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Hunter Biden could walk free from tax evasion charges if Donald Trump's challenge to the appointment of a special counsel succeeds, a former prosecutor has said.
Both Trump and Hunter Biden are being prosecuted by a special counsel—attorneys appointed to handle a criminal case in which the Justice Department may have a conflict of interest.
The Department of Justice announced the indictment of Hunter Biden on December 8, saying that, instead of paying his taxes, he spent huge sums "on drugs, escorts and girlfriends, luxury hotels and rental properties, exotic cars, clothing, and other items of a personal nature" including over $70,000 on drug rehabilitation.
On Friday, Trump's lawyers filed a motion in his Florida classified documents case alleging that it was illegal to appoint special counsel Jack Smith to prosecute Trump in the case.
Trump is facing 40 federal charges over allegations he retained classified papers after leaving the White House in January 2021 and then obstructed efforts by authorities to have them returned.
Writing in her legal blog, Civil Discourse, attorney Joyce Vance noted that Trump's lawyers argue that appointing a special counsel "violates provisions of the Constitution that would require Senate confirmation of this type of executive branch appointment."
"Tell that to Bill Barr, who as attorney general appointed John Durham and other special counsels," Vance wrote.
Barr, Trump's attorney general, appointed Durham to examine the FBI's investigation into alleged election interference in the 2016 presidential election. At the time, Democrats claimed the appointment of the special counsel was payback by Trump for the FBI's investigation into his alleged Russian links.
Vance, a liberal critic of Donald Trump, wrote that Hunter Biden, who is also under special counsel investigation, would benefit if the judge in Trump's classified documents case agreed that special counsel were unconstitutional.
"This would also be happy news for Hunter Biden, whose prosecution would be dismissed if Trump's argument prevails," Vance wrote.
Vance added that she didn't think the court would accept Trump's argument.
"The argument flies in the face of the practice of using special counsels across multiple administrations, and at worst, if a court were to accept it, would warrant reassignment of the case to a DOJ prosecutor," she wrote. "In this unlikely scenario, some parts of a case might require a redo by the replacement prosecutor, but a defendant wouldn't be able to avoid prosecution."
She added that Trump's special counsel motion was one of several filed on Friday that, while not entirely frivolous, may contain "some arguments that are perilously close to the line."
New York University law professor, Stephen Gillers, told Newsweek that the legal basis for a special counsel has long been established.
"The thinking behind the special counsel rule is that some investigations are so close to the White House that a presidential appointee, the attorney general, should not be conducting them," Gillers said.
"The special counsel rules insulate the counsel from DOJ control by making the counsel as independent as the constitution allows. Constitutionally, the counsel cannot be entirely separated from the executive branch," he said.
According to the Code of Federal Regulations, a special counsel must have "a reputation for integrity and impartial decision making."
In August 2022, Trump's Mar-a-Lago private members club was raided by federal agents who recovered classified documents. Trump has pleaded not guilty to all charges and strongly denies any wrongdoing. His two co-accused, Waltine Nauta and Carlos De Oliveira, have also pleaded not guilty.
Hunter Biden pleaded not guilty to nine felony and misdemeanor charges during an arraignment hearing in Los Angeles on January 11. The president's son is accused of attempting to evade payment of $1.4 million in personal taxes owed from 2016 to 2019.
The indictment states that Hunter Biden "earned handsomely" while serving on the boards of Burisma, a Ukrainian industrial conglomerate, and a Chinese private equity fund, and that between 2016 and October 2020, he received more than $7 million in total gross income.
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About the writer
Sean O'Driscoll is a Newsweek Senior Crime and Courts Reporter based in Ireland. His focus is reporting on U.S. law. ... Read more