Judge Scarsi writes an amusingly nitpicky order acknowledging Joe Biden's pardon of his son Hunter. He spends 34 lines weighing whether the pardon, signed 12/1 for conduct "through" 12/1, presents a legal problem for however many hours remained in that day. storage.courtlistener.com/recap/gov.us...
![The clemency warrant pardons Mr. Biden “[f]or those offenses against the United
States which he has committed or may have committed or taken part in during the period
from January 1, 2014 through December 1, 2024,” including the charges prosecuted in
this case. (Reply Ex. A (emphasis added).) The President signed the pardon on
December 1, 2024. (Id.) Because the period of pardoned conduct extends “through” the
date of execution, the warrant may be read to apply prospectively to conduct that had
not yet occurred at the time of its execution, exceeding the scope of the pardon power.
Under the canon of constitutional avoidance, the Court declines to interpret the warrant
in that manner and instead understands the warrant to pardon conduct through the time
of execution on December 1. Clark v. Suarez Martinez, 543 U.S. 371, 380–81 (2005)
(“[W]hen deciding which of two plausible statutory constructions to adopt, a court must
consider the necessary consequences of its choice. If one of them would raise a](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:qrllvid7s54k4hnwtqxwetrf/bafkreiaozy2c2gdlvuheda2rdp43hfqt75o6p4pm2mkc74f5jij4xsnxfq)
![multitude of constitutional problems, the other should prevail—whether or not those
constitutional problems pertain to the particular litigant before the Court.”); see United
States v. Davis, 588 U.S. 445, 494–95 (2019) (Kavanaugh, J., dissenting) (collecting
cases for the proposition “that courts should construe ambiguous laws to be consistent
with the Constitution”); see also Ex parte Endo, 323 U.S. 283, 298 (1944) (construing
executive order “as we would approach the construction of legislation”); but see FCC
v. Fox TV Stations, Inc., 556 U.S. 502, 516 (2009) (“We know of no precedent for
applying [the canon of constitutional avoidance] to limit the scope of authorized
executive action.”); City & County of San Francisco v. Trump, 897 F.3d 1225, 1238
(9th Cir. 2018) (“In contrast to the many established principles for interpreting
legislation, there appear to be few such principles to apply in interpreting executive
orders.”).
To the extent the pardon encompasses prospective conduct, the Court deems the
prospective component of the pardon severable from the component that demands the
termination of this proceeding. See Minnesota v. Mille Lacs Band of Chippewa Indians,
526 U.S. 172, 191 (1999) (“Because no party before this Court challenges the
applicability of these standards, for purposes of this case we shall assume, arguendo,
that the severability standard for statutes also applies to Executive Orders.”). The
warrant explicitly brings the charges in this action within the ambit of the pardon,
indicating presidential intent for the pardon to apply to this case even if it is
unconstitutional in other respects. See id. at 191–92 (discussing whether the president
intended an order “to stand or fall as a whole”).
IT IS SO ORDERED.
Dated: December 3, 2024
MARK C. SCARSI
UNITED STATES DISTRICT JUDGE](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:qrllvid7s54k4hnwtqxwetrf/bafkreigzrt7onmpwg6b4365w5anju6egaf5baqtq63acd3tynci74es7vy)
