Hunter Biden is standing up to Reps. Jim Jordan (R-Ohio) and James Comer (R-Ky.) — the chairs of the House Judiciary Committee and House Oversight and Accountability Committee — who are acting as MAGA surrogates for former President Trump’s election campaign. It’s a risky but ultimately smart approach for Hunter, both in the court of public opinion and the court of law.
The two committees met separately Wednesday to consider holding President Biden’s son in criminal contempt for supposedly failing to honor a subpoena for testimony. Hunter Biden has agreed to testify, but only in public; Jordan and Comer insist it be behind closed doors. As the Oversight Committee hearing began, Hunter made a surprise appearance with his lawyer Abbe Lowell. The message was clear — Hunter was ready to testify in public, and House Republicans could ask him anything.
Hunter called the GOP’s bluff. And like bullies who are not used to being confronted, House Republicans were shocked. After his appearance, the committee hearing “descend[ed] into chaos,” according to HuffPost. In the turmoil, Democratic Rep. Jared Moskowitz’s (D-Fla.) suggestion to have Hunter testify right then and there was not accepted. Both committees later voted to approve a recommendation for criminal charges of contempt of Congress against Hunter.
This latest demonstration of Hunter Biden’s willingness to testify publicly and of the House GOP’s continuing refusal to take him up on it demonstrate what’s really going on here. Comer, Jordan and their colleagues are not interested in genuine fact-finding; this is merely part of their baseless impeachment inquiry into the president.
Just Monday, Jordan said that Devon Archer, Hunter’s business partner, had provided the investigation with its “most damning evidence” against President Biden. In fact, Archer flatly denied any link between Hunter’s business activities and the president. But statements like Jordan’s, however meritless, create damage that is hard to erase when repeated time after time. Can we blame Hunter for wanting to testify in public to deny Trump allies from making distorted claims about what he said behind closed doors?
You can read through some of Jordan and Comer’s other belly flops here. It’s a long, sad tale of partisan innuendo with little or nothing to back it up. These elected officials appear to be inspired by the same school of confabulation as their former colleague Rep. George Santos (R-N.Y.).
Hunter dramatically spotlighted all of that in the court of public opinion on Wednesday. And he also illuminated his serious legal arguments in the court of law, if it comes to that.
The criminal contempt referral by the full House (if it happens) would go to the Department of Justice. It is now unmistakably clear to prosecutors and to the public that Hunter is willing to testify, and the dispute is only over the manner of the appearance. That is an unattractive case to charge — and an unappealing one to contemplate putting before a Washington, D.C., jury.
This stands in stark contrast to the kinds of prosecutions the Justice Department does bring when there is a flat refusal to cooperate, such as when Trump strategist Steve Bannon was charged for contempt of Congress when he refused to appear. (Bannon much later sought to reverse course shortly before trial, but, unlike Hunter, it was too little too late.)
Hunter’s concerted efforts to reach an accommodation are more akin to the situation of Mark Meadows, Trump’s final chief of staff, who wrangled with the Jan. 6 select committee over the details of his testimony while producing partial documentation. While that committee referred Meadows to the Department of Justice for contempt, prosecutors declined to pursue charges. In fact, we are aware of no case where criminal contempt was prosecuted in the face of a reasonable effort to comply with a congressional subpoena.
The Justice Department — and, if it comes to it, the courts — will also look askance at the naked partisan purpose that was so evident on Wednesday as the Oversight Committee melted down. Indeed, Comer has suggested that the proceedings are meant to help Trump’s polling and another member of the GOP caucus, Rep. Troy Nehls (R-Texas), said that their purpose is to give the twice-impeached Trump “a little bit of ammo to fire back.” When Nehls was asked “what the House GOP conference hoped to gain from the Biden impeachment inquiry,” he replied, “All I can say is Donald J. Trump 2024, baby!”
We are not suggesting that the younger Biden has been a paragon of virtue. At a news conference on Capitol Hill last month, he spoke of his many flaws. He faces criminal charges on other issues, although he and his lawyer strongly dispute them. But when it comes to pushing back on Comer and Jordan’s overreach, he is in the right.
Of course, Hunter’s bold move comes with some risk that he will be prosecuted and that these arguments may not work. But when a bully comes for you, sometimes it’s best to stand and fight. Hunter Biden did just that.
Ambassador Norman Eisen (ret.) served as counsel to House Judiciary Committee for the first impeachment and trial of Donald Trump. Dennis Aftergut is a former federal prosecutor and civil litigator, currently of counsel to Lawyers Defending American Democracy. Jacob Kovacs-Goodman is an elections and technology lawyer.