Dear Reader,

News broke this week that the U.S. Attorney’s office in Delaware is investigating Hunter Biden, son of the President-elect. Whether or not Hunter Biden broke any law is an open question, but the revelation about an ongoing investigation is not speculative or leak-driven. It is conceded in a pithy statement from Hunter himself:

“I learned yesterday for the first time that the U.S. Attorney’s Office in Delaware advised my legal counsel, also yesterday, that they are investigating my tax affairs.”

Fairly deep reporting by CNN’s Evan Perez, not yet confirmed by the authorities, paints a picture of a broad investigation, well underway, and involving both the FBI and the IRS’s criminal investigation section. According to Perez’s sources, the “investigation began as early as 2018,” and is focused on “multiple financial issues, including whether Hunter Biden and his associates violated tax and money laundering laws in business dealings in foreign countries, principally China, according to two people briefed on the probe.” Also according to Perez, Joe Biden is not implicated in any wrongdoing.

What to make of this? In ordinary times, DOJ enjoys a general reputation for apolitical decision-making. There would be a presumption of regularity and legitimacy. But these are not ordinary times, and the collective actions of Trump and AG Bill Barr have caused people to worry about deep politicization of high profile cases – as with Barr’s heavy hand to advantage Trump allies Roger Stone and Michael Flynn.

So is this a good faith investigation of potential criminality by the next President’s son or just the latest round of dirtying up the Biden family for political gain, following on the heels of the Ukraine Affair.

We don’t yet know much about the origins of the investigation and the involvement of political figures and the fact of an investigation doesn’t mean charges will follow. Many probes die on the vine.

But there are several indicia of regularity. First, if the reporting is accurate, the inquiry began before Bill Barr, the most cynical presidential sycophant, took office.

Second, it appears that the law enforcement agencies paused in the months before the 2020 election, foregoing overt steps that might have revealed the probe’s existence and nature, because of the tradition and policy of steering clear of these kinds of actions to avoid influencing the election. If the point was to damage the Biden candidacy, one wouldn’t have expected such restraint.

Third, the Delaware U.S. Attorney himself, David C. Weiss, appears to be a career federal prosecutor, not anyone’s political crony. He was the number two official in his office both during the end of the Bush presidency and then again for six years during the Obama presidency. In between, he was both the Acting and Interim U.S. Attorney. He was appointed to head the office by Trump in early 2018. In other words, he has been trusted to serve in high positions in that office by three presidents.

Notwithstanding these considerations, one must still question whether the investigation of Hunter Biden is kosher. Why? Because for years now the President and his allies have been on a public campaign of criminal allegation against Hunter Biden and his family, not because they cared about corruption or the rule of law. But because Trump wanted to kneecap his most formidable political rival. Recall that in the Ukraine Affair, what Trump really wanted wasn’t an investigation of Hunter Biden by the Ukrainian president, but the announcement of an investigation. Then there was that hazy business involving Rudy Giuliani and Hunter’s laptop. For all of his own talk of witch hunts and hoaxes, it is Trump who has blurred the line between prosecution and persecution.

It pains me to have to say any of this. There are clear signs of legitimacy, but I would feel better if we got answers to some pertinent questions in the future: How did the investigation start? Was there a suspicious activity report filed by a financial institution? A tip from a cooperating witness? Did the investigation flow from a routine IRS red flag? Has Bill Barr had any involvement? Has he directed that any action be taken or not taken? At any point was the President advised of the investigation? Did he press for any action or disclosure?

It is so very harmful to democracy and faith in the rule of law that we are at the point where we must ask such questions about what may very well be a good-faith DOJ investigation, rendered sensitive by the happenstance of the subject’s father, unfolding in unfortunate tandem with a campaign of character assassination and political bullying by the leader of the country against the very same subject.

In a way, this dynamic points to one of the greatest injuries Trump has inflicted on America. In a democratic system in which justice must not only be done, but be seen to be done, his cynicism, his trashing of norms, his weaponizing of DOJ, his slandering of the FBI, his thirst for payback, all of it makes reasonable people wonder what is legitimate and what is not.

This is the harm Trump has done. And however difficult it may be to undo that harm, complicated as it will be now by this confirmed investigation of his own son, President Joe Biden and his Attorney General must undo it.

My best,

Preet

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Today at 5 PM EST, Preet is hosting a special live Zoom event featuring investor and human rights activist Bill Browder. Browder has been an outspoken critic of Vladimir Putin and a driving force behind the passage of the Magnitsky Act.

It’s not too late to sign up to attend! To receive a free link, head to www.cafe.com/preet or click the button below.

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Should Civilians Control the Military?
By Sam Ozer-Staton

On Tuesday, President-elect Joe Biden announced that he would nominate retired General Lloyd Austin as Secretary of Defense, a historic pick (Gen. Austin is the first African-American nominated to lead the Pentagon) that came as something of a surprise to beltway insiders.

Austin, 67, retired from the armed services in 2016 after serving as Commander of U.S. Central Command under President Obama. He was selected over a better-known finalist, Michèle Flournoy, who served as Under Secretary of Defense for Policy in the Obama administration and had strong support across Capitol Hill in her bid to become the first woman Secretary of Defense.

