself vanishes.
But in Hunter Biden’s case, he still has a right to remain silent — even when pressed by Congress or prosecutors to speak — if there’s a reasonable chance that a state prosecutor could bring charges against him, according to renowned legal mind and University of California-Los Angeles law professor Eugene Volokh.
Federal, Not State
That’s because the presidential pardon only excuses federal crimes, not state crimes.
“The privilege indeed isn’t available if there’s no risk of criminal prosecution,” wrote Volokh in a Monday email to Cowboy State Daily. “But this only applies if there’s no risk of any prosecution, state or federal.
“So, if Hunter Biden is asked to testify about something that might be punishable under the criminal law of some state — and the statute of limitations hadn’t run — then he could still claim the privilege.”
The question of Fifth Amendment privilege surfaced this week after many conservatives questioned the pardon’s long timeline, and noted that 2014 is the year the president’s son joined the board at Ukrainian energy company Burisma.
Republicans have frequently accused Joe Biden of personally benefitting from his son’s foreign business deals in Ukraine and China while he was vice president.
The Bidens have disputed these claims.
If a congressional committee wants to subpoena Hunter Biden to testify on these matters, it can pursue a workaround to secure his testimony, Volokh said.
That is, Congress or any other entity wanting the younger Biden to testify could secure immunity pledges from the relevant state prosecutors. That would remove the man’s Fifth Amendment right and compel him to talk.
“It’s hard for me to see how what Hunter did in Ukraine would itself violate state law,” Volokh wrote in a follow-up email Tuesday. “But it might in principle also reveal things he illegally did in a state that violated state law.”
Volokh clarified the hypothetical, saying he doesn’t know enough about any alleged case points to speak with confidence about outcomes there.
Presidential Immunity
Even if the younger Biden said something that could lead to criminal allegations against his father, it’s uncertain whether those would hold.
Joe Biden was vice president to President Barack Obama from 2009-2017.
The U.S. Supreme Court in July granted presidential immunity from criminal charges to the president for all “official acts.” The ruling does not appear to grant immunity to the vice president, though it specifies some of his conduct as official acts as well.
That’s because the high court’s ruling was focused on allegations against former President Donald Trump regarding his actions after the 2020 election. In those circumstances, then-Vice President Mike Pence was not aligned with Trump or charged with a crime, so there wasn’t a question as to his immunity.
And where there’s not a question, the high court tries to avoid furnishing an answer.
"That’s true," added Volokh, "but also the two questions are very different, given the differences in the constitutional roles of the President and the Vice-President."
Contact Clair McFarland at clair@cowboystatedaily.com
Clair McFarland can be reached at clair@cowboystatedaily.com.
