On the heels of a federal judge rejecting the Hunter Biden plea deal, Merrick Garland has announced the appointment of a special counsel to look into the matter. My friend Tom Hall, who writes the superb blog The Back Row Manifesto, has called out the absurdity of what he dubs this “self-own” by the DOJ, and how the left continually, maddeningly feeds the right wing’s narrative by accepting its false equivalences. He’s quite right, of course. 

But let’s dig into the Garland decision a little more, because it tells us a lot about the current state of play in American politics, and what kind of strategy the forces of small ‘d’ democracy ought to pursue in the coming, crucial fifteen months as we head into Election Day 2024. 

INSTITUTIONALIZED

By now it’s become tedious to say that Garland is an “institutionalist,” which is part of why it’s taken two and a half years to finally bring indictments against Trump for his various crimes. (Then again, no one goes around saying Fani Willis is an institutionalist and it took her that long to bring indictments, too.) 

I don’t have the patience to restate the particulars of Hunter’s legal woes (you can read about them here, if you wish), but apparently they involve illegally obtaining an unlicensed firearm, drug abuse, and some shady business dealings trading on his father’s name. Suffice it to say that this is the tawdry but mundane stuff that attends many presidents and their circle of relatives, from Donald Nixon to Billy Carter to Roger Clinton. (But by the way, shouldn’t the right wing be championing Hunter over the gun thing?)

I don’t condone a politician’s child—especially a US president’s—exploiting their parent’s position for financial advantage, with foreign entities least of all. Hunter must face the music for that, and he is being made to do so. But four years of relentless Republican digging into the matter has in no way implicated his father and almost certainly never will. 

Hold onto your hats, but it’s beginning to look like all the Republicans are trying to do—gasp!—is use Hunter’s problems as a cudgel to batter his dear old dad, an effort that is as transparent as it is groundless. They would do that with any Democratic president, of course, but they have a special incentive at the moment because they are trying to defend the most openly criminal and corrupt president in US history, who just happens to be the most recent Republican occupant of that office. In mounting that defense it is very useful for the GOP to try to paint the subsequent Democratic administration as just as bad or worse.

They would also like to piss on our heads and tell us it’s rain.

Of course there is also the matter of the GOP’s wanton hypocrisy, as the very same Republicans lighting their hair on fire over Hunter and Burisma had zero fucks to give about the Trump children doing much, much worse, with utter impunity. (Exhibit A: the sweetheart $2 billion equity deal Jared made with the Saudis, thanks to his father-in-law deputizing him to be his agent in the Middle East, the KSA in particular.) 

But by now we are inured to Republican shamelessness. 

Hunter Biden is now correctly enmeshed in the criminal justice system; I say, let the investigation proceed, and—like Benghazi, or the Dunham inquiry, or the select House committee on the alleged “weaponization” of the government under Biden, or any number of other specious GOP ploys—the non-chips will fall where they may. It worries me not. 

But does it really call for a special counsel? On its merits, certainly not. Hunter’s offenses are rather two-bit (in fact, they might be one-bit), except for the allegation of influence-peddling. The president’s enemies would like us to believe the father is somehow implicated in the sins of the son, but years of inquiry have turned up zero evidence to support that partisan claim. That would seem to argue for winding down the investigation, not putting it on steroids. Instead, for the sake of optics or some other unfathomable reason, the DOJ is playing into Republican hands. 

Compare the charges for which special counsels have been appointed to investigate Donald Trump: colluding with a foreign power in a presidential election, stealing top secret US war plans and obstructing demands for their return, and attempting to overthrow the US government—the latter two still ongoing. By elevating the charges against Hunter Biden to that level (along with the attendant Republican-ginned innuendo against his father), Merrick Garland is lending dangerous credence to the alternative universe in which tens of millions of benighted right wing Americans live, one where “the Biden crime family” is as much a threat to democracy—more!—than the guy who tried to have his own vice president murdered and an election overturned. 

