What Might Happen If Hunter Biden Refuses to Testify (Behind Closed Doors)

Update: Hunter did, as I supposed here, show up in DC only to make a public statement

Because a dumbass Congressman from Kentucky has not told Hill journalists what was in Hunter Biden’s motions to dismiss the other day, at least some of them have no conceivable way of knowing what’s in there, much less the specifics.

As I noted, along with the selective prosecution claim that Katy Tur was sure was the totality of it and the vindictive prosecution that was also obvious, Abbe Lowell also argued that the House GOP has usurped DOJ’s prosecutorial authority and effectively forced David Weiss to charge Hunter Biden with 6 felonies.

No one appears to know whether Hunter Biden will show up for his scheduled 9:30 deposition today, and if he does, whether he’ll do the thing virtually all defense attorneys would advise — to simply invoke the Fifth — or whether he’ll just refuse to answer questions unless a live camera is rolling. But if he does anything but invoke the Fifth, that separation of powers claim is going to take on vastly new significance.

Before I explain why, let me first talk about some wild coincidences. First, Hunter filed the motions to dismiss on Monday, two days before this subpoena, based off a requested schedule change Abbe Lowell made on October 13 and Judge Maryanne Noreika approved on October 19. James Comer sent Hunter the subpoena, setting today’s date and time, back on November 8. According to reports, only in recent weeks have Comer and Jim Jordan and Speaker Mike Johnson decided they’ll hold the vote to authorize the impeachment inquiry that is one of two bases on which Comer issued the subpoena to Hunter this afternoon — after the scheduled time for the deposition that has been scheduled for over a month. And the suit that resulted, yesterday, in NY’s top court issuing an order for redistricting by February was first filed on June 28, 2022; Dave Wasserman says the decision could endanger the seats of five GOP Congressmen, as well as flipping the seat recently vacated by George Santos.

Abbe Lowell didn’t mastermind those coincidences. In fact, Speaker Mike was the one who made the only recent decision: to schedule the impeachment inquiry vote that would give more legal authority for the subpoena issued to Hunter on November 8, for after the scheduled Hunter deposition. On December 6 — the day after Speaker Mike decided to schedule an impeachment inquiry vote — Comer and Jordan sent a letter threatening to initiate contempt proceedings, “If Mr. Biden does not appear for his deposition on December 13.” But Congress is scheduled to leave town tomorrow and this Congress claims to have a rule that members get notice before any votes.

Republicans say they have the votes to approve the inquiry. Maybe they do! Maybe they still do after the redistricting decision! If that’s right, it’ll be one of the only votes the GOP has managed to pass in the entire year of their majority without Democratic votes. Quite literally, the only thing the GOP would have accomplished in a year would be to start an impeachment inquiry that virtually all sentient beings admit is based on no evidence of wrongdoing by Joe Biden.

But if Hunter Biden does anything but plead the Fifth (or testify), that impeachment vote will have been cast after Comer refused what he offered a few weeks ago: an offer for Hunter to testify publicly.

Similarly, a contempt vote — a second contentious vote for those five NY Congressmen and others in Biden districts — would be held after Comer refused what he has boisterously said was sufficient: public testimony. It’ll come from Jim Jordan, not exactly the model for principled use of contempt to enforce Congressional subpoenas. Even so, Trump will exert a great deal of pressure to pass a contempt vote, even on those five NY Congressmen facing an even tougher reelect battle. Let’s assume it passes! All that would make still more clear that this Congress only exists to serve the beck and call of Donald Trump, not Members’ constituents.

If the House held Hunter Biden in contempt, Merrick Garland’s DOJ would likely do what he always does: give it to a Special Counsel. And there’s already a Special Counsel prosecuting closely related issues. Doing anything but giving it to David Weiss would signal all sorts of confidence or legitimacy problems with his authority, even if they’re merited.

