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We could see a case, in the near future, captioned: United States of America v. Hunter Biden. That’s right – the United States Justice Department might indict and seek to imprison the son of the sitting president.
At this moment, in mid April 2022, nobody has any real idea whether DOJ will or won’t indict Hunter Biden, outside of a few prosecutors in Delaware and DC (and maybe they don’t even know just yet). The rest of us wait on a determination that feels instinctively to this former prosecutor, based on highly incomplete information, like something close to a coin flip. We should know soon; we learned thanks to a scoop by CNN’s Evan Perez and Katelyn Polantz that the investigation is accelerating, likely towards its final resolution.
The very name Hunter Biden elicits emotional reactions. Some see him as the personification of corrupt self-dealing, as the fulcrum of deep state rot and leftist corruption. Others howl in protest at the mere suggestion that he might have done something wrong, ever, and fret that any attention given to the misdeeds of the President’s wayward son is misplaced and potentially dangerous.
So here’s my proposal: let’s all agree, right now, to take in good faith the Justice Department’s impending decision about whether to indict Hunter Biden. Like the outcome or hate it, let’s accept it. Let’s not freak out and cry foul if Biden does get indicted, or if he doesn’t. Let’s take the politics out of it – because there’s every reason to believe that federal prosecutors are doing just that.
The history is telling here. The Biden investigation reportedly began in 2018. While it remains unclear whether he committed any chargeable federal crime, DOJ plainly had sufficient predication to at least open an investigation and take a look. Ask any experienced prosecutor this: what if an FBI agent walked into your office and said, “Here’s the deal. I don’t have enough to prove a crime at the moment. But I know that the son of a very powerful politician is getting paid fifty grand a month to sit on the board of a foreign company in an industry where he has zero expertise.” Any half-decent prosecutor would greenlight an investigation. It arguably would be derelict not to take a look.
Yes, the case was initiated by the Justice Department during the Trump years. But before you conclude the whole thing is a political takedown, consider this: when Bill Barr took over as AG in 2019 through the end of his tenure in late 2020, he never leaked a word of the investigation, and he reportedly made sure that nobody else did either. (You read that correctly; this is perhaps the only instance where I, the author of a book about Barr called Hatchet Man, give him full credit for handling DOJ business properly.) After the election, when Trump learned that DOJ had been investigating but hadn’t let word slip to the public, he was apoplectic, and lashed out at Barr in the media.
President Biden deserves real credit here, too. Typically, when a new president takes office – particularly when party control changes hands – he gets rid of all 93 U.S. Attorneys (most leave voluntarily, understanding the common practice). But Biden left two of the 93 in place: John Durham (yes, that guy, apparently still doing his thing) and David Weiss, the U.S. Attorney for Delaware, who is overseeing the Hunter Biden investigation. President Biden rightly wanted to avoid the appearance that he was interfering in the investigation of his son. Give the President credit for respecting DOJ’s autonomy and letting the process play out.
Weiss, by the way, is no Trump hack. He worked as a federal prosecutor in Delaware in the 1980s, and then returned to the office as a top official from 2007 to 2018 – most of that time during the Obama administration. When Weiss was nominated as U.S. Attorney in 2018, both of Delaware’s Democratic U.S. senators, Chris Coons and Tom Carper, enthusiastically supported him and sang his praises. Weiss appears to be a prototypical, nonpolitical DOJ prosecutor.
It seems that Weiss and his team are focusing on three potential categories of crime relating to Hunter Biden. First, according to Perez and Polantz, prosecutors are considering a rarely-used federal law that prohibits firearm possession by “any person who is an unlawful user of or addicted to any controlled substance.” Biden reportedly possessed a gun that wound up in a dumpster in Wilmington (it’s a long story). But prosecutors almost never charge this crime; I never did, and never even heard of it being used by colleagues during my career. The main problem is that the statute is poorly drafted, rife with ambiguity. Who qualifies as an “addicted” person, and just how addicted must the person be? It would surprise me to see prosecutors bring this particular charge against Biden.
Prosecutors also are reportedly considering FARA (Foreign Agents Registration Act) charges. In short, it’s a federal crime to: (1) engage in lobbying or political activity, (2) on behalf of a foreign country or national, (3) without formally registering with the Justice Department as a foreign agent. There’s no question that Biden took money from a foreign company (enormous monthly fees to sit on the board of Burisma) and that he never registered as a foreign agent. So the big question is whether he ever engaged in any political activity – lobbying or advocacy, essentially – on behalf of the company. While this charge is uncommon, DOJ has made a recent push to increase its FARA enforcement. And we’ve seen several FARA charges against high-profile defendants including Paul Manafort, Rick Gates, and Tom Barrack.
Finally, prosecutors reportedly are examining Hunter Biden’s tax history. We know Biden had plenty of shady financial dealings. But we outsiders simply don’t know whether he committed fraud to avoid paying taxes. Biden did recently repay some of his outstanding tax liability to the U.S. government. Of course, that doesn’t mean he can’t also be charged for any fraud he might have committed before that, but it might mitigate against a charge, on the margins, when prosecutors consider the equities.
It seems sadly inevitable that DOJ’s decision on Hunter Biden will provoke angry political fallout, either way. But let’s try to do better. Given what we know, we can be reasonably confident that the Justice Department, under administrations of both parties, has done its job properly. I don’t particularly care, from any kind of rooting interest, how this case comes out. I do care that the process has been a fair one – and I’ll respect the Justice Department’s determination, either way.