Hunter Biden pardon raises new questions over 5th Amendment ‘loophole’

President Joe Biden’s sweeping pardon of his son, Hunter Biden, touched off a flurry of fresh legal speculation Tuesday over how, or if, the younger Biden can move to assert his Fifth Amendment privileges that protect against self-incrimination — and how the broad immunity granted to Hunter could be twisted against him.

While Hunter Biden is indeed shielded against prosecution for any federal offenses he ‘committed or may have committed’ between Jan. 1, 2014, through Dec. 1, 2024, those around him are not — which means that Hunter Biden could theoretically be called on to testify in any potential cases brought against family members or others in his inner circle.

In these cases, Hunter Biden’s pardon could actually limit his ability to assert Fifth Amendment privileges, since he is no longer at risk of facing criminal charges.

However, the pardon applies only to federal crimes, not state crimes, and it remains unclear how, or if, Republicans could move to act on this possible loophole in the weeks and months ahead. 

Still, the question of Fifth Amendment protections does have outsize importance as Republicans prepare to regain the majority in both chambers of Congress in January, ramping up the possibility of potential GOP-led investigations into the outgoing president. 

In an interview Monday night on Newsmax, House Oversight Committee Chairman James Comer said he plans to discuss the issue of Hunter Biden’s Fifth Amendment privileges with Trump’s nominee for attorney general, Pam Bondi.

‘I look forward to talking to attorney general Bondi about this,’ the Kentucky Republican said.

‘We still have information that we’ve requested that we never received,’ Comer said, adding that in his view, the White House ‘is still to this day obstructing rightful evidence that we should have obtained.’

Any investigations into Biden’s family after he leaves office would likely be criticized by Democrats as both futile and a waste of taxpayer money, given the nature of earlier investigations, Hunter’s own pardon and Biden’s own lame-duck status.

Comer’s office did not respond to a question from Fox News Digital on whether the House Oversight Committee is planning to investigate Biden’s action in the next congressional session, or their views on Hunter’s ability to plead the Fifth.

But the questions about this potential loophole come just days after President Joe Biden announced the sweeping clemency grant for his only surviving son. 

Earlier Tuesday, the federal judge overseeing Hunter Biden’s gun case in Delaware announced the termination of further court proceedings, including a planned sentencing date in December. Earlier this year, a Delaware jury found Hunter guilty on all three federal felony firearm charges brought against him.

In terminating the proceedings, U.S. District Judge Maryellen Noreika stopped short of dismissing the case outright, as requested by Hunter Biden’s legal team. 

In September, Hunter Biden pleaded guilty to separate federal charges of tax evasion in California, which the pardon also covers. 

The judge in that case, Judge Mark Scarsi, has not yet announced whether he will terminate the proceedings against Hunter or dismiss the case in full.