Since his election, Joe Biden has kept his focus firmly on his prospective personnel and policy plans, mostly ignoring at least publicly such potential distractions as President Donald Trump’s legal maneuvers and his son Hunter’s legal problems.
Until Monday night, when the president-elect celebrated his Electoral College victory, he had rarely commented on his defeated opponent’s increasingly far-fetched legal steps and verbal rejoinders. After all, he will be gone when Biden becomes president on Jan. 20.
Biden has limited comments on Hunter to expressions of paternal love and confidence that his son did nothing wrong. But the legal issues aren’t going away about Hunter Biden’s questionable overseas business activities during and after his father’s vice presidency. Even Hunter conceded they represented “poor judgment on my part,” and they may have been far worse.
Hunter’s problems, which gained new attention with last week’s disclosure of federal criminal investigations into his taxes and possible money laundering, are providing a crucial first test of the president-elect’s vow to restore Justice Department independence from White House influence.
Some Republicans, including Trump, are urging appointment of a special counsel to remove investigations of Hunter from the jurisdiction of the next attorney general, who will be nominated by Biden and confirmed by the Senate.
The Wall Street Journal reported Trump wanted William Barr to name one – plus another to probe alleged campaign fraud – but the outgoing attorney general refused.
The entire concept of special counsels has come under question again since Robert Mueller’s investigation of Russian influence in the 2016 Trump campaign. Whether one is warranted for Hunter Biden, both ethics and politics will require Biden’s attorney general to separate himself from the ongoing probes.
One alternative is recusal from the investigation by assigning jurisdiction to one of the attorney general’s deputies. That is what former Attorney General Jeff Sessions properly did with the probe of Russian efforts to influence the 2016 Trump campaign, much to the chagrin of the president who hoped his former campaign chair could control the investigation.
Recusal would especially be necessary if Biden picks outgoing Sen. Doug Jones of Alabama, a former U.S. attorney with whom he has long had a close professional and personal relationship. Jones, who prosecuted the men responsible for the Birmingham church explosion that killed four Black children in the 1960s, has an excellent reputation.
But the optics of his supervising a probe of the president’s son would be problematic for an administration seeking a contrast with the way the current president interfered with the Justice Department, most recently in unsuccessfully pressuring Barr to probe his unproven election fraud allegations.
Biden could reduce the problem by naming someone less closely tied to him personally, like federal appeals Judge Merrick Garland. The 2016 controversy over Garland’s failed Supreme Court nomination had little to do with the well-regarded judge himself but was a Republican power play against a Democratic president.
There is a precedent for such a choice: President Jimmy Carter’s selection in the post-Watergate era of retired federal Appeals Judge Griffin Bell as attorney general. The new president should also extend the tenure of the U.S. attorney in Delaware who is conducting the tax probe.
In any case, Biden needs to avoid starting his tenure with unnecessary ethical distractions.
The issues surrounding the Hunter Biden case are familiar in at least two ways. A presidential offspring or sibling taking advantage of the access afforded by familial ties has unfortunately been a recurrent problem.
Recent examples include the savings and loan problems of George H. W. Bush’s son Neil, the paid lobbying for Libya by Jimmy Carter’s brother Billy, and the various ways Trump’s children have sought to monetize the current presidency.
The need to maintain Justice Department independence is also a recurring issue, usually after the kinds of violations that occurred during the Watergate scandal of the 1970s or in the current administration.
Besides probing Hunter Biden, some reports indicate investigators may be looking at potentially questionable activities by the president-elect’s brother, James. Though neither instance has revealed evidence directly involving Biden himself, he clearly should have exercised more control over his son’s and his brother’s efforts to benefit from his stature.
Hunter’s case, meanwhile, is complicated by what The New York Times says was Trump attorney Rudy Giuliani’s role in forwarding evidence to a federal prosecutor in Pittsburgh. But that won’t matter if the younger Biden failed to report all of his overseas income on his tax return, as NBC News has suggested.
Fortunately, thanks to Barr, the Hunter Biden probe remained secret during the recent campaign. While that outraged Trump, it is the normal Justice Department procedure, just as the Democrats kept the initial investigation of the Trump campaign’s Russia ties secret until after the 2016 election.
Whatever the ultimate bottom line, the president-elect needs to ensure the investigation is kept independent of his White House, lest legal damage to his son result in unneeded political damage to him.
Carl P. Leubsdorf is the former Washington bureau chief of the Dallas Morning News. Readers may write to him via email at firstname.lastname@example.org.