Why the president’s son blew off the House’s deposition subpoena — and where this fight goes from here.
Why the president’s son blew off the House’s deposition subpoena — and where this fight goes from here.
T o understand the circus that erupted this morning when Hunter Biden did a press conference on the Senate side of Capitol Hill and then failed to show up for a deposition he’d been subpoenaed to give on the House side, keep four things in mind.
1. There is a difference between subpoenas and testimony. A congressional subpoena is a legally enforceable order requiring a witness to show up at a time and place on Capitol Hill for the purpose of testimony — here, a deposition behind closed doors. Testimony consists of answers under oath to the questions posed. A subpoena means the witness is legally obligated to attend the deposition; failure to do that can result in being held in contempt (we’ll come to whether that’s really a serious threat). Whether the witness actually has to answer questions, however, depends on whether he has a legal confidentiality privilege that permits refusing to answer.
Recall the then-Democrat-controlled House’s impeachment investigations of then-president Trump. The Judiciary Committee subpoenaed Trump’s former White House counsel, Don McGahn, who was in a position to assert executive privilege to refuse to answer questions. The administration thus wanted to ignore the subpoena. As I related at the time (here and here), then-district judge (now-Supreme Court justice) Ketanji Brown Jackson ruled that McGahn had to honor the subpoena by showing up. That didn’t mean he had to testify — he could still refuse to answer questions that called for revealing privileged information. Eventually, as typically happens in tussles between Congress and the executive branch, a compromise was worked out — it was agreed that McGahn would testify but the Committee was limited in what it could ask him.
Hunter Biden is facing prosecution on two criminal indictments. If faux special counsel David Weiss is to be believed (I don’t believe him), there is also still an investigation that could result in other charges. Consequently, Hunter has a very live Fifth Amendment privilege. That means he could have refused to answer questions, but he was still obliged to show up . . . probably.
2. That brings us to the impeachment inquiry. The full House is slated to vote on it this afternoon, but — foolishly in my view — it had not voted to approve it before issuing a subpoena to the president’s son, and had still not voted to approve by the time the subpoena was returnable.
Technically speaking, Hunter was probably still required to show up at the deposition this morning. Impeachment inquiry aside, the subpoena was issued jointly by the House Oversight and Judiciary Committees. They have subpoena authority. Nevertheless, there is a salient distinction between an impeachment inquiry and a normal congressional investigation. The latter requires a “legislative purpose” in the sense of a nexus between the probe and the possibility that Congress would enact new law to deal with the underlying issues. In an impeachment inquiry, by contrast, Congress is permitted to investigate possible crimes and other serious misconduct, much like a grand jury would, because the Constitution defines impeachable offenses as treason, bribery, or high crimes and misdemeanors.
During the first weeks of the Trump impeachment inquiry over the Ukraine kerfuffle, House Republicans, the White House, and the Trump Justice Department all contended that the inquiry was illegitimate because it had not been approved by a vote of the full House. (It was initially authorized unilaterally by then-speaker Nancy Pelosi; subsequently she had the full House vote to approve it.) Back then, the Republican argument was: Because the Constitution reposes the impeachment power in the full House, not the speaker, and because such an inquiry allows the House to investigate more broadly than usual, a House vote is required before impeachment inquiry subpoenas can be deemed enforceable. Legally, this was a debatable point. Politically speaking, though, that is the position they took — knowing that no matter what happened in the House, Trump was not going to be convicted, removed, and disqualified by the Senate.
Consequently, Hunter Biden and his lawyers will contend that his flouting of the subpoena this morning — i.e., his failure to show up at the deposition — was legally justified because the inquiry had not been approved by the full House. Is he right about that? Probably not. But still, holding the president’s son in contempt of Congress would be a very serious move (or at least it should be). Republicans should not do it without first voting to approve the inquiry and then reissuing the subpoena to Hunter, requiring him to show up a few days later. Judiciary Committee chairman Jim Jordan clearly realizes this. At the press conference after Hunter blew off the deposition, Jordan acknowledged that the House would be in a stronger position to compel his appearance once the inquiry is approved by the full House. (Although Fox News reports that Jordan later said he might begin the contempt process after the House votes to approve the inquiry — presumably without reissuing the subpoena.)
3. Then there is the congressional calendar. The force that was little remarked on this morning but that is driving this impeachment-meets-Hunter train is . . . it’s Christmas time! In most matters of enormous consequence, when you’re claiming that there’s a crisis that may require impeaching the president, people roll up their sleeves and get to work for as long as it takes. On Capitol Hill, to the contrary, they go on vacation. Congress is planning to adjourn, perhaps as early as today, for a four-week holiday. And what moves Congress is politics, not logic.
As long as the House was going to go through the paces of holding a vote on an impeachment inquiry, the Hunter subpoena should have waited until that was done. But Hunter is a hot political number now. Who knows if he still will be four weeks from now? By then, we’ll be on to Iowa, New Hampshire, and Trump’s legal travails. So the House decided it had to subpoena him now, not next month. In the interim, Republicans have such a thin majority, they have not had the votes to approve an impeachment inquiry. Now, they say they do, and we’ll see if they’re right — the vote may happen this evening, and it is expected to be extremely close. If it’s true that they have the votes, though, that probably just happened in the last few days.
