Hunter Biden’s Bluff and Gambit

H unter Biden is threatening to refuse a demand that he appear for closed-door questioning next week before the House Committee on Oversight and Accountability. In the wake of his indictment on Thursday on nine counts of failing to pay taxes and evasion, he has become the central figure in the continuing investigation into whether President Joe Biden committed an impeachable act. The indictment raises the possibility that Hunter will seek an immunity deal not from the Justice Department — which the courts already caught trying to cut the president’s son a sweetheart deal — but from Congress.

Hunter has offered up a gambit: He is demanding to skip the committee-staff questioning and go right to a public hearing. Despite all the attraction that such an immediate, controversial appearance might garner, House members must stick to the careful, deliberate pace of their investigation if they wish to prepare the ground for a serious impeachment proceeding.

Committee lawyers and staffers, not the members themselves, will run Hunter’s deposition. The deposition, which helps the committee develop the evidence, will be transcribed and under oath and penalty of perjury. It almost certainly will be videotaped, and members will play sections of the videotaped deposition if Hunter attempts to change his story at a later public hearing.

This is usual and normal. For example, the House’s January 6 Committee used this procedure to obtain the testimonies of Ivanka Trump and Donald Trump Jr. and their significant others, Jared Kushner and Kimberly Guilfoyle. But Hunter Biden’s experienced lawyers sent a follow-up letter to the Oversight and Accountability Committee on Wednesday, again demanding that Hunter skip the closed-door deposition and go straight to testifying publicly in front of the entire committee, which has 21 Democrats, including Ranking Member Jamie Raskin (D., Md.), and 24 Republicans, including Chairman James Comer (R., Ky). Attorney Abbe Lowell accused Comer of using “closed-door sessions to manipulate, even distort the facts and misinform the public,” and claimed that a “public proceeding would prevent selective leaks, manipulated transcripts, doctored exhibits, or one-sided press statements.” It is possible that Lowell is projecting, to some degree, as these are all things that Democratic members of Congress such as Adam Schiff and Eric Swalwell have done in the past. There is also some degree of irony: In 2017, Lowell represented Kushner and Ivanka Trump regarding Russia-related allegations.

Congressional subpoenas are neither suggestions nor choices; they are enforceable orders that carry potential criminal penalties if not obeyed. In fact, the Supreme Court held in Eastland v. U.S. Servicemen’s Fund (1975) that the Constitution’s speech-and-debate clause gives Congress very broad latitude when issuing subpoenas; generally speaking, the federal courts do not quash congressional subpoenas.

Furthermore, President Biden’s DOJ prosecuted former Trump aides Steve Bannon and Peter Navarro for contempt of Congress because they did not comply with January 6 Committee subpoenas. Each count of contempt of Congress carries a minimum prison sentence of one month and a maximum of one year, as well as a fine ranging from $100 to $1,000. While the DOJ, under the leadership appointed by President Biden, is unlikely to prosecute Hunter for contempt of Congress, the legal penalties still remain.

Comer and House Judiciary Committee chairman Jim Jordan (R., Ohio) know this, which is why they rapidly responded to Lowell with a short letter stating, in part, that “there is no ‘choice’ for Mr. Biden to make; the subpoenas compel him to appear for a deposition on December 13.” Moreover, “if Mr. Biden does not appear for his deposition on December 13, 2023, the Committees will initiate contempt of Congress proceedings.” It is almost certain that Hunter will be at the closed-door deposition next Wednesday.

The real reason Hunter wants to testify publicly is that a congressional-committee hearing is one of the worst circumstances in which members can ask a witness substantive questions and effective follow-up questions, especially without a prior deposition. First, the questioning alternates between Republican and Democratic members. As a result, the process, which usually devolves into the members’ making political points instead of legal ones, has no flow or consistency unless several members yield their time to one member/questioner. And histrionics are likely, which might be good for TV ratings but is bad for substance. Second, each member has only five minutes to make a statement and ask questions, which means that no individual is able to ask more than one or two substantive questions, and witnesses know that they can evade them or simply stall. With a committee as large as the House Oversight Committee, hearings are basically televised political drama. Third, major left-wing media would give Hunter’s public-hearing performance sympathetic coverage while sharply criticizing the committee’s Republican members (“Republicans pounce!”).

While Republican House members may salivate at the idea of publicly drilling down on their questions with Hunter, that may be fool’s gold. No matter how well crafted the public questions are, Hunter would almost certainly assert his Fifth Amendment right not to incriminate himself and would not answer any substantive questions. He has plenty of legal reasons. For starters, federal prosecutors would be able to use anything that Hunter says in his congressional hearings in these criminal cases against him. This week’s indictment of Hunter in California for tax evasion, and his earlier indictment for gun-related crimes, makes it almost certain that he would refuse to answer any questions.

Meanwhile, DOJ special counsel David Weiss continues to claim that his investigation into Hunter’s myriad business dealings is active, even though Weiss has slow-walked the investigation and allowed the statute of limitations on the most serious potential charges to lapse.

That reveals Hunter’s ultimate gambit. If the House really is holding these hearings to conduct an impeachment investigation into President Biden, the committee may be tempted to grant Hunter immunity, which would remove his need to assert his Fifth Amendment rights and compel him to testify. Hunter ultimately is a witness to, but not a subject of, impeachable conduct. His role as an alleged conduit of foreign funds into the Biden family’s entities and accounts would confirm half of the equation for impeachment. But the impeachment clause would not apply to any acts committed by Joe Biden before he assumed the presidency on January 20, 2021. The House would also need to find that Joe Biden, as president, committed treason, bribery, or other high crimes and misdemeanors. It would need to show that President Biden had committed an abuse of public power, such as obstructing the investigation into Hunter’s financial shenanigans. Granting Hunter immunity from prosecution may be worth solving the second half of the equation: learning whether his father abused power to a degree sufficient to merit impeachment.

John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a nonresident senior fellow at the American Enterprise Institute, and a visiting fellow at the Hoover Institution. He served in the U.S. Department of Justice from 2001 to 2003. John Shu is a legal scholar and commentator who served in the administrations of Presidents George H. W. Bush and George W. Bush.