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What’s the hold up in prosecuting Hunter Biden?

Apparently, someone in the FBI was frustrated enough that they leaked to the Washington Post that evidence supporting criminal prosecution of Hunter Biden, son of President Biden, has been submitted to the U.S. Attorney’s office in Delaware in support of prosecution and that it was done some time ago.

The leaked allegation includes a prosecution recommendation for federal tax fraud in addition to charges related to alleged false statements relative to Biden’s purchase of a gun.

According to the Washington Post, federal prosecutors are carefully reviewing and weighing the evidence before going ahead with a decision to prosecute or quite possibly decline prosecution. 

Is this normal and why is it taking so long? Is this a function of the political delicacy of possibly prosecuting the son of a sitting president?

A short review of the protocol for criminal tax prosecution recommendations might be informative. 

There is a mandated redundant review of all criminal tax prosecution recommendations both within the IRS and also at DOJ. After a special agent employed by the criminal investigation division gathers the evidence and makes a final recommendation to prosecute a purported tax evader in what is known as a Special Agent Report (SAR), the report which is a summary of the evidence gathered — along with the actual evidence — is scrutinized by a case reviewer and then multiple internal management levels before it is transmitted to IRS district counsel for their review. District counsel will take the perspective of looking for weaknesses in the evidence and/or the prosecution theory that might represent some hazard or risk should the case actually be litigated. District counsel employs lawyers who specialize in the tax law, and they play the role of devil’s advocate here and are the bane of many an agent and prosecutor with regard to their in-depth scrutiny. 

District counsel seeks to ensure that the tax law is enforced in a fair and equitable manner that promotes compliance with the tax law. Should the special agent’s prosecution report withstand scrutiny, the report and associated evidence will then be forwarded to the criminal tax section of DOJ for their review and approval before the case is ultimately forwarded to the prosecutor — in this case the U.S. Attorney in Delaware — for ultimate disposition.

The U.S. Attorney in Delaware likely called up a grand jury to present evidence obtained by federal agents from both the FBI and IRS for their review. Before he can ask the grand jury to vote for an indictment on federal tax charges, he must obtain authorization from the DOJ criminal tax division; once they green light prosecution, he can proceed. So, when federal agents claim they have provided the U.S. Attorney with evidence of tax fraud and did so back in the summer and don’t understand what the hold-up is, I would say those agents likely haven’t dealt with DOJ Crim Tax.

The attorneys employed by Crim Tax are responsible for ensuring that the tax law is enforced fairly and evenly across judicial districts, that case law precedent is followed and that no U.S. Attorney goes off half-cocked. They provide an additional layer of legal review to that conducted by the IRS district counsel. Should Crim Tax green light prosecution of the alleged tax evader, the prosecuting attorney will have the advantage of knowing and seeing two full-scale legal reviews of the evidence and the relevant case law that may apply in their case.

No matter how much prosecutors and agents complain about the process and the time involved, every prosecutor standing up to make closing argument and asking the jury for a conviction appreciates the comprehensiveness of the review process, knowing that the redundancy involved will almost certainly catch any legal error or shortcoming in the evidence.

So, what’s taking so long in the Hunter Biden matter? Isn’t this just politics as usual?

The short answer is no.

There exists here a very difficult issue that I have no doubt the DOJ is struggling with — and it has nothing to do with politics.

Can an alcoholic drug addict possess the necessary mens rea to intentionally commit tax fraud over the course of several years?

James Comey made the phrase famous when referencing it during the Hillary Clinton email investigation and prosecution decision. Mens rea refers to the defendant’s state of mind or consciousness. Those reviewing the prosecution potential of an alleged tax evader must scrutinize the “intent” of the evader when it comes to determining whether or not he willfully and intentionally falsified his tax returns.

Can an alcoholic drug addict willfully and intentionally falsify his tax returns?

That’s a simply stated question, but the answer is very complex, and I suspect the DOJ is struggling with it because it not only has political ramifications, it has major tax compliance ramifications. How they deal with it will impact not only Hunter Biden but anyone who messes up their taxes who might suffer from the disease of addiction.

Addiction doesn’t care whether you are a Republican or a Democrat.

Neither does the IRS.

Taxes are the price we pay for a civilized society, according to Oliver Wendall Holmes. Tax compliance must be enforced fairly and equitably.

There was a time when Crim Tax would decline any tax fraud prosecution recommendation involving an alcoholic or drug addict — because it was not believed that an alcoholic drug addict could possess sufficient mens rea to intentionally violate the law.

That policy may be changing.

Reasonable people can differ reasonably on the issue

If a partner in a high-powered law firm who is alcoholic/addicted can function well enough on the job to complete sophisticated financial deals and earn the firm mega bucks, can that same individual not file accurate timely tax returns? How about engineers? Architects? Are not all of these professionally employed individuals capable of exhibiting a sufficient level of cunning necessary to intentionally falsify their tax returns?

It is well documented that Hunter Biden suffers from the disease of alcoholism and drug addiction; in fact, both sides in a projected future criminal trial might stipulate (agree) to those facts given the availability of the evidence. 

The evidence may well also reflect receipt of income by Hunter Biden that he did not report on his tax returns. 

The question — and the likely holdup because there exists no easy answer — is: “Does sufficient evidence of intent exist to overcome any defense put up by Biden that his alcoholism/drug addiction vitiates evidence of intent?”

It is a tough question, and I hope the DOJ lawyers take their time with a viable answer because civilized society is depending on it.

Martin J. Sheil is a retired supervisory agent for IRS Criminal Investigation with 30 years experience, including service as coordinator of the Organized Crime Drug Enforcement Task Force (OCDETF) for the Gulf Coast Region, Branch Chief for the North Texas District (Dallas), Special Agent in Charge for the South Texas District (San Antonio) and as Director of IRS CI Asset Forfeiture in Washington, D.C.