Conservatives Talk Presidential Power: The Hunter Biden Investigations

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John Malcolm and John Yoo continue their discussion of presidential power with a focus on the Hunter Biden investigations. They will take a look at the probes surrounding Hunter Biden’s business dealings, the role of President Joe Biden, and the competing roles of Congress and the executive branch in the investigations.


John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation

Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley; Nonresident Senior Fellow, American Enterprise Institute; Visiting Fellow, Hoover Institution


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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript



Sam Fendler:  Hello, everyone, and welcome to this Federalist Society virtual event. My name is Sam Fendler, and I'm an assistant director of practice groups with The Federal Society. Today, we're excited to host our latest installment of "Conservatives Talk Presidential Power" with John Malcolm and Professor John Yoo. Today's focus will be the Hunter Biden investigations. John Malcolm is vice president of the Institute for Constitutional Government, director of the Meese Center for Legal and Judicial Studies, and a senior legal fellow with the Heritage Foundation. Professor John Yoo is the Emanuel S. Heller Professor of Law at UC Berkeley, a non-resident Senior Fellow at AEI, and a visiting Fellow at the Hoover Institution.


As our viewers today undoubtedly know, Mr. Malcolm and Professor Yoo have had distinguished careers in both the private and public sectors, and they're both longtime supporters of The Federalist Society. So we thank them for the great work that they have done with The Society. If you'd like to learn more about today's speakers, their full bios can be viewed on our website, After our speakers give their opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window and we'll do our best to answer as many as we can. Finally, I'll note that, as always, all expressions of opinion today are those of our guest speakers and not The Federalist Society. With that, gentlemen, thank you very much for being here. And Professor Yoo, I'll turn it over to you.


Prof. John C. Yoo:  Thank you, Sam. And thanks to The Federalist Society for organizing this ongoing series that we've got on presidential power, which has had renewed interest with all of the new prosecutions that are going on, in addition to all the other executive power questions we haven't even got to that -- hope we will over this series. And welcome to everybody who first saw us on C Span last week. The Malcolm star power was so attractive that even the operators of a non-profit, federally mandated cable channel that must be carried by all cable systems could not stop away -- could not keep away from John Malcolm.


So today we're going to talk about the Hunter Biden travails, the prosecution, the special counsel, the plea agreement. We haven't really had a chance to talk about him because of all the issues that have been raised by the Trump prosecutions. So why don't we first talk about the facts of the case as we know them now? We'll talk about the congressional investigation. We'll talk about the funny plea bargain that imploded. And then we'll talk about the appointment of the special counsel. John, good afternoon, and let me ask, what the hell was Hunter Biden up to? As far as we know, what was this guy thinking? What is he being investigated for, and what do we know and what's the government still investigating?


John G. Malcolm:   Sure. Well, it's good to be with you, as always, John. A lot of this has to do with sleazy dealings on Hunter Biden's part not only in terms of how he spent his money and his deplorable lifestyle for a number of years, but also the people he was in business with and whether there was a connection to his father, both from the time he was vice president and now, I suppose, as president. So according to one of the whistleblowers, Gary Shapely, who was in charge of conducting the investigation against Hunter Biden, this all began as part of another IRS investigation that was called Operation Sportsman. And it was into foreign based amateur online pornography platforms and Hunter Biden's name came up in connection with that.


And looking into his finances, he testified that Hunter Biden took an awful lot -- in addition to making a lot of money, he had a lot of personal charges for things like prostitutes, membership in a sex club, payments to women with whom he had fathered a child for no show jobs, hotel rooms for his drug dealers, paying his child's college tuition. And he listed all of these personal expenses as business expenses. And they also found out that right around the time that Joe Biden became vice president under the Obama Biden administration, Hunter Biden set up 20 some odd different companies, a number of which turned out -- seemed to be shell companies. And a lot of them, but not all of them, had derivations of the name Rosemont Seneca.


The whistleblowers have said -- both Gary Shapely and Joseph Ziegler -- that their investigation was massively interfered with by main justice by David Weiss and the lead assistant U. S. Attorney named Leslie Wolfe, who was dealing day to day with the various agents. They weren't given any access to Hunter Biden's laptop. They were told that they could not ask any questions of any witnesses about Joe Biden. They were told that they were not going to approve, even though they had probable cause search warrants to search Joe Biden's beach home in Rehoboth, where Hunter Biden was staying and had documents or a storage facility that Hunter Biden had. They had lots of recommendations for felonies. They said the original recommendation was for three felony charges of willful tax evasion and five misdemeanor charges. Those were all rejected. They said that Hunter Biden was paid, for instance, a million dollars a year -- this is one of many, many payments he had -- by Burisma Energy, the Ukrainian company. We'll talk more about that in a minute. That money was directed to one of these Rosemont Seneca companies, and then the money was sent out to Hunter Biden. This was all income that he had earned, but he booked it as a loan back to Rosemont Seneca -- Gary Shapely --


Prof. John C. Yoo:  Let me pause you, John. So you went through, I think, pretty quickly the expenses that Hunter charged to basically his business that were personal expenses which -- I went to Yale, I did take tax -- I'm not sure, but that sounds like a tax code violation. Okay.


John G. Malcolm:  Right.


Prof. John C. Yoo:  So now you're -- I just want to make it clear for the listeners -- now you're talking -- so that's one set of tax code violations, then another set is not properly reporting where the income comes --


John G. Malcolm:  Right. So let me get to that in a second.


Prof. John C. Yoo:  Yeah.


John G. Malcolm:  So just other things that the whistleblower said. They said that David Weiss allowed the statute of limitations to run for a couple of these tax years, that Hunter Biden was tipped off about interviews that they wanted to do and told of locations that might be searched. And they raised the specter that Merrick Garland may have committed perjury when he said that there was no interference from main justice. Now on to a connection to his father. What's been uncovered by Jim Comer, representative from Kentucky who's leading a house oversight investigation into this matter, is that at least $20 million -- over $20 million came from overseas sources to various accounts that were controlled by Hunter Biden. During that time that Joe Biden was vice president, that Hunter Biden traveled with his father at least 13 times overseas on Air Force Two to Europe, Africa, Asia, and Mexico. Hunter Biden was conducting business with potential investors on a lot of these overseas trips. He told his partner, Devin Archer, that these business connections have nothing to do with everything -- nothing to do with him and everything to do with his last name.


