Hunter Biden’s legal drama has me thinking about the Bill of Rights.
If the Bill of Rights were all you read, you could get some pretty misleading ideas about our criminal justice system. Starting with the Fourth Amendment, you’d assume criminal proceedings usually begin with a warrant to search for evidence, followed by a grand jury indictment as required by the Fifth Amendment and then, per the Sixth Amendment, a speedy, public jury trial.
Now, for illustration’s sake, compare that procedure with the one the federal government has followed in prosecuting Hunter Biden, the president’s son.
Plea deal surprise
During the last presidential administration, Trump-appointed U.S. Attorney David Weiss began investigating Hunter Biden for a variety of crimes. Allegedly Hunter had been trotting the globe, taking cash from shady characters who wanted access to his father, and allegedly he did this without registering as a foreign agent and without paying taxes on the income. It is also alleged he bought a pistol despite an active drug habit, thereby violating a gun control law his father had voted for in the Senate.
Last month, Hunter was sitting in court, ready to plead guilty to a pair of tax misdemeanors that he expected to resolve the whole affair, when prosecutors told the judge the plea deal wouldn’t end the investigation after all. Hurried, off-record discussions failed to resuscitate the deal, so Hunter pleaded not guilty and the judge gave everyone 30 days to work things out.
And then the deal was pronounced dead, and Weiss was named special counsel, giving him authority to pursue charges against Hunter Biden in any jurisdiction in the country.
Where is the Bill of Rights?
At what point did any of this follow the Bill of Rights procedure? I guess investigators obtained a warrant, but where was the grand jury deciding what charges to issue? Where was the speedy public trial?
As to the grand jury, one was impaneled, but it never got a chance to decide anything. It was doing the grand jury’s modern job: to sit and exist, and thereby to grant prosecutors the subpoena power — that is, the power to compel witnesses to testify and produce evidence to the prosecutors in private, without the potential defendant listening in or even necessarily knowing about it.
As for the speedy public trial? The prosecutors tried to avoid it the same way American prosecutors avoid trials in 19 cases out of 20: by making an offer that convinces the defendant he’s better off pleading guilty.
Whether you’re sympathetic to Hunter or not (and I confess myself rather on the “not” side), I hope you’ll feel at least a little discomfort about what he’s been through.
The Bill of Rights notwithstanding, there’s been nothing “speedy” about this five-year process, and very little has been “public.” The fate of his plea deal was decided in secret by prosecutors, and Hunter had no right to sit in the room and try to influence them; he may never know why they decided to offer one deal rather than another.
And if that’s the situation the president’s son finds himself in, how do you think it works out for that vast majority of criminal defendants, who lack his connections and money?
At this point someone sympathetic to Hunter might argue, “Actually, Hunter’s been treated worse than an ordinary criminal defendant” and tell a story about political persecution: the whole investigation exists (I’ve heard said) because Republicans were using Hunter’s personal troubles as a weapon against his father. Some argue the Trump-appointed prosecutor is only still in office because the Biden administration didn’t want to look like it was interfering, and the plea deal fell apart because Republicans howled it was too lenient and the prosecutor backed out to save face.
To which the Republicans might respond that it’s true the prosecutor was too lenient, though perhaps not by choice: whistleblowers have testified Weiss’s hands were tied. Hunter’s worst alleged crimes had to be charged in D.C. or California, but Weiss was denied permission to file charges outside Delaware; he was prohibited from investigating certain facts that might implicate the president; he couldn’t even serve a warrant without someone tipping off Hunter’s counsel and giving them a chance to move evidence.
It’s all still very murky; probably no one outside the Justice Department knows what really happened — why the plea deal fell apart, why Weiss let the statute of limitations lapse on the most serious charges, why the attorney general waited so long to appoint a special counsel, or why he chose Weiss for special counsel when the regulations said he should appoint someone from outside the government. Innocent explanations and nefarious ones are both easy to imagine, and if we ever find out the truth, it probably won’t be soon.
The forgotten grand jury
Do you know what could have saved everyone a great deal of headache and suspicion?
An old-fashioned grand jury and a public trial.
Once upon a time, grand juries didn’t just listen passively to prosecutors and rubber stamp the charges the prosecutors wanted to bring — the grand juries could actually go out and investigate crimes themselves, and they could indict people they thought deserved it regardless of whether a prosecutor had asked them to do so. Some states (including Utah) still have laws on the books permitting this sort of procedure — especially in cases where public corruption is alleged and a public prosecutor might not be trusted. But I’ve never heard of the thing actually happening. The system has forgotten how to do it.
Once upon a time, most cases were actually decided by jury trials. Prosecutors weren’t trusted (as they are today) to decide who really deserves punishment before filing charges; they were paid by the case or by the conviction and expected to bring any charges they thought they could prove. “Who deserves punishment?” was a question for the jury, and it was answered after both sides presented their best evidence and anyone who cared to sit in the courtroom could form his own opinion of what justice required.
We can’t go back to the way things used to be; we have too many laws, too much crime, and expect too much from our law enforcement to entrust the entire process to randomly chosen amateurs.
But as I watch another “politicized justice” controversy unfold, with prosecutors allegedly covering up for one side while persecuting the other, I find myself wishing we hadn’t given prosecutors so much power to cover up or to persecute. And if we want to restore trust in an allegedly politicized justice system, I can think of worse ways to start than by reemphasizing three words from the Constitution:
“Speedy.” “Public.” “Jury.”
Alan Hurst is an attorney in Salt Lake City. His opinions are his own and do not represent the views of his firm or his clients.
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