Hunter’s collapsing world: Why a criminal plea could now be the best option for the Bidens

This week, Hunter Biden’s defense team traveled to Delaware seeking an update on the federal criminal investigation that has dragged on for almost five years. The reason seems clear: Time is running out on Hunter and the Biden family.

After years of delaying disclosures and admissions, Hunter could now be pushing to cap off the criminal side of the scandal before more information is released in Arkansas and Washington. For the White House, even a criminal plea is preferred if they can avoid one particular claim — and they may be succeeding.

For years, the Bidens have worked (with the media’s help) to delay any recognition of the influence peddling and corruption that may be revealed on Hunter Biden’s laptop. Even this week, in child support proceedings in Arkansas, Hunter’s counsel continued to refuse to admit ownership of the laptop abandoned at The Mac Shop in Wilmington, Del., in April 2019.

It won’t work any more than his long refusal to acknowledge his fathering of his four-year-old child, Navy. Just as Hunter could not deny DNA, forensic and other evidence will soon make his laptop denials untenable in proceedings in which he and his counsel are required to tell the truth.

These proceedings are now colliding for the Bidens. 

With the laptop being raised in Arkansas and being investigated in Washington by House committees, time is up and the Biden team knows it. An establishment of the laptop’s authenticity in one forum could produce cascading effects in the other forums. 

There has already been a recent shift to a scorched-earth strategy, including reportedly threatening possible witnesses and calling for the IRS to investigate critics.

New leaks from the Justice Department investigation have indicated that prosecutors are considering four charges: two misdemeanor counts for failure to file taxes, a single felony count of tax evasion related to a business expense for one year of taxes and a potential felony count on falsifying a form linked to a gun permit.

Those four charges could well result in jail time, but the situation is likely to get worse for Hunter if the House reveals new evidence of foreign dealings and payments. That is why a capstone plea could control the damage for both Hunter and his father. A capstone is designed to protect against erosion and even help to hold together an arch that might otherwise collapse. This capstone plea could avoid a worst scenario (and charge) that would undermine years of denials by both Bidens.

However, there was one conspicuous omission from the list of potential charges that may also indicate a reason to push toward a plea. There is no mention of a charge as an unregistered foreign agent under the Foreign Agent Registration Act (FARA). The Justice Department aggressively used this charge against Trump figures like Paul Manafort and, if the same standard is applied, it is hard to see the basis for discarding the charge in the Hunter Biden case.

The laptop shows emails from various foreign sources, including some with close connections to foreign governments and intelligence services. There are also records of visits of clients and business associates to the White House as well as pictures with then-Vice President Joe Biden. Finally, there are emails showing Hunter reached out to high-ranking officials like Antony Blinken for “advice.” Now our secretary of state, Blinken was then deputy secretary of state.

However, a FARA charge would be embarrassing to both President Biden and Attorney General Merrick Garland. The claim that the president’s son was acting as a foreign agent would put a spotlight on the millions of dollars raised in alleged influence peddling.

House Oversight Committee Chairman James Comer (R-Tenn.) has claimed that up to 12 Biden family members may have benefited from these foreign payments. Joe Biden was the object of that influence peddling, and the question would become what these foreign interests were seeking to get from their payments. Moreover, the most obvious reason not to register as a foreign agent was to conceal these dealings and avoid scrutiny over influence peddling.

While Democrats are now emphasizing that influence peddling is lawful, it is also clearly a form of corruption worthy of investigation. What’s more, efforts to conceal influence peddling are often criminal acts, including FARA violations. A criminal charge could put such motives before a jury — and the American public.

For Garland, a FARA charge would be equally embarrassing. The attorney general has refused to appoint a special counsel despite repeated references to the president as a possible recipient of these funds. There are even instructions to Hunter associates to use code names for Joe Biden like “the Big Guy” and “Celtic.” Some of us have criticized Garland for ignoring the undeniable need for a special counsel.

Capping off the scandal with a plea to a couple tax charges and a gun form charge would minimize the damage before the 2024 election.

What happens then is anyone’s guess. As a first offender, Hunter could plead out such charges to minimal jail time. These are federal charges, so Joe Biden could pardon his son. Presidential pardons have a long and checkered history, including presidents using the power to benefit family members and political donors.

Notably, when President Clinton abused this power by pardoning his half-brother, he waited to do so until he was leaving office. Indeed, a criminal charge could create a weird end-game option for Biden. Hunter could wait to plead guilty. If he is not reelected, Biden could issue a Clintonesque pardon for Hunter on his way back to Delaware.

The pressures on the Bidens are both real and rising. With both the Arkansas court and the House committees threatening greater public disclosures, a bill is coming due, and the interest will only mount in the coming weeks. 

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.