Hunter Biden's pardon gives Trump the green light on freeing some Jan. 6 defendants

President Joe Biden’s pardon of his son Hunter appears to have given President-elect Donald Trump a pretext to follow through on his own pledges to pardon myriad Jan. 6 defendants and to pursue a rigorous overhaul of the Department of Justice.

Despite repeated denials from the White House that he would do so, Biden announced his son’s pardon on Sunday evening, saying he had been unfairly prosecuted and that he believed the DOJ had singled out his son.

“From the day I took office, I said I would not interfere with the Justice Department’s decision-making, and I kept my word even as I have watched my son being selectively, and unfairly, prosecuted,” he said.

The development stunned Democrats, many of whom had adamantly insisted that Biden would not pardon his son and that “no one is above the law” when defending the DOJ prosecutions of Trump. Republicans, however, were not so shocked and some have already suggested that the outgoing commander-in-chief set a precedent for his successor.

“No one in the media better complain when J6ers get their pardons now,” said Turning Point USA founder Charlie Kirk. 

Trump himself linked the DOJ’s handling of Jan. 6 defendants to the Hunter Biden case, asking “[d]oes the Pardon given by Joe to Hunter include the J-6 Hostages, who have now been imprisoned for years? Such an abuse and miscarriage of Justice!”

His comments followed headlines opining on Trump’s relative silence on the prospect of Jan. 6 pardons. Politico, on Saturday, ran a headline that read “Trump promised Jan. 6 pardons. His post-election silence is making loyalists nervous.”

To be sure, Trump has already indicated he would pardon at least some defendants and the Hunter Biden pardon is more likely to serve as a political cover rather than an impetus for a previously unplanned effort.

Trump press secretary-designate Karoline Leavitt previously said in a statement that “[p]resident Trump will make pardon decisions on a case-by-case basis,” leaving the prospective scope of executive pardons vague. More than 1,500 people have faced charges in connection with the disturbance at the Capitol.

The Supreme Court gives Trump a starting point

Potentially giving Trump an easy avenue to address a large number of pardons is a recent Supreme Court decision limiting the application of a charge that the DOJ used extensively in its prosecutions over the incident.

The nation’s top court in June issued a landmark ruling on the DOJ’s use of obstruction charges to pursue Jan. 6 defendants. Trump himself faced the charge of “obstruction of an official proceeding” in special counsel Jack Smith’s now-defunct election case.

The justices found that the DOJ could apply the charge to those defendants whom they could prove had actually attempted to stop the transmission of electoral college vote certificates and interfere with the process. 

The decision greatly reduced the number of participants in the incident that were eligible to face the charge and, in September, Thomas Robertson became the first defendant to receive a reduced sentence in light of the ruling.

A federal judge in November granted a reduced sentence to Marc Bru, a member of the Proud Boys, dropping one year from his prison time stemming from the obstruction charge. He received a five-year sentence in that instance stemming from other charges.

Courts are waiting for executive action

Trump’s prior pledges to pardon defendants have triggered a wave of requests to delay or otherwise halt proceedings in myriad Jan. 6 cases. Such efforts have met with mixed reactions from the courts, however.

Jan. 6 defendant Jake Lang successfully secured a delay in his case last month, arguing that there was a “high likelihood of a Presidential Pardon or dismissal of the charges by the incoming administration,” according to The New York Post. Lang has spent more time in custody while awaiting trial than any other Jan. 6 defendant.

U.S. District Judge Carl Nichols, the Trump-appointed judge who granted the delay, opined that “[b]lanket pardons for all Jan. 6 defendants or anything close would be beyond frustrating and disappointing, but that’s not my call,” MSNBC reported. Other defendants have made similar pitches to that of Lang, pointing to Trump’s campaign statements and prior exercise of his pardon powers during his term.

"History has shown that President Donald Trump is not shy when it comes to exercising his pardon powers and there is clearly no reason to believe he won't do as he says,” attorneys for defendant Terry Allen argued in a motion.

Some judges have been less willing to accommodate the delay requests, however. U.S. District Judge Beryl Howell, in early November, rejected a bid from defendants Christopher Carnell and David Bowman to delay their cases in light of “multiple clemency promises,” HuffPost reported at the time.

High-profile figures might be eligible

Trump’s prior pardon statements have generally focused on non-violent offenders, but there were plenty of participants who faced charges for violent conduct. The Trump team’s consideration of pardons on an individual basis seems to make it less likely that such persons could receive them. Some of the event’s most prominent participants, however, could be eligible, though he has not committed to pardoning specific individuals.

Adam Johnson aka the “Podium Guy”, for instance, pleaded guilty to entering and remaining in a restricted building. Johnson went viral for a photograph in which he smiled while carrying then-House Speaker Nancy Pelosi’s podium. He received a 75-day sentence and a $5,000 fine in 2022.

Jacob Chansley aka the “QAnon Shaman” was easily the disturbance’s most iconic figure, charging through the Capitol building shirtless while wearing a horned helmet. Chansley pleaded guilty to obstruction of an official proceeding and received a 41-month sentence in November 2021. He secured release in March of 2023.