Circumstances are making it much harder for Republicans to hold the younger Biden in contempt.
As our David Zimmermann reports, Hunter Biden’s counsel now says that the president’s son would comply if the House issues a new subpoena, superseding the two committee subpoenas he has flouted. I don’t believe, however, that Hunter and his lawyer, Abbe Lowell, are backing down. They are playing for time.
Simultaneously, they are making it much harder for Republicans to hold the younger Biden in contempt. The GOP majority is razor thin. It can only afford to lose two members on any party-line vote. There are 18 House Republicans from districts won by President Biden in 2020. Asking them to vote to hold the president’s son in contempt would be a heavy lift in any event, but expecting them to do it when he’s saying he’d honor a new subpoena is a huge ask. In addition, even if the GOP hangs together and holds the younger Biden in contempt, Lowell is bolstering the record on which the Biden Justice Department could (and would) justify declining to prosecute Hunter – if Republicans can get a contempt over the goal line.
Indeed, if instead of moving forward with contempt, the Republican-led committees were to issue a new subpoena, they, not Hunter, would be seen as backing down. That said, I still think that’s the GOP’s best option.
As both the editors of National Review and I pointed out at the time, this situation results from an unforced Republican error. The House Oversight and Judiciary committees that issued subpoenas to Hunter in November 2023 purported to do so as part of the House impeachment inquiry targeting President Biden. At the time, however, the House had not voted to authorize the impeachment inquiry – precisely because the reluctance of those 18 aforementioned Biden-district members left them without enough support. (Note: that was when the GOP numbers were slightly better than they are now – George Santos (R., N.Y.) had not yet been expelled, and Steve Scalise (R., La.) had not taken medical leave). The impeachment inquiry had been unilaterally (and thus dubiously) been approved by then-Speaker Kevin McCarthy(R., Cal.); even as McCarthy was defenestrated and finally replaced by Mike Johnson (R., La), GOP leadership continued trying to round up the necessary votes for the inquiry (which merely calls for an investigation, not an actual impeachment of the president).
At a certain point in December, as the House was in tumult and determined, more than anything else, to go on holiday recess beginning in mid-December, the newly minted Speaker Johnson became convinced that he had enough votes for House approval of the impeachment inquiry. Yet the committees had not only issued their subpoenas before the inquiry was authorized by the House; they made the return date – i.e., the day Hunter was directed to show up for a deposition — December 13. That, again, was prior to the time the House voted to approve the impeachment inquiry. In fact, the inquiry was approved on the very same day as the Hunter subpoena date — but in the early evening of December 13, hours after Hunter blew off the scheduled deposition.
Technically, this did not invalidate the subpoena. Regardless of the questionable status of the impeachment inquiry, the subpoena had formally been issued by standing House committees – Oversight, led by Chairman James Comer (R., Tenn), and Judiciary led by Chairman Jim Jordan (R., Ohio). Those committees have broad investigative authority — certainly broad enough to issue a subpoena to Hunter Biden in connection with their entirely legitimate probe of Biden family influence peddling and the millions of dollars it has generated from corrupt and anti-American regimes.
Nevertheless, Republicans had a big political problem: They had heatedly objected in 2019, when then-Speaker Nancy Pelosi (D., Cal.) unilaterally purported to authorize an impeachment inquiry targeting President Trump (over the Ukraine fiasco). The Trump Justice Department echoed this contention that, in the absence of a House vote approving it, the Trump impeachment inquiry was illegitimate – i.e., its information demands could be ignored as constitutionally infirm. Pelosi later submitted the inquiry to a vote, and the House approved it – and in ultimately impeaching Trump, cited him for obstructing the investigation base on direction of executive branch officials to defy committee subpoenas. (The former president was acquitted by the Senate.)
As night follows day, the Biden White House has taken the same position the Trump White House took in 2019 — the impeachment inquiry is illegitimate.
Obviously, toward the end of last year, if Speaker Mike Johnson (R., La.) and senior House Republicans truly believed it was important to shore up the impeachment inquiry with an approval vote (and they were right to think so), then it was a risky proposition — certainly politically — to take a step as significant as issuing a subpoena to the president’s son prior to that approval vote. Alas, everyone wanted to go home for the holidays. Pressed up against getaway day, the timing didn’t work.
Right after Hunter’s first Capitol Hill stunt — on December 13, when he flouted the subpoena — fulminating Republicans vowed to hold him in contempt. At the time, I conceded that, technically, they could do that. The better course though, I urged, was to proceed that afternoon with the vote approving the impeachment inquiry; then, once it was approved, Republicans could issue Hunter a new subpoena.
