Special Counsel Weiss Files Opposition to Motion to Dismiss Indictment in California Hunter Biden Case

In my post last night, I noted that President Biden’s issuance of the pardon to his son does not exactly end his pending criminal cases. During the first Trump administration, even after Trump pardoned Joe Arpaio, Michael Flynn, and Steve Bannon, those cases continued.

Yesterday, Hunter’s attorney filed a motion to dismiss the indictment.

Defendant Robert Hunter Biden respectfully provides notice of a Full and Unconditional Pardon that requires dismissal of the Indictment against him (D.E. 1) with prejudice and adjournment of all future proceedings in this matter. . . . The President’s pardon moots Mr. Biden’s pending and yet to occur sentencing and entry of judgment in this case and requires an automatic dismissal of the Indictment with prejudice

Today, Special Counsel David Weiss has filed an opposition to the motion to dismiss. Something tells me that these briefs were drafted some time ago, in anticipation of a potential Biden pardon. Here is the introduction of Weiss’s motion:

On December 1, 2024, media outlets reported that the President had issued a pardon for the defendant. Shortly thereafter, defense counsel filed “Defendant’s Notice of Pardon.” The defendant did not attach the pardon to its filing and the government has not received a copy of it. In that filing, defense counsel asserted, without any legal support that, “a Full and Unconditional Pardon [] requires dismissal of the Indictment against him,” and further that the pardon “requires an automatic dismissal of the Indictment with prejudice.” Notice at 1. Defense counsel misrepresents the law. Nothing requires the dismissal of the indictment in this case.

The issues here are very murky, and have been debated for some time. Some scholars view a pardon as effectively wiping out the conviction, as if it never occurred. Other scholars view the pardon as simply denying any consequences that flow from the conviction, yet the conviction remains intact. The ruling in the Arpaio case leans towards the latter position. Hunter favors the former view.

A pardon is surely binding on the executive branch, but is it binding on the courts? Is a pardon the Supreme Court of the Land, in the same sense that a statute or ratified treaty is? Even if the conviction is vacated, could a state charge Hunter with a crime like “felon in possession,” or use the federal conviction as the predicate offense for a state RICO charge? There are lots of questions I have been mulling over all day.

It is just about 5:00 pm, and Merrick Garland still has not stepped down. Does Biden now move to have David Weiss removed to protect his son? I hope Garland has that resignation letter ready.

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