DOJ’s Hunter Biden Probe Complicates President-Elect’s Attorney General Selection

PRESIDENT-ELECT JOE Biden is set to fill one of the last high-profile spots in his Cabinet as he seeks to remake a powerful role that was accused of increasing politicization in the Trump administration. But revelations this week of a Justice Department investigation into his son Hunter Biden's finances threaten to complicate the imminent selection of an attorney general.

Often indelibly associated with the controversies of the president who nominated them, the nation's top law enforcement officer frequently becomes a lightning rod for partisan attacks. Inheriting an active probe involving the president-elect's son, Biden's eventual nominee will all but certainly face a thorny path to confirmation and a heightened scrutiny in office

Hunter Biden's work involving Ukraine and China drew intense attention from Republicans during the 2020 campaign and became a central part of the impeachment inquiry that accused President Donald Trump of pressuring the Ukrainian president to investigate the Biden family. Now, the probe into Biden's finances and taxes threatens to cast a shadow over the incoming administration after news that the U.S. attorney's office in Delaware opened a federal investigation back in 2018.

In the coming weeks and months, the president-elect and his future attorney general will have to navigate tough political waters during an exceedingly polarized time, including on the handling of his son's investigation. Congressional Republicans are already exerting pressure on Biden's incoming administration to appoint a special counsel to independently oversee the probe. And these questions will likely arise at a confirmation hearing for Biden's attorney general nominee, which could be further complicated if Republicans win at least one of the Georgia Senate runoffs in early January and hang onto the Senate majority.

Hunter Biden said in a statement this week that he had only learned of the investigation in recent days. He maintains that he engaged in no wrongdoing and said he believes a "review of these matters will demonstrate that I handled my affairs legally and appropriately." The president-elect, who repeatedly brushed off allegations about his son and his business dealings during the campaign, said he's "deeply proud" of his son and repeated a similar sentiment publicly on Friday in response to a reporter's shouted question without elaborating further on the matter.

Reports suggest that Attorney General Bill Barr was aware of the investigation and worked to keep it private – as is Justice Department policy – throughout the volatile campaign season.

With the probe now public knowledge – if not its scope or details – it will almost certainly become one of the most sensitive issues facing the new head of the DOJ, who will also need to tackle other existing investigations that are politically fraught. Barr recently disclosed that he appointed federal prosecutor John Durham in October to serve as special counsel to oversee the department's ongoing investigation into the 2016 presidential election and whether federal law enforcement broke the law when investigating Trump's campaign.

Barr's move ensures that the probe can at least try to exist beyond the Trump era, but an attorney general is the only one who has discretion over firing a special counsel – and only if there's misconduct, a conflict of interest or dereliction of duty. Barr's appointment of Durham has caused heartburn among Democrats, especially since the attorney general did so privately before the November election, and will likely spark a political clash in the next administration.

As he looks to distinguish himself from his predecessor, Biden has said he vows to protect the independence of the attorney general's office with no interference on what his designate should pursue legally.

"I'm not going to be telling them what they have to do and don't have to do, "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."

Presidents typically choose a close ally to run the Justice Department. But since the Trump era, the president has consistently blurred the lines between government and politics, especially at DOJ.

When he assumed office, Trump selected then-Sen. Jeff Sessions of Alabama, a loyal ally who was the first Republican senator to endorse his 2016 presidential run. But the president quickly soured on Sessions when he refused to rescind his recusal from the probe into 2016 election interference and fired him.

Trump then appointed Barr, who previously served in the role under former President George H.W. Bush. During his current tenure, Democrats alleged that Barr brought to bear the weight of the Justice Department in matters involving Trump and those close to him.

Before Trump, past attorneys general who served presidents of both parties – Eric Holder, John Ashcroft, Janet Reno, Edwin Meese and John Mitchell, to name a recent few – have faced accusations of putting the interests of the administration over the interests of the nation.

Biden is weighing a number of potential attorney general contenders, including several whom he knows personally. He's reportedly considering Sen. Doug Jones of Alabama, federal Judge Merrick Garland, former Massachusetts Gov. Deval Patrick and former Deputy Attorney General Sally Yates. Yates also held a short stint as acting attorney general in the early days of the Trump White House but was dismissed for insubordination after ordering the DOJ not to legally defend a Trump executive order that banned travel to the U.S. from a number of Muslim-majority countries.

Jones, who replaced Sessions following his appointment as attorney general, is a close friend of Biden. Jones previously headed the Office of the U.S. Attorney for the Northern District of Alabama, where he prosecuted two Ku Klux Klan members involved in the 1963 church bombing in Birmingham. Years later, the Alabama Democrat stunned the political world when he won the 2017 Senate special election in a deep-red state but lost reelection in November. His potential appointment could have a built-in advantage because of his connection to the Senate. Still, those who are close with Biden could face more scrutiny from an opposing party concerned about any appearances – perceived or real – of bias toward the president-elect.

Garland, who currently sits on the U.S. Court of Appeals for the D.C. Circuit, became nationally known in 2016 when he was nominated in Obama's last year to fill a Supreme Court vacancy. Even though Garland had previously cleared a confirmation hearing and garnered GOP support, Senate Republicans blocked him from getting a hearing and vote, arguing that his nomination was too close to a presidential election.

As Biden nears his decision on final Cabinet members, Republicans are urging his incoming attorney general to maintain Durham's role as special counsel, and some want the president-elect to keep any federal prosecutors and staff in place who are directly working on the probe of his son.

"If Joe Biden is sworn in as president on Jan. 20, then those U.S. attorneys who are involved in this investigation, their staff absolutely must stay on," GOP Sen. Josh Hawley of Missouri told reporters at the Capitol on Thursday.

"There can't be any talk of replacing or transitioning them. Anybody at the Department of Justice who's involved in this investigation must also be allowed to finish it and complete it," he added.