A Failson Meets a Failed Justice System

A Failson Meets a Failed Justice System

A Failson Meets a Failed Justice System

The right-wing outrage machine is whirring up over Hunter Biden’s plea deal—but the real scandal is the Justice Department’s neglect of white-collar crime.


Hunter Biden got a sweetheart deal in negotiations with law enforcement. The forces of liberal corruption have weaponized the justice system. The Biden crime family is steamrolling any semblance of accountability or the rule of law. At least, that’s the story the right is telling.

In reality, the president’s son pleaded out on charges that were never likely to result in court cases—a charge on unpaid taxes that have since been repaid, and a failure to disclose a controlled substance addiction in an ATF form to obtain a firearm. The Hunter Biden deal is roughly what any well-lawyered defendant would be facing in similar straits. In short, it’s no gruesome miscarriage of justice.

Is this a telltale sign of a “two-tiered” system of justice, as the MAGA faithful are now proclaiming? Yes, in part—but not in the way they’re suggesting. The clear thrust of the right’s attack is that Biden fils was able to skate on far more serious—if never specified or documented—charges of rampant corruption in his Ukrainian and Chinese business dealings by pleading out on these lesser charges. But consider the unchecked run of Trump failchildren at the helm of shady international enterprises, or Trump’s own staggering run of organized tax evasion and serial business fraud. In other words, the outraged get-Hunter conservatives are themselves benefiting from two-tiered justice—except the behavior that they’re barely getting slapped on the wrist for makes Hunter Biden’s travails look Lilliputian by comparison.

The selective gnat-straining focus on Hunter Biden’s alleged trespasses indeed flourishes in a legal system that has long turned a pronounced blind eye to intrafamily white-collar crime of the sort that is the Trump Organization’s specialty. “The reality here is that the DOJ hasn’t been weaponized; money and wealth have been weaponized,” says former Justice Department lawyer Paul Pelletier, who concentrated on white-collar offenses during his nearly 30-year tenure there. “By virtue of the flight of experience and courage, the leadership of the DOJ has been decimated. They’re reticent to be bold and bring smart cases. Then you add the general incompetence of the FBI when dealing with elite crime, together with the ability of wealthy people through good lawyers to harangue the Justice Department and no one wants to stick their neck out.”

Against this backdrop, the Hunter Biden case is a comparative blip, in terms of both financial and moral wrongdoing. The tax evasion charges are an especially rich talking point for members of a Republican Congress who’ve been loudly gloating about gutting the IRS’s enforcement capacity as part of the debt-ceiling deal. And when it comes to the ideological brief for a “weaponized” prosecution here, the supervising US attorney, David Weiss, was a Trump appointee whom US Attorney General Merrick Garland kept on, even though new administrations commonly bring on new teams of prosecutors on board. Weiss wrote to Congress last month to assure the GOP leadership that he was the uncontested legal arbiter of the case’s outcome—and notes that, despite the pending deal, his investigation is ongoing. It’s an altogether too siloed and impersonal setting for anything like a “sweetheart deal” to take shape.

For a sample of the real thing, all you have to do is look to the white-collar record of Trump’s DOJ, Pelletier says. “How many Republicans were bitching when that private equity guy Robert Smith got a non-prosecution agreement for manipulating the tax system for years to the tune of tens of millions of dollars? He wasn’t prosecuted; no criminal charges were ever brought. That was the Trump DOJ, and from what I understand, DOJ leadership shut it down. Or how about the Trump Foundation charity, which was run by his kids and was actually a charity for Trump? That was a joke. People get prosecuted for this kind of shit all the time.”

Yet these failures to pursue basic and egregious cases of fraud and manipulation don’t create the mildest quiver in the MAGA outrage antennae, for the simple reason that they involve players on their own ideological team. “There will be multiple levels of attack here,” says Ankush Khardori, another former DOJ prosecutor who’s closely followed the Hunter Biden case. “First, you’ll have people saying, ‘you went easy on him in these charges.’ Then there will be claims that the DOJ circumscribed the scope of the charges to cut an easy deal.” However, the deal that Hunter Biden’s lawyers struck “is pretty much what you’d expect in a case like this,” he says. “There have been no reports or suggestions from this team that they didn’t pursue anything they thought justified.”

At the level of prospective DOJ actions, however, there’s always a cloud of bureaucratic unknowing that bad-faith political interests can always exploit. “That’s the fundamental problem with white-collar enforcement,” Khardori says. “How do you judge the salience of a prosecution when you have two different cases with two disparate outcomes over an extended period of time? Should Hunter Biden be held to the Jared Kushner standard, or the standard we want to apply? It’s an extremely hard debate to have in a well-informed way, because the government has the facts, to a far greater extent than we do.”

What’s more, at least some of the outrage over Hunter Biden’s deal can be traced to a sort of anxiety of influence on the right. In the far more serious legal reckoning Trump now faces over his alleged abuse of classified documents, his lawyers urged him to craft his own plea deal with federal prosecutors. But as The Washington Post recently reported, he overruled them and instead followed the counsel of Judicial Watch head Tom Fitton, together with other more belligerent ideologues on the legal right. As one high-level Trump confrere told Post reporters Josh Dawsey and Jacqueline Alemany, the battery of espionage and obstruction charges the former president now faces represents “a totally unforced error.”

That unforced error is now hatching a seemingly endless regress of Hunter-Biden-themed online tantrums on the right. “Conservatives hate Hunter Biden and anyone who deigned to represent him,” Khardori says. “But Hunter got better lawyers, clearly. They navigated a very good resolution for their client–under these circumstances, I cannot imagine that it was easy.”

Another point of contrast between the Hunter Biden case and Trump’s arraignment in the documents case is the simple truth factor. As a recovering addict, Hunter Biden has confessed to all sorts of wrongdoing, publicly and repeatedly. To say Trump can’t and won’t do any such thing is a gargantuan understatement. “It’s not like [Republicans] care, but we don’t want a rule in public life where candor is punished,” Khardori says.

That principle indeed runs counter to the whole right-wing MO in the Hunter Biden case, he adds: “All the ways into the case by conservatives had this grotesque quality of exploitation: Your computer gets hacked, we’re going to use that against you. You’re a drug user and you write about it, we’re going to use that against you.”

You might even cite that as evidence of, I don’t know, a weaponized justice system. But don’t count on the Democratic power structure to make anything of that. “If the Democrats had half the gumption the Republicans had, they’d be railing to get Jared Kushner prosecuted, or at least investigated,” Pelletier says. “But the Democrats are so chickenshit: Can you imagine the Republicans during a presidential transition coming in and saying to a Democratic federal prosecutor investigating a Republican president’s family, ‘No, we want to be fair–please stay on.’ No good deed goes unpunished. You get no credit for that shit. None. For Republicans, it is always a zero-sum game.”

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Katrina vanden Heuvel
Editorial Director and Publisher, The Nation

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