Below is my column in The Messenger on what I called Biden’s “break-the-glass” option after the disaster in Delaware. After the column ran, Fox News asked White House Spokesperson Karine Jean-Pierre about the possibility of a pardon. Jean-Pierre cut him off and responded unequivocally “no.” I hope that proves to be true but it would have been more assuring to come from someone who did not clearly misrepresent the President’s earlier denial just a day earlier and change his long-standing position. The President previously denied a series of facts that have been proven, including the fact that his son did make money in China and President Biden did have knowledge of (and interact with) his son’s business dealings. The real question is whether the fix in this case will fail and leave the President with the pardon option behind the glass.
Here is the column:
The collapse of the Hunter Biden plea bargain has left many in Washington shocked. After all, this is a city that knows how to fix a fight. After five years, the Biden corruption scandal was supposed to die with a vacuous plea bargain and no jail time. Most everyone was in on the fix, from members of Congress to the media to the prosecutors. The problem was the one notable omission: Judge Maryellen Noreika of the U.S. District Court for the District of Delaware.
The sentencing hearing was a moment that made the Hindenburg disaster look like a seamless landing. Noreika asked a basic question on the implications of the agreement, and the entire deal immediately collapsed.
Now the Justice Department is in a bind. It could not admit in the hearing that Hunter Biden could escape future liability for a host of uncharged crimes. Yet, when a defendant backs out of a generous plea deal, federal prosecutors ordinarily will pursue all of the available charges — and jail time.
While President Joe Biden once declared, in more colorful terms, that no one messes with a Biden, the Justice Department may now find it has no choice. It could be forced to actually treat Hunter like an ordinary citizen.
The debacle in Delaware still could result in a plea deal. The parties have a month to “work things out,” and most judges sign off on deals, given the discretion afforded to the executive branch on criminal charging decisions. They just need to be clear about the terms, and clarity is something neither side seemed eager to establish publicly during Wednesday’s hearing. However, an agreement would require prosecutors either to fight to preserve a sweetheart deal — one without additional future charges — or to proceed, as they would in most cases, with a full prosecution.
That would include obvious potential charges under the Foreign Agents Registration Act (FARA). Noreika forced the Justice Department to admit that it still could charge Biden as an unregistered foreign agent. That was the charge used against onetime Trump campaign chairman Paul Manafort and the similarities between the cases are striking. It took little time for the Justice Department to use the charge against Manafort. Yet, in the Hunter Biden investigation, five years have passed, and the Justice Department seemed mired in doubt over applying the same standard to the president’s son.
A FARA charge could further expose Hunter’s alleged influence-peddling operations, with what House GOP investigators say were millions in foreign payments from a virtual rogue’s gallery of foreign officials. The Justice Department also would face pressure to seek the same long jail sentence given to Manafort; he was sentenced to 73 months of imprisonment, which included the statutory maximum 60 months for a conspiracy to violate FARA. (That same year, political consultant W. Samuel Patten pleaded guilty to lobbying and consulting on behalf of the Opposition Bloc, a Ukrainian political party, and received 36 months of probation.)
That is not even including potential felony charges for the original gun violation, money laundering, or other crimes. If the Justice Department were to show the same aggressive effort toward Hunter Biden that was shown to figures like Manafort, Hunter could be looking at a real possibility of years in jail.
There is, however, the ultimate “break-the-glass” option that I raised previously if the Bidens and their supporters could not rig the process: Joe Biden could pardon his son and then announce that he will not run for reelection.
Facing an impeachment inquiry, low public support, and a son in the legal dock, Biden could use the case to close out his political career. Of course, a pardon would be what I consider another abuse of the pardon power for personal benefit. President Bill Clinton waited until the end of his second term to pardon his half-brother. Biden could do the same by acknowledging that the pardoning of his son is a form of raw self-dealing. However, as he has said throughout the scandal, he loves his son and blames his crimes on his struggle with addiction and grieving.
With that, Biden could bow out of the election without admitting (as many on both sides are saying) that old age has taken its toll on his mental and physical capacity. He would end his political career with an act as a father, which some would condemn but most would understand. That would clear the way for a new generation of Democratic candidates who would have a better chance of defeating Donald Trump or another Republican presidential candidate.
President Biden could even give Hunter a preemptive or prospective pardon. That would effectively end any federal investigation, although the pardon would need to cover the waterfront of possible charges. By resigning and becoming a lame-duck president, Biden also would undermine congressional Republicans’ impeachment calls. And it would allow his own allies to declare the scandal over, with Biden taking responsibility by giving up a second term in office.
Of course, there is no guarantee that the congressional investigation would end. Even if such a move dampened the demand for an impeachment inquiry, it would not likely stop Republicans from pursuing answers about the official handling of this investigation and claims of political interference.
Yet, any damage would be contained by Biden offering himself up as a sin-eater for his family. Democratic candidates would not likely face backlash for their opposition to investigating the scandal; their chances of retaking the House could be substantially increased. Likewise, the media would not have to face the mounting evidence that it has steadfastly ignored for years.
The pardon-and-apology approach might appeal to Biden not only as an effort to convert vice into virtue but to justify his withdrawal from the election as a selfless act.
Everyone in Washington would win — except, of course, the public: The Bidens would keep alleged millions in influence-peddling profits; Hunter would not even have to pay his full taxes; members of Congress and the media could avoid taking responsibility for burying the reports of corruption.
That is what is called a “happy ending” in Washington.
Jonathan Turley, an attorney, constitutional law scholar and legal analyst, is the Shapiro Chair for Public Interest Law at The George Washington University Law School.