If David Weiss were to receive a contempt referral from the House, he’d be looking at what might be a clearcut case of contempt (particularly if Hunter simply doesn’t show up). Based on the Steve Bannon precedent, there’d be a great deal of pressure to charge Hunter Biden with contempt. But that would result in Weiss doing precisely what Hunter’s motion to dismiss accuses him of already: prosecuting him because Congress demanded he do so, prosecuting him to show up for an inquiry that has, over and over, made claims — mostly unsubstantiated — about crimes Hunter allegedly committed. As the motion to dismiss described it,

Many members of Congress, including the last Speaker of the House, Chairman of the House Oversight Committee, Chairman of the House Judiciary Committee, and the Chairman of the Ways & Means Committee are actively interfering with DOJ’s investigation, using their authority to pressure and malign DOJ, and using congressional committees limited to investigating government agencies to conduct a criminal investigation of private conduct by a private citizen— one they are conducting based on a publicly stated presumption of guilt.

On its face, contempt would be justified. Except Congress has not hidden their belief that they are pursuing — this deposition was meant to investigate — crimes they imagine Hunter Biden committed.

Venue would be in DC. And while blowing off a subpoena might be an easy question for a DC jury (it was in the Bannon and Peter Navarro cases), in his communications with Congress, Lowell has established that:

  • He offered to cooperate starting in February
  • He repeatedly raised false claims Congress had made about Hunter
  • Hunter offered to testify in public, which Comer offered then retracted

And that’s before you consider that the subpoena was issued prior to an impeachment resolution, but any contempt trial would happen after an impeachment resolution would have made it clear that this always was about impeachment.

I don’t know how this turns out today. But there’s a distinct possibility that it will result in demonstrating precisely what Abbe Lowell has laid out in one of his motions to dismiss. There’s a distinct possibility that the actions Comer and Jordan take today will provide yet more evidence Hunter will use to argue that the entire case must be dismissed.

I’m not saying it’ll work! I am laying out the dynamic exacerbated by a bunch of coincidences that even Abbe Lowell couldn’t have planned.

61 replies
  1. EW Moderation Team says:

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  2. wa_rickf says:

    Nothing would make James Comer angrier than for Hunter to show up and plead the fifth to every question. Then hold a news conference afterwards to state that he’ll be happy to answer the same questions in a public hearing.

    To frustrate James Comer’s inquiry like that would be such a Trumpian move.

    • Harry Eagar says:

      Clever. Does that open up any consequences; can you improperly plead the 5th?

      I am reading Jonathan Karl’s new book, where he spends all of one paragraph on trump’s alleged desire to ruin the party. Maybe he does!

      Maybe these ‘coincidences’ are a deep plot to lose the House?

      I wish I could enjoy all this

    • ExRacerX says:

      “To frustrate James Comer’s inquiry like that would be such a Trumpian move.”

      Perhaps you’re using “Trumpian” in the pejorative sense here? “Own the MAGAts” would just be stooping to their level.

      • wa_rickf says:

        Sometimes in life, fighting fire with fire is the best course of action.

        This would not necessarily mean “owning the MAGAts,” and I agree doing so would be stooping to their level.

        • ExRacerX says:

          I’d say it’s more akin to flinging feces back at the monkey that threw it than fighting fire with fire—there’s no way to avoid getting even more shit on ya.

          Semantics aside, using your analogy, self-inflicted burns are a distinct possibility.

          Luckily, HB simply reiterated that he’d be happy to testify in public and that the impeachment effort against his father is a sham.

        • BRUCE F COLE says:

          TBH, I’m only vaguely aware of what a naked link is, and am not aware of the rule here that pertains to it. I’ll scan the website again but it’s not in your “comment policy” page.

          Please spell it out or give me a “clothed” link to a post that describes the rule. I know about deleting anything after a “?” in the url, but I’m not as adept at computer use and knowledge as most of the population, and less so compared to users of this site.

          Thanks, and thanks for your work here.

            • BRUCE F COLE says:

              Ah, so I didn’t know about that rule; is it transmitted by osmosis perhaps?

              As to the dKos link above, I thought I posted it with the descriptive text included after the date and index number. Doesn’t that make it not naked?

              I learned about deleting the tracking code from Rayne, and now this from you. Maybe having adding these rules to the comment policy page would make your jobs easier.

              • bmaz says:

                Yeah, well that has been a rule for as long as this blog has existed. If that was not known to you, you just have never really been paying attention. And, yes, you indeed posted a naked link to some DKos bullshit.

