Judge Mark Scarsi’s Umbrage: Do Not Go Gentle into that Good Night

think that Hunter Biden’s two prosecutions are gone. After he submitted notice of a pardon and David Weiss’ prosecutors complained, Judge Maryellen Noreika issued an order terminating all proceedings.

ORAL ORDER: Having reviewed the parties’ submissions (D.I. 272, 274, 276 ) and in the absence of binding precedent and whereas pursuant to the Executive Grant of Clemency signed by President Joseph R. Biden, Jr. on December 1, 2024, Defendant Robert Hunter Biden has been pardoned for, inter alia, the offenses for which a jury rendered a verdict in this case (D.I. 275 ), IT IS HEREBY ORDERED that all proceedings in this case are hereby terminated. ORDERED by Judge Maryellen Noreika on 12/3/2024.

Judge Mark Scarsi … did something else. He issued a blistering opinion suggesting Hunter’s pardon was partly defective (because the President issued the pardon through the day he issued it, suggesting it attempted to grant four hours of prospective immunity), but that he would terminate the case once someone from the Executive Branch gave him a certified copy of the pardon. Mostly, though, Scarsi accused President Biden of impugning him personally and rewriting history by claiming that Hunter was prosecuted only because he was Joe’s son.

According to the President, “[n]o reasonable person who looks at the facts of [Mr. Biden’s] cases can reach any other conclusion than [Mr. Biden] was singled out only because he is [the President’s] son.” But two federal judges expressly rejected Mr. Biden’s arguments that the Government prosecuted Mr. Biden because of his familial relation to the President. (Order on Mots. to Dismiss 32–55); Mem. Opinion 6–19, United States v. Biden, No. 1:23-cr-00061-MN (D. Del. Apr. 12, 2024), ECF No. 99. And the President’s own Attorney General and Department of Justice personnel oversaw the investigation leading to the charges. In the President’s estimation, this legion of federal civil servants, the undersigned included, are unreasonable people.

In short, a press release is not a pardon. The Constitution provides the President with broad authority to grant reprieves and pardons for offenses against the United States, U.S. Const. art. II, § 2, cl. 1, but nowhere does the Constitution give the President the authority to rewrite history.

This is why I would have preferred Biden not have pardoned his son — because I wanted these verdicts, including Scarsi and Noreika’s rulings that Hunter wasn’t selectively or vindictively prosecuted, to be appealed to judges less intemperate than Scarsi.

Not least because there are several problems with Scarsi’s rant.

First, Scarsi, Weiss’ prosecutors, and Noreika (in her original opinion) are all engaged in navel-gazing. All argued, to one degree or another, that this prosecution could not be political because Biden and his selected Attorney General oversaw it. There were enormous problems with that argument: the degree to which Biden’s adversary was permitted to elicit threats against the prosecutorial team, the unwise retention of David Weiss for a second term, the role that Alexander Smirnov’s alleged attempt to criminally frame Joe Biden played in David Weiss’ decision to first obtain Special Counsel status and then ratchet up charges against Joe Biden’s son. But ultimately, prosecutors argued and judges adopted the claim that because Joe Biden was in charge, the prosecution could not have been political.

But since all that went down, John Roberts rewrote history and vested all the authority over prosecutions in the executive power of the President.

Investigative and prosecutorial decisionmaking is “the special province of the Executive Branch,” Heckler v. Chaney, 470 U. S. 821, 832 (1985), and the Constitution vests the entirety of the executive power in the President, Art. II, §1

[snip]

The indictment’s allegations that the requested investigations were “sham[s]” or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.

Under Roberts’ logic, if the President, exercising his executive authority at its zenith, deems this prosecution political, then it was.

Moreover, Scarsi wildly misrepresents the nature of Biden’s comment. The legal opinions that Scarsi cites address whether Hunter’s case met the very narrow legal definitions of selective or vindictive prosecution, as he himself laid out.

Proving selective prosecution “is particularly demanding.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 489 (1999). Because “[a] selectiveprosecution claim asks a court to exercise judicial power over a special province of the Executive,” “in the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties.” Armstrong, 517 U.S. at 464 (internal quotation marks omitted).

