Law & the Courts

The Sinister Plot That Wasn’t: About That Hunter Biden Report

Hunter Biden attends his father Joe Biden’s inauguration as the 46th President of the United States on the West Front of the U.S. Capitol in Washington, D.C., January 20, 2021. (Jonathan Ernst/Pool/Reuters)
It would have been misconduct for the Justice Department to politicize the 2020 investigation.

Has everyone noticed that it’s mid-July? It’s been over eight months since November 3. Over eight months during which Justice Department norms have not even remotely posed any impediment to the taking of public investigative steps — such as issuing subpoenas, executing search warrants, filing indictments, and making arrests — that could have the effect of influencing the outcome of an election. And yet, Hunter Biden, the president’s nettlesome son, has not been charged with a crime.

There has been reporting that his lawyers have been advised that federal prosecutors are investigating potential tax charges. That was old news even when stories about it broke back in December. The fact that there have been liens on various Hunter Biden properties because of tax delinquencies has been known for years (see this report by NR’s Zachary Evans). Still, though an investigation led by the U.S. attorney’s office in Delaware has been ongoing for close to two years (if not longer), no charges have been filed.

I would thus avoid taking too seriously the seething in Trump World over a new Politico report that David Weiss, Delaware’s Trump-appointed U.S. attorney, decided last summer that his investigators should refrain from taking steps that would have drawn attention to their ongoing criminal investigation of Hunter — which Politico’s sources say is focused on possible tax crimes, though that has not been confirmed by government officials. (See our Caroline Downey’s report here.)

Even if Weiss had greenlighted grand-jury subpoenas and search warrants as the Biden–Trump presidential race was heading for the stretch run, there is no reason to believe that Hunter would have been charged at that time. If there had been a case that was close to being ready for indictment last summer, we would have seen an indictment sometime in the last eight-plus months — which includes nearly three months during which the Trump administration still ran the Justice Department.

I hesitate to invoke the so-called 60-day rule, because there isn’t one. As I’ve pointed out, there is, instead, a loose norm that, during the weeks right before an election, the Justice Department should, when practicable, avoid actions that could be perceived as interference in the democratic process. For the most part, the informal guidance is ill-conceived (which is why it’s never been a formal, hard-and-fast rule). It is always wrong for prosecutors to factor in politics when making enforcement decisions: Delaying action that would be taken in an ordinary case is just as wrong as taking rash action that could unfairly suggest guilt. Within reason, the best course is to investigate without worrying about the political calendar and let the chips fall where they may.

When, as in Hunter Biden’s case, an investigation is ongoing but charges have not been brought, the only conceivable abuse of power would be a failure, out of political calculation, to file charges that should have been brought based on the state of the evidence and that would have been brought in an ordinary case. There is no reason to believe that happened in the 60 or so days prior to Election Day. If there had been a readily prosecutable case against Hunter between, say, August and November 2020, then Weiss would have indicted him at some point in the last nine months.

Trump supporters are not really complaining about the failure to file a Hunter Biden indictment (though they’d love to see one). Their complaint is about the Justice Department’s supposed failure to publicize the Hunter Biden investigation in order to boost the Trump campaign in mid to late 2020. But the Justice Department is not supposed to be in the publicity-generating business. Its guidelines do not permit commentary about uncharged persons. That’s why it routinely refuses to confirm or deny the existence of investigations, even when the fact that a probe is under way is obvious.

When we talk about DOJ taking “public” investigative actions, we are not saying that law-enforcement officials are intentionally publicizing their probes. Even when issuing subpoenas or executing search warrants, investigators are still not permitted to engage in media commentary about investigations in which no charges have been publicly filed. When we refer to subpoenas and warrants as “public” investigative steps, we are simply acknowledging that, unavoidably, such measures undermine investigative secrecy.

There is no stopping private citizens (and their lawyers) from telling the press that they’ve received subpoenas or that their premises have been searched. That is why investigators customarily delay using those techniques until they’ve exhausted what can be accomplished under the radar (e.g., by using informants, undercover agents, wiretaps, or public-records checks). But even when “public” investigative measures are employed, the Justice Department must still avoid public commentary. We call it “leaking” when government officials talk to the press about ongoing probes (usually anonymously) because they’re not authorized to do that.

Trump apologists would have something to complain about if the Justice Department had a ripe Hunter Biden case that should have been charged but held off to avoid influencing the election. Their real gripe, however, boils down to this: Prosecutors should have taken actions that might have gotten the media talking about Biden family corruption. That is a specious complaint. It’s also a naïve one: The fact is, it did become publicly known before the election that there was a Hunter Biden investigation. The media-Democrat complex ignored it anyway. The issue here is biased press coverage, not law enforcement.

The Justice Department is not permitted to publicize investigations solely for the political benefit of the party in power. On that score, remember the Democrats’ 2016 complaint. They were furious (and remain livid when the subject comes up) because the Justice Department, through the FBI’s then-director Jim Comey, publicized damning evidence from the Clinton emails investigation yet simultaneously kept the fact of the Trump-Russia investigation under wraps.