                • Matt Foley says:

                  Yeah, well the comment policy says nothing about “no naked links”. Also, the link is self-explanatory. Insulting people for not reading your mind is such a MAGA thing to do.

                  How hard is it to take 30 seconds to update the policy so you don’t have to be so nasty to people?

                  [Moderator’s note: Stop. It’s obvious on the face of it that posting a “naked link” — a URL published without any explanatory context — demands community members consent to possible privacy and security breaches if they click on the link to determine what content is being shared.

                  Even a YouTube link can compromise user’s privacy and security because it will give Google an insight into where that user has been, who referred them, and connect that single click to their existing history if that user is not savvy enough to copy the link and open it in a sandboxed browser.

                  This is a basic internet privacy and security issue. This is NOT a basic how-to-use-the-internet site. Now stop badgering moderation about this; we expect basic respect of informed consent from community members here in comments which falls under the basic rule, “Don’t be an asshole.” /~Rayne]

                  • bmaz says:

                    Yeah, well it has been the general policy here for a very long time. It should be common sense. If you did not read that before, you are either dense or not paying attention. Please pay attention. How hard is it to do that instead of being vacuous? Neither Rayne nor I get paid one cent for our work here, so think twice before you petulantly bitch at us, because you don’t want to see when we really are nasty.

                    • Matt Foley says:

                      I read that dailykos link and instantly understood what it’s about and where it goes without explanatory text. I guess around here that makes me an asshole with no common sense.

                    • bmaz says:

                      Yes, it makes you an asshole that does not give a shit about norms here. And you are willing to dilute the work product here with crap from other joints. You have clearly stated your priorities, and they are not this blog. Get lost.

              • earlofhuntingdon says:

                LOL. The prohibition about no naked links follows nearly every naked link a commenter makes, including in posts about which you’ve made comments. See also the next comment.

              • ExRacerX says:

                Adding some context would be easier.

                Here’s your Daily Kos link:

                Here’s one of the top news stories from a publication on the other side of the political fence:


                Context: What the “story” is and its significance can easily be twisted or blurred by whoever’s framing it.

                • Rayne says:

                  An additional piece of context which would be very helpful is who wrote the piece at DailyKos. Even though I’ve had a username there since the first year DK launched, I don’t click on just any link from that site because the entire community can participate.

          • earlofhuntingdon says:

            Even if the import of what the link leads to is in the text of the link itself, titles and headlines frequently misstate the contents that follow. That’s a reason for requiring at least a short comment about what the linked material is about. Otherwise, it’s just an advert.

            • BRUCE F COLE says:

              Consider me fully educated on the matter now. Thanks. My wife chides me for my internet naivete, so I understand the frustration. Won’t happen again.

  3. FL Resister says:

    Republican Representative James Comer’s constituents must be ‘sittin’’ pretty’ back in Kentucky for their representative in the House to spend so much time chasing Hunter Biden down proverbial rabbit holes.

    It’s hard to believe that the so-called investigations Comer is leading into a private citizen and former drug addict who has paid his lapsed financial debts and become drug-free cannot be considered harassment. https://kentuckylantern.com/2023/06/08/james-comer-is-making-it-hard-to-take-him-seriously/

    • ToldainDarkwater says:

      Well, I feel sure that some portion of his constituents think Comer is a righteous warrior battling forces of evil. No, seriously.

      • Just Some Guy says:

        I’m sure some portion of Comer’s constituents think so too, but it’s important to remember that he’s not particularly popular (he barely lost a gubernatorial primary to Matt Bevin, probably Kentucky’s least-popular governor in our lifetimes), and his district was gerrymandered so as to include his Frankfort residence — a long, six-hour drive away from his constituents in far Western Kentucky. For all of his nonsense about Joe Biden’s corruption, he had no qualms about touring tornado-stricken areas of the state in December 2021 with President Biden and Govenor Beshear — why this hasn’t been brought up more often by the local press here and the national media is beyond me.

        That said, as much as Comer is terrible, it is also up to the Kentucky Democratic Party to field and fund a decent candidate against him, which they have had trouble doing both in his and in other Republican-held districts. The KDP has had a blinkered, not-particularly-strategic approach which in my view hasn’t contested much outside of the population centers of Louisville, Lexington, and the Cincinnati suburbs. Bowling Green, in the west, is a promising exception.