[snip]

“Particularly when a vindictiveness claim pertains to pretrial charging decisions, the Supreme Court urges deference to the prosecutor. Deference is appropriate for pretrial charging decisions because, ‘in the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution.’” United States v. Brown, 875 F.3d 1235, 1240 (9th Cir. 2017) (citation omitted) (quoting Goodwin, 457 U.S. at 381). “[J]ust as a prosecutor may forgo legitimate charges already brought in an effort to save the time and expense of trial, a prosecutor may file additional charges if an initial expectation that a defendant would plead guilty to lesser charges proves unfounded.” Goodwin, 457 U.S. at 380. Thus, “in the context of pretrial plea negotiations vindictiveness will not be presumed simply from the fact that a more severe charge followed on, or even resulted from, the defendant’s exercise of a right.” Gamez-Orduno, 235 F.3d at 462 (citation and internal quotation marks omitted).

Deference to the prosecutorial decision to bring charges, notwithstanding significant pretrial negotiations between the parties to avoid them, is warranted.

Of course, once you adopt Roberts’ logic, then if the President overrides the original prosecutorial judgment of prosecutors, then his view must hold sway. If President Biden says the decisions were unfair, then they were.

Sure. That’s wildly problematic. Welcome to Roberts’ Calvinball.

But as Barb McQuade laid out, whether a prosecutorial decision meets the very narrow definition of selective or vindictive prosecution and whether a prosecution was an unwise exercise of prosecutorial discretion are two different things.

I disagree with McQuade about whether there was evidence of selective or vindictive prosecution. After all, as I noted, Scarsi misrepresented what the record on the comparator of Roger Stone said. Again, that’s why I wanted these cases to be appealed.

But it is also the case that a whole series of events related to this prosecution — Trump’s demand for such an investigation from both Volodymyr Zelenskyy and publicly, DOJ’s laundering of dirt Trump’s personal lawyer obtained, including from a known Russian agent, into this case, efforts by Trump’s debate guest to introduce misleading evidence into this investigation, the way a key witness in the gun case leaked information to affect the 2020 election, and Bill Barr’s subsequent pressure for a prosecution — that were excluded from both judges’ rulings altogether. Both judges simply ignored that David Weiss reneged on his assurances to Hunter’s team that there was no ongoing investigation before he entered into the deal, a detail that was central to any vindictive prosecution analysis. Neither judge addressed how Alexander Smirnov’s alleged attempt to criminally frame Biden himself played into the prosecutorial decisions (I am not sure that was formally before Scarsi, though it was before Noreika).

So while it is a fact that two judges credited the arguments made by prosecutors whose claims Biden has now overridden on the selective and vindictive prosecution issue, it is also a fact that a great deal of evidence of politicization was excluded from all consideration. Biden’s judgment incorporated a great deal of things specifically and surgically excluded from the selective and vindictive prosecution analysis.

Finally, though, there are the ways that Scarsi himself rewrote history to get to his selective and vindictive prosecution decision.

As I laid out here, Scarsi made much of errors that Abbe Lowell made in his selective and vindictive prosecution argument. For example, after pointing out that Lowell misquoted coverage of David Weiss’ comments about threats elicited by political pressure on the case, Scarsi simply ignored the role of threats on prosecutorial decisions, because those “significant threats” were not publicly described as death threats. Importantly, as Noreika did in her opinion, after (correctly) catching Lowell misstating the timeline, Scarsi himself fiddled with the timeline so as to permit himself only to look at the prosecutorial decision in December 2023, not the decision to renege on the plea agreement in June and July 2023.

Scarsi’s treatment of this passage from Hunter’s motion deserves closer consideration:

Mr. Biden agreed to plead guilty to the tax misdemeanors, but when the plea deal was made public, the political backlash was forceful and immediate. Even before the Delaware court considered the plea deal on July 26, 2023, extremist Republicans were denouncing it as a “sweetheart deal,” accusing DOJ of misconduct, and using the excuse to interfere with the investigation.13 [2] Leaders of the House Judiciary, Oversight and Accountability, and Ways and Means Committees (“HJC,” “HOAC,” and “HWMC,” respectively) opened a joint investigation, and on June 23, HWMC Republicans publicly released closed-door testimony from the whistleblowers, who, in the words of Chairman Smith, “describe how the Biden Justice Department intervened and overstepped in a campaign to protect the son of Joe Biden by delaying, divulging and denying an ongoing investigation into Hunter Biden’s alleged tax crimes.”14 Then, one day before Mr. Biden’s plea hearing, Mr. Smith tried to intervene [4] to file an amicus brief “in Aid of Plea Hearing,” in which he asked the court to “consider” the whistleblower testimony.15

13 Phillip Bailey, ‘Slap On The Wrist’: Donald Trump, Congressional Republicans Call Out Hunter Biden Plea Deal, USA Today (June 20, 2023), https://www.usatoday.com/.

14 Farnoush Amiri, GOP Releases Testimony Alleging DOJ Interference In Hunter Biden Tax Case, PBS (June 23, 2023), https://www.pbs.org/.

