Hunter Biden controversy explained
In gentler times, the story around the president’s son Hunter Biden, his laptop, related whiffs of nepotism and possible corruption would be dominating the news cycle. Not only is he Joe Biden’s son, but the Department of Justice (DOJ) and FBI have reportedly been actively investigating him for potential tax crimes and other matters since 2018.
In the wake of former President Donald Trump’s demolition of the rule of law, which produced multiple civil and criminal investigations but no meaningful accountability (with rare exceptions, such as former national security adviser Michael Flynn and former campaign chairman Paul Manafort, whom Trump pardoned), it’s hard to see the Hunter Biden scandal as scandalous.
We are pretty numb to this stuff.
Nonetheless, Hunter Biden remains a serious political — if not criminal — problem for the first family.
Keep in mind that there is a huge difference between a perceived or actual conflict of interest, on one hand, and a crime on the other. At this point, Hunter Biden’s myriad messes fall into the former category, not unlike many characters in American politics.
Here are a few basics regarding Hunter Biden’s potential criminal liability at this juncture:
1. Hunter Biden’s role at Burisma
He served on the board of the Ukrainian Energy firm Burisma from 2014 to 2019, to the tune of $50,000 per month.
As two Republican-led Senate committees already concluded, this work mostly posed a possible conflict of interest, if anything. Most critically, the committees made no finding that then-candidate Joe Biden did anything wrong when it came to pressuring Ukraine to fire its top prosecutor, Viktor Shokin, while he was vice president.
The right-wing suggestion that the move was to protect his son, rather than to legitimately push back on corruption in the Ukrainian government, has been proven untrue. If there were criminal activity in play, the machinery behind the Big Lie would have made it known by now — including Trump’s former personal lawyer Rudy Giuliani, who was dispatched to Europe to pressure Ukrainian President Volodymyr Zelensky to announce an investigation into Hunter Biden, prompting Trump’s first impeachment. Thus, the Burisma connection probably won’t produce criminal charges against Hunter Biden going forward.
2. Hunter Biden’s deals with a Chinese energy company
It smells bad.In 2017, Hunter Biden entered into an agreement with a Chinese company with reported ties to the Chinese government, CEFC China Energy, for consulting work. Ultimately, CEFC paid $4.8 million to entities controlled by Hunter Biden and his uncle James Biden (Joe Biden’s younger brother).
There’s no known evidence that Joe Biden knew or personally benefited from the engagement, but it’s also not publicly known what actual work Hunter Biden did in exchange for these sums, or where the money is now.
In theory, DOJ could have its sights on possible tax crimes (failing to account for the CEFC-related income, for example), illegal foreign lobbying, money laundering and even bribery. Two years before the deal was inked, a CEFC representative sent Hunter Biden a 2.8 carat diamond, which Biden says he gave away. And although Hunter Biden is a lawyer whom CEFC technically engaged as counsel, when a CEFC official was later arrested, the company enlisted someone else to represent him.
There’s also stuff on Hunter Biden’s infamous laptop, although most of its data is reportedly corrupted and cannot be authenticated. It makes sense that DOJ would be tracking down these and other factual oddities to ascertain whether they amount to anything under the criminal laws.
3. Willful intent is not easy to prove
To make any criminal liability stick, prosecutors would have to show that Hunter Biden had criminal knowledge or intent, which is hard to prove — especially given Biden’s history of drugs and other personal problems.
A violation of the Foreign Agents Registration Act must be “willful” — not out of clumsiness or a mistake. Likewise, for his actions to rise to the level of federal tax crimes, the government must prove willful evasion of tax payments. According to the IRS, “a mere act of willful omission” is not enough, and Hunter Biden paid back a lot of his tax liability already.
Per DOJ’s website, money laundering is only triggered if someone conducted a financial transaction “knowing that the property involved in the transaction represents the proceeds of some unlawful activity,” and with an intent to engage in the unlawful activity or to commit tax fraud, among other factors. Bribery requires the involvement of a person with fiduciary duties, such as a public official — Hunter Biden’s receipt of a diamond, without more, says little.
The public record to date doesn’t reveal evidence sufficient to prove any crime beyond a reasonable doubt (although grand juries operate in secret so it’s impossible to know). In any event, Hunter Biden’s history of drug addiction, the untimely death of his brother Beau Biden in 2015, as well as his high-conflict divorce and debt problems around the time of the CEFC engagements could undermine the government’s case regarding requisite criminal intent.
4. The justice system is working
The fact that DOJ pursued this case under two presidential administrations and two competing political parties shows that the system can work — which is excellent news for those of us who care about the longevity of democracy and the rule of law.
It’s remarkable, frankly, that this investigation proceeded without political incident under Trump’s attorney general Bill Barr, who broke from Trump in refusing to name a special prosecutor or otherwise politicize the probe during the 2020 presidential election.
It’s equally remarkable that Joe Biden didn’t handpick an attorney general whom he knew would kill the criminal investigation into his son, either — and that he has taken no apparent steps to afford Hunter Biden special, kid-glove treatment since becoming president.
Given the hateful nature of national politics and the glut of misinformation these days, the fact that the Hunter Biden inquiry is — in Barr’s words—being “handled responsibly” to this day is an amazingly positive nod to a functioning rule of law in the United States.
5. Looming midterm elections will elevate the story
The Hunter Biden story is sufficiently murky that, if the radical right wing of the Republican Party takes control of the House of Representatives in November, it will no doubt turn this into a 24/7 political blood bath for Democrats.
Although there’s no clear public evidence of a crime so far — and Republican gaslighting around non-stop corruption during the Trump years reeks of hypocrisy — the Hunter Biden narrative contains many damaging details that make Hillary Clinton’s emails look quaint.
Already, Rep. James Comer (R-Ky.), who is on track to chair the House Oversight Committee if Republicans gain control of the chamber, said it “is going to be all over Hunter Biden,” calling him “a national security threat.” It’s hard to imagine how Democrats will survive the onslaught politically, regardless of the ultimate truth — and Republican operatives undoubtedly know it.
One thing is for sure: American voters ostensibly despise corruption in politics, although those on each side of the aisle are more willing to tolerate it from folks in their respective political party.
What the Hunter Biden story — like the Trump scandals — should therefore signal to voters is that it’s time to elect people with integrity who also maintain an appearance of integrity. This means voting not based on party, but on facts and values. Sadly, it might be too late for that.
Kimberly Wehle is a professor at the University of Baltimore School of Law and author of “How to Read the Constitution — and Why,” as well as “What You Need to Know About Voting — and Why” and “How to Think Like a Lawyer – and Why.” Follow her on Twitter: @kimwehle
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