And he's also learned that while he was vice president, Joe Biden had contacts with Hunter and his business partners using a bunch of different pseudonyms and things like Hunter Biden's laptop has messages where he is complaining that his father is being a little bit greedy in terms of taking out money from credit card accounts that Hunter Biden controlled. So now in terms of the money that he got, I'll deal with this in sort of broad buckets. There was Ukraine and Burisma Holdings. Burisma holdings is a company owned by a Ukrainian oligarch named Mykola Zlochevsky. He met with Hunter Biden in Lake Como and shortly thereafter, in May of 2014, he offered Hunter Biden and his business partner, Devin Archer, to be members of the board of Burisma Holdings and paid them a million dollars a year. So over a couple of years period, each of them received over $3.32 million.


Vice President Biden was in charge of spearheading the U.S. Policy with respect to Ukraine. Some of the things that Archer and Hunter did, they arranged for Burisma executives to visit Kazakhstan to explore a three-way deal between Burisma, a Chinese owned company, and another state-owned gas company that is being run by a guy named Kenes Rakishev. I'll get back to him a little bit later. There's been a dinner meeting at cafe Milano, which is a tony place where politicos like to meet in Georgetown that was attended by Hunter and Devin and the Corporate Secretary, Vadym Pozharskyi of Burisma. Joe Biden was at that dinner. Joe Biden said, "Oh. I shook hands and I left." Devin Archer said, "No. He stayed for the entire meeting."


And then a whole series of things happened that look very, very shady. There was a Burisma board meeting, very shortly after that, top level officials contacted Hunter. They said, "Viktor Shokin, the Prosecutor General in Ukraine, is investigating Zlochevsky and investigating Burisma for corruption," and that they needed Hunter's help. And Hunter was tasked with "calling D.C." that's the way Devin Archer put it, to deal with the situation. Hunter already knew that Burisma was under investigation because he had helped connect Burisma with a lobbying firm that was helping in that effort. And then there were a series of meetings. Devin Archer met with Secretary of State John Kerry. John Kerry's stepson had been one of their original partners in one of these Seneca firms. Hunter Biden met with the Deputy Secretary, Anthony Blinken who's the current Secretary of State. Pozharskyi suggested that high level officials come to Ukraine.


And very shortly after that, arrangements were made for Joe Biden to travel to Ukraine. First, Hunter Biden met with a guy named Amos Hochstein to discuss this. He was the US Special Envoy and Coordinator on International Energy Affairs. He has a high-level position in the Biden administration too. Hochstein met with Biden and then Joe Biden announced that he was going to go to Ukraine. He was accompanied by Hochstein on that trip. He met with the President of Ukraine, Petro Poroshenko, and said, "If you want a billion dollars in international monetary funds, aids from the United States, you must fire Victor Shokin." Now imagine that. Can you imagine somebody coming to the United States and say, "You want our assistance with something, but we're only going to give it to you if you fire Merrick Garland or Bill Barr."

I mean, it's sort of an extraordinary thing. A couple of months went by. There were more calls between Poroshenko and Biden. There was another meeting in Switzerland. And then, lo and behold, Victor Shokin was fired. Chuck Grassley has been shown a redacted FBI form in which a confidential informant says that after that Joe Biden was paid a $5 million bribe by Burisma. That is where things lie with that.


Hunter Biden also had dealings with various Chinese entities. One called CEFC, another called State Energy Hong Kong another called Bohai Harvest and Rosemont. He was paid over $8 million from these Chinese entities. All of these Chinese entities are connected to the chairman of CEFC, a guy named Ye Jianming. CEFC committed billions of dollars in ways that absolutely advanced China's interests in terms of expanding its global energy influence. Hunter Biden set up joint partnerships in the United States with CEFC. At one point, Ye gave Hunter Biden a 2.8 carat diamond ring. There was also this payment following this WhatsApp message that has been reported. So Hunter Biden sent out a WhatsApp message to a guy named Henry Zhao who was affiliated with CEFC.


And here's what he said. He said, "I'm sitting here with my father, and we would like to understand why the commitment made has not been fulfilled. Tell the director that I would like to resolve this now before it gets out of hand. And now means tonight. And Z, if I get a call or text from anyone involved in this other than you, Zhang, or the Chairman, I will make certain that between the man sitting next to me and every person he knows and my ability to forever hold a grudge, that you will regret not following my direction. I am sitting here waiting for that call with my father." Within days, $5.1 million was wired to Hunter Biden. CEFC, by the way, collapsed. It collapsed after a guy who worked at the company named Patrick Ho was prosecuted for bribery and money laundering by the Southern District of New York.


After that happened, Chairman Ye was detained by the Chinese Communist Party for a period of days, and he has now disappeared. And Hunter Biden tried to distance himself from that company by claiming, quite clearly falsely, that he had never been paid any money by CEFC. Hunter Biden had other dealings. He had dealings in Russia with a woman named Yelena Baturina. She was the widow of the former mayor of Moscow who was alleged to be completely corrupt. She attended a dinner at Cafe Milano, along with the guy from Romania that I'll be talking about in just a minute -- the Kazakhstan guy, whom I'll be talking about in just a minute. She paid $3.5 million in February of 2014 to Hunter Biden for God knows what services.