15 United States v. Biden, No. 23-mj-00274-MN (D. Del. 2023), DE 7. [brackets mine]

Here’s how Scarsi treats this passage laying out what happened between the publication of the plea and the failed plea hearing:

The putative [sic] plea deal became public in June 2023. Several members of the United States Congress publicly expressed their disapproval on social media. The Republican National Committee stated, “It is clear that Joe Biden’s Department of Justice is offering Hunter Biden a sweetheart deal.” Mr. Trump wrote on his social media platform, “The corrupt Biden DOJ just cleared up hundreds of years of criminal liability by giving Hunter Biden a mere ‘traffic ticket.’” Phillip M. Bailey, ‘Slap on the wrist’: Donald Trump, congressional Republicans call out Hunter Biden plea deal, USA Today (June 20, 2023, 11:17 a.m.), https://www.usatoday.com/story/news/politics/2023/06/20/donald-trump-republicans-react-hunter-biden-plea-deal/ 70337635007/ [https://perma.cc/TSN9-UHLH]. 28 On June 23, 2023, the Ways and Means Committee of the United States House of Representatives voted to publicly disclose congressional testimony from the IRS agents who worked on the tax investigation. Jason Smith, chair of the Ways and Means Committee, told reporters that the agents were “[w]histleblowers [who] describe how the Biden Justice Department intervened and overstepped in a campaign to protect the son of Joe Biden by delaying, divulging and denying an ongoing investigation into Hunter Biden’s alleged tax crimes.” Farnoush Amiri, GOP releases testimony alleging DOJ interference in Hunter Biden tax case, PBS NewsHour (June 23, 2023, 3:58 p.m.), https://www.pbs.org/newshour/politics/gop-releases-testimony-alleging-dojinterference-in-hunter-biden-tax-case.29 One day before the plea hearing in the United States District Court for the District of Delaware, Mr. Smith moved to file an amicus curiae brief imploring the court to consider the IRS agents’ testimony and related materials in accepting or rejecting the plea agreement. Mem. of Law in Support of Mot. for Leave to File Amicus Curiae Br., United States v. Biden, No. 1:23-mj-00274-MN (D. Del. July 25, 2023), ECF No. 7-2; Amicus Curiae Br., United States v. Biden, No. 1:23-mj-00274-MN (D. Del. July 25, 2023), ECF No. 7-3.30

28 This source does not stand for the proposition that “extremist Republicans were [1] . . . using the excuse to interfere with the investigation.” (Selective Prosecution Mot. 5–6.) Of Mr. Weiss, Mr. Trump also wrote: “He gave out a traffic ticket instead of a death sentence. . . . Maybe the judge presiding will have the courage and intellect to break up this cesspool of crime. The collusion and corruption is beyond description. TWO TIERS OF JUSTICE!” Ryan Bort, Trump Blasts Prosecutor He Appointed for Not Giving Hunter Biden ‘Death Sentence,’ Rolling Stone (July 11, 2023), https://www.rollingstone.com/politics/politics-news/trump-suggests-hunter-bidendeath penalty-1234786435/ [https://perma.cc/UH6N-838R].

29 This source does not stand for the proposition that several leaders of house committees “opened a joint investigation.” (Selective Prosecution Mot. 6.) [3]

30 The docket does not show that the Delaware district court resolved the motion, and the Court is uncertain whether the court considered Mr. Smith’s brief. [brackets mine]

First, Scarsi uses an ellipsis, marked at [1], to suggest the only reason Lowell cited the USA Today story was to support the claim that Republicans moved to intervene in the investigation, when the sentence in question includes three clauses, two of which the story does support. The sentence immediately following that three-clause sentence [2] makes a claim — OGR, HWAM, and HJC forming a joint committee, that substantiates that claim. Scarsi’s complaint at [3] is not that the cited article does not include Jason Smith’s quotation; rather, it’s that Lowell has not pointed to a source for the formation of a joint investigation (a later-cited source that Scarsi never mentions does include it). Meanwhile, Scarsi applies a measure — whether Judge Noreika considered Smith’s amicus, not whether he tried to file it — that Lowell doesn’t make (and which is irrelevant to a vindictive prosecution motion, because Noreika is not the prosecutor); Smith did succeed in getting the amicus unsealed, including the exhibits that Hunter claimed include grand jury materials. Whether or not Judge Noreika considered the content of the amicus, that Smith filed it is undeniable proof that Smith tried to intervene, which is all Hunter alleged he did.

