President Joe Biden and his administration are putting on a master’s class in ethics in the federal investigation into the business dealings of the president’s son Hunter Biden. As the investigation heats up, Biden’s “hands-off” approach versus Donald Trump’s “hands everywhere” approach is starkly illustrated by Trump’s shoutout to Russian President Vladimir Putin to release dirt on Hunter Biden. The move continues Trump’s long-standing practice of appealing for foreign interference in American politics.
From his “Russia, if you’re listening” remark about finding Hillary Clinton’s missing emails to his repeatedly asking Ukrainian President Volodymyr Zelenskyy to announce an investigation into Hunter Biden in return for military aid, Trump has always shown his appetite for using investigations as political weapons. Such a predilection is a characteristic of autocracies, and resistance to it has long been baked into the traditions of the Justice Department.
Whether Trump likes it or not, the Hunter Biden investigation is proceeding as it should — mostly in silence.
When I served as counsel to then-Attorney General Janet Reno, she had appointed five independent counsels in President Bill Clinton’s first term, hardly endearing her to the president (but notably causing no public castigation of Reno by Clinton). In all of those cases and myriad other matters, I saw a Justice Department that strove to insulate investigations from political considerations. In staff meetings with the attorney general, no one ever mentioned the political ramifications of any case. And in all of the regular reports she received from line prosecutors, supervisors and heads of divisions, that concern was never brought up.
Of course, that did not mean that people were not aware of which cases were politically sensitive. Rather, it meant that there was a well-established shared concern that no appearance of or actual political interference was to take place.
What I learned was that updates to the attorney general and other senior leadership offices, like that of the deputy attorney general, needed to come up through the chain of command of lower-level section chiefs and division heads to buffer prosecutors working on the cases from feeling as though political appointees were pressuring them. At the senior leadership level, great deference was given to career officials — like the legendary David Margolis — who had served in multiple administrations. Often, Reno’s first question to me about any case I was reporting to her about was likely to be what Margolis thought about how it was progressing.
However, during the Trump era, not only did the president frequently publicly pronounce his views on prosecutions that involved political cronies, but the Justice Department itself was also riven by overtly politically motivated actions that destroyed morale. It led to unprecedented letters signed by former department officials calling for the resignation of former Attorney General William Barr. I signed one of those letters.
Biden’s administration has obviously focused on trying to repair the department’s tattered image.
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The administration’s effort to recover the Justice Department’s integrity is not limited to the Hunter Biden case. For example, the much-derided investigation by special counsel John Durham into the origins of the FBI’s probe into Trump’s connections with Russia has been allowed to continue. But it is President Biden’s decision to leave in place the Trump-appointed U.S. attorney overseeing the investigation into his son that best exemplifies his administration’s effort to restore public confidence that investigations will not be politically weaponized.
The administration’s effort to recover the Justice Department’s integrity is not limited to the Hunter Biden case.
Typically, a new president will appoint mostly new U.S. attorneys, with the old appointees tendering resignations.
The decision to keep the original head prosecutor on the Hunter Biden case signals the president’s willingness to let the investigation proceed where it may, even if that results in a possible criminal charge against his son.
Whether or not Hunter Biden, who has denied any wrongdoing, is ultimately charged, Trump’s latest insertion of himself into the investigation is unlikely to have any effect on the matter. It may, however, have the unintended consequence of backfiring on Trump by further eroding his support among moderates and independents who are unlikely to support Trump’s continued bromance with Putin during worldwide condemnation of Russia’s invasion of Ukraine.
It may also lead to increased scrutiny of actions for possible violations of election interference laws, as well as the seldom-used Logan Act, which makes it a criminal offense for U.S. citizens to influence foreign governments to “defeat the measures of the United States.”
Whether Trump likes it or not, the Hunter Biden investigation is proceeding as it should — mostly in silence. Unlike the Jan. 6 Capitol attack cases and potential investigations into members of Congress and Trump advisers that could emerge, the Hunter Biden matter is not one that involves seditious conspiracy against the U.S., an attempt to overturn a presidential election or any other issue of national significance. It is a case focusing on a single private citizen who happens to be the son of a sitting president. Its significance lies in how evenhandedly his case is treated. Its significance is to remind the American people that no one is above the law.
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