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Donald Trump And Hunter Biden: A Tale Of Two Injustices
No System Can Survive When Some Are More Equal Than Others
Last week we saw some of why Special Counsel
Lavrentiy Beria Jack Smith has been continuing to subpoena witnesses before his Star Chamber grand jury investigating Donald Trump for the heinous crime of being….Donald Trump.
It is hardly a shocking revelation that Smith conjured up still more reasons to persecute…err…prosecute Trump under the Espionage Act plus related sections of the Federal Code.
Prosecutors with special counsel Jack Smith's office have added new charges against former President Donald Trump in the case involving documents with classified markings, according to court papers filed in federal court Thursday evening.
A superseding indictment unsealed by the Justice Department lists multiple new counts against Trump, including: altering, destroying, mutilating, or concealing an object; and corruptly altering, destroying, mutilating or concealing a document, record or other object; and an additional charge of willful retention of national defense information.
By some ironic quirk of fate, the latest (but assuredly not the last) Trump indictment came about as a curious bookend to the aborted plea deal that had been conjured between the Department of Justice and Hunter Biden, wherein the President’s son agreed to plead guilty to tax evasion and weapons charges in return for a slap on the wrist and no jail time. The plea deal fell apart when the Federal judge overseeing Hunter’s case refused to simply rubber stamp the deal and began asking awkward questions.
Hunter Biden, the son of President Joe Biden, pleaded not guilty on July 26 to federal tax and gun charges after the presiding judge objected to an earlier plea agreement that had linked the two alleged crimes.
At the July 26 hearing, U.S. District Judge Maryellen Noreika expressed “concerns” that Mr. Biden’s plea agreement linked tax crimes to resolving felony gun charges.
Judge Noreika, an appointee of former President Donald Trump, said she couldn’t accept the deal in its current form.
Although the legal subjects at issue are dramatically different, these latest turns of events in both cases coming so close together highlights the stark injustice infecting both cases, poisoning them to their very core: the unequal and partial treatment of US citizens before the law.
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To fully apprehend the judicial horror show that has been unfolding in both cases, we must first remember that equal treatment before the law has been a cornerstone of American governance since the founding of the Republic.
Article IV, Section 2, Clause 1 of the United States Constitution guarantees to every citizen the “privileges and immunities” enjoyed by citizens in all states.
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
This clause was soon amplified by the Fifth Amendment, which enshrined every person’s right to due process of law.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
This right was further clarified and strengthened in 1868, when the Fourteenth Amendment was ratified, guaranteeing to every person the equal protection of the laws.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Even Article IV of the Articles of Confederation, the predecessor to the Constitution, guaranteed to the American people equal treatment before the law.
The better to secure and perpetuate mutual friendship and intercourse among the people of the different states in this union, the free inhabitants of each of these states, paupers, vagabonds and fugitives from Justice excepted, shall be entitled to all privileges and immunities of free citizens in the several states;
It is essential, therefore, to the implementation of justice that everyone be held to the same standards before the law. The law must be applied to everyone in the same fashion, with neither fear nor favor, and when it is not—when either fear or favor are present—then all thought of justice within the law is eliminated.
This is, and has been, from the very beginning, the essence of “the law” within the United States.
This essence has been conspicuous by its absense in both the cases of Donald Trump and Hunter Biden. Where the law is supposed to be applied with neither fear nor favor, it has been applied to Trump with fear and has been applied to Hunter Biden with favor. As a result, neither has received justice.
The injustices at the core of the Trump prosecution I have already covered in some detail.
Just the sheer insanity with which classified documents are handled by the US Government alone makes the charges against Donald Trump ludicrous.
We need to take a moment, therefore, to explore the highly irregular legal maneuverings surrounding Hunter Biden.
Hunter Biden has been under federal investigation for a number of years and for a number of things, including failure to pay his income taxes. Many of the accusations made against him publicly involve potential influence-peddling and similar forms of corruption in Ukraine.
Hunter Biden discussed leveraging his connection to his father in a bid to boost his pay from a Ukrainian natural gas company, according to an email he sent around the time he joined the firm’s corporate board.
In a lengthy memo to his then-business partner, Devon Archer, who already sat on the Burisma board, Biden repeatedly mentioned “my guy” while apparently referring to then-Vice President Joe Biden.
Hunter Biden’s dealings with Burisma, as well as with various Chinese firms, initially prompted a tax investigation beginning in 2018, but which expanded into other areas when a laptop filled with potentially incriminating emails and other documents was turned over to law enforcement by the owner of the computer shop where Hunter had dropped the laptop off for repair and never retrieved it.
