Law & the Courts

Hunter Biden Investigation: Overt and Primed for a Special Counsel

Hunter Biden speaks during the Democratic National Convention in Milwaukee, Wis., August 20, 2020. (DNC/Reuters)
The Justice Department faces unique challenges in conducting an investigation of the incoming president’s son.

It drives me nuts when subject-matter experts lapse into the jargon of their fields, so I’m doubly annoyed when I contribute to this menace. Over the past couple of days, discussing news of Hunter Biden’s announcement that he’s under federal investigation, I casually described criminal probes as being “covert” and “overt” as if everybody knew what that distinction means. There is no reason why they should, so let me explain.

Some investigations involve open and notorious crimes — e.g., a bank robbery, a murder. A measure of investigative secrecy is important in every case, even those involving known crimes: The more details that are public, the harder it is for police to figure out, say, whether a witness knows things because he observed them at the time, as opposed to knowing things because he’s seen media reports; or whether he is telling the truth, as opposed to weaving a story around publicly reported facts. So investigators try to keep details under wraps when they can (e.g., the caliber of the bullets, the make of the getaway car) so they can question suspects and witnesses effectively. Nevertheless, those are still overt investigations in the sense that it is common knowledge, including to the perps, that a crime happened and law enforcement is investigating.

Other investigations involve crimes, or suspected crimes, that are not known to the public. Moreover, even if the suspects have some inkling that they are under investigation, they may not know for certain. Or, in an organized-crime situation, they know the police are always poking around, but they don’t know how the police are doing it or what specific crimes are being homed in on. Those investigations are covert because investigators are trying to keep from the suspects not just the details but the fact of the investigation. The usual tactics are physical surveillance, undercover agents and confidential informants, wiretapping, pen-registers (which allow agents to see which numbers are being called from the suspects’ phones), secret sneak-and-peek search warrants (which permit the agents to snoop around and take pictures), etc.

There is a point in time when covert investigations go overt. There can be many reasons for this. The case may be ripe for prosecution. Or even if it isn’t as ripe as the investigators would like, they’ve reached a point where they need to interview witnesses and subpoena documents to complete the probe, and doing that unavoidably reveals that an investigation is ongoing. Police may find out that suspects are about to flee, so they suddenly have to make arrests — which requires a public explanation of the probable cause. In a violent-crime case, investigators may learn a murder or other kind of attack is being plotted and may have to make arrests to prevent that from happening.

Or … maybe you suddenly find that your primary suspect is the son of the president-elect, who is going to be taking office (which includes running the Justice Department through his own appointees) in about six weeks.

We do not know how long Hunter Biden has been under investigation, but he obviously has been. National Review’s reporters are on the beat: Tobias Hoonhout has a comprehensive report on the state of play, and Zachary Evans reported Wednesday that liens were placed on Hunter’s property due to alleged non-payment of taxes, notwithstanding the millions of dollars he’s made cashing in on his father’s political influence. (The liens, one by the District of Columbia and one by the IRS, are apparently no longer operative.)

I’d note that, in 2018, two of Hunter’s former business partners were convicted of a $60 million fraud in the Southern District of New York, a federal prosecution in which the partnership he founded was deeply implicated and his name came up in the proof (though he was not charged and has denied involvement). It was widely reported that the Delaware U.S. attorney used a grand-jury subpoena to compel production of Hunter’s infamous laptops some months ago. (Prosecutors do not use grand-jury subpoenas unless there is a criminal investigation.) The data from those laptops, in conjunction with other information that has come to light, revealed highly lucrative, highly suspicious streams of income from China, Ukraine, and Russia. I did a long analysis of the China dealings in late October. One participant in those dealings, Tony Bobulinski, has reported voluntarily submitting to an hours-long FBI interview. In September, senators Ron Johnson (R., Wis.) and Chuck Grassley (R., Iowa) published a very disturbing report in their conflicts-of-interest investigation of business dealings by Hunter and his associates while his father was vice president and steering Obama foreign policy in the countries that were big sources of Hunter’s income.

Much of what the Justice Department and its investigative agencies were doing was covert. In part, this was no doubt because DOJ did not want to be accused of trying to influence the election. Now that the election is over, the investigation (there may be more than one) is more overt, but as Tobias details, the full scope has not been revealed. On that score, I would put zero stock in Hunter’s public statement yesterday that the probe is limited to tax issues from 2018. He may not know the full scope of the investigation, he and the Biden presidential transition have obvious motives to minimize it, and referring to 2018 tax issues is a good way to do that because those matters are already public.

There are unique challenges for the Justice Department in conducting an investigation of the incoming president’s son, which involves some suspicious business activities to which Joe Biden has been connected — the Burisma business in Ukraine and the alleged 10 percent slice of China payments that Bobulinski says was held for him. Clearly, the concern would be that a Biden Justice Department could bury the probe.

Let’s take it as a given that if there is no substantial evidence of serious criminality, the investigation should be closed. It might be comeuppance, but it would not be justice to keep an essentially empty probe alive and create a cloud around Joe Biden’s presidency for no better reason than that’s what the Obama/Biden administration did to President Trump.

Given the staggering amount of foreign money involved (particularly from hostile regimes in Beijing and Moscow), as well as reports of sordid materials on Hunter’s laptop (coupled with his troubled background), I am assuming there is a serious investigation. If that is the case, it would be sensible for investigators to be more overt now in pursuit of information needed to make a charging decision.

Let’s talk about two plausible scenarios. If there currently is a prosecutable case against Hunter, it’s possible he could be indicted in the coming weeks. On the other hand, if there is a likely criminal case that needs more investigation, charges may not be imminent, but the probe will be continued. That is the tendency when cases involve foreign streams of money, evidence of which is hard to collect; and when there are potential tax counts, investigations of which tend to develop slowly. (In the Justice Department, no matter where the investigation is being run, tax charges have to be approved by Main Justice’s Tax Division.)

In either of those scenarios, it is likely that the current Justice Department would appoint a special counsel. One need not be a fan of that institution (I believe it is a pernicious one that should be avoided when practical) to grasp that the classic situation for a special counsel is when the Justice Department has a profound conflict of interest because (a) there is substantial evidence of wrongdoing, and (b) the case requires investigating the president, those close to him, or other high administration officials. Furthermore, Attorney General Bill Barr has already appointed a special counsel for the Russiagate probe, and the argument for such an appointment is even stronger here, where at issue is an investigation of the incoming president’s son under circumstances where the incoming president’s own conduct is involved.

It’s unclear how covert the Hunter Biden investigation has been for the past two or three years. But it is overt now, and that is most likely because some critical decisions have to be made — quickly.

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