In Kazakhstan, I made reference before to a state-owned gas company that was owned by an oligarch named Kenes Rakishev. He also was at Cafe Milano for one of those meetings with Joe Biden. All we know at the moment is that in April of 2014, Rakishev, through a Singaporean entity, wired $142,300 to an account controlled by Hunter Biden. And the very next day, for that exact amount of money, that money was sent to a car dealership in New Jersey in order to purchase a very, very fancy Fisker sports car for Hunter. He had dealings in Romania with a guy named Gabriel Popoviciu. Popoviciu paid him $3 million over a two-year period of time in 17 payments, 16 of which occurred while Joe Biden was vice president. Popoviciu has since been convicted of bribery and complicity for abuse in power. In other words, Hunter Biden was dealing with some very powerful, very, very corrupt people in countries that did not mean us well.


Prof. John C. Yoo:  Let me summarize, because it is now apparent to me that John could talk for the entire hour about all of the places that money was coming in, money's going out. I mean, this is the problem, I think, for a lot, including me, is just keeping track of all of the transactions. Let me just summarize.  So in a way, it's a common -- not common, but it's just on a grander scale, but a typical tax evasion case in this sense that he sets up a company, let's call it a consulting business and he's receiving millions of dollars from lots of different places. And is he actually reporting most of this or any of this income that you just listed?


John G. Malcolm:  No.


Prof. John C. Yoo:  No. So he's underreporting.


John G. Malcolm:  -- a couple of tax years and they turned out to be false. By the way, he had all of his tax obligations paid off. He has a friend in California who is an attorney who loaned him over $2 million so he could pay his entire tax obligation.


Prof. John C. Yoo:  Do we know who that is, by the way?  Do we know who that is?


John G. Malcolm:  Yes. A guy named Gary -- give me just a minute.


Prof. John C. Yoo: We'll come back to it.


John G. Malcolm:  Yes. We do know who that is.


Prof. John C. Yoo:  So he has this --


John G. Malcolm:  Kevin Morris. That's the name of the guy.


Prof. John C. Yoo:  So then he sets up this business.


John G. Malcolm:  Yes.


Prof. John C. Yoo:  Millions -- lots of different -- he's basically going around to different countries with a bag saying, "Put money in my bag."


John G. Malcolm:  Right.


Prof. John C. Yoo:  It's not clear if he's doing anything to justify making any of this money which he's not reporting on his taxes. And then is it fair to say, John, from the Comer investigation -- because a lot of this comes from the Comer investigation on the House is that the whistleblowers, I think, said that they think there could be millions more. But as you said, their investigation was stonewalled, slowed down, eventually stopped. So they don't know how much more there is. I think I remember one of the whistleblowers saying there could be $20 to $40 million.


John G. Malcolm:  Well, there's already over $20.


Prof. John C. Yoo:  Yeah. Just an additional -- they just don't know yet. So there could be even more. We don't really have the full story there. And then he's also -- so he underreports the income coming in. He also tries to underreport his tax obligation by claiming all kinds of things on the expenditure side which are not really business expenses, all in an effort to reduce how much he should pay taxes for. And then he doesn't even pay the taxes that he made up anyway. So that's one set of potential federal criminal violations. Then, I think -- this is just how I think when you describe -- the second thing is potential corruption because not only is he being given money, he doesn't seem to be doing any work in exchange for it. But it could be just an effort to buy influence by these foreign countries and foreign companies buy influence with Vice President Biden because Joe Biden's in office while a lot of this is going on. So that's a second set.


John G. Malcolm:  And others -- and other people under him like Anthony Blinken and John Kerry.


Prof. John C. Yoo:  So that's a second bucket of potential federal criminal violations. If I've got this right, this is the tax problems and then the third one which -- as we all know in Washington -- the cover up is worse than the crime -- is was there any influence now on trying to prevent full investigation of these first two potential criminal violations? Is that fair? Is there anything -- any other problems, facts, charges that don't fit into that way -- those three categories of looking at it?


John G. Malcolm:   Yes. There are Foreign Agent Registration Act violations that I think seem fairly cut and dry. So FARA violations and, of course, there's that sort of out there gun charge, which we'll talk about as part of the -- part of the -- and by the way, there's also, of course, all of the connections with his father and whether his father --


Prof. John C. Yoo:   That's what I wanted to dive into in a second before we get to the plea bargain and the special counsel is the one -- I think the tax things, those actually seem cut and dry. The obstruction of the investigation -- we're learning more about that. That's why you need a special counsel. It's this middle category of cases that is interesting and I think hasn't been fully explored. I don't know if we want to talk about it at great length here, but here's how I think of it. If an American company did what you just described with a foreign government, that would be a violation of the Foreign Corrupt Practices Act.


In fact, I have read cases, I teach cases where corporations hire the son of the president of a country and then that company starts to have good things happen. And the United States government has prosecuted people for things like this or private companies have sued, competitors have sued each other for conduct like this. You're just buying influence. It's just a way of -- hiring the son of the president of the country or paying money, consulting fees to the brother of the president of a country is an easy way to get an FCPA violation. Which, I might add, the FCPA was quite more abundant till John Malcolm and I showed up at the Justice Department back in the early Bush years and then suddenly resuscitated. But that's another story. Every American company can blame John for this. Now, that's a whole nother podcast. We'll get to you.


But this is the interesting thing. There's no FCPA for foreign countries to bribe American officials. So instead we have to --when it comes to bribery of U.S. officials there's a kind of patchwork of laws. Some of them you've seen, some of them we talked about with the Trump prosecutions, right? Can you use mail and wire fraud? Is there this honest services which was the Court said was not in the law then Congress added to the law but now the Courts have been -- the Supreme Court's been tightening up a little bit. How do you prosecute this foreign bribery of U.S. Official in this way that Hunter set it up? So assuming everything you said is true, is there a federal prosecution there for influence peddling like what we would prosecute an American company for doing with a foreign president or a foreign president's son?


John G. Malcolm:  Well, certainly if payments were received -- well, so you'd have to look about, did Joe Biden do something or any other government official -- Adam Hochstein, Anthony Blinken, John Kerry -- to benefit these people, to benefit the people who were paying the bribe, and did they receive a benefit?  I'll add in --


Prof. John C. Yoo:  A quid pro quo, in other words.