“Subpoena Hunter first and then shore up the inquiry with a vote” was undoubtedly a dumb way to proceed, but it was dictated by the calendar. Most of all, it was dictated by Congress’s desire to go on recess for Christmas and the New Year. Republicans thus got themselves bolloxed up. The crescendo today was: They somehow mismanaged the calendar such that Hunter’s deposition subpoena was made returnable this morning, even though the vote on the impeachment inquiry is this evening. This was a gift for Hunter and his attorney, the Washington-savvy Abbe Lowell, who can now argue that Republicans know the impeachment inquiry is illegitimate because they are rushing to vote on it this very day, and that unless and until it is approved, no one should take subpoenas from the inquiry seriously.
Again, that’s probably wrong, but the Republicans’ bad timing gives it persuasive force it would not otherwise have.
4. Finally, as ever, there is politics.
Biden officials are not worried about the impeachment inquiry. They’d prefer it wasn’t happening, of course, and it is hurting the president significantly in the court of public opinion — which is the most important thing. As for the House proceedings, though, the brute facts are that if the Republicans haven’t until now had the votes to approve an inquiry, they are unlikely ever to have the votes to approve articles of impeachment. And even if they somehow got an impeachment article across the finish line, President Biden would never be convicted, removed, and disqualified.
Similarly, Hunter Biden knows that, while the House could hold him in contempt, the Biden Justice Department is not going to prosecute him for criminal contempt for a three reasons: (1) he’s the president’s son; (2) there’s already tension with the White House because prosecutors botched the sweetheart plea deal and have now indicted Hunter twice (putting the president in the politically compromising position of having to pardon him at some point); and (3) the Justice Department is part of an administration whose story is that the impeachment inquiry is an illegitimate political hit job forced by MAGA Republicans so they can orchestrate proceedings hyped as “Biden impeachment” in parallel with the criminal proceedings Trump faces in court, which Democrats are hyping. Since Hunter is not going to be prosecuted for contempt, and since Democrats would laugh off any contempt vote as a MAGA Republican ploy, rest assured that Hunter is not too concerned — at least about contempt.
On balance, though, the politics of this theater are bad for Biden. For that, he can thank Democrats who, in their obsession to nail Trump, blew up any norms that got in the way.
The dance here was that Hunter and his lawyers claimed that he was willing to testify if it were an open, public hearing. This was cynical hype: Lowell knew full well that the House was not going to change its rules for Hunter. The Democrats’ Trump impeachment inquiries and the January 6 Committee forced people to come in for depositions and rebuffed those who asked for live public testimony. The House has the power to do this, regardless of whether the witness intends to refuse to testify or to pick and choose which questions he’ll answer. In posturing during media appearances for a public hearing, Lowell perfectly understood that he wasn’t going to get one — not before the deposition. He is, moreover, too good a defense lawyer to allow his client to testify in a congressional deposition when Hunter is already under two indictments. Hunter thus had a live Fifth Amendment privilege against self-incrimination. He was not going to answer the impeachment inquiry’s questions either way.
Of course, House Republicans know that, too. So why bother? Why all the hullaballoo over testimony that was never going to happen?
Again, thank Democrats. Throughout the January 6 Committee proceedings, Trump allies repeatedly honored subpoenas by showing up for closed-door testimony but then asserting their Fifth Amendment privilege in declining to answer various questions. For nationally televised proceedings, some in prime time, the J6 Committee cynically proceeded to slice and dice this videotape testimony, again and again showing Trump allies taking the Fifth.
Mind you, in judicial proceedings, the jury is admonished that a person’s refusal to testify is not an admission of guilt; the point of the Fifth Amendment is to hold the prosecution to its burden of proving the case without testimonial help from the accused. Nevertheless, the J6 committee urged that the public should presume the guilt of Trump allies who refused to answer questions — even adding that by declining to provide information they were obstructing the committee’s investigation. Obstruction is a serious crime.
Prosecutors who pulled such stunts in front of a jury would instantly cause the flabbergasted judge to order a mistrial; they’d probably face ethical discipline, too, because everyone knows that using invocations of the Fifth to imply guilt is a major no-no. But under the scorched-earth rules of congressional investigations created by Democrats, doing so is the new normal.
Naturally, the Republicans would be delighted if Hunter were to answer the many questions they have about the $24 million the Biden family received over a five-year period from corrupt and anti-American regimes by marketing the “Biden Brand.” But they’d also be happy to have him take the Fifth a few dozen times. As the J6 Committee demonstrated, it makes for great TV. Republicans will copy the Democratic playbook that says witnesses who refuse to answer questions must be guilty and must, ahem, be keeping quiet to protect “the big guy” they answer to.
Aren’t we just going to love the 2024 campaign!