To be sure, Democrats have selective memory about this. The Clinton emails caper resulted in a criminal investigation; the existence of such probes is legally deemed sensitive but not classified. It was inescapably public because it was referred to the Justice Department by the U.S. Intelligence Community’s inspector general, the FBI took public investigative steps, Comey was asked about the probe at oversight hearings, and Mrs. Clinton was asked about it by the media. The Trump-Russia “collusion” suspicions resulted in a counterintelligence investigation, and such probes are classified. Furthermore, the collusion bunk was largely a fabrication of the Clinton campaign, and the fact that it was being investigated was publicized by Democratic and intelligence sources — the CIA’s then-director John Brennan briefed it to the Senate’s then–minority leader Harry Reid, who publicized it via a letter to Comey; the Clinton campaign’s chief Trump-Russia fabulist, former British spy Christopher Steele, briefed the investigation to the media, which dutifully identified Steele as an anonymous “intelligence” source in the course of explaining that “U.S. intelligence officials” were investigating; and the Clinton campaign trumpeted these “revelations.”

For present purposes, though, the point is that the Justice Department and FBI properly kept the counterintelligence investigation involving Trump quiet — indeed, unidentified “law enforcement officials” responded to the intelligence leaks by leaking, to the contrary, that the FBI had found no proof of Trump-Russia connections. By contrast, the Trump camp cheered when Comey was fired, in part based on a Justice Department finding that, in the Clinton investigation, he had violated protocols against speaking publicly about an investigation of a person who had not been charged with a crime. They cheered again when this finding was emphatically reaffirmed by DOJ’s inspector general. Moreover, as I explained in a recent column, it is highly likely that Trump would not have been (very narrowly) elected in 2016 if this misconduct had not occurred.

Yet the current Trump complaint is that Justice Department officials failed to broadcast the fact that they were conducting a Hunter Biden investigation. You can’t have it both ways. Publicizing the investigation would have violated ethical and due-process rules that Republicans habitually claim to revere. It would have damaged any chance of ultimate prosecution (if there is a prosecutable case, which remains unclear). And it would not have helped Trump because there’s no reason to believe the media — which was zealously suppressing the New York Post’s reporting about explosive information on Hunter’s computer hard drives — would have given the matter much attention.

I observed in the run-up to the election that the Trump campaign’s problem on this score was its own political malpractice, not a lack of enforcement action by the Justice Department and FBI.

Tax cases can be very complex, especially when the subject has gotten expert legal advice; they take a long time to develop. Corruption cases are hard for prosecutors to make, in part because politicians write the laws under which politically connected people are investigated, and in part because of Supreme Court jurisprudence. If investigations involve foreign streams of payments, the evidence takes a long time to obtain, and often it cannot be acquired because hostile regimes do not cooperate with American investigators (particularly if they are complicit in the corruption being probed).

More to the point, while it is deeply unsavory and should be politically disqualifying, there are many instances in which it is not a crime for family members to cash in on the influence of powerful politicians. There are too many nod-and-wink ways to pull it off without running afoul of the penal laws. Recall, furthermore, that Joe Biden was not in political office (though he was obviously preparing to run for president) when some of the worst Biden family influence-peddling occurred (albeit not all of it — Hunter taxied on Air Force 2 to cut some of his lucrative foreign deals, and there is increasing evidence that Joe Biden, while vice president, had meetings with several of Hunter’s business collaborators).

The argument Trump needed to make in the 2020 campaign was a simple political one: It seems that whenever President Obama gave Vice President Biden a point-man role in steering U.S. foreign policy respecting some problematic regime — e.g., Ukraine, China, or Russia — people tied to the regime suddenly decided it was in their interest to pay Hunter Biden goo-gobs of money. That is fetid political corruption, regardless of whether it is legally actionable corruption. By bleating over the purported failure of the Justice Department to make arrests, rather than relentlessly making the straightforward argument that Biden monetized his political influence, Trump and his campaign shot themselves in the foot — making it seem as though the Bidens’ patent self-dealing should be deemed insignificant unless someone got indicted over it.

In any event, as Politico’s aforementioned profile of U.S. attorney David Weiss explains, he is a Trump appointee. Concededly, it is unlikely he would have been appointed absent the concurrence of the state’s two U.S. senators, Democrats Tom Carper and Chris Coons, who are close to President Biden. That, however, is typical appointment politics; it doesn’t make Weiss a Democrat or a closet Biden supporter. To the contrary, Weiss was a high-ranking federal prosecutor in Delaware during the Bush 43 administration, and he has a long history of investigating operatives of both major parties for political corruption. This includes a probe of Joe Biden’s 2008 presidential campaign, in which a Biden bundler was convicted.

If there were a sinister plot to shield Hunter Biden from prosecution, Weiss could simply have shut down the investigation. Instead, press reporting indicates that the investigation is proceeding, and that Hunter’s lawyers were advised earlier this year that he could be charged. The matter bears close attention for obvious reasons. But there is no reason to believe that there was a ripe, prosecutable case against Hunter Biden in 2020 that was suppressed by the Trump Justice Department and the Trump-appointed U.S. attorney who was running the investigation.


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