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>> Tom Church: This is the Libertarian podcast from the Hoover Institution. I'm your host, Tom Church, and the Libertarian is Professor Richard Epstein. Richard is the Peter and Kirsten Bedford senior fellow here at the Hoover Institution. He's the Lawrence A Tisch professor of law at NYU and is a senior lecturer at the University of Chicago. Now, Richard, we've spent a lot of air time recently talking about former President Trump's legal woes, and now it's time to talk about the Biden family.
And unfortunately for, I think, maybe the American public, there's plenty to discuss. So let's start with Hunter Biden's legal woes and the still unfinalized plea deal between Hunter and the Justice Department. The charges here are related to on some unpaid taxes and a gun charge.
And recently when Hunter Biden went in to accept the plea deal, which it looks like includes a two-year pretrial diversion agreement, meaning he would have to satisfy some restrictions and then these charges could get dropped. There were issues involving the details, and the judge, well, didn't allow this to go forward. Hunter pled not guilty until a new agreement could be made. So I'd like to know, Richard, is this a sweetheart deal like many people are saying?
I mean, it doesn't appear that there are more charges forthcoming for Hunter Biden, and many people believe that there is plenty more that he should be charged with. >> Richard Epstein: Well, the reason the judge blew this whole thing up is she was worried about whether there would be violations of various statutes which have to do with his statuses and registered agent for a foreign government. And the way the agreement was worded, it was kind of sly.
And it seems to say that virtually everything that was not in this particular agreement could no longer be sued upon, so he would get insulation with respect to a set of very serious charges. And I think that's what made her bald. And once that thing was pulled outside of it, there's still the question that Mister slowpoke, that is, David Weiss, would start to speed up again and may want to hone in on those situations.
But there's no question to my mind that the deal was actually an outrage, it should have never been done. Let's just start with what it is that Weiss, acting solely in Delaware, could have done. He could have thrown him in jail on each of two counts for a year and he could have fined him $25,000. Well, you're talking about somebody here who doesn't have, shall we say, a sterling record of general overall social performance.
And there's no reason why it is that the plea bargaining doesn't start at the maximum. If you fight, we're gonna do this to give him everything, when the threat of doing very credible stuff is just crazy. So I did not believe at all that this was an appropriate deal. Second problem is there were many counts having to do with back taxes that mysteriously just disappeared, the statute of limitation was allowed to run.
It's perfectly standard practice when you're dealing with these cases when the statute of limitations come up and you go to the defendant, say, you don't want us to sue you, and we don't want to sue you either. So what you will do is agree to waive the statute of limitations so that we continue. That evidently was not done there. And so where's Mister Weiss? Why is he in fact, dragging his heel? Third fact, why is this thing taking five years to move forward to one thing?
It seems very clear that the whole thing is being slow walked. And, it cannot be something that slow walked at the behest of the defendants, it's the prosecutor who decides not to go. So Mister Weiss has often portrayed himself as a frustrated man who went maybe to the bunk trunk to the Justice Department and Mister Garland and his subordinate. And said, I'd like to move this thing to Washington DC or to California to get more traction as a special prosecutor.
Maybe he said it, maybe he didn't, but even within the sort of competence that he had, this strikes me as having all the signs of a sweetheart deal. I don't care that Weiss was appointed by Trump, I don't care that he was confirmed by Biden and kept in office. But I'm just looking at as something which should never have taken place under these circumstances.
And in fact, when you start talking about the stuff with foreign agents, to try to sneak that in without being explicit about it as part of a comprehensive general lease, that's just not good legal practice at all. So I think, in effect, that this is a very, very bad precedent that takes place. And when you start looking at who's in charge, it's Merrick Garland who works for Joe Biden and other people who work for him.
And so the whole thing has, I think, a kind of stench about it, wholly apart from other random speculations having to do with, of course, the much more important issues. Is to what extent does the Biden activities dealing with Ukraine is sitting on the Burisma board and everything else, does that implicate his father in something? This is not a delicate constitutional issue, the charge is that these were bribery cases, pure and simple.
And if you look at the list of impeachable offenses, bribery is right there front and center, so you don't have to worry about, as you did with, for example, the Trump prosecutions for the Ukraine, which I always thought was drummed up and not very serious. You don't have to have some notion of loss of confidence, breach of fiduciary duty, maladministration, plus some invaluable sense of recklessness.
