Columns, Congress, Constitutional Law, Criminal law

Yes, Hunter is Now in Contempt of Congress

Below is my column in The Messenger on the decision of Hunter Biden to defy Congress in a press conference outside of the Capitol Building. Remarkably, this spectacle was coordinated by Rep. Eric Swalwell (D., Cal.) who presumably knew that Biden was going to violate the congressional subpoena. So Swalwell (a former impeachment House manager) helped facilitate a possible criminal act in refusing to share appear in an impeachment inquiry.

Here is the column:

Congress is often a theater of the absurd, from Rep. Jamaal Bowman (D-N.Y.) pulling a fire alarm before a major vote to former Rep. George Santos (R-N.Y.) being, well, a member of Congress at all. However, none of that compares to what unfolded on Wednesday as Hunter Biden stood outside Congress and defied a subpoena as being “beyond the absurd.” What happens next could be even more bizarre.

Hunter was under a subpoena from the House Committee on Oversight and Accountability to appear for testimony. As I previously wrote, he had two choices: He could appear and either testify or invoke his right to remain silent. The only thing that he could not do is what he did — just refuse to go into the hearing room. Yet, there he was, with counsel Abbe Lowell by his side, holding forth with a public press conference while refusing to appear in the closed-door deposition being held in the building behind him.

By staying on the Senate side of the Capitol, Hunter guaranteed that the House sergeant at arms did not pull him into the hearing room. Ironically, that would have been a better option than his blowing a raspberry at the committee and then speeding away.

Many pundits immediately claimed this was a clever move because the subpoena was not really enforceable until the House voted on the formal impeachment inquiry a few hours later.

I disagree. As I noted in my testimony in the first impeachment inquiry, there is no requirement for a formal vote to initiate an impeachment inquiry. Indeed, that is precisely what then-majority Democrats did with the impeachment of then-President Donald Trump. While I encouraged the House to hold a formal vote on the inquiry, it is not constitutionally required.

Moreover, this is an oversight committee which has independent authority to issue subpoenas. The subpoena was issued not only by the Oversight Committee but by the Judiciary Committee. It was issued under three different authorities, including Rule 12(g) of the Oversight Committee which allows for subpoenas “in the conduct of any investigation or activity or series of investigations or activities within the jurisdiction of the Committee.”

In holding this spectacle, Biden and his legal team committed another unforced error. This one could prove as costly as pushing for an obscenely generous plea agreement and then telling prosecutors to “rip it up” in July.

Few people expected Hunter to testify in the deposition. The evidence against him is overwhelming, as shown in his second federal indictment on tax charges. He and his uncles were allegedly engaged in one of the largest influence-peddling operations in history involving millions of dollars from various foreign sources. Hunter simply could have done what prior witnesses have done: Go in and take the Fifth. That is what attorney and former IRS official Lois Lerner did — twice — when House Republicans wanted to ask her about the Obama administration targeting conservative groups.

It was a no-brainer that someone appears to have radically over-thought on the Hunter Biden legal team.

Hunter can now be held in contempt of Congress. That will force the hand of Attorney General Merrick Garland, who aggressively pursued Trump figures for contempt, including former Trump adviser Steve Bannon. Despite some of us writing to the contrary, Bannon claimed his lawyers told him he did not have to appear before a House committee. He was swiftly charged and convicted by Garland’s prosecutors.

In this instance, the contempt case would go to the U.S. Attorney in D.C., Matthew Graves, who previously declined to assist in bringing tax charges against the president’s son. Yet by pulling a Bannon, Hunter now faces the expectation in many circles that he will get the full Bannon treatment from Garland.

There is another possible cost to this move. Fox News quoted White House press secretary Karine Jean-Pierre saying that President Biden “was certainly familiar with what his son was going to say,” which suggests that the president spoke with his son before his act of contempt and discussed his statement. If that is true, it was a breathtaking mistake. One of the four most obvious potential articles of impeachment that I laid out in my prior testimony was obstruction. There already are questions over special treatment potentially being given to Hunter in the form of alleged felonies being allowed to expire, warnings about planned federal raids, and sweetheart deals.

In addition, President Biden has enlisted White House staff to actively push challenged accounts of his conduct and attack the House Republicans’ investigative process. Such acts could legally bootstrap prior misconduct into his presidency under abuse-of-power allegations.

If this latest allegation is true, the president was speaking with his son about committing a potentially criminal act of contempt. Hunter was refusing to give testimony focused not on his own role but on his father’s potential role in the alleged influence peddling. The House can pursue evidence on that conversation and how the president may have supported his son’s effort.

With his bizarre public display, Hunter has opened a new potential front for prosecution. If the same law is applied the same way as it was to Bannon, Hunter could find himself indicted within a few weeks.

