Transition marks precarious period for Russia and Hunter Biden probes
With the conclusion of the election, Washington is now in that precarious period known as the lame duck. Unlike the wounded waterfowl, lame duck presidents tend to be more active in the waning days of their terms. From those midnight judicial appointments of John Adams to those last minute executive orders from Barack Obama, presidents often cement policies or officials before the chiming of the constitutional clock. This year, however, it could be prosecutors who feel the greatest pressure to move.
Months before the election, many Democrats demanded that the Justice Department refrain from bringing additional indictments or releasing new information in either the Russia investigation or the Hunter Biden scandal. Andrew Weissmann, who worked for special counsel Robert Mueller, told prosecutors not to assist the Justice Department to prevent some harmful disclosures for then candidate Joe Biden. However, despite pressure from President Trump, the Justice Department under Attorney General William Barr did appear to hold the line before the election as is tradition.
Prosecutors in these investigations may now face pressure to move faster in the final two months of the administration. The obvious concern is that the Justice Department under Biden might scuttle or shut down pending investigations. Democrats in Congress have denounced the examination of the discredited Russia collusion case as a political “hit job” and could justify closing it as a promised reform in the next administration.
Senator Ron Wyden joined Senate Minority Leader Charles Schumer last month in asking federal officials to resist pressure to look into the Hunter Biden scandal. Moreover, House Intelligence Committee Chairman Adam Schiff denounced the Russia investigation of United States Attorney John Durham as both tainted and political. With the campaign trail, Biden also dismissed the probe as an “investigation of the investigators.”
In a hearing on the Russia investigation, Democrats such as Senator Amy Klobuchar, likely on the short list for the next attorney general, criticized the investigations. If prosecutors are concerned about such intervention, they may have to move in the next two months. The Russia investigation made headlines with the criminal plea of Kevin Clinesmith, who lied to a Foreign Intelligence Surveillance Act Court to continue surveillance of a Trump campaign adviser. There are also some rumors that Durham holds material undisclosed by the special counsel or the inspector general. He also is known to have been working with a federal grand jury.
There is one reason why Biden would want to see the investigation closed. Disclosures contradicted his denials that he knew of or was involved in the investigation of figures like Michael Flynn. The disclosures indicated Biden may have sought to “unmask” him in surveillance filings. Further, there are accounts from the Oval Office that Biden was briefed on the investigation of Flynn, which federal officials sought to end for a lack of evidence of any crime. Biden is also said to have raised the possibility of prosecuting Flynn under the Logan Act, a federal law viewed as unconstitutional.
While the Russia investigation may not result in new indictments, it could result in new evidence. Indeed, the greatest risk of an intervention by the next administration would be the withholding of any report or the use of classification rules to bar parts of its release. That report could shed light on how the initial Russia investigation started and was sustained, despite early intelligence information refuting the collusion allegations.
This includes information that revealed President Obama was briefed on intelligence that suggested Hillary Clinton was working to falsely denote Trump in collusion with Russians. These findings could be embarrassing not only to former administration officials but to a number of Democrats such as Schiff, who assured the public that, after contrary findings of the special counsel and the inspector general, he held evidence of collusion with his committee, but he has never produced such evidence.
It could be easier for the next administration to close any investigation of Hunter Biden. Much of the media buried the story, but his alleged laptop contains evidence of an influence peddling scheme by him and his uncle James Biden. These emails, which the family has not denied are authentic, contradict claims by Joe Biden. A former business associate also gave the investigators his sworn statement that not only was this a clear influence peddling scheme but Joe Biden knew of and was involved in it.
The laptop was part of a money laundering investigation which included Hunter Biden that could implicate the president elect if the findings turn out true. There is more danger to prosecutors as the next administration can rely on the media. The only people more embarrassed by allegations of criminal conduct in the Hunter Biden scandal would be journalists who have assured the public that there is nothing here. If these investigations move ahead with perhaps criminal charges tied to Joe Biden or his family, the attorney general may have to establish the special counsel.
When Trump entered office, Democrats demanded the special counsel on less evidence, even before the firing of James Comey. It turned out there was no collusion. There is relatively more evidence of the involvement of Joe Biden, including statements made under threat of prosecution, which shows why developments in the next few weeks will be interesting. These prosecutors could set the investigations into the amber of the lame duck as insurance against interference from the next administration.
That may force the issue on the need for a new special counsel if criminal conduct is further revealed by indictments or filings. Prosecutors with the lame duck are often like Richard the Second, who claimed, “I wasted time then, and now time wastes me.” If there is evidence of criminal conduct in any of these investigations, time does not wait for prosecutors.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.