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OPINION

Required Remedy: The Impeachment of Merrick Garland

The opinions expressed by columnists are their own and do not necessarily represent the views of Townhall.com.
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AP Photo/Manuel Balce Ceneta

Until recently, there had been at the least strong suspicion of corrupt influence peddling involving the Biden family, strongly implicating Hunter and James Biden, and inferentially and circumstantially, Joe Biden.  But to the court of public opinion, palpable criminality had not been solidly proven.  However, this state of affairs is being dramatically revamped as we speak.  

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Recent revelations have, of course, shown Hunter’s widespread, serious criminality, although he is being charged only with misdemeanors for not paying admitted tax liabilities.  The credible testimony of IRS whistleblowers has shown far more.   Specifically, in 2014 and 2018, they said, income was probably concealed by Hunter, as well as other portions of the $8.3M he received from foreign dealings from 2014 through 2019.  

A few examples should suffice.  Hunter transferred payments from Ukrainian energy company Burisma in 2014 to a Chinese company, which then claimed to have “loaned” the money to Hunter.  Later, Hunter took large deductions on his income tax returns for paying a claimed employee who was, in fact, a prostitute.  Additional millions in income were simply never reported.  These were easy pickings for a tax evasion prosecution but never charged.  

It has also been strongly shown that Hunter was acting as an unregistered foreign agent both for Ukrainian and Chinese interests, thereby violating the FARA statute.  But these crimes were not charged.  

The District of Delaware investigating prosecutors, headed by U.S. Attorney David Weiss, had recommended felony charges against Hunter but were rebuffed both by superiors in the Justice Department and by other U.S. Attorneys in California and D.C.  

On at least one occasion, Hunter’s lawyers were tipped off by the government to an important prosecutorial action, a coordinated day of multiple witness interrogations.  On other occasions, according to IRS whistleblowers, they were prevented from taking necessary investigator steps, including search warrants on Joe Biden’s guest house where Hunter had stayed and on Hunter’s storage locker. Generally, any investigation that might come close to Joe Biden was quashed. 

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So, the question arises whether there is any remedy for Hunter’s serious but uncharged criminality or for the failures of prosecutors to prosecute.  The quick answer to Hunter Biden’s criminality is “no.”  Most statutes of limitations have run, and he has made a binding plea deal with the prosecutors, which is possible but highly unlikely to be rejected by the reviewing Court.

If a private citizen or public official not in law enforcement were to have stymied an investigation, that would constitute obstruction of justice, as occurred in Watergate.  But since investigators and prosecutors have wide discretionary latitude, absent clear proof of corrupt intent, they are in the clear as to criminal conduct.   

But there is at least one official who so blatantly breached his duties that he should be held accountable and who still can be so held.  That official is Attorney General Merrick Garland.  

How did Garland breach his duties?  First and most obviously, he defied the published regulations of his own Department requiring the appointment of a Special Counsel in any criminal case involving a conflict of interest with the Department of Justice:  

28 C.F.R. Section 600.1 requires that:

“The Attorney General…will appoint a Special Counsel when he or she has determined that criminal investigation of a person or matter is warranted, and (a) the investigation or prosecution of that investigation or matter…would represent a conflict of interest….”

28 C.F.R. Section 45.2 provides that a Department of Justice employee has a conflict of interest if: 

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“He has a personal or political relationship with any person or organization substantially involved in the conduct…or any person or organization which he knows has a specific and substantial interest that would be directly affected by the investigation or prosecution.”

In short, since Hunter Biden is the son of Garland’s boss, President Joe Biden, his Department could not prosecute Hunter’s case without bias and conflict of interest.  Appointment of a Special Counsel was, therefore, Garland’s clear duty, one he deliberately failed to perform.  

Since Hunter Biden was seemingly selling “access” to his father, the possibility had always loomed that any investigation and prosecution would substantially affect his father.  After all, Hunter himself claimed in an email to his daughter that he was sharing fees with his father.  Any evidence that Hunter’s father either intentionally or carelessly allowed Hunter to sell influence, or had shared income with him, would substantially affect the senior Biden.  No one can argue with a straight face that there was not a conflict of interest.

To accentuate the failure of Garland to appoint a Special Counsel, Delaware U.S. Attorney David Weiss twice reportedly requested Garland to be given Special Counsel status, which would have freed him from the necessity of asking “Mother, may I?” before taking appropriate investigative steps.  In both cases, Garland reportedly refused Weiss’s request.

At the same time, Garland repeatedly told the public and Congress under oath that Weiss was free to run his investigation without interference.  He stated that Weiss had full authority to determine whether, what, and where to prosecute Hunter Biden.  

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If so, wasn’t Weiss essentially acting as a Special Counsel given this independence?  He would have been de facto Special Counsel if what Garland said was true.  But it wasn’t.

Since the seminal governmental misbehavior comprising the Watergate scandal, our society recognizes the embedded tropes that “No man is above the law” and “The coverup is worse than the crime.” These maxims have been flouted throughout Garland’s approach to his boss’s son.

We may never know fully what actions Joe Biden took at the behest of Hunter.  We may never know beyond a doubt that, as Hunter wrote, his daughter, Joe Biden received half of his influence-peddling fees.

But we do know that punches were deliberately pulled, which otherwise may have informed the public as to Joe Biden’s corruption or lack of same.  

We are left to wonder whether it is accidental that the Chinese spy balloon was allowed to traverse our country unimpeded.  We may question whether our timidity in protecting Taiwan is the result only of unbiased policy decisions.  We may wonder how Hunter Biden’s client Igor Kolomoisky was able to loot Ukraine’s biggest bank for five billion dollars, much of which was replaced through foreign aid.  These are not inconsiderable concerns.

As a result of these failures of our own processes, the only remedy left for the American public is the impeachment and removal of Merrick Garland for failure to perform his duties and for lying to the American people.

While it is conceivable that Congress would impeach Garland for removal to occur, the major media must publicize the issue fully and fairly.

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Don’t bet that this will occur because if you do, you would be wagering on the intelligence and fairness of a partisan media, the root cause of the problems we have been discussing here, and so many other key public issues.  

John D. O’Connor is a former federal prosecutor and the San Francisco attorney who represented W. Mark Felt during his revelation as Deep Throat in 2005. O’Connor is the author of the book, The Mysteries of Watergate: What Really Happened.

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