John G. Malcolm:  Yes. A quid pro quo. And what Joe Biden is, of course, saying is, "Well, I didn't receive any money." He says the whistleblower who said he got $5 million is totally wrong. So one, they're going to investigate whether in fact Joe Biden did get any money, but there is no question that his son Hunter, his brother James, other Biden relatives did receive money. And of course, if you are a parent or an uncle or a brother and you are doing things and they are getting this foreign largess in return for what it is that you are doing, that's still a quid pro quo to you. The benefit is the satisfaction that you see that your relatives, whom you like, are all being well compensated financially. Now we will see whether Joe Biden, in fact, did anything.


The Victor Shokin firing -- his story is we wanted them to go after corruption in a big way and Victor Shokin wasn't doing any of that, so we wanted him fired so that a good prosecutor should be in there. And now Shokin is coming out and he's come out and said, "That's wrong. I was going after Burisma. I would have had Burisma in my sights. Clearly, Hunter Biden was on the board, so he was in my sights as well. And Petro Poroshenko said, 'I have to fire you because Biden is insisting that I fire you.'" The one thing that Joe Biden was certainly doing was selling access. Devin Archer referred to Joe Biden as the Brand. So Hunter Biden would be sitting overseas in a meeting trying to work out a very lucrative contract, and he says, "Hey, hang on just a second." He takes out his cell phone and he gets his father on the phone and his father chit chats for a minute or so. And he says, "All I talked about was the weather." Joe Biden is not a meteorologist. So, I mean, like, no one cared about Joe Biden's views on the weather. The point was for Hunter Biden to be able to say, "See, just like that, I can get the vice president on the phone. Imagine what I can do for you." And Joe Biden getting on all of these 20, some odd -- 20 plus calls, traveling with his son overseas on Air Force Two, he says he wants to portray the view like, "Oh, Hunter, nice to have you along on the ride," and never asks him, "By the way, why are you on this plane? Where are you going with me?  Who are you meeting with while you're there?" He wants to claim ignorance of all this.


Now, Joe Biden has changed his story over time. So one, during one of the 2020 debates with Trump, Trump said, "Look, your family received money from China and Russia and Ukraine." And Biden said, "Absolutely not. He didn't receive any money from any of those entities. You're the only one that received any money from Russia." Well, it turns out that Trump, of course, was right. And Joe Biden has gone from saying that he had absolutely no knowledge of any of Hunter's business dealings. He can't say that anymore. So he is shifting to saying, "Well, I wasn't in business with Hunter." So his story is changing over time and it may continue to evolve.


Prof. John C. Yoo:  So here's -- if I were, and I'm definitely not, but if I was on the Hunter Biden defense team, this is what I would push as where the government's case is weakest. First showing that money that Hunter received ever got to a Joe Biden account. Now, that might still come. You've got, apparently, still more shell companies and you've got more transactions for investigators to dig into. And in fact, it seems like that's being done more by the House than by the Department of Justice.


The second thing -- and I think the second thing is, even if money comes in, the harder thing it seems to me, is to show any quid pro quo. So I think Joe Biden's defense people would say, "Well, Hunter might have gone around and tried to make money like a used car salesman and say, 'Hey, I'm in tight with my dad, give me money.'" And then, as you said, "I can get him on the phone." But in reality, had no real influence because he's unreliable, showboating, non-substantive salesman type. And so what Joe Biden's lawyers will say, it seems to me, is "Show me the quid pro quo." As you said, Joe Biden would have wanted Shokin fired anyway because it was good policy. It was what the United States wanted.


This is actually interesting because this is the same argument that comes up in criticizing some of the Trump prosecution issues because of the Supreme Court's tightening up of how far the government can use fraud and other federal criminal laws to get at political activity. There's this case about Governor McDonald from Virginia. There are these cases from ten years ago, and then these cases -- which was lost by Jack Smith, we might add, unanimously. And then there's these cases from this Supreme Court term involving Andrew Cuomo's aides. And in all these cases, the theme seems to be, yeah, there's money sloshing around politics. It's not clear this is the federal government's business to be monitoring all of it for criminal violations. Maybe that's the FEC's job. But what you want to do is you have to show a tight quid pro quo in order to make out a federal criminal violation. So that's just my observation on the facts.


Let's -- because, gosh, we're already halfway -- we're almost running out of time. So we're going to have 20 minutes for questions and answers. So let's shift to the plea bargain issue. And this is what strikes me, is given all of the potential federal criminal problems with the tax code, with influence peddling, Hunter Biden really thought he was going to get away with one here. And it's not just that he wasn't going to serve jail time, that he was just going to plea to misdemeanors for these tax violations. It wasn't because he wasn't even going to do time or even be charged, it seems like, for the firearm violation, because he was going to be diverted to a -- and these are quite common, at least out here in California, these diversion programs.


So you don't actually ever go into the criminal justice system. You can, I don't know, build parking lots instead. But the immunity -- this is why it's so important, I think, for Hunter Biden to want immunity because of all these things John's just gone through, some of which have been investigated, some which have not been fully investigated, sounds like lots and lots of potential criminal violations. So it seems to me the plea bargain, just looking at -- before we even get to how weirdly done it was, seemed unduly advantageous to Hunter if it included this immunity, saying, "I could never be investigated, charged for all the potential criminal violations involving basically this consulting business over many years." Is that how you read it too, John?


John G. Malcolm:  Yeah. Look, it was a real sweetheart deal. I mean, here is this guy who's under investigation for multiple years, felony recommendations from the IRS, and he is being offered a deal to plead to two misdemeanors for tax years -- again, the money's already been paid back by his generous lawyer friend in California -- with a recommendation of probation. By the way, there were -- New York Times has uncovered communications that suggested until the whistleblowers came forward, Weiss wanted to close the investigation with no charges against Hunter Biden.