The blockbuster correspondence — which flies in the face of Joe Biden’s claim that he’s “never spoken to my son about his overseas business dealings” — is contained in a massive trove of data recovered from a laptop computer.
The computer was dropped off at a repair shop in Biden’s home state of Delaware in April 2019, according to the store’s owner.
Of particular concern has been correspondence indicating that, contrary to his public denials, Joe Biden had been involved with at least some of Hunter Biden’s Ukrainian dealings just before pressuring the Ukrainian government to remove a prosecutor looking into corrupt business practices at Burisma—the Ukrainian natural gas company where Hunter Biden sat on the board.
Hunter Biden introduced his father, then-Vice President Joe Biden, to a top executive at a Ukrainian energy firm less than a year before the elder Biden pressured government officials in Ukraine into firing a prosecutor who was investigating the company, according to emails obtained by The Post.
The never-before-revealed meeting is mentioned in a message of appreciation that Vadym Pozharskyi, an adviser to the board of Burisma, allegedly sent Hunter Biden on April 17, 2015, about a year after Hunter joined the Burisma board at a reported salary of up to $50,000 a month.
Multiple times, email documents appear to show Hunter both attempting to involve his father in his business dealings and to enable his father to profit from those same business dealings.
The email, labeled from Robert Biden — Hunter’s first name — is among a trove of messages, documents, photos and videos purportedly recovered from a MacBook Pro laptop that a Delaware computer shop owner told The Post was brought in for repair in April 2019 and never picked up.
In the email, Hunter Biden wrote to Archer, “We need to ask for long term agreement and across the board participation. This is a huge step for us that could easily become very complicated. And if we are not protected financially regardless of the outcome we could find ourselves frozen out of a lot of current and future opportunities.
“The contract should begin now- not after the upcoming visit of my guy.
“That should include a retainer in the range of 25k p/m w/ additional fees where appropriate for more in depth work to go to BSF for our protection. Complete separate from our respective deals re board participation.”
Such activities would appear to constitute a clear conflict of interest under US law1.
Except as permitted by subsection (b) hereof, whoever, being an officer or employee of the executive branch of the United States Government, or of any independent agency of the United States, a Federal Reserve bank director, officer, or employee, or an officer or employee of the District of Columbia, including a special Government employee, participates personally and substantially as a Government officer or employee, through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise, in a judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, or other particular matter in which, to his knowledge, he, his spouse, minor child, general partner, organization in which he is serving as officer, director, trustee, general partner or employee, or any person or organization with whom he is negotiating or has any arrangement concerning prospective employment, has a financial interest—Shall be subject to the penalties set forth in section 216 of this title.
The situation is made even murkier given Joe Biden’s open admission in public of intervening to have the Ukrainian prosecutor investigating Burisma fired.
While the video clip does not prove on its own that either Biden acted corruptly, the web of connections Hunter’s emails and the video clip establish at a minimum raise a number of troubling questions about both the propriety and the legality of both Bidens’ conduct.
The sheer volume of troubling emails, documents, and video footage that arguably demonstrate a staggering amount of official corruption by the Bidens made the plea deal ultimately offered to Hunter Biden in June of this year extremely troubling and controversial.
The United States Attorney for the District of Delaware filed charges today against Robert Hunter Biden (“Hunter Biden”) of Los Angeles. Hunter Biden has been charged with two misdemeanor tax offenses and a felony firearm offense and has agreed to enter a plea of guilty to the tax offenses and enter into a pre-trial diversion agreement with regard to the firearm charge at a proceeding to be scheduled by the assigned United States District Court judge.
According to the information filed with the court, Hunter Biden was to plead guilty to two tax offenses involving a willful failure to pay at least $200,000 in taxes, and a charge of illegally possessing a firearm while actively using illicit drugs.
According to the firearm Information, from on or about October 12, 2018 through October 23, 2018, Hunter Biden possessed a firearm despite knowing he was an unlawful user of and addicted to a controlled substance.
All of the potential charges involving conflicts of interest, bribery, and other forms of corruption were distilled down to two misdemeanor tax offenses and felony weapons charge. Even noted attorney Jonathan Turley called the plea deal “controlled demolition” of Hunter Biden.
About a year ago, I wrote a column describing what I saw as evidence of a “controlled demolition” in progress in the Hunter Biden scandal. The media and political establishment had reached the point where they could no longer bury the influence peddling scandal by claiming that Hunter’s laptop was Russian disinformation.
That worked for defusing the scandal in 2020, but now another election was fast approaching, which called for a “controlled demolition” to protect political and media figures from any public backlash. I wrote: “Like those buildings dropped between other structures, it takes precision and, most importantly, cooperation to pull off. Specifically, this controlled demolition will require the perfect timing of the media, Democratic politicians, and most importantly, the Justice Department.”