In Bannon’s case, the subpoena was issued at the end of September. He was held in contempt by the House in October and indicted in November. It took just four days of trial to convict him.

Indeed, President Biden himself has maintained that defying subpoenas cannot be tolerated. When subpoenas were issued to Republicans during the House’s January 6 investigation, Biden declared: “I hope that the committee goes after them and holds them accountable criminally.”

That is precisely what Republicans will now expect from Garland in Hunter’s case. In the meantime, the House did not lose anything that it expected to get from Hunter. It will now move to secure the testimony of a circle of associates surrounding both Hunter and his father. At the same time, the National Archives has finally agreed to give House investigators tens of thousands of emails reportedly involving the president.

As expected, in a floor vote late in the day, not a single House Democrat supported getting answers to these questions through an impeachment inquiry. They unanimously opposed any inquiry even though 40% of Democrats have said in polling that they believe the president has acted illegally or unethically regarding his family’s business deals. (Overall, 70% of those polled held that view.)

Hunter, however, just tripped another wire that could seriously complicate matters not just for himself but for his father. Perhaps that is why, when dramatist-scholar Martin Julius Esslin devised the term “theater of the absurd,” he described it as “part reality and part nightmare.”

Jonathan Turley, an attorney, constitutional law scholar and legal analyst, is the Shapiro Chair for Public Interest Law at The George Washington University Law School.

191 thoughts on “Yes, Hunter is Now in Contempt of Congress”

  1. So if Biden is under an impeachment inquiry and that investigation reveals that he is in fact guilty of engaging in bribery, fraud, tax evasion and other high crimes. Wouldn’t that make him complicit to the crimes Hunter is being charged and prosecuted for? If so, how could he pardon Hunter for crimes he himself is found complicit and if successfully impeached he himself would then be subject to federal prosecution by the incoming new Administration. Subsequent to an impeachment, he would no longer be able to pardon anyone. Conservatives need to run the clock, I would think Biden would not want to pardon anyone in this matter as it would be seen as an admission of guilt before an election to most voters. Anyone with cognitive thought and critical thinking abilities can deduce from evidence so far of his corruption.

    1. There is no constitutional constraint on the power to Pardon. Biden has the power to pardon himself – which he likely will do.

  2. I will never understand how government crimes that affect so many people in this country are allowed to be perpetrated (too often unpunished) and so many times without accountability (like they’re all in on it).
    Jonathan’s take gives me a logical perspective in the sea of insanity, but how do you fight Gov criminals this deeply entwined, who consider themselves above the law, because of their position and their ability to mask truth from constituents, and virtually go unchecked.
    Great article always from Jonathan! Love to read his position on critical matters and get solid perspective!

  3. There is .000000000000000000000000000000000000000000000000000000000000000000001% chance Garland will do anything.
    Democrats LOVE their criminals…why do you think the entire Biden Klan has gotten away with so many crimes along with 100’s of other powerful Democrats/RINO power brokers?
    look at the report people working with the Bidens bidenreport com/#p=497

  4. and as ALWAYS The GOP/RINO Party will do nothing…but CONTINUE to fund criminal fascist Democrats

  5. By staying on the “safe” Senate side of the Capitol, Hunter Biden paraded around in front of the fawning mainstream as the true beleaguered victim of racist MAGA Republicans. He did all of this because the fix was already in courtesy of Merrick Garland and little Chrissy Wray. Like the Clintons, nothing will happen to the Bidens in today’s Washington D.C.

  6. Thank you for this article. One small correction. “Remarkably, this spectacle was coordinated by Rep. Eric Swalwell (D., Fl.)” Rep Swalwell is from California.

  7. “. . . the Obama administration targeting conservative groups.” (JT)

    A plan that was hatched by the Left’s attack dog — Jack Smith.

  9. So Navarro and Bannon get a get out of jail free card if Hunter walks. They both refused subpoenas based on their beliefs of Executive privilege of the matter J6. The weaponization of the legal system is so obvious now it has to crash. That’s why Oblamo is running scared, he knows it will all be revealed, treasons exposed and let the chips fall where they may.

  10. He will be convicted and will go to prison just as Steve Bannon has been convicted and will also have to serve time. It will be a few months but he will serve time. The Biden family name will forever be tarnished. When many years have gone by, the emotions gone, historians will sift through the data. Their conclusions will not be kind to this administration.

    The AG cannot duck this one out. This move also brought into sharp focus the corruption of Washington’s elite and especially this administration and their arrogant disregard for the law.

    1. You are very optimistic.

      First, Congress has to find him in contempt, which it has not done yet. They appear to have recessed before even beginning the process. I suspect they may decide instead to issue a new subpoena, now that there has been an impeachment vote. If they do, there will be further delay and maybe Hunter will change his mind (though I doubt it).