But in any event, he's being offered to plead to two misdemeanor charges on two tax years and have a diversion agreement for a serious gun charge. Now, he wasn't a felon in possession, but he was charged with lying and buying. The lying was by saying that he wasn't a drug abuser when it was quite clear that he was a drug abuser at the time. And there were several things that Judge Maryellen Noreika found about this. She said, "One, you have an immunity agreement, but it's not in the plea agreement." She asked Hunter Biden, "Is this immunity agreement, is this critical to your decision to accept this plea agreement?"  And he said, "Absolutely, it's critical to my decision to accept this plea agreement." Then she said, "Well, it's not in the plea agreement. It is in this diversion agreement. And the diversion agreement is very unclear as to the scope of it." And she asks the government's attorney, "Under this agreement, could Hunter Biden still be charged with FARA violations?"  And the attorney says, "Yes." And Hunter Biden's attorney stands up and says, "Absolutely not. FARA was included as part of this plea deal." So that immunity provision was very squirrely.


And then the other thing was, usually in a diversion agreement, a judge is not involved at all. That is an agreement between the prosecutor and the defendant and says, "You're going to get diverted to some kind of a program. And if you stay squeaky clean for whatever the period of time is -- in this case it was for two years -- then we will dismiss this charge and it will be wiped out of the books." This agreement said, "If we think, Hunter Biden, that you have materially breached this agreement, we'll go back to the judge, to Judge Noreika, and ask her to decide whether she agrees with us by a preponderance of the evidence. And only if she agrees with us can we then if we want to have charges proceeding against you." And she said, "Look, I'm not usually the gatekeeper about making decisions about whether charges get brought. I think this is a separation of powers issue. This makes me feel intensely uncomfortable." So for all of those reasons, she called off this deal and it has since collapsed. But it was a terrible, shady deal to begin with.


Prof. John C. Yoo:  Yeah. This is the thing. I don't recall seeing anything like this in our times at Justice where you would stick the immunity provision, which is -- that's why you would plead, but not putting it in the plea agreement, putting it in a diversion agreement, which is not even subject to approval by the court, is -- I can't think of another example.


John G. Malcolm:  Yeah. Not just, by the way, my time in Maine Justice, but also my seven years as an Assistant U.S. Attorney, I've never seen, nor have I heard of anything like that.


Prof. John C. Yoo:  Yeah. So do you buy the arguments, though, that this shows some level of bias in favor of Hunter by the U.S. Attorney?  Because I'm -- David Weiss -- I'm trying to figure out why they would have done it other than to cut a plea deal, a sweetheart deal, and escape scrutiny. I can't think of another reason why, and I've not heard Hunter Biden's defenders explain why this would have -- I haven't heard Hunter Biden's lawyers, who have been on TV quite a bit, explain why it was done this way. I certainly haven't heard David Weiss explain why it was done this way. I cannot think of a reason you would do it this way otherwise. In fact, if you were Hunter Biden, you want the immunity provision in the plea agreement. That's the legally binding deal that's blessed by the judge. That's the strongest form of a contract with the government. So I can't imagine why they did, except they were in a way, trying to be too greedy and too shifty, but I don't want to think that of the Justice Department. I wish I understood what the reasoning was.


John G. Malcolm:  There is a reason, by the way, why they didn't put that immunity agreement in the plea agreement. If they put the immunity agreement in the plea agreement, then the judge gets to ask a bunch of questions about whether the overall deal is in the interests of justice. If it's in the diversion agreement, she really doesn't. It's just accept the plea.


Prof. John C. Yoo:  Yeah. That's my -- it's got to be a bad motive, is the only explanation, because if you're the Justice Department, you shouldn't be afraid to explain in a court why you think this is in the public interest. You shouldn't hide an immunity deal in some other document. It's interesting. I'm not even clear why they gave the court that document. They don't need the court's blessing for the diversion. They haven't even charged Hunter with firearms violation. So it's weird. They wanted to kind of hide it under the radar, but they kind of wanted the judge to know about it and see it anyway.


John G. Malcolm:  I think there was no interest at the Justice Department to do it that way.


Prof. John C. Yoo:  I think there was a reference, if I remember, in the plea agreement to another agreement. And she then said, "All right. What's this?" I can't think of any reason other than to offer Hunter Biden a sweetheart deal. I mean, Hunter Biden apologists have all said, "Oh, well, if he wasn't the president's son, you wouldn't have bothered with this at all because he's paid all the money back and the gun has been recovered." But I don't believe any of that. And I think it's because of that and more that there's a real problem appointing David Weiss as the special counsel.


John G. Malcolm:  That's the perfect segue because then that's what takes us into the special counsel question, which we can cover just quickly. So you were just about to say, John, you have problems with the choice of David Weiss. Do you have a choice with the use of a special counsel, though?  He's just the wrong guy, but it's the right decision.


Prof. John C. Yoo:  Yes. I have no problem with special counsel.


John G. Malcolm: Why do you have a problem with David -- yeah. Why?


Prof. John C. Yoo:  Well, in addition to the fact that he offered Hunter Biden this incredibly sweetheart deal that I can't think of for any reason other than to try to sweep this under the rug, he is the chief prosecutor, as is all of the AUSAs who work under him in the second smallest state in the country, where the Biden family name is clearly the most powerful political force that's there. David Weiss had worked in the past with Hunter Biden's late brother, Beau Biden, when Beau Biden was Attorney General. It's been reported from the whistleblowers that Weiss wanted to offer Hunter Biden no charges and just dismiss these things.


Everybody makes a big deal about the fact that David Weiss was a Trump appointed United States Attorney. And that's true. He was a Trump appointed United States Attorney. But during the Obama Biden administration, he served for two years as the acting U.S. Attorney. And he was also the principal deputy U.S. Attorney for the remaining six years of the Obama Biden administration, and certainly for the U.S. Attorney in Delaware, there's no way that he would get cleared without the complete approval of the two Democratic Senators from Delaware. So all of this, the Biden's connection, Delaware, the way he has handled this investigation so far, the favoritism, I think, that he has shown towards Hunter Biden, I think, make him the worst choice to be a special counsel here.