The key was to get Hunter to plead to a couple of minor offenses with little or no jail time. The White House and the media could then declare the scandal over and insist that there is nothing more to discuss.
That there was something sketchy in the plea agreement appears to have been confirmed by Judge Maryellen Norieka’s decision to defer the plea agreement after questioning its immunity provisions.
With attorneys buzzing around him, Hunter Biden sat quietly at a desk Wednesday in the Wilmington, Delaware, federal courtroom -- hands folded, jaw locked -- where hours earlier he had entered in hope of putting his legal tribulations in the rearview mirror.
It was the most consequential moment in a day filled with them: both sides frantically seeking to resurrect a painstakingly negotiated plea agreement after a prosecutor declared "there is no deal" and Biden's lawyer could be heard saying to prosecutors, "Rip it up."
Under questioning from the judge, fissures had emerged as a result of the two sides' interpretation of a key passage in the agreement: Paragraph 15, which outlined in broad language the scope of Hunter Biden's immunity from additional criminal charges.
Depending on the reading of the particular language in the plea agreements, Judge Norieka was concerned that the deal gave Hunter Biden immunity for pretty much all future charges the government might otherwise bring against him—which became even murkier when the prosecution on the case revealed that Hunter Biden remains under investigation.
The judge pressed federal prosecutors on the investigation and questioned whether there was the possibility for future charges, and asked prosecutors if Hunter Biden was currently under active investigation. Prosecutors said he was, but would not answer specifically what the president's son is under investigation for.
While Judge Norieka declined to accuse the DoJ of wrongdoing, she did make it clear that the plea agreement was troubling and gave both legal teams 30 days to revise it into something more appropriate. Accordingly, I am not going to claim that there was anything avowedly criminal in how the DoJ has handled the Hunter Biden case, but it is clear that the deal reeks to high heaven of political favoritism and the joys of being politically well-connected.
Which brings us back to the latest Trump charges. In addition to adding another charge under the Constitutionally dubious Espionage Act, Special Counsel Jack Smith also charged Donald Trump with attempting to destroy his own property.
The Justice Department is accusing former President Trump of attempting to delete surveillance footage at his Mar-a-Lago property in a new superseding indictment filed in the classified records case Thursday.
The DOJ says Trump acted with a new co-conspirator to try to delete the footage and also charged him with an additional Espionage Act charge.
That’s right, Jack Smith is accusing Donald Trump of wanting to destroy the video footage from security system installed by Donald Trump at his Mar-A-Lago resort.
Specifically, Smith is charging Donald Trump with conspiracy to tamper with “an object” (his own video footage)2—specifically 18 US §1512(k).
All this after already charging Trump with some 31 counts under the Espionage Act, plus a number of other process charges amounting to not being cooperative with Smith’s “investigation.”
Just how many charges does Smith need on the indictment? What purpose is served by getting every conceivable charge against Donald Trump dragged into the courtroom kicking and screaming? As it is if Trump gets convicted on the original charges he is likely looking at what would be close to a life sentence behind bars, owing to the fact that he is 783. How much more justice is there left to extract?
If there’s not more justice to be had, how much of this prosecution is in fact a persecution, a targeting of Donald Trump because he is the leading political opponent for Joe Biden in next year’s election?
How does this new superseding indictment not make it appear that Jack Smith is not interested in enforcing the law, but instead in tying Donald Trup and his associates up in court and thereby prevent him from running for President next year?
By the same token, how much of the kid glove treatment Hunter Biden has been receiving is motivated by the desire and/or need to preserve Joe Biden’s prospects for re-election next year?
Noted attorney and law professor Jonathan Turley has intimated as much by suggesting in his latest blog posting that Joe Biden’s ultimate “out” for Hunter would be to pardon him and then not run next year.
There is, however, the ultimate “break-the-glass” option that I raised previously if the Bidens and their supporters could not rig the process: Joe Biden could pardon his son and then announce that he will not run for reelection.
Facing an impeachment inquiry, low public support, and a son in the legal dock, Biden could use the case to close out his political career. Of course, a pardon would be what I consider another abuse of the pardon power for personal benefit. President Bill Clinton waited until the end of his second term to pardon his half-brother. Biden could do the same by acknowledging that the pardoning of his son is a form of raw self-dealing. However, as he has said throughout the scandal, he loves his son and blames his crimes on his struggle with addiction and grieving.
In that same column, Turley outlines many of the potential future charges that could be brought against Hunter, and they are considerable, with considerable potential jail time attached if maximum sentences are sought.
