{R} egarding the Hunter Circus on Capitol Hill on Wednesday, Noah Rothman has a great column on the contemptuousness of the president’s contemptible son. Our reporter David Zimmermann has a report that’s worth your time, too. (I wrote an opinion piece on it for Fox News yesterday.)
Noah is right that the Oversight Committee Democrats’ defense of Hunter is frivolous. They claim that since the subpoena demanded Hunter’s appearance for testimony and since he showed up yesterday claiming to be prepared to testify, the contempt is “cured” (meaning, the House should deem the initial failure to comply as rectified by subsequent compliance). But a contempt can conceivably be cured only by compliance with the terms of the directive that has been flouted — in this instance, an Oversight Committee subpoena. I say “conceivably” because belated compliance with a subpoena is a cure only if it would put the investigative body in the same position that it would be in if compliance had been timely. (For instance, if the delay causes investigators to lose access to evidence, then belated compliance is not a cure.)
That is not even an issue here, however, because Hunter hasn’t complied in any way.
The subpoena called for him to show up for a deposition in mid December. He defiantly declined to comply, posing as if he were willing to testify at a public hearing. A witness has no right to have such a demand honored.
The House is authorized to proceed with investigations by conducting depositions. These are far more effective than public-hearing testimony because depositions are conducted by trained investigators and are structured to provide ample opportunity to fully develop lines of inquiry (which help investigators locate additional evidence and witnesses). In depositions, which often go on for many hours when important witnesses testify, the majority and minority investigators (who are usually lawyers and frequently former prosecutors) alternate in rounds of questioning that typically last about an hour. The depositions are thus far more illuminating than public hearings, which feature five-minute rounds for about 40 committee members, many of whom just make speeches and cut off the witness (“reclaiming my time”) if the witness has the audacity to try to get a word in edgewise.
When they ran Congress, Democrats routinely issued deposition subpoenas in significant investigations, including those pertaining to the Trump impeachments and the Capitol riot. The Dems well know that, in an investigation, public hearings are not an adequate substitute for depositions. And naturally, they did not tolerate noncompliance with subpoenas by Republican witnesses.
The proceeding that the president’s son crashed Wednesday (abetted by several committee Dems, who were obviously prepared for Hunter’s surprise appearance) was not even an evidentiary hearing. Hunter’s lawyers were careful to have him show up, instead, at a committee business meeting. The agenda for the meeting was not the taking of testimony, but a vote to refer Hunter to the full House for a contempt-of-Congress citation (which finally happened late yesterday). Once the House approves the referral (likely next week), Hunter will be in contempt of Congress. The House will then refer the matter to the president’s Justice Department to decide whether to criminally prosecute the president’s son (stop laughing).
As Team Hunter well knew, there was not going to be any testimony at that public committee meeting. But in any event, the subpoena calls for closed-door deposition testimony. Hence, Hunter would not have been in compliance with the subpoena even he had randomly shown up at a public committee evidentiary hearing and offered to testify — he is required to show up for a deposition (presumably, one that would occur on a date that had been negotiated by his lawyers and the committee — since Hunter already blew off the mid-December date). Chairman James Comer (R., Tenn.) has assured Hunter’s lawyers that he will be given an opportunity to testify publicly, but only after submitting to the deposition.
All of this is political theater. I said above that Hunter is “posing” as willing to testify publicly. That is because I do not believe he is actually willing.
Hunter is facing trial on two felony criminal indictments and has other potential criminal jeopardy (although it’s really only theoretical because Biden Justice Department special counsel David Weiss has unmistakably signaled that he has no intention of indicting Hunter on crimes that could implicate the president). Abbe Lowell is a good lawyer, but it would take a merely competent lawyer to explain to a client (especially one who, like Hunter, is a lawyer) that any testimony to the committee could be used against him in the criminal cases. Republicans on the committee are undoubtedly poised to ask questions that would force Hunter to either admit guilt or (potentially) lie about the facts underlying the two criminal cases. Hunter is not going to do that; under the Fifth Amendment privilege against self-incrimination, he would refuse to answer.
That is what this dispute is all about.
Republicans were outraged by the insidious practice of the January 6 Committee, which subpoenaed witnesses who the committee knew would take the Fifth, recorded them doing it on video, and then publicly played these assertions of the right against self-incrimination. In doing so, they argued that innocent people do not refuse to cooperate with interrogators, so if the witnesses take the Fifth, then they must be guilty. If a prosecutor at a criminal trial did that, there would be a mistrial, and the prosecutor would be referred to the bar for disciplinary sanctions. For the J6 Committee, though, it was standard operating procedure. It added ballast to the media-Democrat narrative that former president Trump had run a multilayered criminal conspiracy (one that special counsel Jack Smith has not charged because he doesn’t have the supporting evidence — you need something more than flimflam in an actual legal proceeding).
