Criminal Justice & the Rule of Law Executive Branch

President Biden Needs To Stop Commenting on Justice Department Investigations

Jack Goldsmith
Sunday, May 7, 2023, 6:52 AM
The legitimacy of the Justice Department’s decision on Hunter Biden is hard enough to achieve without self-serving commentary from the president.
President Joe Biden looks on as Attorney General Merrick Garland delivers remarks during a Medal of Valor ceremony, Monday, May 16, 2022, in the East Room of the White House. (Official White House Photo by Adam Schultz)

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“My son has done nothing wrong. I trust him. I have faith in him.” So said President Biden on Friday, May 5, when NBC’s Stephanie Ruhle asked him how the Justice Department’s potential charges against his son Hunter might affect his presidency. Other than former President Trump’s incessant self-serving commentary on Justice Department matters during his presidency—a large qualification, to be sure!—Biden’s statement was one of the most egregious and ill-timed breaches of the norms of Justice Department independence since Watergate.  And it is not the first time he has breached the norm as president.

The relevant norm is that, despite the president’s authority under Article II to direct criminal investigations, presidents should not be involved in, or comment on, pending Justice Department investigations, especially ones that impact the president and other senior executive branch officials.

Former President Obama violated this norm when he said in October 2015, in the midst of the FBI investigation of Hillary Clinton’s emails: “I don’t think it posed a national security problem. This is not a situation in which America’s national security was endangered.” The director of the FBI at the time, James Comey, later noted that Obama’s comments “seemed to absolve [Clinton] before a final determination was made” and could lead an outside observer to reasonably wonder, “how on earth could his Department of Justice do anything other than follow his lead?”  The inspector general report on the Clinton email matter makes plain that Obama’s comments, and related ones later by Obama Press Secretary Josh Earnest, caused significant consternation in the Justice Department and the FBI because they appeared to prejudge or interfere with the investigation. The comments contributed—there were many other factors in play as well—to the sharp public contestation over the legitimacy of the Clinton case’s resolution.

Commentary on and interference in Justice Department matters was of course commonplace during the Trump administration. President Trump very often publicly engaged with ongoing criminal investigations, including of himself, and was widely criticized for doing so—not just by politicians, commentators, and the press, but by Attorney General Barr as well. Trump’s ceaseless commentary on Department of Justice investigations was near the top of the list of his worst norm-breaking actions.

President Biden came to office promising to restore norms of Justice Department independence. And yet Biden has been a serial norm-breaker in commenting on sensitive Justice Department investigations.

Biden’s son Hunter has been under investigation, dating back to 2018, for various crimes related to his overseas business ties, income tax matters, and truthfulness on gun-purchasing paperwork. It was reported last fall that federal investigators believed they have a “viable criminal case.” A few weeks ago there were reports that Delaware U.S. Attorney David Weiss—a Trump holdover—was considering “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 the gun charge, also a potential felony.” Apparently Hunter’s lawyers recently met with Justice Department prosecutors to discuss the matter. On May 3, two days before Biden’s comment, the Washington Post reported that “Prosecutors are nearing a decision on whether to charge President Biden’s son Hunter with tax- and gun-related violations.” 

Attorney General Garland has insisted that he has not and will not interfere in the Hunter Biden investigation.  But “the investigator overseeing the Internal Revenue Service’s portion” of the Hunter Biden case has alleged “an array of misconduct including political meddling,” and has further implied that Garland was untruthful in testifying that Weiss has been free to run the Hunter Biden investigation as he saw fit.  

The Justice Department investigation of Hunter Biden is thus both sensitive and fraught—even more so, perhaps, than its ongoing aggressive investigations of Biden’s former and possibly future opponent for the presidency, Donald Trump. And President Biden’s inappropriate commentary on Hunter’s  case, and innocence, could not have come at a worse time, right on the eve of a charging decision, and just after a credible allegation of political meddling. However understandable it might be for a father to express confidence in a son, and however rowdy House republicans are acting toward Hunter, this is a very serious violation of the norm.

It is hard for me to believe that Biden’s comment will actually impact what the prosecutors decide to do; if anything, it will make exonerating Hunter harder.  But that does not make the statement any less bad. One can be sure that the comment was unwelcome in the Justice Department, FBI, and IRS, just as Obama’s was unwelcome in the bureaucracy in 2016, and just as many of Trump’s were unwelcome in his Justice Department.  One can also be sure that the comment will be used to question the legitimacy of any close call by federal officials in Hunter’s favor. Biden’s statement is impossible to unwind. And it will taint his Justice Department’s investigations in other contexts, especially since this is not the first time Biden has crossed the line of Justice Department independence. 

In October 2021 Biden stated his hope that the Jan. 6 Committee “goes after [the Jan. 6 defendants] and holds them accountable criminally,” and added that he hoped the Department of Justice would prosecute those who defy congressional subpoenas.  The Justice Department subsequently proclaimed its independence, and Biden later stated that “The way I said it was not appropriate.” Biden also raised concerns after the Justice Department search of Mar-a-Lago that Trump may have compromised sensitive data, and he called the storage of the documents there “irresponsible,” though he added that he had not inquired about the specifics of the search because “I don’t want to get myself in the middle of whether or not the Justice Department should move or not move on certain actions they could take.”  This comment was bad enough, but it was made worse when Biden again commented on the Trump document situation in an effort to distinguish and exonerate himself from his own classified documents imbroglio, which was also under investigation by the Justice Department.

There is no sugar-coating all of this. Biden’s statement about Hunter was wrong. And in combination with his other statements about ongoing investigations, it is terrible for the Justice Department as it seeks to negotiate tricky decisions about the Hunter, Donald Trump, the whistleblower claim related to Hunter, and, perhaps (this is way too early to assess) the new claim about Biden’s alleged wrongdoing as vice president. The legitimacy of Justice Department decisions in highly political contexts that impact the president is hard enough to achieve without self-serving commentary from the president. Such commentary makes the Justice Department’s task much, much harder.  Which is the point of the norm.  

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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