Meanwhile, Scarsi relegates Trump’s Social Media threats — which Scarsi later corrects Lowell by noting that they came during precisely this period — to a footnote.

Here’s one thing I find most interesting. Scarsi’s two most valid complaints about Lowell’s filing are that, in one part of his timeline but not another, he misrepresented Trump’s pressure as happening after the plea failed, and that Lowell claimed that Weiss testified he had gotten death threats when instead the cited source (and the Weiss transcript I assume Lowell does not have) instead say that Weiss feared for his family. He acknowledges both those things: Trump attacked Weiss, and Weiss got threats that led him to worry for the safety of his family.

But he never considers Weiss’ fear for his family’s safety in his consideration of what happened between June and July. He never considers whether those threats had a prejudicial [e]ffect on Hunter Biden.

And aside from that correction regarding the safety comment, nor does Scarsi consider the most direct aspect of Congress’ intervention in the case — that Congress demanded Weiss testify, and he did so just weeks before he filed the charges actually before Scarsi.

In other words, Scarsi accuses Lowell of making a post hoc argument, claiming that he is simply pointing to prior events to explain Weiss’ subsequent actions. Except he ignores the impact of the two most direct allegations of influence.

And in Scarsi’s own fiddling with the timeline, he found a way to ignore how Donald Trump’s threats and direct intervention by Congress may have infected the decision to renege on the plea deal, and instead focused solely on the later decision to indict.

We’re in a post-truth world and Scarsi’s intemperate rant will certainly get the attention of those looking for Trump judges to promote.

But the fact of the matter is that Scarsi did precisely what he accuses the President of, rewriting the history of the Hunter Biden prosecution.

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43 replies
  1. tdbach says:

    Marcy, you have been an incredibly thorough, insightful, and knowledgeable chronicler of the Hunter Biden prosecutions. You have exposed so many problematic pieces to this process. Was he guilty of crimes? No doubt. But the extent and nature of those crimes has been so clouded by political mud slinging and pressuring, it has become much more theater than law.

    In my opinion, presidential pardon powers are far too broad and complete. Too often they are used protect the president himself (look no further than Trump’s) or his political interests, which I view as utterly corrupt. But the whole idea of granting that power to the president – to give him (or her, one day, god willing) the discretion to ensure a just treatment, as he sees it, when the wheels of justice have gone too far or the consequences have gone on too long.

    It’s a judgment call, but everything the chief executive does is a judgment call. Joe Biden’s use of that power to free his son is well within that tradition. He knows that prosecutors and courts would have handled the facts of this case very differently if the accused wasn’t his son. He knows sentencing would have been much more lenient had Hunter just been some other random Yale grad who lapsed into addiction, screwed himself and his family before hitting rock bottom, finding sobriety and a desire to make right. I also think Biden’s original pledge not to pardon Hunter was based on the belief that he – or Kamala – would handily defeat Trump, thereby letting the air out of the political fervor behind Hunter’s prosecution. Then Trump won, who then nominated as cadre of MAGA goons, many of whom were ardent participants in the hunt for Hunter. If ever there was a good reason to issue a pardon, this was it.

    Reply
    • SteveBev says:

      “But the extent and nature of those crimes has been so clouded by political mud slinging and pressuring, it has become much more theater than law.”

      The issue as I see it is broader than that.

      ‘Selective and vindictive prosecution’ is the label attached to a mechanism to protect an individual from improper political use of prosecution powers, and in a sense it is a way of the courts protecting its own processes from abuse by prosecution authorities.

      What has evidently occurred in this case of systematic harassment of Hunter Biden is pretty much a ‘full court press’ involving abuses of power and authority within and through each of the 3 branches of government. Members of Congress have abused the powers privileges and procedures in Congress to pursue Hunter Biden and pressurise the DOJ and through it the Courts. In office Trump used the power of the Presidency to instigate the harassment of Hunter Biden, and out of office used his political power and influence over the GOP to continue this campaign through Congress and via his influence over the media.

      And it is not simply that checks and balances have failed to deal with the multiple abuses of various forms of authority, but that the separation of powers, supposedly the means of guaranteeing checks and balances, has been systematically used as a means of avoiding checking and balancing.

      Scarsi’s rant is but the latest instalment in this sequence of failing to see the wood for the trees.

      Scarsi wants to maintain the pretence that there was nothing to see here, and all would be right with the world if pesky President Biden hadn’t barked up the wrong tree.

      President Biden didn’t just bark at Scarsi’s twisted sapling, but at the whole thicket of abuse of power.

      The problem is, however, too few people know, understand or care. And many many people are very ready willing and slavering at the mouth to bark back at President Biden for supposed self serving breaches of a supposed norm.

