A newly revealed federal criminal probe into the business dealings of Joe Biden's son Hunter will complicate the president-elect's selection of a new U.S. attorney general, former Justice Department officials and legal experts said.
Hunter Biden disclosed on Wednesday that the U.S. Attorney's Office in Delaware is investigating his tax affairs. Media outlets have reported that the issues stem from his work in countries including China.
President Donald Trump and his Republican allies in Congress made Hunter Biden’s business dealings in China and Ukraine a line of attack against the elder Biden during the 2020 election campaign. Hunter Biden has denied any wrongdoing, and his father released a statement of support after the disclosure.
But its existence places increased scrutiny on Democrat Joe Biden’s choice to run the Department of Justice, the highest-profile Cabinet post he has not yet filled. Whoever is tapped will likely face a fusillade of questions from Republicans about the matter in the Senate confirmation hearing early next year.
Biden “is certainly going to be given an opportunity at the start of his administration to prove that he means what he says about safeguarding Justice Department independence,” said Kathleen Clark, a law professor at Washington University in St. Louis and a government ethics expert. “This is obviously a really sensitive matter – one’s child being under criminal investigation.”
Biden’s transition team is confident that the attorney general pick will be able to fully answer questions about the independence of the office and the integrity of the investigation, according to two transition officials.
During the campaign Biden was critical of Attorney General Bill Barr, whom he accused of politicizing the department and being overly loyal to Trump and his agenda. He pledged to restore its traditional independence from the White House.
He restated that promise in a CNN interview last week.
"I'm not going to be telling them what they have to do and don't have to do,” Biden said. “I'm not going to be saying go prosecute A, B or C - I'm not going to be telling them. That's not the role, it's not my Justice Department, it's the people's Justice Department."
Upon taking office on Jan. 20, Biden has said he would issue an executive order directing that no White House staff or any member of his administration may initiate, encourage, obstruct or otherwise improperly influence specific investigations or prosecutions for any reason; and he will pledge to terminate anyone who tries to do so.
Biden may also face Republican pressure to keep the current U.S. attorney in Delaware who is running the probe, David Weiss, on the job for the duration of the investigation or even appoint a special counsel to ensure distance from the White House.
At the dawn of Trump’s term, Democrats called for a special counsel to probe Russian interference in the 2016 election. Then-Attorney General Jeff Sessions followed suit by naming Robert Mueller to head the investigation.
Senator Josh Hawley, a Republican member of the Judiciary Committee, which would hold the nomination hearing for Biden’s pick, said on Thursday that Biden must pledge to retain all Justice Department attorneys involved in the probe.
“Those U.S. attorneys who are involved in this investigation, their staff absolutely must stay on," Hawley said. "I mean, there can't be any talk of replacing or transitioning them.”
Speculation on Biden’s choice has centered on Doug Jones, a U.S. senator from Alabama who lost his re-election bid, Sally Yates, who was a deputy attorney general during the Obama administration, as well as federal appeals court judge Merrick Garland and Deval Patrick, a former Massachusetts governor.
Jones has a personal bond with Biden that dates back 40 years, which could complicate an appearance of neutrality.
Donald Ayer, who served as a deputy attorney general during the George H.W. Bush administration, suggested Biden publicly assert that he will have no involvement with the probe when he introduces his nominee.
"My fervent hope is that that message be put out there loudly, often and early. And hopefully, that they beat the Hunter Biden question to the punch by spelling out exactly where they're headed," Ayer said.
"Hunter Biden is one case among hundreds," he added. "And it will be handled the same way as everything else, and there won't be interference."