DemDaily: The Case of Hunter Biden

August 14, 2023

On Friday, Attorney General Merrick Garland announced the appointment of US Attorney David Weiss as special counsel in the Hunter Biden investigation.

Republicans, who had been calling for a special counsel appointment for over a year, reversed course after the announcement, claiming the Department of Justice is trying to impede the investigation and stall prosecution of the President's son until after the election.

Democrats, meanwhile, have decried the appointment as an attempt to distract from the legal troubles of GOP presidential frontrunner, former President Donald Trump.

A special counsel is a prosecutor who is independent of an office -- in this case the Justice Department -- that would normally exercise jurisdiction in a criminal investigation, to avoid potential conflicts of interest or to facilitate subject matter area expertise. While they are not under day-to-day supervision of the DOJ, they technically report to the Attorney General -- the one government official who can fire them. A special counsel may pursue charges in any jurisdiction he or she chooses without seeking the cooperation of local federal prosecutors. Congress may also appoint a special counsel through the passage of legislation.

The Case
Hunter Biden, the second son of President Joe Biden, is a Yale law school graduate and father of four who has worked as an attorney, lobbyist, hedge fund principal, venture capital and private equity fund investor.

In December 2020, Hunter Biden announced he had been informed by the US Attorney’s Office in Delaware that his tax affairs were under federal criminal investigation.

News sources reported that the investigation, initiated in late 2018, related to potential violations of tax and money laundering laws and his business dealings in foreign countries -- principally China. The investigation examined payments and gifts Biden or his associates had received from foreign interests and whether Biden had violated the law by not registering as a lobbyist under the Foreign Agents Registration Act (FARA).

Republican Attacks
Embattled Hunter Biden, a recovering alcoholic and former drug addict, has been the subject of Republican attacks over the last five years for his international business dealings, along with false allegations that his father conspired in corrupt activities.

In early 2019, then-US President Donald Trump pushed baseless claims of a Biden-Ukraine conspiracy theory, alleging that then-former Vice President Joe Biden's efforts seeking the 2016 dismissal of Ukraine's disgraced top prosecutor -- as part of anti-corruption efforts led by the US -- was an attempt to protect Hunter, who served on the board of Ukraine-based Burisma Holdings which had been cleared of wrongdoing in a prior investigation years earlier.

In July 2019, Trump famously ordered the freezing of $391 million in military aid in an attempt to force Ukrainian President Volodymyr Zelenskyy to launch an investigation of the Bidens. Trump's actions later led to his December 2019 impeachment by the US House of Representatives.

A subsequent investigation in 2019 and 2020 by Republican Senators Ron Johnson (WI) and Chuck Grassley (IA) into Hunter Biden's involvement with Burisma, as well as allegations that Democrats colluded with the Ukrainian government to interfere in the 2016 election, was also unsuccessful.

In October 2020, twenty days prior to the 2020 US presidential election, the New York Post -- with the involvement of Trump's personal attorney Rudy Giuliani and former chief strategist Steve Bannon -- published an article about alleged evidence of corruption by both Joe and Hunter Biden found on a laptop computer that Hunter left for repairs at a Wilmington, Delaware computer shop. The shop's owner copied emails on the laptop and turned it over to the FBI.

The article's veracity was strongly questioned by mainstream media outlets, analysts and intelligence officials at the time, and extensive scrutiny of the laptop's contents by multiple parties over the subsequent two years found no evidence of criminal activity. Emails authenticated by CNN in July 2022, however, did reveal that Hunter was struggling with large debt and overdue tax bills.

Hunter Biden's attorneys are seeking criminal charges against Giuliani, Bannon and others for violating federal laws "in accessing, copying, manipulating, and/or disseminating Mr. Biden's personal computer data."

In his 2021 memoir, Beautiful Things, Hunter Biden wrote of his struggles with drug and alcohol abuse. Over the past two decades, he has been in and out of rehabilitation, with several cycles of sobriety followed by relapse, which escalated after Beau's death, in 2015, from brain cancer. He has been in recovery since a 2019 intervention.

In January 2023, after Republicans took control of the US House of Representatives, the House Oversight Committee initiated an investigation into the "Biden Crime Family" and whether President Biden was improperly involved in the foreign business activities of his son and brother James, a former business partner of Hunter's.

The committee, led by Chair James Comer (R-KY), alleges "international influence peddling schemes", bribery, and a Justice Department cover-up. As of July 2023 the investigation had found no evidence of wrongdoing.

Status
On June 20, 2023 Hunter Biden entered a plea deal with prosecutors in the Delaware US Attorney's case, agreeing to two misdemeanor counts of failure to pay taxes and a felony charge for knowingly denying drug use when applying for a gun purchase permit in 2018. Prosecutors recommended two years of probation for the tax charges and dropping the gun charge at the end of this period if the conditions of a pretrial diversion program for nonviolent offenders had been met.

In Wilmington, Delaware on July 26, however, Federal District Court Maryellen Noreika, a Trump appointee, rejected the deal, saying she would not be "a rubber stamp" and questioning them on legal and constitutional questions about the agreement for nearly three hours.

Her concerns appeared to center on two elements: a provision that would have offered Biden broad immunity against further prosecution should Trump, if re-elected, or another Republican president seek to reopen the case. The other had to do with the diversion program on the gun charge, under which Noreika would be called on to determine whether Biden was meeting the terms of the deal, which she said would give her prosecutorial power "outside my lane of my branch of government.”

Amazingly, the two sides disagreed on the interpretation of Biden's "immunity," with prosecutor Leo Wise saying parts of the investigation were ongoing and that Biden would not be insulated from other charges -- such as potential violation of foreign lobbying laws. Biden then told the judge he could not agree to any deal that did not offer him full immunity.

Noreika gave 30 days to both sides to provide additional information, at which point Biden changed his plea from "guilty" to "not guilty," which he will reverse if the two sides revise their agreement to the judge’s satisfaction.

In the interim, however, the potential for resolution appears to have exploded, with Biden's team saying DOJ had reneged on the signed deal and Weiss, in court papers on Friday, raising the possibility that he would take Mr. Biden to trial on the tax charges.

In a June 20-21 Reuters/Ipsos survey of American adults, 58% of respondents said a Hunter Biden plea deal does not affect their likelihood of voting for Biden next year (MOE +/- 3.8%).

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Kimberly Scott
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Sources: Legal Information Institute/Cornell Law, Politico, PBS, CNN, New York Times, The Guardian

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