Just weeks ago, the shadow of criminal suspicion over Hunter Biden seemed about to lift. But the elevation of David Weiss, the prosecutor investigating President Joe Biden’s son, to special counsel status on Friday was as important for symbolic and political reasons as it was for legal ones. The new status grants him extra powers to broaden his inquiries – potentially into other states beyond his current patch as US attorney in Delaware.
The change of status followed the collapse of a deal last month that likely would have seen Hunter Biden get sentenced to probation after pleading guilty to two misdemeanor tax charges. The deal would have also included an arrangement that would have resolved a felony gun charge. Weiss said in a court filing on Friday that negotiations to restructure the deal – which a judge had worried was unconstitutional – have now reached an “impasse” and that a trial was likely.
The prospect of the president’s son going on trial, under a glaring media spotlight, would be a nightmare distraction for any White House, let alone – potentially – during a reelection campaign. It would also prolong the personal toll on the president and his family of an investigation into his only surviving son, a recovering addict, which has already lasted five years.
Such a spectacle could be so damaging to Joe Biden, that former Attorney General Alberto Gonzales said on CNN’s “The Lead with Jake Tapper” Friday that a fresh plea agreement could not be ruled out.
“The risk (of a trial) is potentially much greater for Hunter Biden, it’s also bad for his father … does the son really want to put the president through a trial in the middle of a campaign?” said Gonzales, who served in the George W. Bush administration.
The exact legal implications of the request by Weiss will only become fully clear in the coming weeks. There are questions, for example, over why Weiss requested his new elevated status after being ready to conclude a plea deal with Hunter Biden and saying previously he didn’t need special counsel powers. And why did Attorney General Merrick Garland decide that this was the moment, in accordance with the special counsel statute in US law, that there were sufficient criminal allegations to investigate as well as potential conflicts of interests in keeping Weiss under the direct supervision of the Justice Department?
Hunter Biden’s lawyer Abbe Lowell told CNN’s Kaitlan Collins on “The Source” Friday that although Weiss’s title had changed, the facts of the case hadn’t. After five years, of what he described as one of the most thorough investigations ever, Lowell said career prosecutors had decided that the only appropriate charges were misdemeanors on tax and a diverted gun charge. “So, whatever his title is, and whatever happens next, we’re confident that that should be the same conclusion,” he said.
Other questions for Weiss also surround the issue of why an investigation that started back in the Trump administration has taken so long to reach a conclusion and whether his new status augurs a move beyond the tax and gun charges facing Hunter Biden and into his business activities or some other areas.
Why special counsels are bad news for administrations
Political reverberations erupted as soon as Garland announced his move in a surprise news appearance.
The attorney general has sought to avoid the public appearance of political interference in the probe, given what he called the “extraordinary circumstances” of the case – namely that it involves the son of a sitting president. But the symbolic weight of an appointment of a special counsel stiffens the perception of scandal and potential wrongdoing even if the legal realities of the case haven’t shifted.
The worry for the White House is that special counsels and independent prosecutors, from the Clinton administration to the Trump administration, have had a history of expanding investigations beyond their strict original areas and nobody can be sure exactly how or when their probes might end.
The most tangible political fallout from Friday’s decision will be to give months of new material for Republicans seeking to portray President Biden as corrupt, a welcome distraction from the unprecedented and multiple indictments facing ex-President Donald Trump.
It’s not clear that the appointment of a special counsel will result in the Hunter Biden story expanding into the political mainstream beyond its feverish coverage in conservative media and consuming attention of House Republicans. But Republicans will work to ensure independent and swing voters get to hear all about it and advance their unproven claim that Hunter Biden is getting unfair benefits from the Justice Department while Trump is being persecuted.
These split screen narratives were in evidence on Friday morning when the special counsel announcement shared the headlines with the first pre-trial hearing before Judge Tanya Chutkan over Trump’s indictment over allegations that he broke the law in his bids to overturn the result of the 2020 election. A viewer unfamiliar with the details of each case might get the erroneous impression that Biden and his potential Republican rival in the 2024 election were facing equivalent legal duress.
“Part of Trump’s politics in general is to suggest that the waters are murky, everyone swims in them, everybody behaves in the same way and therefore these offenses are to be ignored,” said David Axelrod, a former top aide to President Barack Obama, who is now a CNN senior political commentator.
