By Devlin Barrett
The special counsel appointed to investigate President-elect Donald Trump is wrapping up his work without the charges he brought in two cases ever going in front of a jury.
The special counsel named to lead the inquiry into Hunter Biden, the president’s son, has just seen the two convictions he secured wiped away by a presidential pardon.
Trump, whose election victory last month has done nothing to blunt his desire for retribution against those who pursued or opposed him, is trying to install a new FBI director, Kash Patel, dedicated to turning the nation’s premier law enforcement agency upside down.
And President Joe Biden, who for years cast himself as the principled defender of democratic norms and the rule of law, defended his grant of clemency to his son by saying Hunter had been “selectively, and unfairly, prosecuted” in a process infected by “raw politics.”
Over a few days, the American justice system was buffeted by raw exercises of power from the current Democratic president and the incoming Republican president.
Now, current and former officials as well as legal experts say they are worried about whether the post-Watergate tradition that criminal investigations remain largely outside the reach of political leaders can survive an era in which the system is engulfed by partisanship.
“What I anticipate is that the White House and President Trump will want to be able to direct Justice Department prosecutions,” said Kathleen Clark, a law professor at Washington University in St. Louis who specializes in government ethics.
“That’s not normal,” she said. “It’s a terrible idea. White House interference with criminal prosecutions is the sort of thing that got us Watergate, but unfortunately we don’t have the same kind of accountability mechanisms now, so we’re at much greater risk.”
Trump’s vows to go after his enemies and enlist strident loyalists in those efforts constitute a more ominous challenge to impartial law enforcement than Biden’s one-time use of his clemency powers on behalf of his troubled son, Clark argued.
Clark said that in her view the Hunter Biden pardon was “political malpractice” but not a broadside against the Justice Department. She is far more concerned, she said, about Trump’s effort to install Patel at the FBI.
“If what we want as the head of the FBI is an enforcer of personal loyalty to the president, then Kash Patel is the guy,” Clark said. “If we actually want someone who will administer the agency well, who has good judgment about law enforcement and intelligence issues, and who can stand up to and say no when appropriate, Kash Patel is exactly the wrong person.”
Within the Justice Department, some officials said privately that they were disheartened by the way in which Biden and Trump sounded similar notes of distrust of the department.
“It’s incredibly demoralizing, after four years of talking about the independence of the department, about the rule of law, to see those things come under attack so fast, and from the White House as well,” said one law enforcement official, speaking on condition of anonymity because they were not authorized to discuss the recent events.
At stake, in the minds of several current and former Justice Department officials, is the decades-long practice of the country’s political leadership respecting a clear line against interfering in or directing criminal investigations or prosecutions.
That line seems to be fading fast, several officials said.
“There’s a lot to be concerned about,” said Max Stier, president of the Partnership for Public Service, a group that pushes for modernizing federal agencies to be more effective. “The purpose of government authority is to look out for the public’s interest and not the private concerns of the people who are in charge for some limited period of time.”
Stier said it was fair to question whether Patel is the right person to run the FBI, given the power it wields.
“The apparent prioritization of loyalty over what should be the two primary qualities for selection, competence and character, is deeply troubling,” Stier said. “And hopefully that will be explored by the United States Senate,” which would have to confirm any Trump nominee.
Controversies over special counsel investigations — and presidential pardons — are not new. The Iran-contra scandal in the 1980s and the long investigation into President Bill Clinton in the 1990s demonstrated the perils of mixing politics and prosecutions.
Since 2016, however, the tempo and potential consequences of those cases has increased, and at one point last year there were three special counsels operating at the Justice Department.
One official said that while Biden has generally stayed out of the department’s criminal cases, his statement about the reasoning for the pardon of his son showed the depth of his anger.
Michael Greenberg, a former Justice Department official who is now a law professor at the University of Maryland, called the pardon “a small, selfish act on Biden’s part, and I do not hold it against him.”
By comparison, Greenberg argued, the planned pick of Patel “is potentially a devastating blow” to the FBI.
Several federal law enforcement officials said there was nothing particularly surprising about this weekend’s actions. Trump’s hostile views of the FBI are well known, and those involved in the Hunter Biden case long thought he might ultimately be pardoned by his father.
Trump, in turn, seized on the news of the Hunter Biden pardon to suggest again that he will issue pardons to those charged or convicted of crimes surrounding the Jan. 6, 2021, pro-Trump riot inside the halls of Congress.
In a court filing Monday, the special counsel who oversaw the Hunter Biden investigation, David Weiss, pushed back on the president’s criticism of his work, saying there “never has been any evidence of vindictive or selective prosecution in this case.”
Hunter Biden was set to be sentenced later this month on a conviction for lying on a form used to buy a gun and for tax violations. The pardon essentially short-circuits the cases before he would face those sentencing hearings.
The broad language of Hunter Biden’s pardon seems designed to ensure that the president’s son will not be charged with any additional crimes once his father leaves office. It covers not just the crimes for which Hunter Biden was convicted or pleaded guilty to, but any others he might have committed.
And by covering a time span of more than 10 years, the pardon reaches far back enough that the federal statute of limitations would invalidate investigations for all but the most serious offenses.
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