Republicans have decided that what’s good for the goose is good for the gander.
If Hunter sat for the deposition, the Republicans would ask him questions designed to elicit invocations of the Fifth Amendment privilege. They would then broadcast to the world that the president’s son took the Fifth. That would be extremely embarrassing for the president — Hunter’s father and silent partner in the family influence-peddling business. Congressional Republicans would argue, as the J6 Committee did, that the assertion of a constitutional privilege is tantamount to an admission of guilt. (Memo to Democrats and other myopic Trump pursuers: The norms you are blowing up do, in fact, become precedents that get used against you, for the first law of politics remains: What goes around comes around.)
Hunter, of course, does not want to give the GOP this coup. Alas, his problem is that the subpoena is a legal directive to sit for a deposition. The witness does not get to dictate the terms of his appearance. By law, Hunter has to show up. He can refuse to answer questions based on the Fifth Amendment, but he has to assert the privilege — it is not self-executing. When people are operating honorably, an investigator (or prosecutor in the criminal-law context) might accept a written representation from the witness’s lawyer that, at any deposition, the witness would assert the privilege and refuse to answer all questions. But Democrats did not accept that during their investigations because they wanted the transcript and video recording of the witnesses taking the Fifth. Republicans aren’t going to accept it either.
Ergo, if Hunter is determined to avoid taking the Fifth, he must risk being held in contempt of Congress and potentially being prosecuted criminally. For those asking how Hunter can be so brazen, understand that it’s not so much brazenness as calculation: Hunter and his advisers (a group we must assume includes his father) must weigh what is more damaging: taking the Fifth in a play-to-play investigation about monetizing President Biden’s political influence, or being held in contempt?
Obviously (and in my view rationally, albeit lawlessly), the Biden camp’s calculation is that contempt, though painful, is less harmful than invocations of the privilege against self-incrimination that would be portrayed as admissions of guilt. They are confident that the Biden Justice Department will not prosecute Hunter for contempt and that Democrats can spin a contempt citation by the Republican majority as a crass political vendetta.
Once you’ve decided that contempt is better than taking the Fifth, you’re down to how to spin it.
Cynically, Hunter and congressional Democrats know that most people are not intimately familiar with how subpoenas and investigations work. They figure that if Hunter makes a show of being willing to answer questions publicly, then the public may believe that Republicans are being unreasonable in refusing to accommodate him. After all, he has the media wind at his back — that’s why the public is not being reminded, for example, that Trump adviser and ally Steve Bannon did the same thing Hunter is doing. Bannon defied a deposition subpoena (from the J6 Committee), vehemently asserted that he would be willing to testify publicly, and made some feints at being cooperative (while lambasting the committee as illegitimate). The Democrat-dominated committee gave him no quarter: He was held in contempt, and the committee pressured the Biden Justice Department to prosecute him criminally, which it did.
Hunter’s spin is that Republicans are out to get his father, cannot be trusted to run a fair deposition, and would selectively leak his testimony. It’s nonsense. The deposition would not be a day at the beach, but the investigators doing the questioning tend to be less demagogic than the pols performing at public hearings. Plus, Democrats would be well represented at the deposition: If Hunter were actually willing to testify, their investigators would make sure to get any and all points in his favor into the record.
Republicans, moreover, have been better than Democrats were in the Trump era when it comes to leaks. Rather than selectively leaking to the media while the full transcripts were kept under wraps, GOP-run committees have been releasing the full transcripts shortly after the deposition testimony of significant witnesses takes place. (We have seen, for example, the transcripts of testimony from IRS whistleblower agents and Hunter’s former business partner, Devon Archer.) It’s also silly for Hunter, a Yale-educated lawyer who has retained one of Washington’s most politically savvy criminal-defense lawyers, to act as if Republicans could wreak havoc at a deposition. GOP investigators would not try anything that Abbe Lowell and counsel for the committee Dems couldn’t easily handle.
No, Hunter is defying the subpoena because, were he to testify, Republicans would make it very difficult, if not impossible, for him to avoid repeatedly asserting his constitutional privilege against self-incrimination. That would materially damage his father — who has enough polling problems as it is in this election year. It’s that simple.