      Reply
      • gruntfuttock says:

        ‘The problem is, however, too few people know, understand or care’

        Indeed. The GOP have some method in their madness: keep ordinary people away from education and make them have to work two or three jobs every day; then they will have no time to find out what’s being done to them while their kids are forced back into factories as soon as they can stand up.

        Which also explains the drive for forced birth. The factories need workers and the old won’t survive once their health care is taken away. And the infant survival rate will dive once the vaccines are taken away.

        Meanwhile, Elon is promising to take us to Mars.*

        Bread and circuses?

        No, it’s the prelude to ‘The Rapture’.

        Oh, to live in such times as these ;-)

        * Only we are nowhere near being capable of either getting there or staying alive wihout hating each other if we do make it.

        Reply
  2. biff murphy says:

    Jimmy Carter – Brother Billy
    Bill Clinton – Brother Roger
    George W – Son Neil
    TFG – Pardoned Kushner
    What goes around…

    Reply
      • tdbach says:

        Indeed. Bush’s actual pardons were more corrupt, as they were used to protect himself from legal exposure from the Iran-Contra deal.

        [Welcome to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We have adopted this minimum standard to support community security. Because your username is far too short it will be temporarily changed to match the date/time of your first known comment until you have a new compliant username. Thanks. /~Rayne]

        Reply
        • Just Some Guy says:

          The original poster’s comment mentioned George W. Bush and his “Son Neil.”

          Neil and George W. Bush are brothers.

          AI is a scourge on humanity. Just ask Hunter deButts.

  3. Amicus12 says:

    Another thing that Judge Scarsi seems to not appreciate is that according to Chief Justice Roberts we must presume the threat of retaliatory prosecutions by one Administration upon a prior one. Because of this “pall of potential prosecution” the President is found to enjoy immunity under the Constitution from criminal prosecution for official conduct.

    But the President’s family, allies, friends, and subordinates enjoy no such immunity. If we are back in the days of Cicero where the powerful seek to destroy their rivals by means of prosecutions for crimes imagined, then it makes perfect sense for Biden to pardon his son.

    Reply
    • Peterr says:

      The phrase “I would like you to do us a favor, though” was uttered when Biden was merely a potential candidate who would run against Trump.

      I don’t suppose that either Robert or Scarsi considered that Trump doesn’t wait to attack his rivals until they are out of office – he went after them before they got there.

      Reply
    • RitaRita says:

      Amen.

      I hope that Pres. Biden is getting his pardon pen ready for others who have already been tagged by Trump and friends.

      Biden and people old timers like Chuck Schumer have done an admirable job of trying to preserve the traditional norms and institutions. Trump and his allies have little respect for norms and institutions. It has become an uneven battlefield, with the news media holding only Democrats to the traditional norms and institutions.

      The Supreme Court has given Presidents leeway with pardons. Biden should use the pardon power to protect people from political prosecutions.

      Reply
  4. Kalkaino says:

    Marcy has done heroic work here and made tremendous contributions to the historical record (should there continue to be one), if not so much to the legal and political realities.
    But THIS:

    “This is why I would have preferred Biden not have pardoned his son — because I wanted these verdicts, including Scarsi and Noreika’s rulings that Hunter wasn’t selectively or vindictively prosecuted, to be appealed to judges less intemperate than Scarsi.”

    I’m sure should Marcy be maliciously prosecuted by the Trumpists (not so far fetched) she will be happy to spend her millions on appeals before corrupt judges on the way to a corrupt Supreme Court, suffering, all the while, the agonizing prospect of imprisonment (and all that entails) but, eschewing any offer of pardon, confident that Proceduralism will vindicate her and thus preserve and enshrine, Platonically pristine, the Principles of Justice and Fair Play, and the American Way. I derive my certitude from her unflagging admiration for Merrick Garland and Jack Smith’s masterful, if leisurely, eleven-dimensional-chess chops. What does it matter that the fascists have just overturned the chess table, rubbished the rule of law, blown up the guard rails back to the Magna Carta, and will now inflict, for all the foreseeable future, a Reign of Stupid upon the planet? The important thing here remains, for all eternity, and regardless of human cost, the proper Procedure.

    Reply
    • emptywheel says:

      Aside from your snide misrepresentation both of my views on Jack Smith and Merrick Garland and the actual facts of the investigation — welcome to emptywheel! — this is about power.

      What Trump did on this prosecution is a cornerstone of fascism. And leaving it go to be contested meekly as it will be (and as Scarsi weighed in to do), will rot the ability to fight back against fascism.