        Kentuckians also need help from people outside of the state in not writing everyone here off as hopeless. That goes a long way.

      • Just Some Guy says:

        Just Some Guy here… I’ve had two different comments I’ve written in response to the above fail to even show up as being in moderation, much less be posted. Is something going on? My comments have been civil, and on topic.

        [Moderator’s note: First, stop sockpuppeting even to leave a message like this. I’ve changed the username on this one but do NOT sockpuppet again, ever. You’ve already been told before not to sockpuppet; I’ve already blacklisted three of your previous sockpuppets back in June this year and will now add this latest one, “Formerly the Artist Known as Just Some Guy.”

        Second, the comments in question were caught by the moderation system. It’s not clear why they were not automatically cleared but something about your comments triggered filtering; you are not the only community member who has experienced this filtration. Stop demanding we clear them — the moderation team will do so as time permits. Simply accept slow comments as the price for site security, or don’t comment at all. /~Rayne]

        • Just Some Guy says:

          I apologize for sockpuppeting, I won’t do it again.

          I wasn’t demanding anything. I was concerned that my comments were being denied publishing due to either a technical error or some seemingly arbitrary exclusion. Thank you for your explanation and for your efforts.

  4. vigetnovus says:

    Well a DC jury voting not guilty on contempt would probably one of the few cases of justified jury nullification, where the triers of fact, correctly conclude that even though the letter of the law may have been broken it was done so in such a Catch-22 way that justice demands a not guilty verdict.

    It is hard to not conclude that even though Congress is not the DOJ, it is still the US Gov’t and that it is infringing on Hunter’s 6th amendment rights to a fair and impartial trial by tainting the DC jury pool.

    The bigger question is would Mike Johnson, realizing the mess that a contempt referral would create with Hunter’s ongoing trials, then order an inherent contempt proceeding and trial before the House? I realize this hasn’t been done in many many years (per the House Practice guide not since 1935), but there is still a precedent for it. Not sure if there is a Congress Jail or not….

    • Shadowalker says:

      Trial before the House? You mean they are going to impeach Hunter? You do know impeachments in the House are not trials, which are Constitutionally only conducted by the courts and the Senate in cases of impeachment.

      • earlofhuntingdon says:

        To rephrase, impeachments in the House are a form of indictment or charge. Trials in the Senate lead to a verdict of guilty or not of the impeached offense. But the process is civil, not criminal; it is quasi-judicial, in that Art. III courts have nothing to do with it. It’s a political process, not a judicial one.

    • jecojeco says:

      I guess if Johnson’s GOP house wants to all but guarantee dismissal of Hunter’s criminal charges they could vote to jail him for inherent contempt. It would be great political theater and they really don’t don’t care what happens to Hunter after November ’24. This house is all about providing fodder for Fox and Newsmax talking heads. Except for sabotaging Ukraine’s battle for survival, they’ve done nothing legislatively.

  5. Chuffles says:

    Hunter Biden just made a statement that he will not provide a deposition in private. He was prepared to provide testimony in public.

    He then called the impeachment inquiry “shameless.”

    • Chuffles says:

      Jordan and Fox have established their response to HB’s statement, focusing heavily on the qualifier that Joe Biden was not “financially involved” in the business dealings. Proof, I guess, that Biden is lying and guilty.

      Jordan also blew off the question about him not showing up for a subpoena, saying he wrote a letter and Democrats didn’t respond.

      These people are intolerable to watch…

      • freebird says:

        Agreed, they are revolting. If the Republicans took a look at President Biden’s tax returns after he left office they would realize that he did not need to take bribes. The returns, which are online, show more than $15 million in income from books and speeches. His tax payments are more than than what HB made.

        The bribe argument makes no sense when ex-presidents and ex-vice presidents can make speeches at $200k a crack.

  6. DinnerAtAntoine’s says:

    Given the Bannon-Navarro precedent he should have appeared, from the standpoint of what is in his best legal interests. It’s another legal battle & more costs for him at a minimum. And I’m not sure I see how going before a court & arguing respect for & rule of law while also refusing to participate in process because he says it’s illegal is helpful to his larger case.

