The Case for a Special Counsel to Investigate the Bidens
To save the DOJ’s rapidly deteriorating reputation, it is high time for Attorney General Merrick Garland to appoint a special counsel.
By: John Yoo & John Shu
August 1, 2023
Consider this clarion call for a special counsel:
“There are certain extraordinary moments of crisis when the people’s faith in the integrity and independence of their elected officials is caused to waiver [sic]. These scandals tarnish the view that the Attorney General is an independent executive official who can be trusted to enforce criminal law in the high offices of the government. To restore the utmost public confidence in the investigation of criminal wrongdoing by high-ranking government officials, the appointment of a special prosecutor then becomes necessary. ”
It did not come from Senator Charles Grassley or Representative James Comer, even though both men continue to diligently investigate allegations that Biden administration appointees either slow-walked or interfered with Justice Department probes into Hunter Biden’s alleged crimes. Nor did it come from Republican presidential-primary candidates who have called for a special counsel after the collapse of Hunter’s sweetheart plea deal, apparently designed to grant immunity from very serious felony charges.
No, the above quote comes from President Biden himself, in a 1987 article in the North Carolina Law Review defending independent counsels, who at that time possessed far more powers than do today’s special counsels. Writing as Senate Judiciary Committee chairman, Biden argued that the executive branch could not be trusted to investigate and prosecute its own members. Instead of allowing DOJ to conduct such investigations, he argued, Congress could override the normal separation of powers and create independent prosecutors with unlimited budgets and no accountability.
Biden strongly supported the appointment of an array of special prosecutors to investigate those involved in the Iran–Contra scandal — cabinet members, DOJ officials, and even expanding to include Ronald Reagan and George H. W. Bush. In a January 1987 interview, Biden stated that the Reagan DOJ, “at a minimum, gives the appearance of attempting to prevent certain information from coming to the fore,” and that, at worst, “someone tried to actively suppress an investigation.” In 2003, Biden and other Democratic senators sent a letter to President George W. Bush demanding a special counsel in the leak case involving CIA officer Valerie Plame. “We do not believe that this investigation of senior administration officials, possibly including high-level White House staff, can be conducted by the Justice Department because of the obvious and inherent conflicts of interests involved,” the letter declared.
But that was then, when Joe Biden was a Democratic senator, and this is now.
President Biden’s hypocrisy is stark; he has yet to even utter the words “special counsel.” He no longer defends or calls for them, even though today’s special counsels lack the independence of those created in the 1978 Ethics in Government Act and which ran rampant until 2000.
The Supreme Court upheld these independent prosecutors in Morrison v. Olson (1988) over Justice Antonin Scalia’s powerful dissent. Scalia memorably wrote that, while most separation-of-powers challenges come to the Court clad “in sheep’s clothing,” “this wolf comes as a wolf.” After Ken Starr’s independent-counsel investigation led to President Clinton’s impeachment for perjury and obstruction of justice, Congress allowed the 1978 act to lapse. The DOJ replaced it with regulations for special counsels who, appointed by the attorney general, operate under the AG’s, and thus ultimately the president’s, direct control.
Those regulations state that the attorney general “will appoint a Special Counsel when he or she determines” that:
(1) “Criminal investigation of a person or matter is warranted,”
(2) The DOJ’s “Investigation or prosecution of that person or matter would present a conflict of interest for the Department or other extraordinary circumstances,” and
(3) “It would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.”
The regulations require that “Tthe Special Counsel shall be selected from outside the United States Government”; DOJ attorneys cannot serve as special counsels.
Attorney General Merrick Garland long ago should have appointed a special counsel to properly and fully investigate the allegations of criminal activities against Hunter Biden and the alleged involvement of other Biden family members, including Joe Biden. To save the DOJ’s rapidly deteriorating reputation, he should do so now.
Based on public information, there is more than sufficient evidence to support investigating Hunter Biden for tax evasion, filing false tax returns, money laundering, actions in violation of the Foreign Agents Registration Act and other lobbying-related crimes, soliciting bribes, conspiracy, obstruction of justice, racketeering, and making false statements to acquire a firearm (which, incidentally, carries a potential ten-year prison sentence because of legislation supported by then-senator Biden). Any one of these should trigger a criminal investigation, let alone the combination of them.
Enough of a conflict of interest exists for Garland to appoint a special counsel. Indeed, investigating a president’s son along with the president’s siblings and other family members, plus perhaps even the president himself, is a conflict of interest so obvious that it barely requires stating. Hunter’s failed sweetheart plea deal in and of itself demonstrates that the DOJ gave Hunter preferential treatment. The DOJ’s weakness in the plea deal shows that it cannot overcome the conflict of interest on its own.
For example, Hunter was supposed to plead guilty to two tax misdemeanors even though he tried to evade taxes or otherwise obstruct the IRS. The DOJ’s Criminal Tax Manual clearly states that cases like Hunter’s “Should be charged as felonies . . . to avoid inequitable treatment.” In August 2022, IRS investigators drafted a 99-page memo recommending both felony and misdemeanor charges against Hunter Biden, which the DOJ ignored. As IRS special agents Gary Shapley and Joseph Ziegler testified, the DOJ sabotaged their attempts to get evidence, blocked investigation of anything leading to or connecting with President Biden, and ran out the clock on the statutes of limitations for Hunter’s more serious Burisma tax issues. In fact, Shapley testified that “There should not be a two-track justice system based on who you are and who you’re connected to. Yet, in this case, there was.” Ziegler said in an interview: “Are we treating all taxpayers the same? In this case, no. I don’t think so.” That’s also true concerning the charge of Hunter’s false statements to acquire a firearm because there appears to be no other case where the DOJ granted pre-trial diversion. And, as DOJ attorney Leo Wise admitted in open court, there appears to be no other case where the DOJ buried broad immunity in pre-trial diversion paperwork instead of clearly stating the specific immunity terms in the plea agreement.
It makes no sense that Garland appointed a special counsel to investigate former president Trump when the DOJ has no conflict of interest, yet he refuses to appoint a special counsel when there is a painfully glaring conflict of interest in investigating the Bidens.
If Garland does not quickly appoint a special counsel, he will be opening himself up to the charge that the DOJ is protecting President Biden. Garland would also give Congress the grounds to believe that genuinely investigating and prosecuting Hunter would have revealed that President Biden and/or his family members either committed or knew of serious wrongdoing.
Failure to appoint a special counsel would give Congress the grounds to consider measures beyond oversight hearings.
John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a nonresident senior fellow at the American Enterprise Institute, and a visiting fellow at the Hoover Institution. He served in the U.S. Department of Justice from 2001 to 2003. John Shu is a legal scholar and commentator who served in the administrations of Presidents George H. W. Bush and George W. Bush