The Case For and Against The Appointment Of A Special Counsel In The Hunter Biden Investigation
Below is my column in the Hill on grounds for and against the appointment of a Special Counsel in the Hunter Biden investigation. By refusing address the underlying allegations, Joe Biden is magnifying the concerns over possible conflicts of interest and his own possible exposure. Biden is maintaining that he will not ask potential Justice Department nominees about the investigation but he is also refusing to answer specific questions. In the meantime, he appeared to confirm that he views the investigation to be Russian disinformation. That is a familiar profile in a scandal at the start of an Administration and Democrats are likely to face their own prior calls to investigate the Trump family on such questions of foreign influence.
Here is the column:
While Joe Biden continues to avoid specific questions on the Hunter Bidenscandal, there reportedly are”ongoing discussions” at the Justice Department on whether to appoint a special counsel. Ironically, Joe Biden’s refusal to address specific allegations has only fueled concerns of possible conflicts for his Justice Department conducting this investigation. His stonewalling is making the best case for a special counsel — but some unknowns remain critical to the decision.
Attorney General William Barr left his position this week, following very public conflicts with President Trump, including his opposition to special counsel appointments to investigate the 2020 election and the Hunter Biden scandal. Barr clearly was not opposed to making such appointments; he converted United States attorney John Durham into a special counsel, to guarantee that Durham will complete his investigation into the handling of the Russian collusion investigation.
The question is whether such grounds could emerge with regard to the Hunter Biden investigation. Justice Department regulations allow the appointment of a special counsel when it is in the public interest and an “investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances.”
The case for a special counsel
Clear conflicts are present in this investigation for Joe Biden. Most obviously, it involves his son. In addition, Biden has stated repeatedly for more than a year that “no one has suggested my son did anything wrong.” That clearly is not true; many people agree that Hunter Biden was engaged in raw influence-peddling on a global scale. That may not be a crime but it certainly is ethically wrong. Nevertheless, Biden continued that claim after the disclosure that Hunter is the subject or target of a federal investigation. He has referred to the allegations as a continuation of political “foul play” targeting his family.
Previously, Democrats insisted that Trump’s public dismissal of the Russia investigation as a “hoax” supported the appointment of a special counsel. In addition, powerful Democrats like House Intelligence Committee Chairman Adam Schiff claimed the Hunter Biden laptop and emails discovered before the election were just “Russian disinformation” and “this whole smear on Joe Biden comes from the Kremlin.”
Biden himself responded affirmatively — “yes, yes, yes” — to a recent question about whether allegations against his son are “Russian disinformation and a smear campaign, like you said?” So,any criminal or other wrongdoing found by prosecutors would be an obvious embarrassment to Biden.
Further, serious apparent conflicts were revealed in the laptop and emails seized by federal investigators. Biden has refused to acknowledge that the laptop and emails are genuine. He has refused to address direct contradictions in those emails. He has declined to address accounts of key witnesses like Hunter’s business associate, Tony Bobulinski, referring to Biden’s direct knowledge or involvement — in direct conflict with Biden’s repeated denials. The emails refer to payments, office space and other benefits for Joe Biden and his family from foreign countries, particularly China.
Finally, Joe Biden has more than a son or his own credibility at stake. This investigation started in 2018 with a Treasury Department suspicious activity report. That does not mean there was a crime, but foreign financial transactions were flagged as suspicious and there are indications that money-laundering concerns may have been raised.
Repeated references to Joe Biden in these emails could create legal exposure. He could face exposure in other ways, too. One of the reasons Biden has not called Bobulinski a liar is that it likely would trigger a defamation lawsuit with sworn depositions and discovery. Biden is well aware of the perils from such civil litigation. After all, he voted as a senator in the Clinton impeachment trial, which included allegations that Bill Clinton lied under oath in his deposition.
The case against a special counsel
Much of this decision depends on the specific scope and underlying crimes of any investigations. Bill Barr knew those facts when he rejected the need for a special counsel. If this is a narrow tax investigation, then it likely is near completion. The key is not the appointment of a special counsel but the continuation of the current U.S. Attorney in his position pending completion.
During Barr’s tenure, the Justice Department handled a variety of investigations impacting Trump, from the Mueller probe to various investigations into the Trump organization and Trump advisers like Rudy Giuliani and his aides. None required special counsels; all continued without interference or manipulation under Barr’s leadership. There also is a reluctance to allow special counsels to proliferate unless there is little alternative. The potential to embarrass a president is generally not enough. After all, if everyone is a special counsel, they are no longer very special.
The biggest issue is that influence-peddling is legal. It is the favorite form of corruption in Washington. While you cannot give a politician like Biden an envelope of money, you can give his son or other relatives millions in dubious contracts, gifts and loans. The special counsel regulations involve “an investigation or prosecution” only into criminal acts. The Justice Department does not investigate politicians’ unethical conduct or simple lying. Otherwise, it would have little time to do anything else.
Notably, this argument against a special counsel appointment also is an argument for a congressional investigation. Various Democrats demanded investigations of Trump family dealings in foreign countries, including calls for a special counsel or other investigations. In 2018, Schiff wrotethat “the American people deserve to know that our president is acting in their interest and not his own financial self interest, or because he has been compromised by a foreign power.” The fear was that the Trump family was compromised or beholden to foreign interests. Those same fears exist with this scandal, and those same Democrats should support a full congressional investigation.
In the absence of a clear crime, it falls to Congress to investigate “suspicious activities” that could compromise a president or his administration. The Hunter Biden investigation may not warrant a special counsel — but the public deserves answers. The point of influence-peddling is to secure influence over powerful figures. The question is whether the Chinese, Ukrainians and other foreign actors got anything from their efforts.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.