Garland does the Bidens no favor by dodging a special counsel appointment

I despise the institution of independent prosecutor, or “special counsel” as the current iteration is known in federal regulation. I am thus sympathetic to Attorney General Merrick Garland’s insistence, in Senate testimony on Tuesday, that the Biden investigation — which the administration disingenuously minimizes as if it implicated only the president’s son, Hunter — is in the capable hands of the Biden Justice Department, with no need to appoint a special counsel.

Alas, to be sympathetic is different from being convinced. The undeniable facts are that (a) there is a bulletproof case for the appointment of a special counsel under regulations that are supposed to bind the Justice Department, and (b) if the shoe were on the other foot, there is no way Democrats would indulge the pleas of a Republican attorney general — even one who was a respected former federal appeals court judge — that a Republican president’s Justice Department be trusted to investigate the Republican president’s family without political interference.

Hunter Biden’s own miniaturizing of his predicament notwithstanding, the investigation is not solely focused on either him or his “tax affairs.” Millions of dollars allegedly poured into the Biden family, not just the president’s son, from foreign sources tied to notoriously corrupt governments (Ukraine, Kazakhstan and Mexico) and authoritarian regimes that are hostile to the United States (China and Russia).

There appears to be a correlation between Joe Biden’s influence over American policy regarding the countries in question and the willingness of people and entities tied to the governments of those countries to provide these exorbitant paydays. That correlation is all the more suspicious because Hunter Biden lacked relevant business experience and was at times unabashed about being paid for his name and access to power. The president’s brother Jim reportedly also cashed in — as allegedly did Jim Biden’s wife on at least one occasion (a lavish shopping spree reportedly funded by one set of the family’s Chinese business associates).

It is also apparent that Joe Biden could not have been a mere spectator to all this. He had to know his son was trading on his political influence. As vice president, Biden taxied Hunter to China on Air Force Two for meetings with Chinese business partners. He met with at least one of his son’s business associates, despite continuing to deny that he ever discussed his son’s business affairs.

In addition, a participant in one of the lucrative China deals, Anthony Bobulinski, has said that Joe Biden had significant involvement in the transaction, including meeting with Bobulinski face-to-face on two occasions in 2017 (when Biden was out of office but anticipating a presidential run). Bobulinski’s account is credible — not just because the White House has not even tried to counter it in any detail, but because there is a paper trail of documents, derived from Hunter’s abandoned laptop, that indicates Joe Biden (identified as “the big guy”) had a 10 percent stake in the venture.

Hunter has conceded that he is under a criminal investigation. He has said it is about tax issues, but that simply acknowledges what cannot be credibly denied; it long has been known that liens were placed on some of his property holdings. But even administration-friendly media now report that the investigation includes inquiry into potential money-laundering and Foreign Agent Registration Act violations.

From a public interest standpoint, moreover, Hunter Biden is the least important figure. The American people are entitled to an accounting of what the foreign sources believed they were buying, whether these intriguing arrangements influenced or potentially influenced U.S. policy, and whether there was a potential for blackmail.

That is not hysteria, by the way. Whenever any American seeks even a low-level security clearance from the U.S. government, there is a searching inquiry into the person’s foreign travel, associations, and business dealings. It is common sense that transactions connected to corrupt and authoritarian regimes that do not adhere to Western transparency standards can be compromising and contrary to American interests.

Under the relevant regulations, the attorney general is supposed to appoint a special counsel when there are grounds for a criminal investigation that “would present a conflict of interest for the [Justice] Department,” and when the appointment of a special counsel “would be in the public interest.”

In the Russiagate farce, Democrats demanded the appointment of a special counsel even though there was no evidentiary basis to investigate President Trump for committing a crime, much less for acting as a clandestine agent of Russia. Here, in stark contrast, a criminal investigation is underway — the Justice Department makes no pretense that it is not well predicated.

The attorney general is not supposed to make it personal by indignantly asking whether we trust him to handle the matter with integrity. The Justice Department must strive to avoid even the appearance of impropriety. Trust in Garland is not the issue. The conflict, and straightforward application of the regulation, take the matter out of the attorney general’s hands. It is in the public interest to have a lawyer from outside the president’s own Justice Department lead the investigation of the president’s son — and perhaps the president’s own conduct. Garland is aware of this. Far from increasing our trust in him, the regrettable fact that he is citing his own integrity to rationalize dodging a clear regulation is reason to question his judgment.

Finally, it is specious of Garland to claim there is no cause for concern because David Weiss, the U.S. attorney overseeing the investigation in Delaware, is a Trump appointee. Weiss is a career prosecutor. Before Trump appointed him, he was named interim U.S. attorney by President Obama. Delaware is a blue, blue state heavily influenced by Biden and the two Democratic senators. Trump could not have gotten Weiss confirmed by the Senate if he had not been acceptable to them.

It is not enough to say that Weiss reports to Garland and Biden’s appointed deputy attorney general, Lisa Monaco. In the Justice Department, tax cases are controlled not by the district U.S. attorney but by the Tax Division in main Justice. That means more supervision by Biden appointees, not less.

Even if we suspend disbelief and assume that President Biden’s hands are completely clean, it is obvious that the Biden Justice Department cannot credibly clear the president or members of the Biden family. The controlling federal regulations dictate that a special counsel must be appointed. The longer Biden’s attorney general fights that reality, the more it increases suspicion that the president’s hands may not be clean.

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, a Fox News contributor and the author of several books, including “Willful Blindness: A Memoir of the Jihad.” Follow him on Twitter @AndrewCMcCarthy.