The debacle in Delaware still could result in a plea deal. The parties have a month to “work things out,” and most judges sign off on deals, given the discretion afforded to the executive branch on criminal charging decisions. They just need to be clear about the terms, and clarity is something neither side seemed eager to establish publicly during Wednesday’s hearing. However, an agreement would require prosecutors either to fight to preserve a sweetheart deal — one without additional future charges — or to proceed, as they would in most cases, with a full prosecution.
That would include obvious potential charges under the Foreign Agents Registration Act (FARA). Noreika forced the Justice Department to admit that it still could charge Biden as an unregistered foreign agent. That was the charge used against onetime Trump campaign chairman Paul Manafort and the similarities between the cases are striking. It took little time for the Justice Department to use the charge against Manafort. Yet, in the Hunter Biden investigation, five years have passed, and the Justice Department seemed mired in doubt over applying the same standard to the president’s son.
A FARA charge could further expose Hunter’s alleged influence-peddling operations, with what House GOP investigators say were millions in foreign payments from a virtual rogue’s gallery of foreign officials. The Justice Department also would face pressure to seek the same long jail sentence given to Manafort; he was sentenced to 73 months of imprisonment, which included the statutory maximum 60 months for a conspiracy to violate FARA. (That same year, political consultant W. Samuel Patten pleaded guilty to lobbying and consulting on behalf of the Opposition Bloc, a Ukrainian political party, and received 36 months of probation.)
To all outward appearances, this was the legal minefield the Department of Justice wished to avoid, and to avoid it was willing to give Hunter Biden the mother of all sweetheart deals.
Was Hunter Biden given a pass on considerable criminal behavior in order to keep his father’s re-election prospects intact? If that is true, how is that conform to any notion of justice?
Hunter Biden does deserve the equal protection of the laws. Donald Trump also deserves the equal protection of the laws. Under the law, both men are necessarily given the presumption of innocence until the final rendering of the jury verdict. That much is at is should be.
Yet what neither man deserves is arbitrary immunity-by-impunity, whereby charges that notionally should be followed are not, and where jail time and other punishments commonly meted out are not.
Additionally, neither man deserves automatic guilt by identification, where he adjudged to be guilty of breaking the law solely because of who he is. Even in the 21st Century, Article 1 Section 9 Clause 3 of the Constitution still prohibits Bills of Attainder and the automatic declaration of a person to be guilty of a crime without benefit of trial4.
“Bills of attainder . . . are such special acts of the legislature, as inflict capital punishments upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. If an act inflicts a milder degree of punishment than death, it is called a bill of pains and penalties. . . . In such cases, the legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when such proofs are within its reach, whether they are conformable to the rules of evidence, or not. In short, in all such cases, the legislature exercises the highest power of sovereignty, and what may be properly deemed an irresponsible despotic discretion, being governed solely by what it deems political necessity or expediency, and too often under the influence of unreasonable fears, or unfounded suspicions.”
It is neither lawful nor Constitutional in this country to adjudge any person a criminal who has not had the benefit of a public trial with a jury of his peers.
Can we honestly say that Donald Trump is not being adjudged a criminal even before there has been a trial, not just by the obviously biased corporate media but also by the Special Counsel as well, the one person in this entire melodrama obligated by law to refrain from such bias and from such conduct?
Between the Donald Trump prosecution and the Hunter Biden non-prosecution, the picture that is emerging is that of a politicized, biased, corrupt, and thoroughly partial and partisan Department of Justice actively doing whatever it can, legal or not, ethical or not, to remove one potential Presidential candidate from next year’s election while preserving another. It is a terrifying picture. It is a picture more fitting to memorialize Stalin’s purges than it is the objective and politically neutral pursuit of justice under the law by the morally neutral blind Lady Justice.
If Donald Trump has committed actual crimes covered by a Constitutionally valid statute, then let him be prosecuted with all vigor under the law.
If Hunter Biden has committed actual crimes covered by a Constitutionally valid statute, then let him be prosecuted with all vigor under the law.
If neither Trump nor Biden can be charged under a law that can withstand scrutiny before the Constitution, then let them not be charged at all.
Yet in both the Trump and the Biden cases, and in all cases, the essential element of the standard must always be simply this: the prosecution must follow the law, regardless of the man. The prosecution must never stoop to the doctrine of, having been shown the man, finding the crime.
Regarding both Donald Trump and Hunter Biden, the Department of Justice has been shown the man, and has found the crime in the case of Trump but declined to look in the case of Biden.
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Editors of Encyclopaedia Britannica. “Donald Trump.” Encyclopaedia Britannica, 2023, https://www.britannica.com/biography/Donald-Trump.
J. Story, Commentaries on the Constitution of the United States 1338 (1833)