(NewsNation) —Hunter Biden’s pardon by Joe Biden has sparked questions on whether the president’s son can assert his Fifth Amendment rights against self-incrimination if ever forced to testify against his father in future investigations.
Many who want to see Biden investigated believe since Hunter can’t be charged federally with any crime committed between 2014 and 2024 under Biden’s pardon, he is now fair game in criminal investigations of other Biden family members.
“Does this mean Hunter Biden just lost his 5th amendment right to refuse to testify on actions from 2014-2024? Asking for a friend,” far-right conspiracy theorist Jack Posobiec wrote on X.
In his clemency announcement, the president called his son’s treatment a “miscarriage of justice” and pointed to political motivation behind federal felony gun and tax convictions of his son.
The president’s sweeping pardon covers not just the gun and tax offenses against the younger Biden, but also any other “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.”
Hunter Biden filed a court declaration accepting the pardon just hours after the president’s announcement.
Does Hunter Biden still have Fifth Amendment rights?
Hunter Biden still has his Fifth Amendment rights against self-incrimination when it comes to any state charges or potential future charges that don’t fall under the purview of Joe Biden’s pardon, trial attorney John Fishwick told NewsNation.
However, since he is essentially immune from any charges during a ten-year period, he no longer needs to assert his Fifth Amendment rights and that opens the door for him to be called upon in investigations of others including his father, he said.
So he doesn’t “lose” his rights, they just no longer apply, Fishwick said calling the situation “uncharted territory.”
The Fifth Amendment protects individuals from self-incrimination, which is the act of providing information that could be used against them in a criminal case.
Under a pardon, an individual can no longer be criminally prosecuted for anything covered under it.
Could Hunter Biden be compelled to testify against Joe Biden?
Hunter Biden can be compelled to testify against his father because he is no longer at risk of criminal prosecution under federal law, Fishwick said.
“The pardon that his father gave him is incredibly broad, which would cover everything so there’s a strong argument that he could be compelled to testify because he cannot incriminate himself,” he said.
If Congress or the Department of Justice conducts any internal investigation of Joe Biden, his son can be called to testify and he will have to, he said.
However, his legal team will fight vigorously against him having to testify and could say he isn’t compelled to testify because of potential future charges or because he needs to assert his Fifth Amendment rights under state charges that could still come about from him testifying, he said.
“His lawyers are going to look for creative ways to prevent him from testifying, and that would be a good way to try to stop it,” he said. “Whether that wins or not remains to be seen, but they will be all in to prevent him from testifying.”