The federal judge’s rejection of the plea deal doesn’t necessarily demand an escalated response. Why not let the case work itself out at the lower level? Not only that, but this new special counsel in question is a Trump appointee, US Attorney for Delaware David Weiss, who opened this investigation in 2019 and has been carrying on with it ever since. So really what we are seeing isn’t the opening of a new investigation at all but simply investing Weiss with the title of special counsel and its attendant powers. (Evidently, Weiss himself requested the appointment.)

As The Daily Beast’s legal commentator Shan Wu notes, the need to bring charges outside the state of DuPont—er, I mean Delaware—is not the issue: Garland could have given Weiss that authority under 28 U.S.C. section 515. (In fact, he stated in June that Weiss was authorized to bring charges anywhere in the country.) Wu also notes the irony that Garland—a famous stickler for the rules—is breaking them in keeping Weiss in his US Attorney position while he now assumes this special counsel role as well, apparently in contravention of arcane DOJ rules that I don’t pretend to know or understand.

As I have noted many times, page one of the fascist playbook is to accuse your enemies of your own crimes. The GOP excels at this. Republicans are desperate for false equivalences—anything they can use to undermine the credibility of their Democratic critics by way of a specious bothsidesism, the same way their hero Mr. Putin is ever alert for ways to claim that Western democracy is just as hollow and dishonest as Russian autocracy. It matters not that these equivalences are absurd—that’s why they’re called “false” in the first place. 

Republicans don’t even care if the investigation goes nowhere. If it comes up with bupkes—as all attempts to implicate Biden in his son’s troubles have thus far—so what? The mere existence of a special counsel is sufficient to imply to low-information voters that Joe Biden is as corrupt as Don is. (More so!)

And there are hardly any voters who are more low-information than the people who can be persuaded to pull the lever for Donald Trump.

IN THE REALM OF REASON

In announcing the special counsel decision, Garland said, “Upon considering (Weiss’s) request, as well as the extraordinary circumstances relating to this matter, I have concluded that it is in the public interest to appoint him as special counsel.” 

Awesome! So, MAGA Nation must have been super impressed by that and applauded it, right?

Wrong ‘em boyo. The very next day, the Murdoch-owned New York Post ran a cover headlined: “COVERUP: GOP cries whitewash as AG appoints Hunter Biden special counsel—who already botched case.”

Only in Republican World can resuscitating a dead case that is damaging to a sitting president and catapulting it back onto the front pages counts as a “whitewash.”

But of course, you can’t take at face value anything the Republicans say. It’s all bullshit and they know it. Or at least their leadership does. But even as they know better, senior Republicans—the Cruzes and Grahams and Ron Johnsons and the rest—have no qualms about spewing the most vile lies in the interest of their own raw power. And they are preaching to a Kool-Aid drunk choir for whom up is down, day is night, freedom is slavery, and—above all—ignorance is wisdom. One small example, courtesy of my friend Kate Steinberg: a Republican voter from Bergen County, New Jersey called into WNYC’s Brian Lehrer Show last week to inform the public radio audience that, (paraphrasing), “Joe Biden is an aristocrat, while Donald Trump is a hardworking real estate developer,” and that “the January 6th insurrection came about because of Democratic influence.”

And we think these people will be impressed by Merrick Garland’s institutionalism?

It was the same when the plea deal was first announced last June. The right had been screaming for criminal accountability for Hunter even while his dad was still just a candidate for the presidency. So when his own Justice Department delivered that precise criminal accountability, did it make Republicans admit that the Biden administration is in fact even-handed, that its criminal inquiries into Trump & Co are not unfair and partisan at all, that it should be praised for subjecting Joe’s own flesh-and-blood to that very same legal scrutiny and due process? Did it make Republicans say, “Whoa, so dope—the Biden Administration respectfully let the system work, and the president’s son is being held to account like anyone else!” 

(Pause for laughter). 

