Dear Reader,
Someday, somebody needs to make a call on Hunter Biden.
The Justice Department’s investigation of Biden is now in its fifth year. Allow me to repeat that, in all caps: FIVE YEARS. This case has now lingered for over 1500 days. Over that stretch, we’ve had two presidential administrations, three attorneys general, and dispositive charge-or-don’t-charge decisions rendered on about 300,000 federal criminal cases. (I’m not trying to be funny with that number; that’s an actual, conservative total based on DOJ’s own annual stats.) Yet still: no call on Hunter Biden.
Let’s be clear right up front about what this case is, and is not. It is not about “the laptop ” – that mysterious but yes, very much real, personal computing device that apparently contains all manner of embarrassing (and perhaps worse) material about Hunter Biden. The actual federal investigation of Hunter Biden focuses on two issues: (1) his taxes, including potentially fraudulent transfers relating to income from foreign sources, and (2) his apparent possession of a firearm when he was addicted to drugs, contrary to an obscure federal law.
That’s it. It’s not nothing, but it’s not a huge deal within the universe of federal cases. If the subject was not named Biden, this wouldn’t be a five-year investigation. It wouldn’t even be a one-year investigation. We’re talking about a potential gun case against one person, not a multinational arms trafficking ring. And we’ve got a tax investigation of one individual, not some billion-dollar conglomerate.
So what’s the holdup? There’s simply no feasible way to pass this off as a case that genuinely requires five years of investigation and deliberation. The answer has to be politics. Indeed, the decision to charge or not charge Hunter Biden is the ultimate darned-if-you-do, darned-if-you-don’t scenario. An indictment would delight roughly half the country, and infuriate a similarly-sized population. A prosecutorial declination would have the opposite impact. Either way, tens of millions of people will accuse DOJ of playing politics.
The Justice Department has responded by kicking the can, for half a decade.
I know firsthand that, for all the skills normally associated with prosecutors – smarts, persistence, integrity – we also can be remarkably skillful at passing the buck. Give a prosecutor an important case supported by strong evidence and perhaps even the promise of media attention, and watch him skip out on birthdays, vacations, and the birth of his children to stay on the matter. But assign a prosecutor a “dog,” as we’d call it – a case with weak evidence, or a shaky legal foundation, or perhaps a dicey political angle – and stand back and marvel at the excuse-making. As a younger prosecutor, I received my share of those dreaded “reassignments” that some other prosecutor (at times two or three) decided they just couldn’t quite find time for and needed to roll down the hill. A senior prosecutor once handed me an especially hairy “dog” and explained solemnly that he “just needed to focus on other things.” Lesson for all you future prosecutors out there: when the assignment clerk brings you a new file bearing the crossed-out names of three prior assigned prosecutors – run.
The paradox here is that while any decision about a potential Hunter Biden indictment is inherently politically fraught, the case has been handled largely appropriately and non-politically by DOJ, under both parties. Yes, the case was initiated during the Trump administration, but that doesn’t automatically cast doubt on prosecutorial motivations. To the contrary, as I’ve argued before in this space, there was ample predication to investigate. Whatever one may think of Hunter Biden, prosecutors were well-grounded to open a case where the child of a powerful politician received hundreds of thousands of dollars from a foreign company for a no-show job in an industry he knows nothing about.
Even former Attorney General Bill Barr – the same guy who I called a liar and a political manipulator throughout my critical book about him, Hatchet Man – did the right thing. He inherited the Hunter Biden matter when he became AG in early 2019 – that’s how old this thing is; it actually pre-dates Barr’s tenure – and he protected the case, making sure it did not leak to the press before the 2020 election, much to the eventual fury of Donald Trump. In fact, we found out about the Hunter Biden investigation only when his own legal team announced it, after the election.
The Delaware U.S. Attorney overseeing the case, David Weiss, is a Trump nominee, but he’s no hack. Weiss is a veteran federal prosecutor who has worked at DOJ under both parties, including as a senior official throughout all eight years of the Obama administration. Upon his nomination by Trump for the U.S. Attorney job, Weiss received enthusiastic support from both of Delaware’s Democratic U.S. Senators. When Joe Biden became president, he had every right to replace all 93 U.S. attorneys across the country, as virtually all new presidents elect to do. Instead, he did the right and smart thing by leaving Weiss in office – likely to avoid even the appearance of interference in the still-pending Hunter Biden case.
We are finally seeing signs that the investigation is, mercifully, in its final stages.We learned last week that Hunter Biden’s legal team met with Justice Department prosecutors, to try to dissuade them from bringing charges. There’s nothing unusual or improper about such meetings. It is quite common for prosecutors to extend to defense lawyers the courtesy of these face-to-face “innocence proffer” meetings, as we’d call them. Sometimes, the defense pitch succeeds and prosecutors back off. But more often, in my experience, the effort fails and charges follow shortly. It’s usually the type of meeting that would happen shortly before a charging decision.
As I write this, I genuinely have no idea whether DOJ will indict Hunter Biden. It seems like something close to a coin flip. There’s plenty we don’t know, of course. The potential charges look to be serious (if not earth-shattering) while the evidence appears to be decent (if not overwhelming). It could go either way.
The problem is that, by procrastinating on the case, DOJ prosecutors have made it all even harder on themselves. Now that both Joe Biden and Trump are declared candidates for president in 2024, the prosecutorial decision unavoidably will look and feel even more political than it needed to be. Charge Hunter Biden and his father’s political supporters will complain that this has all been a Trump-era fix-up from the start. Give him a pass, and brace for ear-splitting howls from Trump and his supporters claiming Hunter got a walk from his dad’s friendly Justice Department, just as pops gears up for his re-election bid.
I think both of those reactions are misguided and unfair. But there’s no avoiding them, especially now, after the case has lingered for so long. And, as any federal prosecutor understands, public perception of DOJ’s fairness and legitimacy absolutely matters.
The Justice Department’s intentions here have been good, by all available evidence. But the execution – that paralyzing, chronic reluctance to make a tough call, one way or the other – will cause needless political drama.
Stay Informed,
Elie
