Thinking About Things: The Biden Family Business, Ethics and the Rule of Law

By John DeQ. Briggs

While I have no special insight (or maybe no insight at all) into the outcome of tonight’s election, recent revelations about the Biden family (the apparent selling of Chinese and other nations’ access to Joe Biden by his son, his brother and others for millions of dollars, some of which allegedly went at least indirectly to Joe Biden) brings to my mind several thoughts. But first a few sentences of essential background. The first line of defense to the initial revelations by the New York Post was that this was Russian disinformation. The second line of defense seemed to be that this could not be true because none of the media were reporting it and if it were true, the media would of course be reporting it. After Mr. Bobulinski’s firsthand eyewitness account of events, supported by contemporaneous emails and documents (collection of links here), was broadcast on national television, a soft third line of defense developed: that this was “old news” unworthy of comment. An equally soft fourth line of defense was that this was just a political smear and that Joe Biden did nothing illegal.

One does not need to dislike Mr. Biden or like Mr. Trump to recognize that something quite troubling happened and is now being ignored – sort of like the “crazy uncle in the attic” whose rantings are ignored by dinner party guests. It is not as if peddling influence to foreign governments is new. The Clinton foundation raised hundreds of millions of dollars from Middle Eastern potentates based on the presumption that Mrs. Clinton would become President. A week after the 2016 election, the foundation was effectively finished. President Bill Clinton sold nights in the Lincoln bedroom to large donors, mostly domestic, but perhaps foreign. Politically powerful politicians have spouses and children who seem to end up making gobs of money, sometimes even right out of college. Chelsea Clinton had a starting salary of $650,000 or so. Hunter Biden has lots of company selling access, perhaps indeed from both parties. But the Biden family business is troubling not only because Joe Biden was vice president at the time, but because he is on the verge of becoming the actual President-elect tonight or this week.

It has always been clear that the Biden story is not the product of Russian disinformation. The facts, after all, come off of Hunter Biden’s own laptop. The role of Mr. Giuliani did give the early disclosures an odor of political mischief though. And indeed, one could imagine that a foreign power, even Russia, might have pushed the story, but that would not make it “disinformation,” it would just make it Russians peddling the truth. A bit concerning maybe to some, but in no way an exoneration of the Biden family conduct.

The fact that the original story was banned from social media and not carried in the major newspapers of the United States (these two circumstances are still going on to some extent) is, to me, in many ways more concerning than the apparent corruption of the Biden family business. If the real possibility of serious corruption by senior elected officials is not newsworthy, then we have truly entered the twilight zone of soft totalitarianism that we have written about previously in these pages. I don’t think we ever thought that our Constitution, which protects the press from the government, would see a situation in which the press shackled itself to a particular political party so as to deny itself the very freedom guaranteed by the Constitution. Media staff can and do get editors fired for stories they allow. (See my column of June 20 on this here). Things have only gotten worse recently. A story in RealClearPolitics from a couple of days ago reports about the move afoot by staffers at the Wall Street Journal to defang the editorial page writers. Almost as alarming is the bizarre handling of the story by NBC News, detailed here by GW Law Professor Jonathan Turley last weekend. As he put it:

There is something incredibly insidious in this story. The media has allowed itself to be boxed in by the Biden campaign. Reporters willingly bought into the narrative that there is no real story to pursue over the laptop. The longer they have ignored the story; the more difficult it is to admit that there are real issues raised by these disclosures. Reporters simply cannot walk back from the dismissal of a story even as it grows daily with new disclosures. The only recourse is to discredit another story and another source.

The regularity of influence peddling in Washington is one of the reasons it was referred to as “the swamp” that needed to be “drained.” This was an animating feature underpinning the election of Donald Trump in 2016. Many years ago, Michael Kinsley, a soft-spoken, extremely articulate, liberal columnist coined the notion that what was scandalous in Washington was not what politicians did that was illegal, but what they did that was technically legal. Most politicians, or for that matter others, caught up in some kind of scandal, usually claim victory if what they did was not a crime. Or at least if they were not convicted of the crime. This is an extremely low bar for respectability. So here we are on election day (and perhaps on the verge of a sweeping Biden victory) confronting a somewhat unique situation, although it may have its parallels with 2016.

In my view, the Attorney General should appoint a Special Counsel to investigate the matter and this should be done within weeks of the election. The legislative criteria for appointing a Special Counsel are as follows:

“The Attorney General will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and –

  1. that investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and
  2. that under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.”

It seems clear beyond peradventure that the monies received from the Chinese, and perhaps others, by the Biden family warrant investigation at a minimum. If Mr. Biden wins the election, there is zero chance that his Attorney General would have the courage or the sense of ethical duty to follow the lead of President Trump’s then-Attorney General, and appoint a Special Counsel whose investigation could touch the President. It also seems clear that, should Trump prevail in the election his Justice Department would be deeply criticized even more than now if it undertook an investigation of the Biden family business.

The most neutral and responsible approach to the whole matter would be for Attorney General Barr to appoint a non-partisan, disinterested Special Counsel and let that person proceed unhindered by political considerations left or right. It has been Democrats who have often demanded the appointment of Special Counsel and tended to lecture us about their appropriateness in a variety of different circumstances. Many Democrats, troubled by the recent revelations, might welcome an independent Special Counsel. Indeed, the Progressives within the Democratic Party might see the appointment of the Special Counsel as a unique opportunity to accelerate the “incapacitation” of the new President so as to be able to install Vice President Harris as President. This would have the further incidental benefit of allowing now President Harris to appoint a Vice President under the 25th Amendment, which is subject to the approval of a simple majority of both houses of Congress.

But many of the elected Democrats most likely would be aghast at a Special Counsel prospect as it would put them in a Hobson’s Choice of embracing, however grudgingly, the Special Counsel, or urging the President or the Attorney General to fire that person, with whatever political consequences might ensue. Given the quiescence of the media and its collaboration with institutional Democrats, there is a good chance that the firing of the Special Counsel would be treated yawningly as perfectly appropriate. The bulk of the media might simply embrace the narrative that the appointment of the Special Counsel was illegitimate, politically motivated, and never appropriate to begin with and hence should be undone immediately. No matter how the Democratic Party might react institutionally, we would find out whether they are interested in the rule of law or the rule of the Democratic Party. Those are not the same things by a long shot. I also have to confess that I would find it amusing to watch certain familiar democratic politicians, well known for bloviation, react to a potentially wide-ranging investigation of one of their own. But more importantly, we have heard nearly every elected official in Washington say that “nobody is above the law.” Is it going to be true in the case of the Biden family business or not? In the world of a Biden victory, the answer to that question will rest in the hands of the Democrats.

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