All it did was make them double down on their claims of a “double standard” because Hunter wasn’t clapped in irons and shipped off to the Florence, Colorado, to join the federal supermax prison softball team alongside El Chapo, Ramzi Ahmed Yousef, Terry Nichols, and FBI double agent Robert Hanssen. 

Strike that—who are we kidding? Even that wouldn’t have satisfied them. And this special counsel announcement won’t either. Nothing the left does will mollify the right, ever. That is because the right is not engaged in good faith politics at all, nor operating in the realm of reason, only in one of Gingrichian bloodpsort where if you ain’t cheatin’ you ain’t tryin.’ 

So I can sum up the feeble Democratic attempts to appease them in two words: 

The. Sudetenland.  

PEACE IN OUR TIME

Hunter Biden (Yale Law Class of ’96) is a troubled dude and ought to take his lumps like any American citizen. Unlike the Trump children, he seems to recognize that—or been forced to, which the Trump kids pointedly have not—because he submitted to the aforementioned plea deal, in the first place, which is precisely how the system is supposed to work. (I’m sure it wasn’t easy growing up in the shadow of his deceased golden brother Beau either, he of the service in Iraq and the Attorney Generalship of Delaware and the tragically premature death from brain cancer.) It’s true that your average defendant might not have gotten the terms he did, but that is an indictment of privilege, not an indication of any malfeasance on the part of Hunter Biden, let alone his papa. 

But the admirable refusal of Hunter’s dad to marginalize his boy in order to limit the political damage—which I’m sure most of his advisors would prefer—says a lot about the humanity of Joe Biden. I don’t know the numbers, or even if anyone has measured them, but my wholly unscientific suspicion is that the President’s response—embracing his troubled second son, rather than shunning him—might even win him some votes, as there are many many Americans with troubled adult children, a lot of them with drug problems, who can empathize. (Uncle Joe even had his son at a White House state dinner just two days after the plea deal was announced. Where Republicans saw the Corleones, a lot of Americans saw a dad who loved his child no matter what.)

Ironically, Republicans had long demanded that Weiss be made a special counsel in the Hunter Biden investigation; now that he has, they’re furious.“ David Weiss can’t be trusted and this is just a new way to whitewash the Biden family’s corruption,” according to a statement from Russell Dye, a spokesperson for House Judiciary Chair Jim Jordan (R-Ohio). “The Biden Justice Department is trying to stonewall congressional oversight as we have presented evidence to the American people about the Biden family’s corruption,” said Rep. James Comer (R-Ky.), chair of the House Committee on Oversight and Accountability, in a separate statement, declaring that his committee would continue its own inquiry into Hunter’s case. 

I bet it will. 

Of course, the reason the GOP is down on Weiss, despite being a Trump appointee, is that they don’t like the original plea deal, when they were hoping for the electric chair. Who would they like as special counsel in this case? Oh, I dunno—maybe a Great White shark who was one of the J6 rioters and published a paper in the Claremont Review arguing that lynching ought to be legal. (Maybe. Need to vet the shark’s position on abortion first.)

But we don’t need to go on about Republican deceitfulness and hypocrisy. It’s as plain as the smoke from the bong Robert F. Kennedy Jr. and Woody Harrelson are sharing. Let’s talk instead about what Garland is doing and what Democrats ought to do going forward. 

WHEN THEY GO LOW

Clearly, Garland is operating, as always, on the principle of Caesar’s wife. But since that appears to have less than zero impact on American politics, is there any point in even playing this game? 

To answer that, let us survey the possible justifications for the appointment of this special counsel:

ONE: Because it’s the right thing to do. I am sure that this is the only aspect of the debate that Garland thinks about, and not any political ramifications. Sadly, the rest of us do not have that luxury.

But is it the right thing to do? As we have noted, the case can’t possibly be said to merit a special counsel outside of the presidential angle, which appears to be non-existent. How long are we going to let the GOP pursue it for partisan ends….and not just let them, but abet them? Clearly Republicans are taking the aforementioned Benghazi strategy, which is to say: investigate long enough and you’ll eventually find something you can use, even if it requires world class gaslighting. Benghazi, after all, led to the non-scandal of Hillary’s emails, which arguably cost her the presidency, with a behind-the-back-pass assist from Jim Comey. 

