Joe Biden Apparently Helped Hunter Defy A Subpoena, So Why Is Trump The One Charged With Obstructing Justice?
Did Joe Biden counsel his son to defy a congressional subpoena? The House Oversight and Judiciary Committee chairs want to know as part of their impeachment inquiry because if the president colluded with Hunter Biden over the latter’s refusal to appear for questioning, Joe Biden committed the crime of obstruction of justice. Yet, ironically, it is Donald Trump charged with criminal obstruction of justice even though the former president did nothing to keep evidence or witnesses from Congress.
Last Wednesday, Rep. James Comer, the chair of the House Oversight and Accountability Committee, and Rep. Jim Jordan, the Judiciary Committee Chair, dispatched a letter to the White House counsel concerning the president’s apparent communications with his son regarding Hunter’s decision to defy a congressional subpoena. As the letter detailed, the House had subpoenaed Hunter Biden to appear for a Dec. 13, 2023, deposition as part of its impeachment inquiry. However, rather than appear for his deposition, Hunter Biden instead held a lengthy press conference at the U.S. Capitol on Dec. 13.
Later that day, when asked whether the president had watched Hunter’s performance, White House Press Secretary Karine Jean-Pierre said President Biden was “certainly familiar with what his son was going to say.” As the House’s letter noted, “Ms. Jean-Pierre’s statement suggests that the President had some amount of advanced knowledge that Mr. Biden would choose to defy two congressional subpoenas.”
“In light of Ms. Jean-Pierre’s statement,” the letter continued, “we are compelled to examine the involvement of the President in his son’s scheme to defy the Committees’ subpoenas.”
Comer and Jordan cited two federal criminal statutes, 18 U.S.C. § 1505 and 18 U.S.C. § 2(a), that President Biden potentially violated. Section 1505 is part of the federal criminal code that criminalizes “Obstruction of Justice” offenses, providing that “whoever corruptly … endeavors to influence, obstruct, or impede the due and proper exercise of the power of inquiry under which any investigation or inquiry is being had by … any committee of either House or any joint committee of the Congress,” is subject to a fine and imprisonment for up to five years. Section 2(a), for its part, creates criminal liability for anyone who, in the commission of a crime, “aids, abets, counsels, commands, induces or procedures.”
Based on the press secretary’s statement that President Biden was “certainly familiar with what his son was going to say,” to determine whether the president violated section 1505 or 2(a), Comer and Jordan requested from the White House any documents or communications exchanged by the Executive Office of the President and Hunter Biden and his legal team concerning the deposition of the president’s son.
It is unlikely the White House will comply with the House’s request for such documents. And if pushed on whether he discussed Hunter’s decision to ignore the subpoena, President Biden seems sure to rebuff the suggestion with the same force he exerted to deny ever discussing Hunter Biden’s business dealings.
Of course, the evidence is now overwhelming that Joe Biden not only spoke with Hunter about his business dealings but communicated regularly with his son’s business partners and met and spoke with foreigners who paid Hunter millions — with some of that money being directly traced to Joe Biden.
Adding obstruction of justice to the impeachment inquiry seems like chump change in comparison to charges of bribery and the selling of influence, but there is a delicious irony revealed by the House’s latest salvo: If Joe Biden colluded with his son to keep Hunter from complying with the congressional subpoena, that would actually constitute the crime of obstruction of justice, whereas Trump currently faces two criminal charges for obstruction of justice for conduct that doesn’t even appear to qualify as a crime.
As detailed Tuesday at The Federalist, Special Counsel Jack Smith charged Trump with violating two subsections of § 1512(c) — another section of the criminal chapter covering obstruction of justice. The special counsel’s charges seek to hold Trump criminally liable for the events of Jan. 6, 2021, claiming the former president’s conduct “otherwise obstructs, influences, or impedes any official proceeding,” namely the certification of the electoral vote.
Smith’s theory, however, ignores the framework of § 1512(c), which only criminalizes conduct that impairs in some way evidence for use in an official proceeding, such as the alteration, destruction, mutilation, or concealment of “a record, document, or other object…” When interpreting a similar “otherwise” catchall clause, the Supreme Court has held that “the statute covers only similar crimes.”
The Supreme Court, when it hears an appeal concerning the scope of § 1512(c) later this year, is extremely likely to similarly hold that federal statute only criminalizes conduct that impairs the availability of evidence for an official proceeding — something the special counsel does not claim Trump did on Jan. 6, 2021.
In that case, the bottom line will be that the Biden administration charged Trump with obstruction of justice for conduct that was not a crime, while Joe Biden may have engaged in conduct that actually qualified as such a crime if he collaborated with Hunter to ignore the congressional subpoena.
The level of projection at play with this administration would be hilarious if it weren’t so damn damaging to our country.
Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion (forthcoming), National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prive—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance. Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.
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