Hunter Plea Judge Adds Pressure For Special Counsel; Conditions For Appointment Met Even More Clearly Now
Federal Judge Rejects Hunter Plea
WASHINGTON, D.C. (July 27, 2023) – A federal judge’s rejection of what has been widely regarded as mere “formality,” and by many as a “sweetheart” plea deal for Hunter Biden, adds even more weight to the growing pressure for Attorney General Merritt Garland to appoint a special counsel to oversee continuing investigations of – and any subsequent plea negotiations regarding – the President’s son, argues public interest law professor John Banzhaf.
Professor Banzhaf played a major role in obtaining special prosecutors for Richard Nixon, and persuaded a federal judge to order the appointment of an independent counsel. More recently, his formal legal complaint triggered the criminal investigation in Georgia of Donald Trump.
He was also one of the first to publicly suggest filing formal legal oppositions to the plea bargain with the judge, and helped persuade the Heritage Foundation and Congressman Jason Smith, Chairman, House Ways and Means Committee, to file formal oppositions, including many of the most incriminating documents of which the judge could take judicial notice.
In taking the highly unusual step of refusing to accept a plea deal involving Hunter Biden – stating that she had never before seen such a deal; demonstrating that its terms were not only unprecedented but also ambiguous; and obtaining an admission that a federal investigation of the President’s son was continuing and could produce additional criminal charges – Judge Marylellen Noreika made it clear that the two conditions for appointing a special counsel have been met even more fully and clearly than before, says Banzhaf.
28 CFR § 600.1 provides that: “The Attorney General . . . WILL appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and—
(a) That investigation or prosecution of that person or matter . . . would present a conflict of interest for the Department or other extraordinary circumstances; and
(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.” [emphasis added]
Since the Justice Department has admitted that a criminal investigation of Hunter is continuing and ongoing, it is clear that a “criminal investigation” is “warranted.”
Therefore the regulation, by using the word “will” rather than “may” or even “shall,” mandates and requires such an appointment if the two grounds apply.
Thus the only question under the first ground is whether having the Department of Justice [DoJ] continue to investigate the son of the person who heads the Executive Branch – and who can give direct orders to and even fire the Attorney General [AG] who has ultimate authority to direct the investigation and to approve any plea deal – “would present a conflict of interest.”
The question as posed clearly answers itself, suggests Banzhaf.
A Conflict Of Interest
Just as on the Law&Order TV program, Detective Donovan could not investigate his own son, there would also be a clear conflict of interest if a person suspected of a crime were not his son, but rather the son of his boss, DA Jack McCoy.
Similarly, as a real life example, there would be a clear conflict of interest if DoJ were to conduct a criminal investigation of AG Garland’s adult daughter Jessica.
Such a conflict of interest when father and offspring are involved is so clear that the Supreme Court determined that “In light of the potential for actual or apparent conflicts of interest, Jessica Garland will not serve as a law clerk for Justice Kagan while Attorney General Garland remains in office.”
So if serving as even one of several law clerks (with no vote) for a Justice (who casts only 1 vote out of 9) creates so much of a conflict of interest that the daughter of the AG cannot serve, even though many Supreme Court cases don’t even involve DoJ, having DoJ conduct a criminal investigation of the son of the AG’s boss creates an even clearer one, argues Banzhaf.
But the investigation of Hunter Biden goes much further than these theoretical conflicts of interest since sworn testimony by two IRS agents, numerous Treasury Suspicious Activity Reports showing multi-million dollar payments to Hunter and other Biden family members from companies in China, Romania, and Ukraine, shell company-related findings, encrypted messaging application missives, many documents recovered from a laptop computer conceded to belong to Hunter Biden, and now an authenticated but previously secret FBI FD-1023 form about Hunter and various business dealings implicate not just the son but also the father, notes Banzhaf.
So if a significant body of evidence implicated not just DA Jack McCoy’s son, but also even possibly DA Jack McCoy himself, the conflict of interest of having him investigated by Detective Donovan would be so clear that even on television it would not be shown.
Similarly, if a case before the Supreme Court actually involved AG Garland, there is no question about whether his own daughter would be able to play any role in its determination.
In addition, here a federal judge has dramatically demonstrated what a conflict of interest can do – and probably has – produced in real life; a plea agreement which Hunter’s lawyers were led to believe would foreclose further investigations and charges; in other words, investigations which might implicate Hunter’s father who ultimately controls DoJ.
This is far from theoretical. House Speaker Kevin McCarthy has publicly suggested an impeachment probe which would involve – and might even be centered on – President Joe Biden’s alleged involvement in the activities of his son which are now under active criminal investigation.
Hearings involving Hunter’s close friend and business partner Devon Archer are expected to provide further evidence suggesting wrongdoing by the President as well as his son, as are hearings at which U.S. Attorney David Weiss will be forced to explain under oath how this highly unusual and favorable plea deal was arranged, and if there was improper political interference from the President’s DoJ.
Many are loudly claiming that the plea deal is an example of a “two-tiered” justice system where those with political connections usually escape punishment.
Indeed, as was discussed in open court, DoJ wanted the judge (and not DoJ) to decide if Hunter in the future violated the terms of the diversion portion of the plea deal because it was so controversial and politically charged, and its lawyers wanted an impartial judge to make the decision so as to avoid what it admitted would otherwise be a conflict of interest.
The judge, naturally, rejected any such role, concluding that, under the Constitution, such prosecutorial decisions must be made by DoJ and not a judge.
So, to avoid the very conflict of interest the judge noted and DoJ admitted, the only constitutionally permissible solution would seem to be to have an independent counsel appointed to make this and any other politically charged decisions (including any future plea bargains), rather than the DoJ, suggests Banzhaf.
The law professor notes that the regulation also mandates that:
“The Attorney General . . . WILL appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and
(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter. [emphasis added]
The controversy over Hunter’s plea deal was covered live at length by all of the major news networks. It has been the subject of several different congressional hearings. It has been commented on by numerous members of Congress, the White House, many newspaper articles and editorials, etc. All this shows clear “public interest.”
The two leading candidates for the GOP nomination, former President Trump and Florida Gov. Ron DeSantis, have made clear they intend to talk about Hunter Biden and his business dealings to go after President Biden in the general election.
Furthermore, the apparent if not clear conflict of interest, the suspicion of improper political interference in the investigation, the unusual if not bizarre nature of the plea agreement upon which the judge commented, etc. all help make it even clearer now that “it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter. [emphasis added]
By the way, notes Banzhaf, the use of the words “assume responsibility” makes it clear that the regulation mandates the appointment of a special counsel not only to initially conduct a criminal investigation, but also to “assume responsibility” for an investigation which is already underway if circumstances then require the appointment.
If AG Garland does not now agree that the appointment of a special counsel to “assume responsibility” for the Hunter Biden investigation and plea now reportedly being renegotiated is necessary to prevent a conflict of interest and is in the public interest, Banzhaf hopes that members of Congress will pressure him to finally make such a long overdue move.
