Below is my column in The Hill on the expiration of the grand jury in Delaware and reports that the Hunter Biden investigation is at a “critical stage.” These lingering questions could have been avoided if Attorney General Merrick Garland had responded to new disclosures with the appointment of a special counsel. In 2021, emails and recordings from the laptop further fueled questions of whether President Joe Biden could have been a beneficiary of some of these dealings and how his early denials of knowledge appear demonstrably false. The failure to appoint a special counsel in this case is a textbook example of why such appointments are necessary to avoid such doubts about the scope or independence of an investigation.
Here is the column:
Astronaut Buzz Aldrin once said the secret to his success was “timing … I have been blessed to have been in the right place at the right time.” It is the same defining element of Hunter Biden’s life: No matter what crime or corruption is alleged, he has escaped responsibility, often by pure political serendipity.
Now, according to various media outlets, time may be running out for Hunter, with a federal investigation entering a “critical stage.” Yet, timing still could be on Hunter’s side.
Hunter has always had impeccable timing and, like Blanche DuBois, “always depended on the kindness of strangers.” He went to law school after his father became a powerful U.S. senator with a long line of influence-seekers eager to help him and his family. After graduating, Hunter was given a high-paying job with MBNA, the bank holding company, which supported key credit card legislation being pushed by his father in the Senate.
Later, Hunter was given a ridiculous appointment to the board of Amtrak and became its vice chair, despite an utter lack of credentials. His father, however, was a critical advocate for Amtrak in the Senate.
When his father became vice president, Hunter and an uncle allegedly cashed in on a long line of foreign entities seeking influence with his father. Millions of dollars were given to Hunter even though, as he has acknowledged, he was a crack addict and alcoholic at the time — “[d]rinking a quart of vodka a day by yourself in a room [which] is absolutely, completely debilitating” and “smoking crack around the clock.”
When Hunter’s debaucheries and dealings became public knowledge, thanks to a laptop he abandoned at a repair shop, the timing again was right for him. It happened just before the 2020 presidential election, and the media imposed a virtual blackout on coverage; 51 intelligence experts wrote a letter dismissing the laptop as likely “Russian disinformation.” U.S. Attorney David Weiss, probing Hunter’s dealings under an appointment by then-Attorney General William Barr, suspended his grand jury investigation for months to avoid accusations of influencing the election.
Now the grand jury’s expiration last month has forced a new timeline in the Hunter saga. The grand jury reportedly looked at a variety of possible criminal charges stemming from Hunter’s reported influence-peddling with dubious foreign figures from China, Russia, Ukraine and other countries.
While it is unclear if there were any indictments, some crimes seem undeniable on the basis of known evidence. For example, Biden seems clearly to have lied on the federal form to acquire a gun by denying his drug use; he also appears to have violated the Foreign Agents Registration Act. And there are obvious tax charges that could be brought, even though he paid outstanding taxes after the investigation began.
However, some of the most serious allegations of corruption concern alleged influence-peddling and acquiring millions from foreign figures. Not only were there reportedly more than 150 suspicious activity reports (SARs) filed, but those millions seemed to evaporate. His dealings reportedly involve an array of powerful figures, including his father, his uncle and the children of other well-known families.
A long-standing Justice Department policy instructs prosecutors to exercise caution in “the timing of charges or overt investigative steps near the time of a primary or general election.” Accordingly, some observers have objected that prosecutor Weiss should not issue an indictment against Hunter before the midterm elections, since that could hurt Democratic candidates. That could explain the failure to release any indictments after the disbanding of the grand jury.
But the use of this policy to seal or delay any indictments could raise equal concerns over the politicalization of prosecution.
The protected period under Justice’s policy has been stated variously as 60 or 90 days. This grand jury’s term expired outside of either period. Moreover, the policy does not bar filings during that period; it bars prosecutors from using “the timing of investigative steps or criminal charges for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.” It is the grand jury’s expiration, not any nefarious purpose, that is driving this schedule.
The most obvious problem with this argument is that neither President Biden nor his son are on any ballot in November. The policy is not supposed to be a political variation of the parlor game “Six Degrees of Separation From Kevin Bacon.” An indictment in Delaware would be three degrees from any Democratic candidate: (1) Hunter is the son of Joe Biden, (2) Joe Biden is president and a Democrat, and (3) there are candidates running as Democrats.
To use such a strained connection can itself be a political act. If the Justice Department can withhold prosecutions with even tangential political elements, it can shield political allies from having to address criminal allegations before the voters.
Of course, if there are sealed indictments, any delay would not stop an eventual prosecution. However, that timing still could benefit Hunter. He did not have to face a special counsel, who ordinarily would prepare a comprehensive report. There has long been an overwhelming basis for the appointment of a special counsel in this case, given direct references to President Biden as a prospective beneficiary of Hunter’s deals. By leaving this case with a U.S. Attorney, such a report is unlikely, and only limited information would be disclosed with any indictment.
More importantly, if an indictment is confined to narrow charges, not a broader conspiracy, Hunter could plead guilty to secure a more favorable sentence and avoid both a trial and the release of additional information. A plea could offer practical protection from future congressional hearings, too: It would close the case before Republicans could regain control of one or both houses of Congress, and the Justice Department could decline to bring further charges. Indeed, the expiration of the grand jury without a public indictment fueled concerns that the Biden Justice Department might cut a generous plea deal with the president’s son.
Conversely, if the U.S. Attorney were to present evidence to a new grand jury, it could take months and extend beyond the midterm elections. That would present a considerably higher risk for the Biden administration and for Hunter himself, because Weiss might put that additional time to good use.
Weiss does not appear to have called critical witnesses related to any alleged influence-peddling, including President Biden. Presidents can be called before grand juries or deposed by investigators in other cases; President Clinton, for example, famously was compelled to testify in a legal case during his term. If Weiss is going to investigate deals that discuss money going to “the big guy,” as Hunter allegedly referred to his father, then it would seem obvious that that would be the one guy who should be on any witness list.
It is unclear what, if anything, Weiss has uncovered about the Bidens — but, perhaps for the first time, time will tell.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.