The Most Obvious Possible Case for the Appointment of a Special Counsel

The President's son is under investigation for felonies, but the case is being handled by a person appointed by and accountable to the President. Is there something wrong with this picture?

The WSJ has an editorial out today taking President Biden to task for “sending an inappropriate signal to the Justice Department” by publicly vouching for his son’s innocence at the same time the Department is conducting a criminal investigation. The editorial is fine as far as it goes, but, atypically for the WSJ, grossly misses the main point. The problem here is not principally that Joe Biden is speaking up for Hunter, something most people would regard as normal if not praiseworthy. The problem is that Merrick Garland has not appointed a Special Counsel to oversee the case. If DOJ’s provisions for appointing a Special Counsel don’t apply here, one must wonder why they exist at all.

The failure to appoint a Special Counsel in these circumstances is particularly odd given that Garland has already appointed one to look into Joe Biden’s apparent serious mishandling of classified documents when he was Vice President. Of course, the political usefulness of appointing a Special Counsel in that instance was especially acute, given that a Special Counsel had already been appointed to look into, among other things, Donald Trump’s own apparent mishandling of classified (and other) government documents when he left the White House. But the appointment of a Special Counsel should not depend on its political utility, nor on DOJ’s need to avoid charges of operating under a double standard. It should depend solely on whether the reasons for having provisions for the appointment of someone outside the normal chain of political accountability apply. When the President’s son is the target of the investigation, they apply as clearly as it’s possible to imagine.

To be fair, the need for a more independent investigation has not always been as obvious as it is now. The Washington Examiner reported, for example, that “then-Attorney General William Barr rejected the idea of a special counsel to investigate Hunter Biden in December 2020” — but noted that Barr “now believes Weiss [the US Attorney currently overseeing the Hunter Biden probe] should be given special counsel powers.”

The case is serious and apparently has progressed to the point that, so it’s reported, a team of Hunter Biden’s lawyers is meeting with DOJ’s attorneys. But it’s been serious for a good, long while. As the Examiner notes:

Whistleblower allegations emerged [last] summer that FBI supervisory intelligence analyst Brian Auten opened an assessment in August 2020 that was used by FBI headquarters to mislabel accurate information about Hunter Biden as disinformation, according to disclosures made public by [Sen. Chuck] Grassley. Whistleblowers also said Timothy Thibault, the now-former FBI assistant special agent in charge of the Washington Field Office, shut down a line of inquiry into Hunter Biden in October 2020 despite the fact that some of the details were known to be true at the time.

Garland testified in February 2021 that Joe Biden had not discussed the Hunter investigation with him. When asked in October 2021 about a letter pushing him on appointing a special counsel at the time, the attorney general said, “We’ll be taking it under advisement.”

Garland was also asked about a special counsel in April in the context of Hunter Biden.

“I want to be clear, though: Special counsels are also employees of the Justice Department,” Garland said. “The question of whether to have a special counsel is one that is internal decision-making of the department, so I don’t want to make any judgments one way or the other, but I’m quite comfortable with the United States attorney for that district continuing in the role that he is playing.”

Yes, well, sure. It’s just boilerplate to say that the question whether to appoint someone with a greater degree of independence than a US Attorney is a matter of “internal decision-making of the department.” But one of the main reasons we need an Attorney General of the highest moral fiber (like, say, Ed Meese or Jeff Sessions or Michael Mukasey) is precisely to “make judgments one way or the other,” and in particular to make judgments that serve the essential public interest in a non-politically shaded and transparent investigation into those with close ties to the President. That’s exactly what we’re not getting from Merrick Garland.

None of this is to say that the WSJ’s editorial doesn’t make a good point. As it observes, Joe Biden’s very public vouching for Hunter is a

…highly inappropriate message from a President. He’s essentially telling prosecutors that they are wrong to bring an indictment because Hunter is innocent of any criminal behavior. Some might think it’s only natural for a father to defend the son he loves, but the Justice Department is part of the executive branch that he runs. Mr. Garland and his prosecutors work for the President.

The Journal makes one more point that’s spot-on:

It’s true that other Presidents have crossed this line. Donald Trump made numerous comments about the innocence of his political allies and, worse, the need to indict his enemies. In July 2017, he attacked then Attorney General Jeff Sessions, saying he “has taken a very weak position on Hillary Clinton crimes.”

It was Trump’s repeated obliviousness to the ethical lines that simply must separate politics from law and law enforcement that were central to my own (and I believe many others’) decision that Trump was, in that critical respect, not up to the job.

These columns noted at the time that “Mr. Trump’s suggestion that his Attorney General prosecute his defeated opponent is the kind of crude political retribution one expects in Erdogan’s Turkey or Duterte’s Philippines.”

Alvin Bragg, call your office.

Mr. Biden ran for the White House claiming he was better than Mr. Trump on these political norms. Apparently not. Yet Democrats and the media have also been mostly silent about Mr. Biden’s remarks about his son.

On the other hand, if you want to know more about Clarence Thomas’s vacations………..