John G. Malcolm:  I was someone who was pressing very early on for a special counsel because it seemed just to fall right within the regulations. And if you think even about the purposes behind the Ethics and Government Act originally, if there are conflicts of interest or doubts about how the Justice Department can investigate the president and high ranking cabinet officials, well, at some point this turned from, as you said, when you describe the humble beginnings -- Hunter Biden being investigated for how he spends money and how he takes deductions to it, to a case now where, at the very minimum, as Hunter Biden's attorneys realized, Joe Biden is a fact witness now. At minimum, he's a fact witness in the investigation, if not more.


How could you not have a special counsel? How would there not be a conflict of interest? Even though constitutionally, even David Weiss or any special counsel still works for the president, is still exercising the president's delegated law enforcement power under the Take Care Clause, at least you want to have some prudential independence as much as you can for that investigator. This is how we handled Watergate, right? We did do this before the Ethics in Government Act of 1978. And we've had special counsels before, and Watergate and cases like that, they've been successful from the prosecution point of view. But I agree with you. I don't see why you would pick David Weiss and put aside that Wilmington and Delaware --look, I'm from Philly. You can drive through Delaware faster than it takes you to get down what we call the Schuylkill Expressway. Everyone from Philly will understand what I mean. You don't even notice when you get through the state on the way up I95, except when Philadelphians blow up the bridge and we try to prevent people from getting to Wilmington from the north. But other than that, you drive through Wilmington, Delaware, there's some funny license plates for about 25 minutes that you see on the road. Small legal community -- everyone knows each other.


Putting that aside, it just seems to me that the way David Weiss handled the case already disqualifies him from being special counsel, because many of the accusations of conflict of interest are against him already. And so the purpose, it seems to me, within special counsel law in part, is that you want to bring in someone from the outside who can take over, start afresh. So I've been thinking an analog to this would be, it would have been like taking Jim Comey and making him special counsel into the Steele dossier case after he'd already screwed the whole thing up in the beginning.


And actually I was quite a defender of Robert Mueller. I thought actually that was a good choice. You bring in someone from the outside but a lot of experience, a lot of respect and let him have at it. And in the end, I think Mueller did the right thing. He found that there was nothing to the Russia hoax and he decided not to bring any charges in the end against President Trump. And so I think that's the model the Justice Department wants. One last thing before we go to Q&A is, and let me throw this to you, John, do you think it's possible that the Justice Department will replace Weiss or that Weiss himself might resign and that we would have a new special counsel? Because that would be the solution to your concerns.


Prof. John C. Yoo:  I haven't given that any thought. I doubt that Weiss will resign and they should appoint another special counsel. But at this point, unless more information comes forth to support what the whistleblowers have said about how badly David Weiss either negligently or intentionally put the kibosh on a more thorough investigation, I doubt they will replace him but they really should. If the public is to have any confidence in the integrity of this investigation, he should be gone.


John G. Malcolm:  I'll just point out --


Prof. John C. Yoo:  Even if they replace him, some of this is too late. I mean, the statute of limitations has run on what the whistleblower said were the two most egregious tax years. Those are gone. Even a new special counsel wouldn't be able to bring those back.


John G. Malcolm:  Yeah. I agree with that, John. Some people forget that the most consequential special counsel in many people's recent memory would be Ken Starr. And Judge Starr was not the first special counsel in Whitewater. If you remember there was a guy earlier guy, Fisk, from New York City, from John's pretend home. His real home is where seersucker is the uniform in the summer -- the south. But Fisk was not seen as doing a vigorous enough job and he was replaced and then you saw what Ken Starr did. So it's possible. But that's the only case I can actually think of where a special counsel was changed. And as to John's second point about the statute of limitations, that is true. That's why I got to think the focus of the future of this investigation is really going to be on the influence peddling part and less on the tax evasions part. And there the statute of limitations would not be as much of a problem but harder to prove too.


Prof. John C. Yoo:  Yeah. Larry Thompson, by the way, took over as an independent counsel at the very, very end of a long investigation that had been started by Arlen Adams. I know because I was an associate independent counsel under Larry Thompson.


John G. Malcolm:  You should have disclosed that, John, in the very beginning that you have a special love for special counsels. Sam, why don't you take over and let us have some of the questions people have been asking.


Sam Fendler:  Yes, sir. Well, thank you very much gentlemen for that great overview to begin with. We will now move into our Q&A portion. So please do enter into the Q&A function at the bottom of your Zoom window any questions you have. We'll do our best to get to as many as we can. Gentlemen, I want to ask you a question that will dovetail nicely with where you left off and that is the appointment of the special counsel. It's a question I have. It's a question that multiple of our audience members have asked. The appointment of the special counsel is supposed to -- maybe I'll put that in air quotes -- "supposed to" come from outside the government. So the question is, is that correct? Is this a norm? Is it legally or constitutionally prescribed? I mean, how common is it for a special counsel to come from the U.S. attorney ranks?


John G. Malcolm:  So I can answer that. There is a regulation that says, "The special counsel shall be selected from outside the United States government." However, it's seemingly a workaround which is that there are statutes under Title 28 that Merrick Garland cited in his appointment of David counsel that basically gives him broad authority to delegate Department of Justice responsibilities to somebody within the Department. I would note, since we're going to be fair about all of this, that republicans don't have much cause to complain because Bill Barr relied on those exact same Title 28 provisions to appoint John Durham. And for about close to a year John Durham served as special counsel while he was still the U.S. attorney in Connecticut.


Sam Fendler:  That's helpful. Continuing on with the special counsel -- and you both talked at length about how some of these alleged crimes going back 2019, 2018, perhaps earlier, particularly the tax crimes have now run out on the statute of limitations. So there's not much that a special counsel could do. However, I'm wondering is there some element -- to some extent is David Weiss charged with investigating himself? Or put another way, are there actions that David Weiss and his team may or may not have committed or been involved in that a contemporary special counsel may find interesting or something that's worthy of investigation?


