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By John Yoo and John Shu
Professor of Law at the University of California at Berkeley; attorney and legal commentator
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Republicans this Christmas may want to thank Hunter Biden—the political gift that keeps on giving. The president's son not only flagrantly defied a subpoena last week and refused to testify before Congress, but also eased the way for Republicans to investigate the administration—and even the President himself—for conflicts of interest and even obstruction of justice. Hunter's refusal to come clean all but guarantees that stories about Biden family corruption will continue to build through the 2024 election season.
House committees investigating Hunter's financial escapades had subpoenaed Hunter to appear for a closed-door deposition last Wednesday. Instead of complying with a valid legal demand that he appear before Congress, Hunter held a press conference a few hundred yards away in front of the Capitol. He defiantly declared that his father had no "financial involvement" with his affairs and accused the Republicans of conducting a "shameless" witch-hunt.
It did not help Hunter's case that the special counsel, David Weiss, had just indicted him in Los Angeles federal court a few days earlier for an alleged multi-year scheme to evade taxes on more than $7 million in income, most of it generated from foreign companies linked to the governments of China, Russia, and Ukraine. House committees can reasonably investigate whether the Biden DOJ had tried to give Hunter a sweetheart plea deal never given to anyone else for firearm offenses, and had refused to prosecute him for FARA, money laundering, bank fraud, wire fraud, and bribery and illegal gratuity violations. IRS whistleblowers had further testified that DOJ had intentionally allowed potential felony charges to expire, prevented investigators from following the evidence, and tipped off Hunter about planned searches.
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Thanks to Hunter's public flouting of the subpoena, the House voted 221 – 212 to authorize a formal impeachment inquiry into President Biden. The vote broadened the House's legal authority for its probe, because an impeachment inquiry does not require a legislative purpose or other connection with oversight. Instead, an impeachment inquiry investigates possible treason, bribery, or other high crimes and misdemeanors on the President's part, similar to what grand juries do in criminal cases. The House can more easily issue impeachment-related subpoenas for testimony or documents and will have a greater constitutional authority should it need to enforce its demands in court.
After the vote, Congressmen James Comer (R-Ky.) and Jim Jordan (R-Ohio), who respectively chair the House Oversight and Judiciary committees, said they will seek to hold Hunter in contempt of Congress. After the vote to authorize the impeachment inquiry, the House should easily approve holding Hunter in contempt for defying the House.
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Carrying out the contempt citation will prove difficult due to separation of powers, but Hunter's refusal to cooperate will only compound President Biden's troubles.
Congress relies on the Justice Department to prosecute contempt, as the Biden U.S. Attorney in D.C. did when Trump aides Peter Navarro and Steve Bannon refused to appear before the House January 6 committee. In those cases, Navarro and Bannon refused to appear, and lost in court because they claimed that executive privilege prohibited them from revealing their conversations with a president. Both the Constitution and Supreme Court precedent allow executive branch officers to keep presidential communications confidential, and so the Justice Department refuses to prosecute for contempt those who validly invoke executive privilege. Navarro and Bannon could not benefit from this exception because they were acting as private citizens working on Trump's re-election campaign, rather than as government officials carrying out public duties.
Hunter, however, falls under the same umbrella as Navarro and Bannon. He is not, and never has been, an executive branch official and thus had no constitutional ground to refuse to appear before Congress, nor any legal basis to blow off his subpoena and congressional deposition. He could answer questions under oath or invoke his Fifth Amendment right against self-incrimination, but either way he had to appear before Congress in person. As the U.S. Supreme Court stated in Watkins v. United States (1957), "It is unquestionably the duty of all citizens to cooperate with the Congress in its efforts to obtain the facts needed for intelligent legislative action. It is their unremitting obligation to respond to subpoenas, to respect the dignity of the Congress and its committees and to testify fully with respect to matters within the province of proper investigation."
Worse yet, by refusing to cooperate, Hunter placed his father in a political bind. Regarding Bannon and Navarro, on October 15, 2021 President Biden said that, "I hope that the committee goes after them and holds them accountable criminally," and that the DOJ should prosecute them. Declining to prosecute the President's son for committing the same act as Navarro and Bannon will raise doubts about whether the Justice Department is executing the law fairly. It will even raise questions whether DOJ leaders are obstructing justice in order to favor Hunter.
Hunter put his father into even more of a bind just by deciding to pull his stunt on Wednesday. Politico reported that Hunter "notified Joe Biden of his plans" to do the press conference, and the White House press secretary admitted that President Biden "was certainly familiar with what his son was going to say." House investigators can now ask whether President Biden and Hunter discussed the latter's plans to break the law, and whether President Biden offered Hunter assurances that the DOJ would not prosecute him. If so, the House could investigate whether the President participated in obstructing the investigation(s) into Hunter's financial and tax shenanigans, which could constitute an impeachable abuse of public power.
The House should continue to proceed meticulously and deliberately with its investigation, regardless of Hunter's antics. The House committees have shown that more than $20 million dollars from unfriendly foreign countries have gone into a web of Biden family accounts.
President Biden has changed his story many times regarding his involvement in Hunter's alleged influence-peddling activities. While a Democratic Senate will not convict and remove President Biden, a majority of the House can still decide whether to impeach him for high crimes and misdemeanors.
John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a nonresident senior fellow at the American Enterprise Institute, and a visiting fellow at the Hoover Institution. He served in the U.S. Department of Justice from 2001 to 2003. John Shu is a legal scholar and commentator who served in the administrations of Presidents George H. W. Bush and George W. Bush.
The views expressed in this article are the writers' own.
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