You just have, this is a court case, there's no legal complication, there's just a lot of factual disputes. And on those, I mean, people will have very, very different views at present, but the evidence is not, at this point, fully accumulated, there's going to be, I think, another hearing later this week, and my guess is that there will be more to come.
And so I think the woes are Hunter, or just, shall we say, an invitation to consider the broader woes of Joe Biden in this particular case, he is not on solid ground. >> Tom Church: Let's talk about Joe Biden in just a second, really quickly. If Hunter Biden were to plead guilty to the terms offered to him and then violate the agreement in the pretrial diversion setting, would he end up going to jail at that point? What happens then?
>> Richard Epstein: Well, I mean, a lot of it takes place is there's in a second round of negotiation between the prosecutor and the accused. And what happens is the prosecutor does have the power to reinstate, in many cases, a sentence that that's the way the original pre agreement was done. But of course, there are always complications, he will say, I'm sorry I did it, but there was a confusion, there was a mistake.
There's something that's in the record that we didn't anticipate, so you ought to give me another chance. Or if you're gonna throw me the book, you're gonna show it to me somewhat, not at 100%, at 80%. All of these cases involve renegotiation. And remember, the threat against the prosecutor is I'm not gonna yield to that, you can prosecute and I'll start to defend it.
That's gonna take you time and money and expose you to the risk of actually losing this case when it goes to court, in whole or in part. So these renegotiations are bilateral monopoly kinds of situations. There's nowhere that Hunter could go except to the prosecutor, and nowhere the prosecutor can go except the Hunter.
And there's gonna be a bargaining range, and it will depend upon the skill and the facts of the particular case as to where you come out, so you don't try to predict those sorts of things. These used to be many deferred prosecution agreements, if you recall. Chris Christie was one of the masters of this, and they were often in securities cases. And the charge would be, for example, in the famous Bristol Myers Squibb case, is what you did is you sold goods in order to improve your product.
But it turned out there was a secret deal That you would take them back in the next pay period, and so these were sham sales. And then the question is, what do you do? You put them on probation. And then it was always understood that if something went wrong, the thing would have to be renegotiated. And there was not a unique solution. You would reinstate the prosecution, but that would then open you up to another set of plea bargains if it turned out that those things were developed.
So I mean, you have to be extremely careful when you try to predict what's gonna happen. It would obviously be bad news for Hunter. I mean, the greatest risk that he faces, I think, is that all of a sudden we get a new president of the United States. And he tries to appoint a new district attorney for fellow for Delaware, and all of a sudden the old deal starts to fall apart. It's extremely important to remember that these deals are made with the office, but they're also made with the man.
And if the man departs from the office and there's a breach, it's the second person who takes it over. And that means that you may get a very different kind of reception than in the first case. I've been involved in a bunch of cases involving various investigations, really quite vivid, saying, we're gonna charge you with everything in the book.
It's one person who's driving that thing, that person, as James takes to another office, and then somebody else looks at the files, I'm not interested in this. And so what's your response if you're the person under investigation? You don't poke the bear, and so you could wait two or three or four years and nothing happens, you think that you're in the clear.
But the last thing you wanna do is to go to somebody and said, hey, are we gonna get a formal release, because you'd rather have the silence and then force somebody to make a commitment. So these things involve the most delicate kinds of negotiations for everybody, and Hunter is well lawyered up, I'm sure. >> Tom Church: Well, let's turn to President Joe Biden.
The House Republicans have launched their own investigation into the Hunter Biden case, as it's been handled with the Justice Department. With the obvious extra target being, I think, President Biden, right, as they do more discovery, as they do questioning. Now, looking through this, some people, I mean, it's apparent that Hunter Biden received millions of dollars from various foreign governments or entities.
Some people say that Hunter Biden was talking a big game in terms of the influence that his father might have on these deals. So others say Joe Biden was aware and involved. So let me ask you, what would constitute crossing the line for Joe Biden, and what should we be looking for as this committee continues to push and investigate and unearth more details?
>> Richard Epstein: Essentially, what you have to look for is something that is clear from the record that he is available to provide assistance. It would be completely unrealistic to assume that this man is going to be silly enough to get himself involved in the initial negotiations, but he's an insurance policy, so that if something goes wrong, he could intervene. Let me go back to one of the events that was very disputed a long time ago.
