Below is my column in the Hill on the noticeably narrow scope of charges referenced in the recent FBI leak from the Delaware investigation. The leak raises a number of intriguing questions in its wake.
Here is the column:
President Biden’s hot mic moment during a visit to hurricane-stricken Florida — in which he muttered that “No one f–ks with a Biden” — left many people confused. His Sopranos-like warning might not deter developing hurricanes but it has succeeded for years in Washington as a kind of “Biden Golden Rule.” Neither prosecutors nor the press have seemed interested in pursuing allegations of criminal or corrupt practices by some members of the Biden family.
Now, after years of investigation, reports indicate that FBI agents are convinced ample evidence exists to charge the president’s son Hunter Biden on gun- and tax-related charges. Those charges (and a possible plea) may be the best-case scenario for the Bidens — and many others in Washington. Indeed, the reported narrow scope of a possible indictment is strikingly similar to what I previously described as the ideal “controlled demolition” of the Hunter Biden scandal.
Three questions immediately arise from this Justice Department leak, and the concern is that all three may be answered by the Biden Golden Rule:
For the Bidens, justice delayed is justice
The first question is why, in an investigation that began in 2018, the Justice Department only now believes it could charge over false statements on a gun registration form and on tax evasion. Both crimes were well established years ago.
The gun charge is based on the fact that Hunter Biden reportedly answered “no” to a standard question about whether he was an “unlawful user of, or addicted to” a narcotic drug or any other controlled substance. He wrote a book detailing his raging drug and alcohol addictions during this period (ironically, even as his father called for stricter enforcement of gun laws).
The FBI has long had the gun registration form, the book and other self-incriminating statements, not to mention President Biden’s repeated references to his son being an addict.
Hunter Biden also apparently did not pay taxes on millions garnered from his foreign business dealings or alleged influence-peddling schemes, and a Hollywood lawyer reportedly paid off as much as $2 million in delinquent taxes on his behalf recently. The FBI has had Hunter Biden’s infamous abandoned laptop since 2019, detailing payments from foreign sources and gifts or benefits, including a diamond.
Yet the long investigation has worked to the advantage of the Bidens as well as the Democrats in pushing any indictment beyond 2020 and, most likely, after the 2022 midterm elections. Indeed, Hunter Biden’s lawyer insisted after the leak of possible charges that prosecutors “should not be pressured, rushed, or criticized” to act.
It is often said that “justice delayed is justice denied” — but in politics, justice delayed is simply justice.
Is this all there is?
A second question concerns what were not referenced as likely charges against Hunter Biden.
For years, some of us have said an obvious, overwhelming argument existed to appoint a special counsel in this case. Yet Attorney General Merrick Garland has refused to do so.
Hunter Biden’s laptop reportedly contained detailed emails about business deals spanning the globe and millions of dollars from foreign sources, including some tied to foreign intelligence operatives. Some of his accounts reportedly were used to pay some of the bills for President Biden.
Even if the Justice Department is set to decline charges linked to foreign money transfers or influence-peddling, there is the obvious omission of charges under the Foreign Agent Registration Act (FARA). The Justice Department has used FARA aggressively in past prosecutions such as that of Trump associate Paul Manafort.
The omission of a charge under FARA would be glaring and troubling in light of those past prosecutions. And with the refusal to appoint a special counsel, that omission would likely avoid a public airing of any influence-peddling allegations tied to the Biden family.
A telling leak
The third question is why this leak occurred in the first place. Hunter Biden’s lawyer is justified in objecting to this leak and noting that it likely would constitute a federal crime. So why would sources at the FBI take the risk of a leak at this time?
Much like the Supreme Court leaking of the Dobbs decision, this one appears intended to trigger a response. The most obvious motivation would be to lock in the Justice Department if agents feared the department’s leaders might be resisting or delaying any charges.
It could also be an effort to alert the public about the narrow scope of charges being discussed with Hunter Biden’s defense team as a possible plea deal. There may also be concern that a plea deal might be reached before any Republican takeover of the House of Representatives. GOP leaders have pledged to investigate the influence-peddling allegations, but a plea could be used to say the matter is now considered closed by the Justice Department.
The focus on the gun charge is likely to highlight the absence of charges related to the reported foreign payments and alleged influence peddling. While the standard registration form warns of a potential 10-year sentence for false statements, it is rare to see significant prison time emerge from such cases. Indeed, prosecutors often choose not to charge on such violations. As a first-time offender, Hunter Biden could avoid prison entirely or plead to a short period of incarceration.
For those concerned about alleged influence-peddling, such a charge may seem like arresting a bank robber solely for double-parking his getaway car. While the reported charges could result collectively in a few years in jail, the absence of far more serious charges is likely to raise questions about the scope of the investigation.
The videos and emails reportedly uncovered on Hunter Biden’s laptop show a wide array of alleged criminal acts — a target-rich environment for any prosecutor. Indeed, it would take an amazing marksman to hit the gun charge and a few tax violations while missing other potential crimes. While any eventual indictment might contain other charges, the leak (if accurate) suggests a strikingly narrow focus as a basis for a possible plea.
The U.S. attorney in charge of this investigation, David C. Weiss, is a respected prosecutor. Even so, many Americans may wonder why Hunter Biden’s case suddenly was downgraded from a Category 5 hurricane to a tropical storm.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.