As President-elect Joe Biden takes office in January, the Justice Department will be probing more than a few sensitive political matters. His son Hunter Biden said last week that he is under investigation for “tax affairs” by federal prosecutors in Delaware. Outgoing Attorney General Bill Barr appointed U.S. attorney John Durham as a special counsel for his inquiry into the Russia investigation’s origins in October. And President Donald Trump is reportedly considering whether to pressure Barr’s successor into naming another special counsel for the Hunter Biden case, in an obvious bid to undermine Biden’s presidency.
None of these inquiries pose a direct legal risk to Biden himself or his administration. There is no indication of wrongdoing on the president-elect’s part. And there’s no urgent need for Biden or his team to treat them as anything but distractions from rebuilding the economy, quashing the coronavirus pandemic, or carrying out the rest of his agenda.
So, obviously, he should start complaining about these investigations and never shut up about them for the next four years.
The American people gave Biden a clear mandate to clean up corruption and misconduct in Washington, so why not start by fighting the people who investigate corruption and misconduct in Washington? What’s needed now more than ever is a relentless, obsessive focus by a Biden White House on fighting these investigations, to the exclusion of all other matters on the president’s agenda and heedless of whatever political fallout may come.
Reporters will inevitably ask him questions about the inquiries over the next few years. A more traditional president might simply reply that he won’t comment on ongoing investigations. But Biden has every right to defend himself in public and in private. Presidents have a variety of means to communicate with the American people: through Twitter and other social media networks, through press conferences and news releases, and through television interviews and public rallies. Biden should use all of them to complain about his mistreatment by Republicans, the Justice Department, the media, and anyone else who happens to be involved.
Biden has yet to fully commit to this strategy. Perhaps he should. It’s not enough to merely suggest that Barr, one of the worst attorneys general in American history, wasn’t acting in good faith by appointing Durham as special counsel. Nor would it suffice to note once or twice that Trump and his allies already tried to use Hunter’s failings to sabotage and smear the president-elect once before, which led to Trump’s impeachment for abuse of power in the Ukraine scandal. Biden should raise these grievances daily. They should be the first thing he mentions on Twitter in the morning and the last thing he complains about before he goes to sleep each night.
Most importantly, Biden should not let his policy agenda or other responsibilities get in the way of his outrage. These injustices deserve to be noted at State of the Union addresses, Thanksgiving turkey pardons, and every other ceremonial function that presidents perform. When he crisscrosses the country to hold reelection rallies for the next four years, he should speak about it for at least a half-hour each time. Biden supporters need to understand that Hunter Biden’s weird tax problems are really their problems.
Personally consuming at least six hours of cable news coverage each day should keep Biden fresh and up-to-date on the latest slights against him.
Should President-elect Biden limit himself to a rhetorical defense? Absolutely not. After all, he’ll have command of the entire federal government for the next four years, so it makes sense to use this power in maximal ways. Perhaps his smartest move would be to privately press FBI Director Christopher Wray to “go easy” on his son Hunter and demand his personal loyalty. If Wray ignores those fatherly pleas for leniency, Biden should abruptly fire him. Legal experts will note that federal law establishes a 10-year term for FBI directors, but they really serve at the pleasure of the president. If the president’s pleasure is that people who investigate his friends and family don’t get to work for the government anymore, well, that’s just what the Founders intended.
Biden could always offer some perfunctory excuse for firing Wray, but that would undercut his no-malarkey public image. It’s better to be honest with the American people about his reasoning, perhaps in an interview with NBC’s Lester Holt. Media critics might shudder if Biden complains that an inquiry into wrongdoing by his family or his political allies is a “coup” or a “witch hunt,” or insists that those conducting it are “corrupt” or guilty of treason. But Biden, unlike all those Beltway elites who’ve spent their entire lives as politicians, hasn’t lost his straightforward way of talking to the American people. They’ll get it, don’t worry.
Firing Wray would send a strong signal that Biden won’t tolerate any scrutiny from federal law enforcement agencies, for normal, nonsuspicious reasons. But he shouldn’t stop there. Biden has the absolute right to do whatever he wants with the Justice Department, and his choice for attorney general should agree. Ideally, whoever he chooses wouldn’t have to be pressured to place Biden’s personal and political interests first. But even the most loyal attorneys general have to be nudged from time to time to keep the boss happy. And if they cite things like “Justice Department ethics rules” or “a general fidelity to the American rule of law,” Biden can spend the next two years viciously denouncing his attorney general, then oust them less than a day after the 2022 midterms.
Unfortunately, the Justice Department is far larger than just the attorney general’s office, and the small army of lawyers who work there might not be so easily subdued. But there are ways around this, as well. Biden, acting on his own and through intermediaries, can work to hinder and undermine the investigations themselves. What if the special counsel wants him to answer questions? Biden can profess his desire to do so while his lawyers relentlessly push back. What if federal prosecutors try to flip people in Biden’s inner circle? He could publicly praise witnesses who don’t “make up stories to get a ‘deal,’” while his lawyer pointedly notes on the same day that Biden won’t hand out any pardons until the investigation is over. The witnesses will get the message, and it definitely won’t look like bribery.
This should be enough to hinder even the most experienced prosecution teams. If Biden feels particularly volcanic, he can threaten to fire the special counsels themselves or instruct his subordinates to pressure the attorney general into doing it. Some self-professed “legal experts” might use obscure legal terms like “obstruction of justice” or “witness tampering” to describe an overt campaign to sabotage a DOJ investigation. But the Constitution’s Framers made their intent clear: Biden can’t be indicted while in office, nor can he be impeached for acts that advance his political interests, and he has the absolute right to pardon himself before his term ends. If the president does it, in other words, that means it’s not a crime.
This strategy isn’t without its risks. A hard-edged approach might thrill Biden’s die-hard base of supporters but alienate the rest of the country. His political opponents and media critics will complain that he’s undermining the rule of law and important American institutions for personal gain. But those complaints lose sight of what really matters here, which is the effect on Biden himself. The investigations could sabotage Biden’s presidency by forcing him to spend every waking hour focusing on the investigations. And if Biden ultimately spends his entire first term fighting those battles, he could tell Americans that his first two years in office were “stollen [sic]” from him. He could even humbly request a third term in office to make up for it.
Will Biden take this route? Alas, I doubt it. It looks like he’ll be surrounded by people who might tell him that everything I’ve proposed is not just unnecessary, but counterproductive to an almost self-destructive degree. They’ll try to distract him from the fight by warning him that it would be “ethically and morally corrosive” and “bad for the republic.” Why draw attention to all these probes instead of ignoring them? Why fight unnecessary battles when the American people need jobs, health care, and housing? Why, indeed?