If you recall, there was a guy named Viktor Shokin, who was the prosecutor, and we know very little about him in the United States. And he could have either been somebody who was protecting Burisma or he was somebody who was going to attack him, and that what we then see is Joe Biden getting up there. And what he says, boy, did I sock it to those guys when I told them they had to get rid of Shokin or they're not gonna get this billion dollars in aid.
And the first thing that happened to me was, why on earth would he say that at all? Generally speaking, there is not another instance anywhere in the record that he intervened on internal matters having to do with a prosecutor dealing with a company in which some was there. He doesn't do anything, and so my view about this is that this was payback time.
The best way to read this is to assume that he's only making this particular situation not because he wants to make sure that good government will supply in Ukraine. But he's got a son who's involved in this transaction. So if you don't know one way or another what this guy Shokin is about, the assumption's gonna be is Joe is gonna intervene to help the son.
It's not going to be that Joe, the good government maven, is going to intervene in order to make sure that the Ukraine is a place of peace and heavenliness. And so I read this as a brilliant coup on his part. He goes to the rest of the world saying, hey, I'm now a reformer. But anybody who wants to get into touch with Hunter Biden will know, hey, he came through for one guy when he got rid of Shokin, and he could come through for you. So the inside game is very different from the public game.
And from the beginning, I always thought that that was pretty strong evidence, given its uniqueness in the circumstances, that the money which everybody knew that Joe Biden got some of it, was going to make it back. Now, who does it have to go to? One of the standard rules about this is you do not have to pay the money for Joe Bryden to be a director. Let's go back to the income tax for a second. This gives you a very nice comparison.
I earn $100,000, and what I do is I tell my payor, don't pay the money to me, pay the money to my child. And then the child wants to report this as $100,000 worth of income. Uh-uh, going back to 1930 in a famous case called Lucas and Earl, the deal is restructured. The money was earned by me, so it's going to be treated as though it were paid to me.
So I get the income, and then thereafter there's a subsequent transfer which would be subject to either the gift tax or the income tax depending on the relationship that I have with my son. And so if Biden directs the money to anybody within his family, that is, if Joe does it. Or if Joe instructs Hunter to direct it to anybody in the standard, the money should be treated as if it came to him directly and then was redirected. And so what you do is you look at these payments.
I think it's utterly indisputable that there are huge numbers of shell corporations that are set up which receive money from overseas, from Ukraine. Maybe from China, from the billionaires who are sitting around in Russia and so forth. And the question you then have to ask, is it only hunter who commands that stuff? Well, what could Hunter give them? He can't give them anything except access.
And so when you look at Devon Archer's statement saying, we put them on the phone one way or another, Dan Goldman, whom I think is just terrible on this issue says, they're just talking pleasantries. No, that's not what they're talking, he's saying, I'm here for you. And there was a little comment in one of these stories by Michael Regan, who said, if my father knew that I was talking to anybody, it would have been the end of it all. So I regard this as all highly, highly improbable.
And let me just make one other comment about how you want to think about evidence. What the Democrats are doing is they're trying to treat each piece of evidence in isolation and to say that standing in isolation, it doesn't make out a case of bribery. That's the wrong way to look at a criminal case. What you do is you follow the model that Jack Smith has invoked, is you look at each of these pieces and you put it into a mosaic.
And then what you try to show, there's a coherent narrative about how all the pieces start to work together. And that's exactly what you have to do in this particular case. And it turns out that, for example, if Joe was backing stopping you and there's a dispute in the local company, it may well be knowing that he could intervene with a billion dollars worth of aid being withheld. Joe's, rather, Hunter's gonna get his way without having to talk about his father.
Now, there's something else, people have always said, well, he invokes the name of his father to these people. But we don't even know if Dad was sitting next to him, Dad even knew that it was happening. But then again, it's the wrong way to look at the evidence. Suppose it turns out that senior Biden had nothing to do with this and that everybody on the other side of the transaction knew this.
Well, then, if you say my father's sitting next to me, it has absolutely no consequence with respect to everything. He's not involved in the case, so what? But if it turns out that there is a Deal that's fixed, saying, dad will be the backer up. And you say, my dad is sitting next to me. It doesn't matter whether he's sitting next to you. What matters is you've now invoked the name and the senior Biden has signed on to this particular situation. So what is it?