      Secondly, the D.C. USA will need to decide to prosecute. There is no timeline for this decision. He can delay for months and then decline on the grounds that the election is coming up. This is the same USA who declined to prosecute Hunter when asked to do so by Weiss.

      So my prediction is that this prosecution will never happen.

      1. I agree that that is a plausible scenario. Hopefully Comer et el will be smart enough to not issue another subpoena. A new subpoena of a private citizen has exactly zero more authority than the last. Also, he might very well answer the next one and just plead the 5th, delaying everything as you said. So zero upside there for the govt. The brilliant Abbe Lowell either overplayed this or he let the Bidens call the shots. Either way, i’m again unimpressed by him. He could have gotten the exact same result without a contempt charge.

        Of course, the brilliant Lowell’s written statement actually had a finale of accusing Republicans of using “false facts”.

        Maybe we can get David “wikipedia” Benson to share with us the definition of “false facts”

        No one, including Turley should be surprised that he didnt show up. And only mildly surprised by the nose thumbing. This is who the Bidens are. I detailed in a prior days posts just a few examples of the audacity of this family. There is no privilege like Biden privilege.

    2. I’d like to add to that E.M.,

      “… This move also brought into sharp focus the corruption of Washington’s elite and especially this administration and their arrogant disregard for the law. …”
      And the flagrant violations of the K-Street Lobbyist, of which Devon Archer explained is the systemic inner-workings of the D.C./Wall Street printing [$] Machine.

    1. From WaPo ‘s Philip Bump: “His arguments against compliance were fourfold. First, that he didn’t think the request served a “legitimate legislative purpose,” since he couldn’t speak to the causes that he insisted were at fault for the riot. Second, the formation of the committee hadn’t followed the rules of the House because of the Pelosi-McCarthy disagreement. Third, that there was no valid precedent for the committee to compel testimony from a peer. And, fourth, that he still had questions about the objectivity of the committee, which, he repeated, had “prejudged the results” of its work.

      He concluded by demanding to see any evidence mentioning his name and legal opinions concerning the committee’s authority before he would consider compliance.

      Those documents were not presented.”

    2. You do him Wally. I prefer women. I’ll warn you, he is pretty rangy and an ex wrestler. You will probably end up as the catcher.

      I’m going to curtail use of the word turd, but if were to use it, i would say u brought a steaming one.

  12. It’s not exactly Sodom and Gomorrah 2.0, but it is disgusting. Expecting the AG to be fair and honest, is a reach. The DOinJ, the FIB, (typos intentional) have been purged, of anyone that will go after a lib. #dimplomaticimmunity

  13. Garland will never go after Hunter and the Republicans won’t be ale to either make him or even embarrass him. Shamelessness is a political superpower and Democrats have it in abundance.

    To my point just think of Garland, Wray and Mayorkas sitting in front of congress and just ignoring them or lying to them with impunity. It is very frustrating and further proof that we now live in Doublestandardstan.

    2. @hullbobby: RE: ” Shamelessness is a political superpower and Democrats have it in abundance.” Never lose sight of the fact that the nation might have been obliged to suffer Garland for life as a SCOTUS justice or possibly, Chief.

  14. I’m from Missouri. I’ll wait until the fat lady has sung, Valhalla has burned, and the curtain has dropped on this Gotterdammerung.

  15. A “Man” would not have the moral and ethical vacancies that Lowell does.

    Each day it seems we see yet more Democrat rejection of legal, ethical, and professional standards….with no reaction from other Democrats beyond encouragement, approval, and propagandizing.

    Were the AG and DOJ not corrupt Hunter would have been charged for Contempt of Congress, Swalwell as well for obstruction, and Lowell removed from practicing law.

    But then I believe in purple Unicorns that poop pink fairy dust too.

  16. While all this is true, it only matters if they can find Hunter. He may be on the lam, cooling his heels in a non-extradition country.

  17. Not confident there will ever be accountability with the law fully weaponized as a partisan cudgel.

  19. We will see quickly if AG Garland is unbiased. It seems obvious to me and millions of others he is biased, but here is an excellent opportunity to show at least some level of respect for our laws by Garland. But I’m also not holding my breath.

  20. Swalwell appears to have violated the Code of Ethics. Someone should file a complaint with the California bar. Moreover, despite her reputation as a top notch lawyer, Ms. Lowell may have set herself up for a malpractice suit should this all blow up (or give Hunter grounds for appeal)

    Walls do appear to be closing in.

          1. Stating irrelevant facts is pedantic.

            I was weeks into the story before I learned the sex of Lowell. It changes none of the story.

    2. Has Abbe Lowell transitioned to a woman? I think he still considers himself a man.

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