Important differences between Hunter Biden and Trump cases
There are two important distinctions between Biden and Trump that the Republicans are trying to blur.
The first is that the former president has already been personally and criminally indicted three times. No other ex-president has been tried for crimes once.
Trump is also facing accusations that far outweigh those confronting Hunter Biden, including the alleged mishandling of national security documents that he hoarded at his resort home in Florida after leaving office. He is also effectively charged with the ultimate crime in a democracy – seeking to overturn the will of voters in an election.
The second distinction lies in the fact that President Biden’s behavior is not an issue in the current parameters in the criminal case against his son. While Republicans are seeking to show links between Hunter Biden’s business activities and lucrative deals in nations like Ukraine and China and Biden’s decision making as vice president, they have so far failed to provide evidence of his father’s wrongdoing. This is despite emerging evidence that Hunter Biden traded on his family’s brand, which does raise ethical questions on his part but so far doesn’t appear to prove that his father abused his power.
In an interview with Tapper on Wednesday, James Comer – the Republican who chairs the House Oversight Committee – raised new suspicions.
“I think (there’s) more than enough evidence to show that Joe Biden hasn’t been truthful with the American people, and he had knowledge that his family was money laundering. He had to,” Comer said.
But Comer was repeatedly unable to provide evidence of that activity or any concrete links between Joe Biden and any alleged wrongdoing by his son. So, while Republicans are seeking to create equivalence between the current president and a predecessor who is expected to stand trial multiple times next year on scores of criminal charges, the substance and scale of their two cases are not similar.
And while conservative media hosts batter Joe Biden over his son’s behavior night-after-night, it’s not clear whether doubts about the current president’s honesty and integrity are yet troubling a wider audience.
Still, in an election that is likely to be close, even minuscule movement among independent and swing voters could be important – especially if some Americans are dissatisfied by Biden’s performance but are worried about Trump’s criminal exposure. Any sense the GOP can implant in voters’ minds that Joe Biden is corrupt could give some of them a kind of permission slip to cast their ballot for the ex-president if he’s the GOP nominee.
Republicans react to a move they demanded with attacks
Given that Republicans have been calling for a special counsel for months, they might have been expected to celebrate Friday’s bombshell announcement.
But top GOP lawmakers immediately launched a flurry of attacks on Weiss, despite the fact that he was first appointed under Trump, claiming that far from insulating the case from political influence, his appointment as a special counsel was an attempt at a cover up. The GOP has turned against Weiss because he has not substantiated their evidence-free claims that Joe Biden conspired with his son to enrich their family while he was vice president and they also claim that the plea deal originally offered to Hunter Biden was a “sweetheart” agreement.
“This move by Attorney General Garland is part of the Justice Department’s efforts to attempt a Biden family coverup in light of the House Oversight Committee’s mounting evidence of President Joe Biden’s role in his family’s schemes selling ‘the brand’ for millions of dollars to foreign nationals,” said Comer, who represents a Kentucky district.
Republican House Speaker Kevin McCarthy of California added: “If Weiss negotiated the sweetheart deal that couldn’t get approved, how can he be trusted as a Special Counsel?”
South Carolina Sen. Lindsey Graham warned: “If the goal of Attorney General Garland’s decision to appoint Mr. Weiss as special counsel in the Hunter Biden investigation was to put this story to bed, he failed miserably.”
The reaction of the GOP showed how questions about Hunter Biden – and over Trump’s criminal indictments – have become hopelessly politicized. In a way, Republicans were able to have their political cake and eat it Friday in creating a furor over the elevation of Weiss but positioning themselves to take political advantage of the prolonging of his investigation.
Friday’s developments will also further contribute to a febrile political atmosphere that has top Republicans in the House considering the launching of an impeachment investigation into the president. While some moderate Republicans whose districts will be key to their party’s hopes of maintaining their majority next year might dissuade such a step, a new cover-up narrative being driven to fever pitch on conservative media is likely to further pressure rank-and-file members to embrace an impeachment probe.
While there are plenty of questions for Hunter Biden to answer, the continuing lack of firm evidence that Biden committed a crime or acted in a way as vice president that requires his removal as president years later may not factor much into Republican calculations.
This story has been updated with additional information.