There's obviously, you can't get convictions without trials, and you can't even begin impeachment proceedings, I think until you run an investigation. There is this huge political dimension saying it may be absolutely foolhardy, to bring this as a case, given the slenderness of the Republican majority in the House and the weak Democratic control over the center. But if you're just trying to figure out what the strength of the particular case is, it certainly warrants further situation.
And seeing as much as I've seen, and having spent a fair bit of my life trying to look at evidence gathered by other individuals since I never gathered myself, I think that this is very serious kinds of stuff. And I think, in fact, the further evidence that you're going to get is only going to be worse. If there were exonerations, evidence out there that Joe or Hunter or any of their family had, that would already be put on the table.
So what you're doing is you're getting people looking at bank accounts, other transactions, photographs of this person, the recent revelation that they have a fancy dinner in Washington with a Russian oligarch, and so forth.
All this stuff starts to add up that there's a pattern in practice, and that phrase has always been used to describe how you piece together an illicit set of connections from fragmentary evidence, which looks to be much more coherent when it's put out at the same time in a coherent timeline narrative. And that's what the Republicans are trying to do. And thus far, the Goldman stuff is frankly pathetic. As a particular kind of defense, it sounds like an apology.
This man was trying to prosecute Mr Trump, and he knows what a case looks like. And this case is much stronger on its record than anything by far that had to do with anything that Trump did with respect to Zelensky while talking on the telephone in front of 23 other people. Secrecy breeds for suspicion. And all of Trump's actions were public and maybe ill advised. But the strength of the two cases are completely at opposite ends of the spectrum.
I thought that the Ukrainian prosecution against Trump never should have been bought, that it was hopeless abroad. This one, it strikes me the only reason not to investigate further or to prosecute further in this particular case is because it is politically counterproductive for the Republicans. It is not because that what we see here is anything that remotely looks like a form of exoneration. >> Tom Church: I'm gonna end with this, Richard, actually, a two parter. I want to follow up.
You just said not a great look for the Republicans politically. Would Trump supporters have to look at this? And if they want to push forward the Biden investigation or impeachment, shouldn't they also, by the same logic, accept that Trump deserves to be the target of the special investigation? >> Richard Epstein: Well, as you know, I did write a recent column. >> Tom Church: Yes, you did. >> Richard Epstein: With the columns. And I'll make it very briefly as I try to look at all of this.
And I thought that the defenses that were put forward by conservative columnists in this particular case were, in general, completely misguided. What they did is there were four separate counts, two of which I don't think mounted anything. One was the question of whether that there was a receipt of some tangible benefit because of the violation of the honest service statute.
And the skilling case made it pretty clear that you had to show that there was a fiduciary duty and a breach of that duty that was understood by the defendants. Nobody's making that case here. Well, what Smith has done is he put a weak claim in there. Then there's all the stuff about what happened in front of the Capitol where Trump people started to speak, and this was the source of the impeachment at the time.
I thought it was an incredibly weak impeachment, John, because the things that Trump said go there and protest peacefully, in fact, all within his constitutional rights, and the things that he didn't do were not things that he was legally required to do. So they're probably not illegal. So the usual epithet about inexcusable, stupid, vulgar, and more was certainly true, but it was not an impeachable offense.
On the other hand, when he starts trying to get people to put slights together, and he wants to basically pressure pence to keep putting forward a series of very, very, completely incorrect theories about how he has this particular priority to go forward. You can convict simply by writing that complaint. But what's really going to have to happen in this case is you're going to see a lot of evidence on two things. One is what, what did Trump know at the time that this happened?
And I do not think it's a defense to say he saw all sorts of evidence that indicated he was wrong, but in good faith, he believed that every bit of that evidence was wrong. Whenever you're talking about good faith in a fiduciary sense of one kind or another, or a criminal sense, a notion of reasonableness is part of it. If he's the only person in the world who believes that he's lying, and if he's not lying, he shouldn't be believed anyhow, because he's reckless and stupid.
And so what happens is he's going to have to show some degree to make that case out reasonably in order for it to work. He's not going to do it. And then the key question is gonna be, how do they address Mr Pence and under what circumstances and what forth? So I think, in effect, if you just concentrate on those issues, it turns out you're not talking about public debate, you're talking about a real charge of intrigue.
And I do not know all the evidence, although there was yet another memo that came out today, which sort of indicated, well, we may lose in this particular case before the Supreme Court, but it's worth a shot. And if Trump read that, it's just further evidence of the fact that he knew he was playing a dangerous gambit which could get himself convicted. So my view about this is the political question. Jack Goldsmith is a big person on this issue, is one that everybody has to think about.
