Forget judicial activism. This is some serious judicial onanism.
The post CA Judge Engages In Public Rage Wank Over Hunter Biden Pardon appeared first on Above the Law.
Hunter Biden got pardoned, and Judge Mark Scarsi is big mad about it.
In the Delaware gun indictment, Judge Maryellen Norieka terminated the case via minute order, while maintaining relative judicial modesty. In contrast, Judge Scarsi, the Trump appointee overseeing the tax case in California, engaged in what can only be described as an act of judicial onanism on the public docket.
“Rather than providing a true and correct copy of the pardon with the notice, Mr. Biden provided a hyperlink to a White House press release presenting a statement by the President regarding the pardon and the purported text of the pardon,” he breathed heavily, adding that “The President’s statement illustrates the reasons for the Court’s disapproval, as representations contained therein stand in tension with the case record.”
If Abbe Lowell had just docketed the pardon itself, certified and in triplicate, Judge Scarsi wouldn’t have been forced to yell at the sitting president. So if you think about it, the defendant was really asking for it!
Judge Scarsi takes great umbrage at the suggestion that this prosecution was politically motivated — something he and Judge Norieka both insisted was impossible with President Biden in charge of the Justice Department. As independent journalist Marcy Wheeler notes, this required wholesale contortion of the record by Scarsi. It also confuses the almost insuperable standard to prove vindictive prosecution with the colloquial and obviously true statement that politics affected this process, which began when Bill Barr tapped David Weiss to investigate Joe Biden and his son and was the subject of sustained pressure by Trump himself and his congressional allies.
Indeed, when the plea deal blew up last summer, the GOP was perfectly willing to take credit for it.
But Judge Scarsi wasn’t excited about any of that.
“The Constitution provides the President with broad authority to grant reprieves and pardons for offenses against the United States, U.S. Const. art. II, § 2, cl. 1, but nowhere does the Constitution give the President the authority to rewrite history,” he huffed, as if the president’s ability to say any fool thing he likes in a signing statement is somehow up for judicial consideration.
The court then spent several paragraphs performatively wanking over the fact that the pardon was issued on December 1, for all crimes through December 1, when there were still several hours left in the day. Did this make it a prospective pardon, thus invalidating the entire exercise? Sadly, no.
“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,” Judge Scarsi sighed, wiping his hands on his robe. “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.”
Of course, the canon of constitutional avoidance generally leads judges to abstain from opining on issues which are not before them, and no party here challenged the sufficiency of the pardon. But apparently Judge Scarsi could not restrain himself against the powerful urge to spread his seed all over the federal docket.
Having had its way with the defendant one last time, the court zipped back up its judicial breeches, agreed to dismiss the case once a verified copy of the pardon is docketed, and wandered off for a cigarette in the chambers lav.
US v. Biden [Delaware Docket via Court Listener]US v. Biden [California Docket via Court Listener]
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.