      I totally respect Biden’s decision. I totally get that if he hadn’t done this, Hunter was likely to relapse. What I also recognize is that for small-d democrats to fight back, we need to be able to champion those standing up for truth. It didn’t happen with Hunter. It hasn’t happened with dozens of other targets. We need to find a way to sustain those people bc no matter how many people Biden attempts to pardon into safety there will be an infinite supply of other targets.

      Reply
      • Theodora30 says:

        I don’t share your faith that the judges who heard any appeals would be fair. I know there are judges who would be but it seems like quite a risk to take. If either Biden or Garland had interfered with the prosecution of Hunter the media would have screamed bloody murder and damaged Biden even more during an election year.

        The claim that this could not have been a political prosecution because it was overseen by Biden’s Justice Department is as ridiculous as saying the Clinton investigations could not have been partisan because Clinton had allowed the appointment of Ken Starr. That only happened after Clinton was constantly pressured by the media that refuse to accept Special Counsel Robert Fiske’s report of his investigation into Whitewater, Filegate, Travelgate and —the most vicious, egregious of all — the “murder” of Vince Foster. Even though Fiske was a respected Republican prosecutor the media, led by the NYT, claimed the fact that Clinton’s AG had appointed Fiske gave his exoneration of the Clinton’s the appearance of partisanship.

        Reply
      • Error Prone says:

        The remedy seems to be pursuit in Congress or administratively to amend the form required for purchase of a firearm. Get that question out of there. Or curb the ability to prosecute a misstatement in that part of the form made in good faith, absent some attendant misuse of the firearm. Or make the form without reach after any possession of the firearm has ceased, other than for straw purchasers. The rules were stupid and the prosecutors were heavy handed. One of the problems is more easily fixed.

        Reply
    • PensionDan says:

      The first rule of intelligent tinkering is to save all the parts. – Paul Ehrlich

      No-one I know of has done a better job of explicating and presenting the facts of the Hunter Biden case (plus many, many more cases) which have been unfairly buried and swept aside than Dr. Wheeler. She is truly a champion for standing up for truth.

      And, I wouldn’t over-interpret Dr. Wheeler’s precise but concise language. ‘I would have preferred X’ doesn’t imply that X should have happened.

      Reply
    • earlofhuntingdon says:

      Uninvited guest, leaves floating present in host’s punch bowl.

      Don’t let the swinging door hit you on the way out.

      Reply
  5. Error Prone says:

    Hunter Biden, from reading the record, had a plea contract that the prosecution failed to honor. Joe Biden pardoned Hunter, so he got an even better deal, no probation. Clean record. Taxes got paid.

    That’s the story. Move on. Looking back at a clean exercise of pardon power is a distraction from looking forward and at present events. Why do that? Let it go as is. It’s a done deal.

    Let Scarsi fume. It probably makes him feel better, happy his appointment is for life.

    Reply
  6. crankyOldGuy says:

    Thank you, as always, for your excellent work on this.

    I agree the ideal outcome would be for Hunter’s prosecution to be blown away on appeal. But I’m not at all confident the current Supreme Court would actually do that.

    Net: I think Joe made the right call. He needs to do what he can do, while he can do it.

    Reply
  7. zscoreUSA says:

    Just want link something here as I don’t see it in Emptywheel archives.

    EXCLUSIVE: Bud Cummins Tried To Interest US Law Enforcement In Ukraine Dirt On Bidens In 2018, 11/24/19

    https://talkingpointsmemo.com/muckraker/bud-cummins-ukraine-rudy-giuliani-yuriy-lutsenko

    Article references 10/4/18 email from Bud Cummins to SDNY trying to setup meeting with Lutsenko. Lutsenko offered reasons to investigate Biden, and something about the Manafort black ledger investigation.

    The article says Cummins was coordinating with Lutsenko. Rudy later said on 10/14/20 Cummins had info from “4 or 5 Ukrainians”, and this work was actually been working on for 2 and a half years [ie Jan/Feb 2018, around Biden CFR son of bitch comment which had caused Shokin to threaten a lawsuit Feb 2018], likely 1 included Shokin. Rudy said Cummins in October/November 2019 gave all of this info to SDNY, which I am guessing was included allegations Biden paid off by Zlochevsky.

    Rudy passed on the Cummins info to Sen Graham on 11/22/19. Then passed it onto Brady January 2020, and Pompeo March 2020, and at some point to Pence.

