Below is my column in Hill on reasons for and against the appointment of a Special Counsel in the Hunter Biden Inquiry. By refusing to address the underlying allegations, Joe Biden is increasing concerns about potential conflicts of interest and his own potential exposure. Biden claims he will not question potential Justice Department candidates about the investigation, but he also refuses to answer certain questions. In the meantime, he appeared to confirm that he viewed the investigation as Russian disinformation. This is a well-known profile in an early-government scandal, and Democrats are likely to receive their own prior calls to scrutinize the Trump family on such foreign influence issues.
Here is the column:
While Joe Biden continues to avoid asking specific questions about the Hunter Biden scandal, there is reportedly “ongoing discussion” in the Justice Department over whether to appoint a special lawyer. Ironically, Joe Biden’s refusal to address certain allegations has only raised concerns about potential conflict for his Department of Justice, which is conducting this investigation. His stone wall is the best case for a particular lawyer – but some strangers remain critical to the decision.
Attorney General William Barr left his position this week after very public conflicts with President Trump, including his rejection of appointments of special advisers to investigate the 2020 election and the Hunter Biden scandal. Barr clearly wasn’t against making such appointments; He converted United States attorney John Durham to special advisor to ensure Durham will complete his investigation into handling the Russian collusion investigation.
The question is whether such reasons might arise in connection with Hunter Biden’s investigation. Department of Justice regulations allow for the appointment of special legal counsel when it is in the public interest and an “investigation or prosecution of that person or matter by a US Attorney or Justice Department would create a conflict of interest for the Justice Department or other exceptional circumstances. “
The case for a special lawyer
There are clear conflicts in this investigation for Joe Biden. Most obviously it concerns his son. Additionally, for over a year, Biden has stated repeatedly that “no one suggested that my son did anything wrong”. That is clearly not true; Many people agree that Hunter Biden was involved in raw influence trading around the world. That may not be a crime, but it is certainly ethically wrong. Nonetheless, Biden continued making this claim after disclosing that Hunter was the subject or target of a federal investigation. He has described the allegations as a continuation of the political “foul play” against his family.
The Democrats previously insisted that Trump’s public rejection of the Russia investigation was a “joke” in support of the appointment of a special envoy. In addition, powerful Democrats like House Intelligence Committee Chairman Adam Schiff claimed that Hunter Biden’s laptop and pre-election emails were just “Russian disinformation” and that “this whole smear on Joe Biden comes from the Kremlin” .
Biden himself replied in the affirmative – “Yes, yes, yes” – to a recent question whether allegations against his son were “Russian disinformation and a smear campaign, as you said?” Are. Any criminal or other misconduct identified by the prosecution would be an obvious embarrassment to Biden.
In addition, serious apparent conflicts were uncovered in the laptop and in the emails seized by federal investigators. Biden has refused to acknowledge that the laptop and the emails are real. He refused to address direct contradictions in these emails. He has refused to bring up reports from key witnesses such as Jäger’s business partner Tony Bobulinski referring to Biden’s direct knowledge or involvement – in direct conflict with Biden’s repeated refusals. The emails are related to payments, office space, and other benefits for Joe Biden and his family from overseas, particularly China.
After all, Joe Biden has more than one son or his own credibility at stake. This investigation began in 2018 with a suspicious transaction report from the Treasury. That doesn’t mean there was a crime, but foreign financial transactions have been deemed suspicious and there are indications that money laundering concerns have been raised.
Repeated references to Joe Biden in these emails could create a legal vulnerability. He could face exposure in other ways as well. One of the reasons Biden didn’t label Bobulinski a liar is because doing so would likely spark a libel lawsuit with sworn testimony and discoveries. Biden is aware of the dangers of such civil trials. After all, he was voting as a senator on the Clinton impeachment trial, which included allegations that Bill Clinton had lied on oath when he was dismissed.
The case against a special adviser
Much of this decision will depend on the specific scope and underlying criminality of the investigation. Bill Barr knew these facts when he rejected the need for special legal assistance. If it’s a close tax investigation, it is likely close to closing. The key is not the appointment of a special adviser, but the continuation of the current US attorney in his position until completion.
During Barr’s tenure, the Justice Department handled a number of investigations that affected Trump, from the Mueller investigation to various investigations into the Trump Organization and Trump advisors such as Rudy Giuliani and his aides. None required special advice; Everything went on under Barr’s leadership without interference or manipulation. There is also a reluctance to allow specific advice to be disseminated unless there is little alternative. The potential to embarrass a president is generally not enough. After all, if everyone is a special lawyer, they are no longer very special.
The biggest problem is that interference is legal. It is the most popular form of corruption in Washington. While you can’t give an envelope to a politician like Biden, you can give millions in dubious contracts, gifts, and loans to his son or other relative. The special lawyer regulations provide for “an investigation or prosecution” only of criminal offenses. The Justice Department does not investigate politicians’ unethical behavior or simple lies. Otherwise there would be little time to do anything else.
In particular, this argument against the appointment of a special adviser is also an argument for an investigation by Congress. Various Democrats have called for investigations into Trump’s family affairs overseas, including requests for a special adviser or other investigation. In 2018 Schiff wrote: “The American people deserve to know that our president is acting in their own interest and not in his own financial self-interest or because he has been compromised by a foreign power.” The fear was that the Trump family would be compromised or indebted to foreign interests. The same fears exist about this scandal, and the same Democrats should support a full congressional investigation.
In the absence of a definite crime, it is up to Congress to investigate “suspicious activity” that could endanger a president or his administration. Hunter Biden’s investigation may not warrant special legal assistance – but the public deserves answers. The point of influence is to secure influence over powerful characters. The question is whether the Chinese, Ukrainians and other foreign actors got anything from their efforts.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online at JonathanTurley.