Low on law, high on theater. That’s the best way of looking at Hunter Biden’s Capitol Hill stunt Wednesday morning. The president’s son crashed a public meeting at which the House Oversight Committee was slated to vote on a resolution, based on which the full House would eventually hold him in contempt of Congress – ironically, for defying a subpoena demanding that he show up at the Capitol so the committee could depose him.
I say “low on law” because, in the absence of enforcement, law is just a talking point.
In the federal justice system, for example, we have enforcement: If you defy a subpoena, the FBI arrests you, the judge can hold you in contempt and imprison you until you agree to comply, and the Justice Department can prosecute you criminally for your defiance, even if you have attempted in the interim to cure it. You are apt to be convicted and spend even more time in the slammer.
That’s why people don’t defy subpoenas backed by court-enforcement. And because contempt in the justice system is a legal process with real teeth, people don’t attempt stunts, like Hunter’s, that try to hoodwink people into believing they’ve complied when they haven’t. That insults the intelligence. Pro tip: Not a good idea to insult a federal judge’s intelligence.
Hunter is defying the Republican-controlled House because, if you’ll pardon the pun, he knows he’s playing with the house money.
In our constitutional system of separated powers, Congress makes the laws but the executive branch – the Justice Department – enforces them. Congress can conduct oversight and it can vote to brand recalcitrant witnesses as contemners. But it cannot prosecute them. Only DOJ can do that.
I know this will come as a shock, but Hunter and his lawyers are very confident that the Biden Justice Department will not prosecute the president’s son at the request of a Republican-controlled House, which the Biden White House habitually scorns for threatening to impeach the president and portrays as harassing the ne’er-do-well Hunter.
What about Steve Bannon? What about Peter Navarro? Yes, yes, I know, these are Trump advisors whom the Biden Justice Department prosecuted for flouting subpoenas from the vaunted House January 6 Committee. Citing the Bannon and Navarro precedents, Republicans maintain that Biden’s attorney general, Merrick Garland, and Biden’s appointed U.S. attorney in Washington, D.C., Matthew Graves, must indict Hunter for contempt. Otherwise, that will illustrate the corruptness of the administration’s “two-tiered system of justice.”
There is no doubt that the Biden-era has been a boom time for two-tiered justice. But here’s the thing: The Democrats know they can’t suffer more political damage over it than they already have.
Remember, Democratic prosecutors in Washington and across the country have indicted former President Donald Trump, Biden’s likely 2024 opponent, not once but four times – all methodically timed to have maximum impact on the election. They have turned a blind eye to months of lethal violence by the radical left, yet prosecuted 1,200 people – most of them sad sacks – in connection with a three-hour riot at the Capitol in which the only person killed was a rioter.
Simultaneously, the Biden Justice Department intentionally let the statute of limitations expire on Biden family influence-peddling transactions that occurred when Biden was vice-president. Plus, DOJ was shamed into indicting Hunter on longstanding tax and gun offenses only after prosecutors tried to make the case disappear in a shameful sweetheart plea deal. Even when the tax indictment was finally filed, prosecutors took pains not to mention the president’s name in it. And no sensible person doubts that, once the 2024 election is over, President Biden will pardon his son.
Look, the two-tiered justice ship has sailed. Whatever political damage it can do to Biden’s reelection bid, it has already done. Attorney General Merrick Garland is already up to his neck in preferential treatment for hapless Hunter; a little more is not going to matter.
Garland, moreover, has a story to tell. Historically speaking, the Bannon and Navarro indictments are the exception. For decades before that, the Justice Department virtually never prosecuted people for defying congressional subpoenas. And even in the J6 Committee crusade, Garland declined demands by the then-Democratic-controlled Congress that he prosecute Trump aides Mark Meadows and Dan Scavino for contempt. There’s lots of precedent supporting declination.
What’s more, because the sweetheart plea deal collapsed and the attendant publicity was so damaging, Hunter is already facing two indictments. It is true that the law calls for him to show up to a deposition if he has been subpoenaed, but it doesn’t require him to testify – he has a Fifth Amendment privilege to refuse to provide self-incriminating testimony.
If he had shown up for the Oversight Committee deposition, Hunter would have taken the Fifth. That would have been politically damaging to his father – which is why Hunter is trying to fool the public into thinking the bad Republicans are preventing him from testifying.
Nevertheless, in exercising prosecutorial discretion, the Biden Justice Department will rationalize that the House subpoena was itself a political stunt because the Committee knows Hunter’s lawyers would advise him not to answer questions.
The Biden DOJ will say Republicans issued the subpoena because they knew the president’s son would refuse to testify – i.e., they’re trying to score political points, not conducting a good faith investigation.
My advice: Don’t hold your breath waiting for the big Hunter contempt indictment.
But if you’re a Republican, don’t be too broken up about that dereliction.
This is politics, not law, and every day the attention of American voters is drawn to the president’s son is a bad day for the president.