    Trump’s tweet first mentioning Biden “PAID OFF” was 10/6/19.

    https://youtu.be/RZasrHQeKiY

    Reply
      • zscoreUSA says:

        I looked back at some of your articles about Buma and his informants, which at some point in June 2019 the FBI kicked out a couple named Rollie and Economist, and tried to kick out Dynamo.

        I wonder if they were in the “4 or 5” Ukrainians that Cummins got info from to pass onto SDNY in October/November 2019.

        The TPM article seems kinda curious like why would Cummins cooperate with a TPM reporter in November 2019 about the October 2018 effort from Lutsenko. Unless it’s to throw off the bigger October/November 2019 effort that is underway, which will end up with materials sent to Brady.

        Reply
        • zscoreUSA says:

          And I suspect that the Cummins packet includes allegations of Zlochevsky bribing Biden. And I suspect the 1/31/20 email from a Brady staffer that Rudy is in Florida with the “original source” may be referring to one of these “4 or 5 Ukrainians”, who may have been one of the other informants besides Smirnov.

  8. earlofhuntingdon says:

    I agree that Joe Biden has a lot of pardons to work on between now and noon, Jan 20th next year. Pardons for people unfairly or maliciously prosecuted; for those who’ve served their time, made restitution, and worked to rejoin society; for those wrongly or too severely punished; for those who are victims of a court system that prizes certainty over guilt.

    Most of those are poor, working, and middle class. Get to it, Joe, the clock’s ticking.

    As for letting Hunter’s cases be appealed, by whom? Trump’s DoJ?

    As for Mark Scarsi’s indecorously shouted opinion, the FedSoc Trump appointee makes a case for Biden’s pardon. His emotional response and twisting of the facts suggests the presence of the animus Joe Biden was concerned about. Potential judicial animus was not the only monster under the bed that threatened fair treatment for Hunter.

    As for the text of Joe Biden’s pardon, if the pardon was issued and effective before 12.01 am, Dec. 2nd, there’s a potential problem, because it purports to pardon Hunter for a period that extends through all of Dec. 1, 2024.

    What defendant, family, or White House Counsel, wants to subject a pardon that has a hole in it a few hours wide, to this Supreme Court majority’s delicate touch? The WH should clarify the exact time and date the pardon was effective, or issue a revised pardon, to close what may be a negligently open door.

    Reply
  9. Krisy Gosney says:

    This blog helps keep me sane. It helps me stay above the sludge of our current politics and culture. I can’t say thank you enough to show my appreciation.

    I agree that appealing the verdict would have been a better course for the rule of law. But I’m very glad Biden did the pardon. The Right counts on the Dems to do the right thing; they use this against the Dems; take it as a given in their planning/scheming. It’s beyond time for Dems to make unexpected moves.

    Reply
  10. ToldainDarkwater says:

    You know, just the other day, I was doing a bit of reading about impoundment and the line-item veto. Apparently, there was a bill passed during the Clinton times that allowed the President a line-item veto. And Bill Clinton, in short order, used it in a way that made every single Republican in Congress think it was a bad idea, and fight it in court. The Act was declared unconstitutional, and that ended the matter.

    Up to that point, there had been bleating about a line-item veto for at least a decade, maybe more. I haven’t heard a peep since.

    Sooooo, maybe Hunter’s pardon is the thing that will wake up Republicans. Maybe it will take something else. Something they like even less.

    Reply
  11. omphaloscepsis says:

    A topic for a later day or another forum is the “why” behind all the visits to Ukraine by Hunter Biden, Lev Parnas, Igor Fruman, Rudy Guiliani, Paul Manafort, Rick Perry, and so many more.

    Likely connected to the pipelines running through the country, moving natural gas from Russia and many former SSR’s to European destinations. A lot of money to be made there until the 2022 invasion and resulting sanctions disrupted the market.

    https://www.propublica.org/article/rick-perrys-ukrainian-dream

    https://apnews.com/article/global-trade-tx-state-wire-russia-united-states-joe-biden-6d8ae551fb884371a2a592ed85a74426

    Reply
  12. P-villain says:

    Devlin Barrett just wrote the mother of all both-sides articles, equating the Biden pardon and, well, everything Trump ever did as similar assaults on DOJ independence. I refuse to provide a link to this stink.

    Reply
  13. pdaly says:

    From reading here and therefore understanding the holes Hunter Biden could poke in the court record of his conviction in any appeals, I was nevertheless glad Joe Biden spared Hunter the additional torture at the hands of a Trump-led DOJ and Congress.

    So I was intrigued to see Just Security has an article this week (12/2/24) reviewing the civil cases aginst Trump that may provide an ongoing venue to actively fight Trump’s attempt at rewriting Jan6 history.