In selecting Austin over Flourney and another top contender, former Secretary of Homeland Security Jeh Johnson, Biden has drawn criticism for elevating a career military official (albeit a widely-respected one) to a position historically reserved for civilians.

Several key Senate Democrats, including Sen. Jack Reed (D-RI), the ranking member of the Senate Armed Services Committee, have expressed reservations in the past about putting career military officials in charge of the Defense Department.

The National Security Act of 1947 requires that career military officers wait at least seven years before becoming eligible to serve as Secretary of Defense. Gen. James Mattis, President Trump’s first pick for that post, was able to obtain a congressional waiver to bypass the rule (at the time of his appointment, he had only been out of the military for just under four years).

But Mattis was only the second career officer to be nominated to lead the Defense Department since the passage of the Act in 1947; Harry Truman successfully sought a waiver to confirm George Marshall in 1950.

In approving Mattis’ waiver in 2017, Sen. Reed called his vote a one-time deal: “Waiving the law should happen no more than once in a generation…Therefore, I will not support a waiver for future nominees.”

Reed now appears open to considering a waiver for Austin, telling reporters on Tuesday: “I feel, in all fairness, you have to give the opportunity to the nominee to explain himself or herself.”

But another top Democrat on the Senate Armed Services Committee, Sen. Richard Blumenthal (D-CN), has flatly come out against Austin’s nomination. “It is exciting and historic but I believe that a waiver of the seven-year rule would contravene the basic principle that there should be civilian control over a nonpolitical military,” Blumenthal said. “The principle is essential to our democracy — I will not support the waiver.”

Other Democrats across the ideological spectrum, including Sens. Elizabeth Warren (D-MA) and Jon Tester (D-MT), have also said that they will oppose Austin’s nomination.

For his part, President-elect Biden took the unusual step of explaining his choice of Austin in an essay published in The Atlantic on Tuesday. In it, Biden touted Austin’s experience and readiness: “The fact is, Austin’s many strengths and his intimate knowledge of the Department of Defense and our government are uniquely matched to the challenges and crises we face. He is the person we need in this moment.”

But Biden largely avoided the issue of civilian control over the military, simply writing, “I hope that Congress will grant a waiver to Secretary-designate Austin, just as Congress did for Secretary Jim Mattis. Given the immense and urgent threats and challenges our nation faces, he should be confirmed swiftly.”

Susan Hennessey, an editor of Lawfare (and former Stay Tuned guest) who has written extensively about national security law and the presidency, called Austin’s nomination “a huge mess” that puts “congressional Democrats in a terrible bind.” In a series of tweets, she also characterized Biden’s decision as norm-breaking: “The reality is that if Austin is granted a waiver, then the presumption moving forward will be that waivers are customary. Already we see the question being framed as ‘Why give Mattis a waiver but not Austin?’ Next time it will be ‘Why Mattis and Austin but not this person?’”

Supporters of Austin’s nomination have emphasized the historic nature of his appointment. In a statement on Tuesday, the Congressional Black Caucus said: “Black Americans have sacrificed their lives for this country in every war since the Revolutionary War. Appointing retired Gen. Lloyd Austin to a position of command and authority over the United States military, second only to the president of the United States, is historic and well-deserved.”

While key Republicans have signaled that they will support Austin’s nomination, the General’s path to confirmation remains unclear. Senate Democratic Leader Chuck Schumer (D-NY), in a sign that his caucus is divided, struck a cautious tone on Wednesday. “Austin is a very good nominee and we’ll figure out where to go from there,” he said, adding, “I’m going to need to study [the waiver issue].”

Where do you come down on the nomination of General Austin? Should the principle of civilian control of the military disqualify Austin from consideration? Or should Democrats vote to issue a waiver in order to confirm him? 

Write to us at [email protected] with your thoughts or reply to this email.

FOLLOW

Jen Psaki is the incoming White House Press Secretary and the chief spokesperson for the Biden transition team. She also served as the White House Communications Director during President Obama’s second term.

For updates on the Biden transition, including cabinet announcements, follow her @jrpsaki.

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*To listen to Insider content on your favorite podcast app, follow these instructions*

— Listen to this week’s episode of Stay Tuned, “The Fight for the Senate,” where Preet is joined by Jon Ossoff, the Democratic candidate for Senate in one of the two Georgia run-off races.

— Listen to this week’s episode of CAFE Insider, “Hold-My-Beer Presidency,” where Preet and Anne break down Bill Barr’s statement that the DOJ has not found evidence of widespread election fraud, Barr’s appointment of John Durham as special counsel, and unsealed documents that revealed a DOJ investigation into a potential bribery-for-pardon scheme.

— Look out for tomorrow’s special episode of United Security, where Ken Wainstein is joined by Matt Olsen, the former director of The National Counterrorism Center.

That’s it for this week. We hope you’re enjoying CAFE Insider. Reply to this email or write to us at [email protected] with your thoughts, suggestions, and questions.

— Edited by Tamara Sepper

The CAFE Team:

Tamara Sepper, Adam Waller, Sam Ozer-Staton, David Kurlander, Noa Azulai, Jake Kaplan, Calvin Lord, David Tatasciore, Matthew Billy, and Nat Weiner.