John G. Malcolm:  Certainly, David Weiss, while he may second guess himself, he's not going to investigate himself or if he does, I would predict it would result in a complete exoneration. I don't know whether, if another special counsel came in, they would want to look at David Weiss's actions. That's certainly something you could refer to Michael Horowitz, the Department of Justice's Inspector General if you think that something was wrong there. Your point, though, about the statute of limitations running is a good one. I mean, David Weiss has taken a very long time to get where he is, and that clock is still ticking. And so whether he is continuing or whether somebody new comes in, these charges are going to get stale very fast. And I'm not sure that much can be done about that.


For a long time, one of the other reasons why I think David Weiss has disqualified himself, not as a legal matter, but as a practical matter -- so while this investigation was going on, Hunter Biden's attorneys were signing tolling agreements, agreeing to toll the statute of limitations, and all of these tax years were in play. At some point along the line, David Weiss, or Leslie Wolf working under him, stopped insisting that Hunter Biden's attorneys sign these tolling agreements, and they did not file these charges. And it was during that interim time period when the statute was no longer being tolled that the statute ran out on tax years 2014 and '15.


Prof. John C. Yoo:  I have two points about that. One is, if you thought there really was an obstruction conspiracy here -- take the worst possibility that Joe Biden knew about all this, that Hunters are acting out there as his agent and there's money coming in. And when Joe Biden gets into office as president, he wants this investigation shut down, or he wants it slowed down, or he wants Hunter let off with a slap on the wrist, then you could see Weiss being part of an obstruction investigation. If you think, what the whistleblower -- the IRS whistleblower's report is actually the product not of prosecutors trying to navigate these politically difficult cases, but they're really trying to shut down a damaging investigation into the president's family, then he would actually have to be part of that, and he couldn't very well do it himself.


But if John's right and I agree with him, I can't see Weiss investigating himself. That's why I was suggesting maybe Weiss would step down. This is why the House Oversight Investigation is so important. And as we've already seen in John's description of the facts, a lot of these facts are coming to us from House Oversight, not from the Justice Department. And so this just means that the House Oversight ought to really double down on its investigation. And maybe that's the ultimate check that the Constitution provides for Executive Branch obstruction is congressional hearings, congressional oversight -- get all the information out to the American people in time for the election so they can render their verdict on whether they think Joe Biden conducted -- was corrupt.


John G. Malcolm:  Although David Weiss staying on as special counsel and saying that he has an ongoing investigation makes it a very convenient excuse for him to avoid subpoenas being issued for him to come and provide testimony.


Prof. John C. Yoo:  Yeah. I agree with that. This is the wild thought that you could -- I don't think the House would ever do this but if you really wanted to get to the bottom of it and you really thought that Joe Biden was engaged in obstruction, you could give Hunter the immunity he so badly wants. Congress can give immunity. Congress could give immunity to Archer and what's his name, Bobulinski, and all these other secondary figures. Maybe that's the key because they're certainly not going to get it from the special counsel now. They tried, they had a sweet deal on immunity, but maybe Congress should consider giving immunity like they did during Iran Contra to really get the facts out about -- because the ultimate problem is -- to me, it's not whether Hunter Biden gets convicted of tax evasion or not, it's whether the president and his top aides are corrupt. And to me that should be out hopefully in the public in time for the election so people will know when they make their decision.


John G. Malcolm:  Oliver North and John Poindexter.


Prof. John C. Yoo:  Exactly.


Sam Fendler:  Gentlemen, we've had several questions from our viewers concerning the federalism at play here. So a couple related questions. Are all of the crimes Hunter Biden is accused of federal crimes? Has he been accused of any state crimes? And if there are any state crimes at play, particularly tax crimes, could any state AG potentially file charges against him?


John G. Malcolm:  Well, one problem, by the way, with these tax charges that has now been "solved," by appointing David Weiss as special counsel is that venue does not lie in Delaware for those. And perhaps there were state income taxes due, I don't know. But he lived for most of that time out in California. So there was venue out there and there was venue in D.C. where the tax returns were supposed to be received and the whistleblowers claimed that David Weiss went to the Biden, appointed U.S. attorneys in those two jurisdictions and asked whether it was okay for him to file charges in those jurisdictions and they said, "No." Now that he's been granted special counsel status, he can file charges wherever he wants. They're looking -- if you didn't pay your state taxes, then I suppose state tax charges could lie and I suppose I don't know exactly where they would lie because I don't know where Hunter Biden was living in those given tax years.


Prof. John C. Yoo:  Yeah. By definition, what the special counsel now -- special counsel is looking into have to be federal crimes. But I would say again, this is a weird way that the Trump and Biden prosecutions intersect, which is if Al Bragg and the DA in Manhattan can charge Donald Trump with bookkeeping irregularities from 2016 and before, why couldn't some state DA also charge Hunter Biden with -- he's engaged in bookkeeping irregularities in fact, of a far greater magnitude. We're not talking about the hundreds of thousands of -- as John described it, we're talking millions upon millions of dollars that are being hidden.


And that's not just a violation of federal law, that's also a violation of state law. And so that's the prospect -- we talked about this the last podcast -- that's opened up when you allow the DA of Fulton County, to prosecute Donald Trump, I don't see why a state DA can't prosecute Hunter Biden or at least launch an investigation. As long as you have -- John mentioned venue, as long as you have some link, you have to have a link. It's not like any DA in the country can just sort of volunteer to investigate. You have to have some kind of tie between Hunter Biden's massive operations and some district. But I kind of think there is one. This seems like Hunter's operations spread across many different places and cities and jurisdictions.


Sam Fendler:  Gentlemen, on the plea deal, some commentators are accusing the DOJ of some level of collusion with Hunter Biden's legal team. The theory being that Hunter Biden's legal team, those involved with the DOJ, together cooked up what has been described as a sweetheart deal. And had it not been for an attentive judge, it would have gone through. So the key being that this attentive judge foiled the collusion effort. Is there any truth to this accusation? Do we have any information one way or the other?