    In addition to reviewing the details of the pending cases, the authors remind the reader that state court civil cases are beyond the reach of Presidential pardon power, civil cases have a lower threshold for finding liability (compared to a higher burden of proof in a criminal trial), and that civil cases can go forward even when the defendant is the President. The Supreme Court said so (at least when the President was Bill Clinton).

    And maybe Roberta Kaplan can help these plaintiffs prevent Trump’s DOJ from employing the Westfall Act to remove Trump as the defendant as she successfully did in the E Jean Carroll case.

    https://www.justsecurity.org/105307/trump-civil-litigation-january-6th/

    Reply
  14. Ed Walker says:

    Every time the Repubs kick up a fuss and the Dems engage, it infuriates me. We waste time and energy arguing among ourselves about it, as the Rs have left the discussion and are busy gearing up for the next one.

    Democrats need to do real things like these three:

    1. Designate attack dogs to go after the Rs every time they open their mouth, and when they aren’t. Dems should hire comic writers to come up with lines to make people laugh at the pompous blowhards. I say this because Harris tried direct attacks and it didn’t work, and it may well have reduced turnout. We need attacks, but mostly we need people laughing at the bullies.

    2. Everyone not designated as an attack dog is required to STFU. That means all those centrist wimps, those corporate lap dogs, and those careerists. And their staffs and their consultants. Specifically no one will ever talk about bipartisanship or working across the aisle or negotiating with the terrorists. No one ever.

    3. Speaking of consultants, get new ones. People like Oliver Willis who have ideas that will both fire up the base and help with voters. Pay them for success, no percentages of ads placed or cost plus deals.

    Reply
  15. Franktoo says:

    This doesn’t make sense to me. Judge Scarci “pointed out that Hunter Biden said in court filings he was addicted to drugs and alcohol through May 2019, and in his guilty plea on tax-evasion charges admitted to dodging tax payments after becoming sober.” How long did it take for Hunter to get around to [voluntarily?] addressing his tax problems? Was he expected to stop all discretionary spending in June of 2019, ignore the family issues that had developed during his addiction, and come running to the IRS without professional advice or filling out five years of returns. Doesn’t the IRS have programs for repayment over time (and even debt forgiveness programs) for those facing large payments? How long was it before Hunter approached the IRS with his problems?

    Worst of all, Judge Scarci ignores the fact that those who fail to file tax returns for non-drug related reasons (such as Roger Stone) have been “dodging tax payments” with any “excuse” for the entire period without suffering the criminal prosecution that Scarci claims was not indicative of selective prosecution.

    IIRC, while Hunter was in recovery, he did fraudulently claim several payments to sex workers were business expenses. This seems to be the least forgivable of his tax offenses, but I have no idea of what penalties he would normally suffer for that fraud.

    Reply
  16. Franktoo says:

    I think President Biden should have begun by apologizing to the American people for not being able to live up to his commitment to not pardon his son. Then he should have listed the things that forced him to change his mind, including: the threats to the family of Special Prosecutor Weiss, three felony drug charges (with penalties totaling more than a decade) for lying about his drug addiction on an application for a gun permit (for a gun he owned for only 11 days), and Weiss’s role in the resurrection of obviously phony allegation that we were paid $10M by Zlochevsky, allegations that we now know came from a Russian double agent. I wish my DoJ had responded to the immense political pressures on Special Counsel Weiss and others likely were prejudicing Hunter’s prosecution, because I don’t think presidents (even ones wIth law degrees) should be forced to make such legal decisions in politically-charge about cases they can’t know everything about them.

    Then Joe could have finished by noting two things that have changed since he first ruled out a pardon for Hunter. First, we have elected a President who is clearly out for revenge for his own legal problems. Only two of those cases, were brought by the DoJ under my administration: The attempts to steal the 2020 election that led to the J6 attack on our Capitol and the classified documents he stole from the Federal Government, refused to return, and were found at Mar-a-Lago. By nominating the unqualified Gaetz and Patel, Trump has made it clear that he intends to lead an unprincipled Inquisition that will include Hunter as a target. He has said so many times. (In his book about his experiences in the Trump administration, AG Barr wrote that Kash Patel would become Director of the FBI “over his dead body”.) Second, as a father and member of the Biden family, we fear that the continuing partisan pressure on Hunter could cause a relapse of his drug addiction. We lost our strongest (and scariest) weapon against that possibility, a legal agreement that would automatically have sent Hunter to prison if he relapsed, when Mr. Weiss withdrew a poorly drafted plea agreement after an explosion of partisan publicity.

    Reply

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