In holding this spectacle, Biden and his legal team committed another unforced error. This one could prove as costly as pushing for an obscenely generous plea agreement and then telling prosecutors to “rip it up” in July.
Few people expected Hunter to testify in the deposition. The evidence against him is overwhelming, as shown in his second federal indictment on tax charges. He and his uncles were allegedly engaged in one of the largest influence-peddling operations in history involving millions of dollars from various foreign sources. Hunter simply could have done what prior witnesses have done: Go in and take the Fifth. That is what attorney and former IRS official Lois Lerner did — twice — when House Republicans wanted to ask her about the Obama administration targeting conservative groups.
It was a no-brainer that someone appears to have radically over-thought on the Hunter Biden legal team.
Hunter can now be held in contempt of Congress. That will force the hand of Attorney General Merrick Garland, who aggressively pursued Trump figures for contempt, including former Trump adviser Steve Bannon. Despite some of us writing to the contrary, Bannon claimed his lawyers told him he did not have to appear before a House committee. He was swiftly charged and convicted by Garland’s prosecutors.
In this instance, the contempt case would go to the U.S. Attorney in D.C., Matthew Graves, who previously declined to assist in bringing tax charges against the president’s son. Yet by pulling a Bannon, Hunter now faces the expectation in many circles that he will get the full Bannon treatment from Garland.
There is another possible cost to this move. Fox News quoted White House press secretary Karine Jean-Pierre saying that President Biden “was certainly familiar with what his son was going to say,” which suggests that the president spoke with his son before his act of contempt and discussed his statement. If that is true, it was a breathtaking mistake. One of the four most obvious potential articles of impeachment that I laid out in my prior testimony was obstruction. There already are questions over special treatment potentially being given to Hunter in the form of alleged felonies being allowed to expire, warnings about planned federal raids, and sweetheart deals.
In addition, President Biden has enlisted White House staff to actively push challenged accounts of his conduct and attack the House Republicans’ investigative process. Such acts could legally bootstrap prior misconduct into his presidency under abuse-of-power allegations.
If this latest allegation is true, the president was speaking with his son about committing a potentially criminal act of contempt. Hunter was refusing to give testimony focused not on his own role but on his father’s potential role in the alleged influence peddling. The House can pursue evidence on that conversation and how the president may have supported his son’s effort.
With his bizarre public display, Hunter has opened a new potential front for prosecution. If the same law is applied the same way as it was to Bannon, Hunter could find himself indicted within a few weeks.
In Bannon’s case, the subpoena was issued at the end of September. He was held in contempt by the House in October and indicted in November. It took just four days of trial to convict him.
Indeed, President Biden himself has maintained that defying subpoenas cannot be tolerated. When subpoenas were issued to Republicans during the House’s January 6 investigation, Biden declared: “I hope that the committee goes after them and holds them accountable criminally.”
That is precisely what Republicans will now expect from Garland in Hunter’s case. In the meantime, the House did not lose anything that it expected to get from Hunter. It will now move to secure the testimony of a circle of associates surrounding both Hunter and his father. At the same time, the National Archives has finally agreed to give House investigators tens of thousands of emails reportedly involving the president.
As expected, in a floor vote late in the day, not a single House Democrat supported getting answers to these questions through an impeachment inquiry. They unanimously opposed any inquiry even though 40% of Democrats have said in polling that they believe the president has acted illegally or unethically regarding his family’s business deals. (Overall, 70% of those polled held that view.)
Hunter, however, just tripped another wire that could seriously complicate matters not just for himself but for his father. Perhaps that is why, when dramatist-scholar Martin Julius Esslin devised the term “theater of the absurd,” he described it as “part reality and part nightmare.”
Jonathan Turley, an attorney, constitutional law scholar and legal analyst, is the Shapiro Chair for Public Interest Law at The George Washington University Law School.