Many, including Comer and Jordan, argued that that was unnecessary. I countered that it was prudent. After all, the GOP’s plan is to demand that the Biden Justice Department indict Hunter for criminal contempt. The Justice Department always has discretion about whether to bring charges. Since this is the president’s son we’re talking about, it was already highly unlikely (I’d say, inconceivable) that an indictment would be forthcoming. So why give DOJ a ready-made excuse to decline prosecution? One could easily see Attorney General Merrick Garland and his subordinate Biden appointees citing the lack of an impeachment-inquiry approval vote prior to the issuance of the subpoena as a rationale for declining. (Note: although the Democrat-controlled House impeached Trump over his subordinates’ non-compliance with committee subpoenas during the Trump/Ukraine impeachment inquiry, the Justice Department never charged anyone with criminal contempt over that.)
It was Congress that created this problem. Why should the Justice Department take on the burden of litigating in court whether subpoenas issued prior to the impeachment-inquiry vote are valid? That’s what the Justice Department would have to do once Hunter, predictably, moved to dismiss any indictment on the ground that the subpoena was illegitimate. (This is all academic, of course. In cold hard reality, the Biden DOJ is never going to indict Hunter at the behest of House Republicans in furtherance of an effort to impeach President Biden.)
The letter Lowell has sent to Comer and Jordan is not so much a concession that Hunter would comply with a new subpoena as an attack on the validity of the pending subpoenas. The latter are the basis for resolutions citing Hunter for contempt of Congress, which the House is poised to vote on next week.
Lowell’s letter is a stalling tactic. Republican leaders take the position that there is no reason to issue a new subpoena because the pending subpoena is valid; ergo, the House should just move ahead with the contempt vote. But do they have the votes? Are the more tepid Republicans, who may face uphill battles to hold their seats in the November election, going to vote to hold the president’s son in contempt when he is now at least posturing that he’d be willing to show up if the House issues a new subpoena?
Right after Hunter pulled his first stunt on Capitol Hill — showing up on the Senate side on the morning of December 13 to give a self-serving speech, but then refusing to comply with the subpoena that directed him to report to the House side for his deposition — I contended in various forums that what we’re dealing with is politics, not law. As long as Hunter is not worried about being prosecuted for contempt, all of this is theater.
Sure, the House Republicans can stand on technicalities (if they have the votes, which is questionable) and try to hold Hunter in contempt based on the pending subpoenas. But in politics, you’re either on offense or on defense – and it’s a lot better to be on offense. Right now, House Republicans are on defense.
The GOP majority told the country on December 13 that we’re in a crisis that requires investigating whether the president should be impeached, and then . . . they went on vacation. If, during those weeks, instead of stewing over Hunter’s brazen defiance of lawful subpoenas, they had simply issued a new subpoena returnable on January 10, backed by a House vote authorizing the impeachment inquiry, they would today be on offense. They would be telling the public, credibly, that what they really want is Hunter’s testimony, not to spin their wheels on a contempt citation the Biden Justice Department won’t enforce with prosecution.
If Republicans had issued a new subpoena back in December, Hunter would not have pulled his second Capitol Hill stunt — crashing the Oversight Committee meeting this week — when the committee was considering a contempt referral rather than holding an evidentiary hearing. To the contrary, Hunter and Lowell would now be back on their heels, spinning new rationalizations for the president’s he shouldn’t have to testify (and take the Fifth). But because of how this has played out, they are able to posture that Hunter is more than willing to testify but the awful Republicans are not letting him because they’re fraidy-scared of what he would say.
If you peruse Lowell’s letter, it is not a climb-down. It’s a cleverly framed, aggressive attack, using the Republicans’ own words to undermine the legitimacy of the pending subpoenas. Bottom line, he’s wrong legally because the committee subpoenas are technically valid. But the letter is very effective in exploiting prior, inconsistent GOP positions.
In the end, Lowell claims that Hunter would now comply if a new subpoena were issued. This is a no-lose proposition for Hunter. If Republicans reverse themselves and accommodate Lowell’s request, they would look weak, they would appear to be conceding the claim – advanced by Hunter and by his father’s administration – that their subpoenas are illegitimate, and they would have trouble explaining why they didn’t just issue a new subpoena a month ago; yet, Hunter would not actually have to testify – he could always come up with some other eleventh-hour non-compliance stunt that starts the time-consuming contempt cycle all over again (probably claiming that the two pending indictments against him leave him no choice), or he could show up but assert his constitutional right to refuse to testify (which he will continue trying to avoid doing … that’s why he’s stalling).
On the other hand, if Republicans refuse to accommodate Lowell’s request, they would be pressing ahead with a contempt effort that might lack the necessary votes, while in the court of public opinion, Hunter brays that he really tried to be cooperative but those dastardly Republicans were interested only in their political vendetta against his father.
For now, Republicans are signaling that they will move ahead with a contempt vote, but would suspend that effort if Hunter and his lawyer agree to a firm deposition date. If I were they, I’d just issue a new subpoena. I’d make clear that we were confident that the pending subpoenas are perfectly valid, but that we’re respectfully indulging a request by the president’s son in order to make clear that what we’re really after is testimony — and with the caveat that if he plays more games, and we have to hold him in contempt, it would be for both the prior defiance and any new defiance.