If the case were weak, I would certainly recommend that it be completely disregarded, but it's not a weak case. So the political question is very hard. If you have a pretty solid case, which you can back up with factual information, which is not in the pleadings, but nonetheless within your possession, if you've got yourself a witness list, that can be really devastating. You're gonna win as the prosecutor.
And when the lawyer for Trump starts to say, this was just aspirational, that's just a joke. And when you start making loose statements like that, it means that you're trying to re-characterize the facts in a very favorable way. So ultimately the issue is, do we think it's worth being a prosecution like this against somebody like Trump who's running for president, where it distorts the election? And here's the difference between Trump and Biden. That's worth noting.
Trump is not going to have an obvious repeat next time, either he wins or he loses, but that's it. Biden, this is ongoing in some sense. We have no idea what kind of continuing relationship he had. And if he's willing to back somebody, maybe willing to back somebody else on these kinds of things, the fact that that's alive and active kind of behavior can't be dismissed out of hand.
My guess is it's probably not the case at this point, because my guess is that the moment it turns out this thing became hot, everybody just dropped this particular arrangement in the hope that it would go away. But if this thing goes and Biden is re-elected and the whole prosecution by impeachment disappears, who knows whether there could be a recrudescence of this through some other channel?
And so that makes him, as it were, more likely to be a recidivist, even though it's a low chance, than Trump, for whom I think recidivism is a very remote chance indeed. >> Tom Church: Last one, Richard, and I'll ask for a quick answer. Has the Justice Department really ever been viewed at as impartial and fair? And what would it take to get back from its current perception, the perception of. Of the Justice Department to be less politicized?
>> Richard Epstein: Well, I think at this point, Merrick Garland has a terrible reputation. >> Tom Church: You've made that clear, yeah. >> Richard Epstein: Why, well, on the one hand, he sounds decisive in everything that he starts to do. And secondly, he's done other stupid things that tie into all this, like thinking that people who protested PTA meetings may be described as terrorists. You back off of that.
But basically, apologizing for something you've done is not the same thing as never having done it at all. And then he has all the witnesses who said that the investigation that they wanted to carry out elsewhere was stopped. And so the question is, whom do you believe in why? And here, I think it's pretty clear that you have to believe the guys. All that Garland could do is issue a general denial, and they're giving very, very specific charges.
These are guys who are putting their lives on their line. And, in fact, what happens is none of these things which could have taken place did ever take place. So the issue would be, if David Weiss needed to go to Washington and he needed to go to California, why isn't there somebody in the Justice Department that was prepared to put that thing forward? These stories are in direct contradiction to one another.
And the Garland story is a general denial, and the two agents are giving very specific charges and very specific accounts. And when it comes to sort of assessing credibility, generally speaking, the more concrete and specific the inquiry, the more credible that it turns out to be. And it turns out what the Justice Department has done, it has been an absolute limp rag in this situation. Which is why everybody is so completely unhappy with the way in which they've performed.
And it may well be that it's not good sense to try to go after Joe Biden by impeachment. But I don't think the calculus is exactly the same, since he's not running for office. If somebody decided that they would want to go after Merrick Garland for essentially facilitating fraud on the United States government, I don't know exactly what the charges would look like.
But if the Republicans are out for blood and they want, basically, a compromised position, Garland becomes a much more attractive target. And we just have to wait to see this thing plays out. There's a long time to go between now and the election. And there's a long time to go between now and next week. Because, as best I can tell, each week has its own set of revelations, and it's extremely difficult to understand what their implications are when we just see it as the public.
But there are people in the private who know a lot more than we do, and they're the ones who are going to make the decision. >> Tom Church: You've been listening to The Libertarian podcast with Richard Epstein. As always, you can learn more if you head over to Richard's column, The Libertarian, which we publish at Defining Ideas at hoover.org. If you found this conversation thought provoking, please share it with your friends and rate the show on Apple Podcasts or wherever you're tuning in.
For Richard Epstein, I'm Tom Church, we'll talk to you next time. [MUSIC] >> Female Announcer: This podcast is a production of the Hoover Institution, where we generate and promote ideas advancing freedom. For more information about our work, to hear more of our podcasts or view our video content, please visit hoover.org. [MUSIC]