So this ostensible “right thing” must be weighed against the potential damage, which would be very much the wrong thing.

TWO: Because we hope it will prevent Republicans from claiming—however unfairly—that there is a double standard. Not worth discussing. They are already claiming that, and their base believes them. See above.

THREE: Because we hope to woo reasonable centrist voters. In practical, realpolitik terms, this is the only rationale that really matters. Garland’s actions are never going to convince the MAGA base, nor will the reprehensible Republican leadership ever give him (or Biden) his props. The only people who might be swayed are that small sliver of fence-sitting undecideds—mythical though they may be—people who might possibly take Garland’s move as evidence that the Democrats are in fact the more principled and honorable party. Do such unicorns really exist, and if so, in sufficient numbers to justify a maneuver like this, with all its attendant risks? 

I don’t know. I can’t ask the questions and have all the answers, people. 

FOUR Because we imagine that someday, in the distant future, history will look back and reward Democrats for taking the high road. Maybe, and maybe that is wise. But if these actions empower the far right by allowing it to energize its base, trumpet its false narrative, and win over that small number of “swing” voters, history’s verdict will hardly matter. In fact, that verdict might be harsh, damning us for our naivete, on the order of “They brought a feather duster to a flamethrower fight.” 

Or, if you prefer, “They were playing badminton while the Republicans were playing rollerball.” 

TIME THE AVENGER

The Hunter Biden special counsel may feel like small beer in a week when a fourth criminal indictment of Donald Trump has been handed down, a case that is beyond federal pardon power or the ability of the accused (or one of his GOP cronies) to squash, one that truly could put Trump in prison for the rest of his godforsaken life. But Trump could get convicted in all those cases and still win the presidency. If you doubt it, I invite your attention back to the Republican voter who called into WNYC—the one who described him as “a hardworking real estate developer”—as a measure of the depths of his followers’ madness. Now add to that the willingness of the GOP leadership to stick with this Faustian bargain to the bitter end and see how well you sleep tonight.

Trump’s final defeat, should we manage to achieve it, will be a political one, not a legal one. Therefore anything that bolsters Republican gaslighting, like the Hunter Biden fiasco, is worthy of our attention.

Ultimately, what the special counsel decision really does is expose the starkness of our political divide and the wildly different approaches of the two parties. In The Bulwark, Jonathan V. Last writes:

One side of our political divide routinely castigates itself for being in a bubble. One side expends a lot of energy trying to figure out how to appeal to people who don’t vote for them. One side talks a lot about persuasion and understanding the people across from them.

Not coincidentally, that side is the same side that can no longer wield executive power nationally without winning a sizable popular majority.

The other side does not seem to worry about the media bubble it lives in. This side does not expend much energy trying to understand the 51 percent of the country which votes against it. It does not deal in persuasion so much as power politics: How can it use existing power to reward allies, punish enemies, and shape the electoral battlespace.

Not coincidentally, this is the side that can now hold national power with minority support from the voting public.

In light of that dynamic, is it better for the forces of democracy to try to woo whatever small segment of undecided voters is still out there, including independents, disaffected Republicans who can be persuaded to see reason, and others who are still unsure whether a second Trump administration would be a good thing? (I can’t believe there’s anyone still unsure about that, but obviously there are.) Or in so doing, are we giving ammunition to a Terminator-like right wing disinformation machine that already threatens to lay waste to democracy and leave it a smoking ruin?

I tend to think that latter, in spades, but Merrick Garland shockingly failed to consult me, so it’s a moot point. 

As I used to write—at 4 a.m.—at the end of all my undergraduate history papers, “Only time will tell.” But the price of getting it wrong is….oh, how what’s the Latin phrase? Loftus fornicatum.

Fucking high.

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Photo: US Attorney General Merrick Garland