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Hunter Biden and the Vindication of the Rule of Law
The president’s son’s investigation was by the book.
The U.S. attorney for Delaware, David Weiss, announced Tuesday that Hunter Biden will plead guilty to two tax-related misdemeanors and that he’s been charged with one felony relating to possession of a firearm while addicted to illegal drugs. The government is reportedly likely to recommend probation at sentencing, during which time the weapons charge will be “diverted,” meaning it will be dismissed if Biden complies with certain terms for two years. This is the best indication yet that under the Joe Biden administration, the rule of law is, in fact, functioning in America.
Predictably, Republican politicians cried foul, with Rep. James Comer calling Biden’s plea deal “a slap on the wrist when growing evidence uncovered by the House Oversight Committee reveals the Bidens engaged in a pattern of corruption, influence peddling, and possibly bribery.” There are at least three reasons why Comer’s critique is misguided.
The first is that Weiss was appointed by Donald Trump, who was president for the first three years of Weiss’s five-year investigation of Biden. The Justice Department had three years under Trump to bring charges, but did not. The investigation began in 2018, focused on potential tax and money-laundering violations stemming from Biden’s international business deals with Chinese and Ukrainian entities. The gun-related probe came later. If there were any more serious charges to be brought, presumably Trump’s attorney general, Bill Barr, would not have stalled that effort. The fact that more serious charges did not materialize suggests that DOJ lacked sufficient evidence to prove more serious crimes beyond a reasonable doubt.
The second reason Comer is wrong is that, although serious, the crimes with which Biden is charged—two misdemeanors and a felony—are not about political corruption or pay-to-play nepotism that might implicate his father, the current president. If there is any reason to suspect that the Bidens engaged in some sort of corrupt conspiracy—and there appears to be none—this case has nothing to do with it one way or the other.
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Which brings us to the third, and perhaps most significant, reason why Comer is exaggerating. President Joe Biden could have fired Weiss at any moment after assuming office on January 20, 2021. He did not. As president, he is in charge of execution of the laws under Article II of the Constitution, and execution of the laws encompasses a decision not to execute the laws, also known as prosecutorial discretion. Here, the Justice Department under Biden pressed forward against the president’s son even though, all things considered, the three charges are relatively minor.
The two misdemeanor tax charges date back to 2017 and 2018, when Hunter Biden allegedly received taxable income in excess of $1.5 million annually but did not pay the over $100,000 owed for each year. But during the investigation, Hunter Biden reportedly paid off more than $2 million in his tax debts, thanks to a loan from a Hollywood attorney and producer. If the case had gone to trial, the defense would have likely argued that there is no serious harm to be remedied anymore. Moreover, while most tax offenses are handed as a civil—not criminal—matter, as far as has been reported, Biden was charged only with the failure to pay—not with tax fraud or tax evasion, which together make up 70 percent of IRS agents’ investigative time.
The gun inquiry was initiated after Biden’s sister-in-law, Hallie Biden, with whom he then had a romantic relationship, threw away his handgun into a garbage bin outside a grocery store in Wilmington, Delaware. At Hunter Biden’s instruction, Hallie Biden reportedly returned to find the gun missing, prompting an investigation by Delaware State Police who were concerned that the weapon could have been found by someone at a nearby high school. Secret Service agents went to the store where the gun was purchased and asked for the paperwork. The store owner instead turned it over to the Bureau of Alcohol, Tobacco, Firearms and Explosives. An October 12, 2018 gun-purchase form later revealed that Hunter Biden, who was addicted to crack cocaine at the time, answered “No” when asked: “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?” A Secret Service spokesperson later said the agency has no record of the incident. The gun was eventually located.
If the case had gone to trial, the government would have had had to convince a jury to convict Biden, although defense lawyers would have noted that he has a tragic history of drug abuse, from which he was suffering at the time, and that the handgun purchase did not end in violence.
As Comer noted, Hunter Biden is also facing an investigation from the House Oversight Committee. It will continue, no doubt, as will claims that Biden is a bad guy, and that he and his father have engaged in corrupt nepotism over the years. That’s fair game, part of the rough and tumble of presidential politics. (Let’s not forget that Jared Kushner, Trump’s son-in-law, could be in the line of fire too, having inexplicably received $2 billion from the sovereign wealth fund of Saudi Arabia, which is controlled by the crown prince Mohammed bin Salman, to fund an investment firm Kushner founded the day after Trump left office.)
Last month, White House spokesman Ian Sams accused Congress of engaging in pure politics over the Hunter Biden investigation, assailing Comer for “[taking] to the Fox airwaves to boast that his investigations are ‘moving the needle’ not because he has uncovered facts but because he claimed (falsely, by the way) that President Biden’s poll numbers are ‘trending downward.’”
Yet at least from the perspective of Hunter Biden and his lawyers, the matter of the president’s surviving son is not about pure politics. There is some law involved.