While Joe Biden continues to avoid specific answers on the Hunter Biden scandal, there are talks at the Justice Department on whether to appoint a special counsel. The refusal of Biden to address the allegations has only fueled concerns of some 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 role this week after public conflicts with President Trump, particularly his opposition to a special counsel to investigate the 2020 election and the Hunter Biden scandal. Barr was not opposed to such an appointment. He converted United States attorney John Durham into a special counsel to ensure that Durham will conclude his investigation into the handling of the Russia collusion probe.
The issue 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 by a United States attorney or any litigating division of the Justice Department will “present a conflict of interest for the Justice Department or other extraordinary circumstances.”
The case for a special counsel
Clear conflicts are present in this investigation for Biden. Most obviously, the scandal involves his son. Biden has also stated repeatedly that “no one has suggested my son did anything wrong.” But that is certainly not true. Many people concur that Hunter was engaged in raw influence schemes around the world. That may not be a crime but it is ethically wrong. Yet 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.
Democrats insisted that the dismissal by Trump of the Russia investigation as a “hoax” backed the appointment of a special counsel. Democrats like House Intelligence Committee Chairman Adam Schiff also declared the laptop and emails of Hunter discovered before the election were “Russian disinformation” and that “this whole smear on Joe Biden comes from the Kremlin.” Biden responded affirmatively on whether the allegations are “Russian disinformation and a smear campaign.” Any crimes found by prosecutors would be an obvious embarrassment to Biden.
Further, serious apparent conflicts were revealed in the laptop and emails seized in the federal investigation. Biden has refused to say that the laptop and emails are genuine. He has refused to address contradictions in those emails. He has declined to address accounts of witnesses, like business associate Tony Bobulinski, over his direct knowledge or involvement, in conflict with his denials. The emails refer to payments, office space, and other benefits for his family from foreign countries like China.
Finally, Biden has more than a son or his own credibility at stake. This investigation started in 2018 with a suspicious activity report filed at the Treasury Department. That does not mean there was a crime, but foreign financial transactions were noted as suspicious, and there are indications that money laundering concerns could have been raised.
References to Biden in the emails could create liability. Further, one of the reasons Biden has not called Bobulinski a liar is that it would likely launch a defamation lawsuit with sworn depositions and discovery. Biden is well aware of the perils from such civil litigation. After all, he has voted as a senator in the impeachment trial of President Clinton, which included allegations that Clinton lied under oath in his deposition.
The case against a special counsel
Much of this decision depends on the specific scope and the underlying crimes of any investigations. Barr knew those facts when he rejected the need for a special counsel. If this is a narrow tax investigation, then this is likely near conclusion. The key is not the appointment of a special counsel but the continuation of the United States attorney in his role.
Under Barr, the Justice Department handled various investigations that affected Trump, from the probe by Robert Mueller to investigations into the business and advisers of Trump, like Rudy Giuliani and his aides. None needed special counsels. All continued without interference under Barr. There also is a reluctance to allow special counsels to proliferate unless there is little alternative. The potential to embarrass a president is not enough. If everyone is a special counsel, they are not so special.
The biggest issue is that using influence is legal. It is the favorite form of corruption in Washington. While you cannot give a politician like Biden an envelope full of money, you can give his son or other relatives millions in dubious contracts and loans. The special counsel regulations involve “an investigation or prosecution” only into criminal acts. Indeed, the Justice Department does not probe unethical conduct or simple lying.
This case against a special counsel appointment also is the case for an investigation by Congress. Democrats have demanded investigations of Trump family dealings in foreign countries, including calls for a special counsel. In 2018, Schiff wrote “he American people deserve to know that our president is acting in their interest and not his own financial interest, or because he has been compromised by a foreign power.” The fear was that Trump was beholden to foreign interests. The same fear exists now, and the same Democrats should support an investigation.
In the absence of clear crimes, Congress must investigate “suspicious activities” that could compromise a president or his administration. The Hunter Biden investigation does not warrant a special counsel, but the public deserves answers. The entire point of influence schemes is to sway important figures. The issue is whether the Chinese, Ukrainians, and other foreign actors received 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.