Applying the Clarence Thomas Family Standard to the Biden Family

D o we have one set of ethical rules, or two? Let us compare Supreme Court justice Clarence Thomas and President Joe Biden.

One of the major “ethics” claims made against Thomas is that billionaire Harlan Crow didn’t just take Justice Thomas on joint vacations — he also provided financial favors to Thomas’s family members. These included buying and restoring the home of the justice’s elderly mother (while allowing her to live there) and paying a year’s worth of private-school tuition for Thomas’s grandnephew, whom Thomas had taken custody of and was raising as a son.

While the claims over these favors are all overblown, that hasn’t stopped progressive and liberal critics from hyperventilating. Alliance for Justice complained that “Crow was paying for the house Thomas’s mother lived in and the schooling for his son.” Eric Lutz at Vanity Fair claimed that the tuition payment shows that “what’s actually unseemly is Thomas’s egregious disregard for ethics.” Liberal ethics-watchdog Richard Painter told ProPublica, “This is way outside the norm. This is way in excess of anything I’ve seen.”

Even if you think Thomas broke no rules, and you see no problem with Thomas receiving favors from a wealthy and like-minded friend who admires him, there is no question that favors to close family members of Thomas are favors to Thomas. Most fair-minded observers would agree — and none of the justice’s defenders have contested — that Thomas has a resulting obligation to recuse himself from cases before the Court that involve Harlan Crow. It’s at that stage — identifying a conflict of interest — that the critics have come up empty. The most they could find after exhaustive digging was a case the Court turned away, involving a business in which one of Crow’s businesses owned a minority stake, and in which the standard federal court rules of corporate disclosure would not have alerted Thomas to a potential conflict.

Now, what if we applied the same recusal reasoning to Joe Biden?

Shady foreign interests have showered millions of dollars in cash and goods on Biden’s family. Since Biden became vice president in 2009, over $10 million has flowed to his son, brother, and seven other family members from foreign nationals and businesses. Those payments were frequently routed through a web of shell companies in an apparent attempt to conceal the flow of money. Much of the money came from Chinese state-owned enterprises. Hunter Biden was bankrolled to the tune of $1 million by a man convicted by the Justice Department of foreign corruption whom Hunter described privately as the “f***ing spy chief of China.” Some of these Chinese interests, such as the natural-gas conglomerate CEFC, are more obviously tools of the Chinese state than others, but even the “private” businesses operate in a police state in which little happens without the approval of the ruling Communist Party. That’s how fascist states work.

As Jim Geraghty asks, “Does anyone believe that Chinese energy tycoon Ye Jianming in 2017 gave Hunter Biden a 2.8-carat diamond, estimated to be worth up to $80,000, as a gift out of the pure goodness of his heart? Ye disappeared from public view in 2018 amid a Chinese corruption crackdown.”

Hunter was also given a lucrative and “ceremonial” board seat on a natural-gas company in Ukraine that was under a corruption investigation, a sinecure for which his only qualification was family connections. The House committee investigating the tangle of payments to the Biden clan also found “clear indication of a scheme to peddle influence” in payments from Romania linked to a businessman convicted of bribery in that country.

Maybe it is just a coincidence that at least 14 of Hunter’s business associates from the U.S., Mexico, Ukraine, China, and Kazakhstan met Joe Biden while he was vice president, or that Hunter met in 2015 with Antony Blinken (then deputy secretary of state, now the Secretary of State), who then lied under oath to the Senate in denying that he had emailed with Hunter.

We do not know yet, and may never know precisely, whether or not the money trail leads personally to the president. Former Hunter Biden business partner Tony Bobulinski alleges that Hunter’s references to “ten percent for the big guy” refers to a cut for Joe. But if we apply the Clarence Thomas standard, it shouldn’t matter if the favors went to Biden’s family instead.

That is particularly true in Joe Biden’s case. He is 80 years old; his use for money is diminishing — as it does for all elderly people — and he can have basically any material comfort and convenience he desires while he is the president, living in a taxpayer-funded mansion and flying in a taxpayer-funded jet. The single financial interest that is most urgent to Joe Biden is to see that his ne’er-do-well son, who has well-documented drug problems and is still pleading poverty to get out of supporting an illegitimate child, is adequately provided for. That is exactly what the Chinese and Ukrainian interests have been doing.

Millions showered on Biden’s family by these interests should require him to recuse himself from any policy decision involving China, Ukraine, or Romania. Given that China is our chief geopolitical adversary and Ukraine is the site of the largest land war in Europe since 1945, recusal would take Biden out of a vast array of decisions involving American foreign, economic, military, trade, immigration, agriculture, and higher-education policy.

Those are precisely the areas in which Biden’s integrity is in question. Instead, Biden is out there promoting a “thaw” in relations with China and scoffing that Chinese spying is just a “silly balloon” while shoveling billions of U.S. taxpayer dollars at Ukraine. Biden has also famously boasted about getting a prosecutor fired in Ukraine when he was vice president and Burisma was under the microscope, although in Biden’s defense, it appears that he was just making stuff up as usual.

Biden is not, of course, the first American president with family business interests in shady parts of the world. There was plenty of coverage from the press of Trump family interests in China, Saudi Arabia, Indonesia, Turkey, Russia, India, Panama, Qatar, and all manner of other locales. Most of these were legitimate extensions of the Trump business empire, but that doesn’t mean they weren’t also ethical conflicts due to foreign efforts at buying favor. Moreover, as I have often noted, Republicans saying “Obama did it” or Democrats saying “Trump did it” may be a useful point about norms and hypocrisy, but it is a terrible argument for actually defending a particular thing as right and ethical. People who spent years screaming at Trump over his children’s business interests abroad should aspire to something more than “Joe Biden is just as unethical as Trump!” They might also aspire to something more than a one-term presidency ended by the voters.

Of course, we don’t expect elected politicians to follow exactly the same ethical rules as judges, due to differences in their jobs. Presidents are expected to be involved in partisan politics, for example, while life-tenured judges are not. On the other hand, presidents also have a much vaster scope for discretion than judges do; they make policy for the whole nation rather than just hear particular legal disputes that get brought to them. The Framers of the Constitution sought to protect judicial integrity mainly by giving judges life tenure to free them from political pressure; they spent a lot more time and effort worrying that presidents in particular might be bought off or influenced by foreign states. That’s why presidents have to be natural-born citizens. The concern with foreign bribery is why federal officers are barred from receiving “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State,” and why the impeachment clause lists treason and bribery as the two explicit grounds for impeachment.

If favors to family matter, there’s a lot of things Joe Biden shouldn’t be deciding for the nation.