Ed Martin, the ardent Trump loyalist serving as interim U.S. attorney in Washington, is pursuing an inquiry into whether former President Joseph R. Biden Jr. was competent to pardon his family members and others during his final days in office.
The inquiry, which includes previously unreported letters to Mr. Biden’s family and former White House staff members, uses the levers of federal law enforcement to try to harass Mr. Biden’s family and allies and undermine his decisions as president, while scoring political points with President Trump.
Mr. Trump and his supporters have increasingly seized on the unsubstantiated theory that the pardons Mr. Biden issued during his final months in office may be invalid because he lacked the mental capacity to consent to them.
In an apparent effort to build the case, Mr. Martin began sending letters two months ago to Mr. Biden’s White House aides, including Jeffrey D. Zients, the former chief of staff, as well as recipients of Mr. Biden’s pardons, such as his brother James Biden and sister-in-law Sara Biden, according to three people familiar with the effort who were not authorized to discuss it publicly, and a copy of a letter obtained by The New York Times.
The letters, signed by Mr. Martin, are informal but provocative, questioning a presidential clemency power that has generally gone unchallenged. They highlight Mr. Martin’s hands-on approach and willingness to use one of the most important U.S. attorneys’ offices in the country to seek retribution against Mr. Trump’s perceived enemies.
A former Biden White House official said that Mr. Biden “made the decisions about the pardons he issued. Any suggestion to the contrary is false and absurd.”
The White House did not respond to a request for comment. A spokesman for Mr. Martin’s office declined to comment.
The letters are voluntary requests, not subpoenas. But a person briefed on the effort said that Mr. Martin may move into a more formal investigation, depending on what he finds.
Clemency experts largely dismissed the substance of the inquiry, questioning whether any judge would allow the prosecution of Biden pardon recipients on the grounds that their clemency grants were invalid.
Frank O. Bowman III, a professor at the University of Missouri School of Law who has studied the history of pardons, said Mr. Martin’s effort appeared intended “to get around the obvious effect of these pardons, and try to at a minimum cause fear and inconvenience for the people covered by the Biden pardons.”
The pardon inquiry fits a pattern for Mr. Martin, a veteran Missouri Republican operative who had not served as a prosecutor before being chosen by Mr. Trump for one of the most prestigious posts in federal law enforcement.
Mr. Martin has sent letters to Democratic officials and other perceived Trump opponents, suggesting wrongdoing in other areas unrelated to pardons.
The letters are less detailed than those typically sent by federal prosecutors, and are framed as efforts to gather information based on questions raised by unidentified third parties. But they hint at possible official action against the recipients or others.
In one letter, Mr. Martin suggested that comments Representative Robert Garcia, a California Democrat, made during a television interview about bringing “actual weapons to this bar fight” could amount to a prosecutable threat against Mr. Trump’s allies.
In another case, Mr. Martin sought to present evidence to a federal grand jury about a comment Senator Chuck Schumer of New York, the Democratic minority leader, made about conservative Supreme Court justices who he said would “pay the price” for supporting state restrictions on abortion. Mr. Martin had written Mr. Schumer a letter similar to the one he wrote to Mr. Garcia.
There are no signs that either inquiry has advanced.
The letters to Mr. Garcia and Mr. Schumer were among the actions cited by Senate Democrats in a request they filed last month with the group that governs the legal bar in the District of Columbia. Lawmakers called for investigating Mr. Martin for having “abused his position.”
Mr. Trump signaled support for Mr. Martin in February, nominating him to lead the office permanently and praising him on social media for “doing a great job as Interim U.S. Attorney, fighting tirelessly to restore Law and Order.”
Mr. Trump has claimed without evidence that Biden aides secretly made decisions without Mr. Biden’s knowledge by applying his signature to directives using a mechanical contraption known as an autopen. (The autopen has also been used by Mr. Trump and other presidents.)
Mr. Trump told reporters aboard Air Force One last month that it would “be up to a court, but I would say that they’re null and void, because I’m sure Biden didn’t have any idea that it was taking place, and somebody was using an autopen to sign off and to give pardons.” The next day, Mr. Trump said on social media that the pardons were “void, vacant and of no further effect.”
Mr. Martin’s pardon-related inquiries started weeks earlier.
Letters to James and Sara Biden mentioned their pardons in the context of questioning their compliance with foreign lobbying laws — an apparent reference to James Biden’s involvement in the foreign business dealings of Hunter Biden, the former president’s son.
James Biden hung up when a reporter for The Times called to ask about the letters.
Paul J. Fishman, a lawyer for James and Sara Biden, sent a letter to Mr. Martin questioning the basis for the inquiry.
In a February letter to Mr. Zients obtained by The Times, Mr. Martin wrote that he had been asked “about the competence of former President Joe Biden in issuing so many pardons across so many fields,” and asserted that his office was “in contact with some of the recipients of the pardons who expressed some concern about them.”
The letter asked Mr. Zients if he had “specific support for the position that President Biden was competent to make these decisions,” and whether it was his “understanding that the former president was aware of the breadth of the pardons and the unprecedented pre-emptive nature of many of them.”
Mr. Zients, who served as White House chief of staff during the final two years of the Biden administration, did not respond to the letter, according to a person familiar with the matter. He did not respond to requests for comment from The Times.
Clemency experts have raised concerns about the broad and pre-emptive nature of some of Mr. Biden’s late pardons, including of his son Hunter. While Hunter Biden had been convicted of gun and tax crimes, his pardon covered any crimes he might have committed in the previous 11 years, including foreign lobbying charges that prosecutors did not bring, but for which they hinted they had evidence.
James and Sara Biden had not been charged with any crimes, but they were pardoned — along with other members of the Biden family — to prevent what the former president suggested could be politically motivated prosecutions by the incoming Trump administration.
On the campaign trail last year, Mr. Trump signaled that he had plans to use the Justice Department to “go after” the Biden family.
Mr. Martin’s inquiries are an example of “Trump’s retribution that he promised,” said Representative Bennie G. Thompson, a Democrat from Mississippi who received a pre-emptive pardon from Mr. Biden because of his role as chairman of the committee that investigated the Jan. 6, 2021, attack on the Capitol.
Pardons are “the power that’s vested in the president,” Mr. Thompson said, calling Mr. Trump’s questioning of them “real petty.”
“For his people to feel so obligated to pursue it, it’s just a waste of taxpayers’ resources,” Mr. Thompson added.
Margaret Love, a former U.S. pardon attorney who works in private practice advising petitioners, said in an email that it was “absolutely not sufficient” to prove that Mr. Biden used an autopen, “since this was completely normal in my experience for pardons in the Bush and Clinton administrations.”
Nor would it necessarily be sufficient to prove that Mr. Biden was unaware of the details in any pardon being challenged, Ms. Love said. Mr. Trump most likely did not carefully review the details about each of the nearly 1,600 people he pardoned for convictions related to the Jan. 6 attack on the Capitol by his supporters, she added.
Mr. Bowman, the University of Missouri law professor, said that Mr. Martin’s letters might be cited as justification if the Justice Department was “looking for excuses” to initiate investigations of pardon recipients.
“Do I think it’s going to be effective?” he added. “No, at least when it gets to the courts.”
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