    I’ve been pro-Lowell & his aggressive stance in many respects but he should be getting a result for his client.

      • DinnerAtAntoine’s says:

        Thank you, I hope you’re right, I’m strongly in favor of the civil lawsuits. IMO the best result for the client is freedom, personally & from the costs of these cases. Lowell has had success before for the Clintons & Kushners, he is the best, & I mean that sincerely.

        • bmaz says:

          So, let’s get this straight: “You” are “strongly in favor” of pissant local county attempts to affect who the nation elects a POTUS?

          How many of the 3,143 counties in the US are you “in favor of” unilaterally controlling national Presidential elections?

      • DinnerAtAntoine’s says:

        I rather thought that was the subtext of the motions to dismiss, that the House GOP was improperly intruding upon the judicial branch’s & the DOJ’s prosecutorial functions.

          • DinnerAtAntoine’s says:

            I must confess, I’m occasionally imprecise while hammering out a blog post with morning cafe. However I think this is too fine a point. If it’s not illegal he should appear. If it’s not intruding illegally on his DOJ case then – at least as to Congressional acts – what is he arguing in his MTDs? I suppose legal but abusive is fine & accurate, but when it comes to “legal” abuse of civil rights IMO that’s still “illegal”. Anyway, I don’t mean to belabor, thanks for the response.

            • John Paul Jones says:

              You’re letting “appear” doing a lot of heavy lifting here. Comer et al only wanted him to “appear” behind closed doors. While the word implies open-ness, using it the way Comer et al are using it actually means the opposite: closed, not open.

            • Shadowalker says:

              It’s not a question of illegality. I’m not even sure an Article I power could be used illegally. The courts aren’t going to issue an injunction, rather, they will just dismiss the case(s) as a constitutional due process violation, either in the trial court or on appeal. Which is what Lowell is setting up with the MTD.

  7. Upisdown says:

    If the contempt filing needs to get taken up by the same DOJ that Jordan accused of being engaged in obstruction and weaponization, good luck with that.

  8. Rethfernhim says:

    The filing discussed in yesterday’s “…Motion to Dismiss…separation of powers” analysis here on emptywheel now makes even more sense. It seems that Lowell has set a trap: if Congress pursues this, they prove his case. If they don’t, his client is protected from providing closed door testimony and subsequent selective leaks.

    • emptywheel says:

      That’s the point of this post: By pursuing him they risk doing more damage to the prosecution. And they don’t appear to understand that.

      • Ithaqua0 says:

        I think they don’t care. The point is to hammer home “Biden Crime Family,” which they can do much more effectively than prosecution on late payment of taxes (Ithaqua shorthand for the actual charges) or lying on a form when buying a gun (like 1/4 of all gun owners probably have) will do. And, if the prosecution fails, they can add “Corrupt Biden DOJ protecting Hunter” to the narrative; after all, they are already saying it, which adds to the Biden Crime Family theme. Conviction on late payment of taxes or whatever weakens the overarching narrative and ends that part of the story.

        • LaMissy! says:

          We’ve seen this before: her emails! Benghazi!
          They don’t care – those who want to believe them will; it’s all become an instagramable moment. Alternative facts, etc.

      • kpavlovic says:

        There is a lot that they don’t understand, but I think that this is a case of not caring. If they contribute to tanking the prosecution, that will just be spun as more evidence that DoJ and the courts are engaged in a coverup of impeachable offenses.

      • Rethfernhim says:

        Yes, and I’m deeply grateful to this site for helping me and others understand how the legal strategies and PR strategies and the facts and the law all work together. I can be slow, but I want to understand what’s happening, and I get that here. I’m going to click on the “Support” button now…

  9. kpavlovic says:

    There is a lot that they don’t understand, but I think that this is a case of not caring. If they contribute to tanking the prosecution, that will just be spun as more evidence that DoJ and the courts are engaged in a coverup of impeachable offenses.

  10. AndTheSlithyToves says:

    Bless you and thank you, Marcy!!
    Quote of the day from a commenter on another site:
    @hugegamer5988 | 4 hours ago
    “I know I said I’m done with Hunter Biden and he’s lost my vote. But playing the GOP this hard might change my mind.”

Comments are closed.