John G. Malcolm:  Well, look, I certainly believe that it was a very sweetheart deal. In fact, if you read things like the factual recitations that were attached to both the diversion agreement and to the plea agreement, you could tell that they were largely written by Hunter Biden's attorneys. The reason, by the way, why they wanted a judge to be involved in determining whether there was a material breach of the diversion agreement -- this is what they said in court -- is their concern that a republican will come into office in 2025 and then those evil people in the republican administration's DOJ, they'll reach out to determine that there was a material breach so that they could go after Hunter Biden. I don't know what -- so it was certainly a very sweetheart deal. If that's what you mean by collusion, then, yes, there was collusion. There was always collusion between a defendant and the government anytime there's a plea agreement because they have to agree to the plea agreement.


Prof. John C. Yoo:  That's true.


John G. Malcolm:  But here they certainly, I believe, tried to slip one past this judge. The judge said, "Wait a minute, this is highly irregular. I'm going to ask a bunch of questions." She scratched below the surface and it became very evident that the fix was in and the deal collapsed. And I give her a lot of credit for that.


Prof. John C. Yoo:  I watched and talked with people whose inclination is to support Hunter Biden or Joe Biden and they really don't have a plausible explanation about why the plea agreement was done this way. Usually they'll say, "Oh, but there are other people who have done worse things or the same thing and didn't get jail time or didn't have to plead to a felony." That still doesn't answer two questions. One is, why was it structured this way? Why were the agreements written in such a funny way? Produce cases where this is usually done. Nobody's done that. And then second, if you really think this is average, like this is just a normal sentence for someone who did something like this and you've got other cases like that -- although you have other cases also of people who are punished more harshly for similar conduct. But suppose the sentence, the plea is about the average for people who do something what Hunter did, then why isn't the Justice Department happy to discuss it in a public hearing and defend it rather than trying to bury it in this strange diversion agreement?


Sam Fendler:  Gentlemen, we're low on time. I want to ask the overarching question that I'm seeing threads of in our Q&A function. Merging the legal and the political here, what do you both think the impact is on the next several months, years, and the 2024 election?


Prof. John C. Yoo:  So you would think that the White House would definitely not want the special counsel and would not want this kind of investigation going forward because it's guaranteed to go into the election year. Even if it weren't just the special counsel investigation, the House Oversight Committee has now shown that there's a lot of information, a lot of facts out there which is not coming out of the Justice Department. The Justice Department may be slow walking the investigation. And so at the very least, the oversight hearings are going to continue into next year.


And it's hard to say it's just being done for partisan purposes when you have all of this information coming out. The whistleblowers came from the House Oversight. The associates of Hunter Biden who have been providing these quotes that John was reading about Joe Biden's involvement in the meetings came about through House Oversight. So no presidential campaign, I think, wants this going into 2024. It's got to have some effect. The hard thing to measure is, does it make a difference in the outcome given that, as we've talked about in our previous two podcast episodes and I'm sure we're going to return to, President Trump is also under investigation and also being charged by the Justice Department and State DAs. I don't know how the electorate treats that. Is it just all a wash? Or do they say, "I'm voting for the guy who's under less indictments or less investigations than the other guy." I'm not sure how voters process all these investigations now going on into both candidates.


John G. Malcolm:  Yeah. I guess what I would say is -- I'll begin by saying, I am not a political prognosticator and I would be fired instantly if I was ever hired as a political prognosticator. So the rap on people who do not like Donald Trump is he's a bad guy, they think he's a corrupt guy, those all those things. The rap on Joe Biden has been, he's just too old and he's showing signs that he's lost several miles off of his fastball. If you now add that Joe Biden, in fact, may not just be too old and ill equipped at this point, but that he is also corrupt, that may change the balance in terms of when people walk into the polling booth, assuming these two gentlemen are the nominees, and they're not wildly enthusiastic Trump supporters or Biden supporters, who will they hold their nose and vote for? And so if you add on to being old and mentally infirmed corrupt, that could affect the outcome. But as I said, I'm not a political prognosticator for good and sufficient reasons.


Prof. John C. Yoo:  Let me throw in one little point on John's point is, we didn't talk about the primaries. I can't see it affecting the democratic primaries. There seem to be no serious candidates running. Sorry, RFK. Jr. But unless -- I just don't see anyone getting in at this point. So I don't know if the prosecutions have any effect on the democratic primary. As you know, as we saw with the debate, the republican primary is filled with lots of very attractive, competent candidates who would like to be an alternative to Donald Trump. So it might be we rushed too quickly, I think, to talk about the general election. It could be that these prosecutions on the Trump side have dual effect on the primaries. The Trump investigations may turn people off in the republican electorate and say, "Let's go with someone younger who's not tainted by this." On the other hand, I could also see all the stuff we're learning about Hunter Biden and the claims of corruption in the Justice Department sort of creating a rally around the flag in the republican primary. It might actually be helping Trump that all this stuff is going on with the Bidens. But we should -- we didn't address the effect on the primaries too.


Sam Fendler:  Certainly. Well, gentlemen, there's so much to discuss here. It feels as though we've barely scratched the surface. But we are done with our hour. But before we sign off, I do want to give both of you the opportunity for some parting thoughts.


John G. Malcolm:  I don't have any parting thoughts other than to say, as usual, it's a pleasure doing these programs with John, and I thank The Federalist Society. And I'm sure, John, you're going to be hearing from the Marianne Williamson campaign since you didn't --


Prof. John C. Yoo:  Who says I haven't heard from them already?


John G. Malcolm:  But it was really great. I look forward to the next one of these when we come up with a great topic.


Prof. John C. Yoo:  Yeah. I'm sure that events will make sure -- I'm sure that the events will demand that we have another episode before too long. Thank you.


Sam Fendler:  No question. Well, gentlemen, thank you very much for another great installment. We do look forward to the next one. And on behalf of The Federalist Society, I want to thank both of you for the benefit of your time and your expertise today. Thank you also to our audience for joining us. We greatly appreciate your participation. Please check out our website or follow us on all major social media platforms @FedSoc to stay up to date with announcements and upcoming webinars. Thank you all once more for tuning in and we are adjourned.