Opinions and Legal Insights

Durham’s Lame Duck Period: Democratic Leaders Suggest A Dim Future For Biden-Related Investigations

Below is my column in the Hill newspaper on the growing pressure on prosecutors during the lame duck period to move forward in their investigations into the Russian investigation or Hunter Biden. House Intelligence Committee Chair Adam Schiff again strongly suggested that such investigations should end with the entry of a Biden Justice DepartmentSchiff told MSNBC that investigations of a president-elect constitute “tearing down our democracy” and a way to “delegitimize” a president. This is precisely what I raised in my column on the expected effort by some to scuttle the Biden related investigations. The statement was only the latest indication that Democrats are likely to push to end any investigations touching on the Bidens, including statements from individuals known to be under consideration for Attorney General. In doing so, they will likely have the support of many members of the media who would be embarrassed by any findings of wrongdoing after insisting that there was nothing to cover and refusing to ask Biden specific questions on the campaign trail on these allegations.

Here is the column:

With the election’s conclusion, Washington has entered that precarious period known as the “lame duck.” Unlike real wounded waterfowl, lame-duck presidents tend to be more active in the waning days of their terms. From John Adams’ “midnight judge appointments” to Barack Obama’s last-minute executive orders, presidents often move to cement policies or personnel before the chiming of the constitutional clock. This year, however, it may be prosecutors who feel the greatest fight-or-flight pressure.

Months before the election, many Democrats and analysts demanded that the Justice Department refrain from bringing additional indictments or releasing new information connected to either the Russia investigation or the Hunter Biden scandal. Andrew Weissmann, one of special counsel Robert Mueller’s top prosecutors, called on prosecutors not to assist the Justice Department before the election, to prevent damaging disclosures for then-Democratic candidate Joe Biden. Despite pressure from President Trump, the Justice Department under Attorney General Bill Barr did appear to hold the line before the election under a long-standing policy.

Months before the election, many Democrats and analysts demanded that the Justice Department refrain from bringing additional indictments or releasing new information connected to either the Russia investigation or the Hunter Biden scandal. Andrew Weissmann, one of special counsel Robert Mueller’s top prosecutors, called on prosecutors not to assist the Justice Department before the election, to prevent damaging disclosures for then-Democratic candidate Joe Biden. Despite pressure from President Trump, the Justice Department under Attorney General Bill Barr did appear to hold the line before the election under a long-standing policy.

Prosecutors in the Russia and Hunter Biden investigations may now face the opposite pressure — to move more quickly in the Trump administration’s final two months. The obvious concern is that a Biden administration might scuttle or shut down pending investigations. Indeed, Democrats have denounced the investigation into the discredited Russia collusion case as a political “hit job” and could justify terminating it as a promised “reform.”

In October, Sen. Ron Wyden (D-Ore.) joined Senate Minority Leader Chuck Schumer (D-N.Y.) in asking the FBI to resist pressure to investigate Hunter Biden. House Intelligence Committee Chairman Adam Schiff (D-Calif.) denounced the ongoing Russia investigation by U.S. Attorney John Durham as “tainted” and “political.” On the campaign trail, Biden dismissed the “investigation of the investigators.”

In a Senate hearing this week on the Russia investigation, Democratic senators — including Amy Klobuchar, D-Minn., considered a short-lister to be the next attorney general — denounced the continued investigations before the arrival of the incoming Biden Justice Department.

If prosecutors are concerned about such an intervention, they may have to act in the next two months.

Russia investigation

Before going dark in October, U.S. Attorney John Durham’s investigation made headlines with the criminal plea of former FBI lawyer Kevin Clinesmith, who lied to the Foreign Intelligence Surveillance Act (FISA) court in order to continue surveillance of a Trump campaign adviser. There have been rumors for months that Durham found material not disclosed by special counsel Mueller or the Justice Department’s inspector general in their prior investigations. He also is known to have been working with a grand jury as part of his investigation.

There is ample reason why a Biden administration would want to see Durham’s investigation closed. Earlier this year, disclosures contradicted Biden’s denials that he knew of or was involved in the investigation of figures like Trump national security adviser Michael Flynn; the disclosures indicated Biden may have sought to “unmask” Flynn in surveillance reports. There also are accounts from the Oval Office that Biden was briefed on the Flynn investigation, including the fact that the FBI thought his discussions with Russian diplomats were “legit.” Earlier, FBI investigators sought to end the Flynn investigation for lack of evidence of any crime; according to one report, Biden raised the possibility of prosecuting Flynn under the Logan Act, a federal law widely viewed as unconstitutional.

The Durham investigation may not result in new indictments but could result in the release of new evidence. Indeed, the greatest risk of intervention by the Biden administration would be the withholding of any report or the use of classification rules to bar parts of its release. That report could shed light on how the Russia investigation began and was sustained, despite early intelligence refuting the collusion allegations. This includes recently released information that President Obama was briefed on intelligence suggesting that Hillary Clinton was working to falsely paint Trump as colluding with Russians. Such findings could be highly embarrassing not only to Obama administration officials but a number of congressional Democrats — including Rep. Schiff, who assured the public that, after contrary findings by the special counsel and the inspector general, his House committee had clear evidence of collusion. Schiff never produced that evidence.

Hunter Biden investigation

It may be easier for the Biden Justice Department to shut down an investigation of Hunter Biden. Although most of the media imposed a blackout on coverage, the alleged Hunter Biden laptop contains disturbing evidence of a global influence-peddling scheme by Hunter and his uncle, James Biden. The laptop’s emails, which the Biden family has not denied are authentic, directly contradict statements by Joe Biden. Moreover, Hunter Bidens ex-business associate, Tony Bobulinski, gave the FBI a sworn statement that not only was this a knowing influence-peddling scheme but that Joe Biden knew of and was involved in it.

The FBI reportedly subpoenaed the laptop as part of a money-laundering investigation that included Hunter Biden in 2019. If true, that investigation could directly implicate the president-elect.

The danger for prosecutors is greater because the Biden administration can rely on a supportive media. The only people more embarrassed by allegations of criminal conduct in the Hunter Biden investigation would be media members who have repeatedly assured the public that there is nothing to investigate.

If these investigations move forward with possible criminal charges related to Biden or his family, there may even be a question of whether the current or next attorney general should establish a special counsel.

Consider again the Hunter Biden investigation: Hunter previously contradicted his father, who denied discussing his son’s foreign business deals. Now Hunter’s business partner has recounted meeting with Joe Biden and raising concerns with James Biden about the legal implications of those deals. When Trump came into office, many Democrats demanded a special counsel appointment on much less evidence, even before the firing of FBI Director James Comey. It turned out there was no proof of collusion. There is comparatively more evidence of Joe Biden’s involvement, including statements made under threat of prosecution.

That is why developments in the next few weeks will be so interesting. These prosecutors could set their investigations into the amber of the lame-duck period as insurance against Biden administration interference. That could force a question over the need for a special counsel, if criminal conduct is further revealed by indictments or reports.

Prosecutors in the lame-duck often are like Shakespeare’s Richard II, who lamented: “I wasted time then, and now time wastes me.” If there is evidence of criminal conduct in these investigations, time waits for no prosecutor.