The proliferation of criminal prosecutions against former president Donald Trump may suck much of the oxygen out of the room, but it should not allow us to be distracted from the parallel legal drama taking place on the other side of the political aisle: the various investigations and plea deals of Hunter Biden, which themselves have followed a serpentine path.

The adventures of President Biden’s son are of interest for two reasons. The first is that any misbehavior by a presidential relative will attract interest in and of itself. But second, the obvious closeness between the two Bidens has already made it certain that much of the political attacks on Joe Biden will continue to run through Hunter Biden. The Democrats understand this well, which is why they once placed such stock in the plea agreement apparently reached between Delaware District Attorney David Weiss and Hunter Biden’s team of lawyers. Before it unraveled in late July, the deal was widely attacked as a slap on the wrist, given the seriousness of the charges and the amount of money—several million dollars—apparently owed in back taxes. Before this attempt to settle, as Republicans stressed, Weiss had let the statute of limitations run out on potential tax liabilities for Hunter in 2014 and 2015—when the common practice is for government attorneys to offer this win/win deal to subjects of their investigations: you will waive the statute of limitations defense and we will hold off for the moment from bringing suit against you, which will have all sorts of negative consequences on meeting your licensing and reporting requirements under various banking, accounting, insurance, and securities schemes. 

The case is fraught with further difficulties. Two tax investigators, Gary Shapley and Joseph Ziegler, testified before Congress that their efforts to investigate Hunter’s finances were blocked by key personnel within the Justice Department, which promptly denied the allegation. Both IRS investigators protested that on multiple occasions between May and July 2023 they had been frustrated by orders of Assistant US Attorney Lesley Wolf, who allegedly limited their power to run the investigation. It is not credible at this point to assume that Weiss and his staff were unaware of these limitations, which made it wholly inappropriate for them to enter into any kind of deal until they had assurances from Attorney General Merrick Garland that these fetters would be removed. 

Yet no safeguards were put into place at all. Thus the vaunted deal between Weiss’s office and the Hunter Biden team fell apart when brought to the courthouse of US District Judge Maryellen Noreika. That ill-fated deal called for Hunter Biden to plead guilty to two counts of tax misdemeanors and to enter into a diversion program to deal with felony charges arising from his possession of firearms. The tax settlement, as stated, was all too favorable to Hunter Biden, when judged against the far heavier settlements routinely meted out in similar cases. In this instance, it was understood that it took no special authority for Weiss (and his courtroom attorney Leo Wise) to have demanded a one-year prison term for each of the two counts, as well as two $25,000 fines. The deal itself was silent on the reasons for mitigation because it appears that none were available, which itself had to sound alarm bells.

But worse still, the two sides had a public spat before Judge Noreika over the question of whether the settlement supplied a complete release of all claims, actual and potential, against Biden. That global release issue would have passed by in silence had Noreika not forced the parties to answer the question of whether the release would cover potential strong charges associated with Biden’s failure to register as a foreign agent for his work in Ukraine and elsewhere. 

The two parties protested to the judge that they had entered into a good-faith bargain to close the probe. But what happened was nothing of the sort. That became painfully clear when the Hunter Biden team said the settlement was comprehensive and Wise denied that claim. This is not some small oversight, and the failure to mention explicitly and clearly the problem in the plea agreement was itself a serious breach of professional standards, given the fear that if the matter passed in silence, no one would be the wiser as to what actually transpired. In my view, this kind of breakdown speaks not of the good faith of the two sides, but of some cross between improper collusion and general incompetence—both of which justify using a clean broom, so that new attorneys known for their independence and integrity could pick up the pieces by starting from zero, which in this instance would require reopening the earlier investigations that had been stymied.

Yet that did not happen either. Instead, Garland took the stunning step of appointing David Weiss, who had bungled the case to date, as a special prosecutor to take matters forward, which gave him the extra powers that he may (or may not) have enjoyed earlier, including the power to pursue matters in California and the District of Columbia.  Garland argued that this appointment was in the highest tradition of the department, but it is hard to imagine any deal more suspect. Former assistant US attorney Andrew McCarthy called the appointment “laughable.” Simple common sense says it is unwise to give additional powers to let Weiss investigate his own decisions in the case that he has run since 2018.

The key issue is how to guard against the obvious favoritism toward the president’s son, which is why independence is the key variable. An examination of the applicable Department of Justice regulations illustrates the difficulties with determining the legality of Garland’s appointment of Weiss. The regulations emphasize that a key reason to appoint a special counsel is to address a “conflict of interest” in the department. In virtually every area of law, the proper response to a conflict of interest is the appointment of an independent party who has no stake in the matter. The regulations are no exception when they stipulate when, “under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.”

That should be the end of the matter, but in fact it is not. Introductory language in the regulation states that this should happen only when the attorney general “determines that criminal investigation of a person or matter is warranted,” which appears to put the matter back in his hands. And the next section reinforces that view by creating an exception to the general rule that such appointment need not be made when “the public interest would not be served by removing the investigation from the normal processes of the Department, and that the appropriate component of the Department should handle the matter.” 

How to put these discordant pieces together? First, it is manifestly not in the public interest to ask Weiss to investigate his own misconduct, which among other things would afford him protection against the ongoing oversight investigations in the House of Representatives on the ground that it is inappropriate for prosecutors to comment on ongoing cases. The ultimate question is whether there is any judicial oversight over this matter. At should be apparent, Judge Noreika took the view that she had to intervene earlier in this case precisely because of the massive irregularities to date. None of these irregularities has been corrected; indeed, they have been compounded, given that the only person manifestly unfit for the job of special counsel is Weiss himself.

So, the legal question then boils down to this issue: does the attorney general have full power to make these determinations, given that the applicable regulations say nothing about judicial review? In most cases, the answer should be yes, because of the strong presumption of regularity in the operation of administrative agencies. Unfortunately, this is not one of those cases. To give the attorney general full control just makes matters worse. It would be an affront to the constitutional imperative of due process of law to let this proceed. Since Garland has made matters worse, this appointment of a special prosecutor should be undone by the judicial branch to protect its own internal processes.

One way for this to happen would be for Noreika to keep the case in her court until Garland appointed an independent prosecutor worthy of the task. Another is for other judges to accept the transfer of the case on the ground that the Weiss appointment compromises the operation of the judicial system. It is of course virtually impossible to determine how the transfer of power in this case would tie in to the ongoing investigation of the Biden family business arrangements. Which is just as well, because peeking over the shoulder will only make matters worse.

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