Who is more likely to be indicted — Donald Trump or Hunter Biden?

NEW YORK: Forget about inflation, abortion, job growth or the economy. The real issue is who will be indicted first — Donald Trump or Hunter Biden?

The drumroll of charges against Hunter Biden in the conservative media had been largely dismissed as political claptrap. Nobody on the left cared about Hunter’s laptop any more than they cared about Hillary’s emails. The target was his father, the president.

The laptop story has grown a beard. The laptop was found in a Delaware computer repair shop in 2019 and brought to light three weeks before the 2020 election. Its contents had been out of Hunter’s custody for some time. but Rudy Giuliani claimed he had a printed version of the contents covering a period from 2009 to 2019, when Joe Biden was vice president, including 129,000 emails related to Hunter Biden of which some 22,000 were proved to have been authentic.

Giuliani gave them to the New York Post, and said he offered three hard drives to the FBI, but the agency refused to accept them. Turns out that portable hard drive had something added to it both before and after the New York Post’s original story, and the FBI had previously obtained the laptop from the computer repair shop pursuant to subpoena.

The inquiry into Hunter Biden’s business dealings, in which he acted as a consultant to companies in China and Ukraine, appeared to be dying on the vine. But lately, the broad federal investigation of Hunter headed up by David Weiss, the holdover United States attorney in Delaware, has picked up steam. Weiss is no Trumpist zealot. He served as a prosecutor in Delaware in the 1980s, returned to the small office in 2007 and remained there for 11 years until Trump appointed him U.S. attorney. When he came up for confirmation, Delaware Democratic Sens. Coons and Carper strongly supported him.

There are 93 U.S. attorneys in the country who, although appointed for a term, serve at the pleasure of the president. When a new president takes office, all customarily resign or are dismissed. Biden wisely left two in office: John Durham, investigating the origins of Russiagate, and Weiss, investigating the president’s son.

Many citizens have accepted the corrupt Hunter Biden narrative hook, line and sinker. Others scoff at the charges as politically motivated. But here’s the deal, as the man said: What is the case against Hunter Biden that Weiss may be considering?

There is a weak accusation against Hunter that he was in possession of a firearm while “addicted to a controlled substance.” It will be hard to make out this offense, and that is why in the real world it is seldom charged. When and how long did Hunter have the gun? Was he addicted at the time? How addicted was he? These are all questions giving rise to the kind of reasonable doubt that would make prosecutors pause.

There is also the Foreign Agents Registration Act (FARA), which makes it a federal crime to engage in lobbying or political activity for a foreign government or national without registering with the Justice Department as a foreign agent.

Hunter never registered. And there is an aroma about the circumstance that, without any obvious skill sets or qualifications, he accepted extravagant fees for sitting on the board of Burisma, a Ukrainian company. But was this political activity or lobbying?

Normally, FARA violations merit only a slap on the wrist. But recently, Justice has charged Trump ally Tom Barrack and Trump loyalists Rick Gates and Paul Manafort with FARA violations. Why is Hunter Biden different from these other politically connected people?

Then, there is the oldie but goodie, tax fraud, the one that brought down Al Capone. No one knows for sure how Hunter handled his taxes, although he recently paid some of his outstanding tax liability. And no one knows whether Weiss is considering tax charges against him. Time will tell all.

And there is the suggestion of money laundering, arising out of the recent sales of Hunter’s artwork to anonymous purchasers, the details of which being at this moment unknown.

Then there are the charges that our attorney general might bring against former President Trump, arising out of the Jan. 6 insurrection or the classified documents seized at Mar-a-Lago.

Harvard Law Professor Laurence Tribe thinks that Trump’s latest lawsuit, seeking a special master on the Mar-a-Lago search and seizure, was “very strange.” Says Tribe, “he’s sort of asking Merrick Garland to prosecute him.”

There are at least five theories about why Trump has not yet been indicted, although the evidence that he sparked the Jan. 6 melee is overwhelming, not the least of which being the testimony of Cassidy Hutchinson before the House Committee that Trump knew that the mob was armed before he sent them up to Capitol Hill.

The first, and the most disturbing, is that Garland for whatever reason may plan to let Trump beat the rap. It’s the banana republic argument. A former judge with a fierce veneration of precedent, Garland may take stock from Nixon’s pardon and believe that indicting Trump would deviate from a bad case for the nation and presidential accountability standing for the unfortunate proposition that former presidents ought not be criminally charged for their excesses while in office.

The Constitution declares that, once out of office, a rogue president shall be “liable and subject to Indictment, Trial, Judgment and Punishment according to law.” As Senate Minority Leader Mitch McConnell (R-Ky.) made clear, this outcome should apply to Trump. “President Trump is still liable for everything he did while he was in office,” he said on the Senate floor. “Didn’t get away with anything yet.” Surely McConnell is right. The rule of law is the lynchpin of our democracy; it must be more than a slogan.

Or Garland may harbor some apprehension that Trump’s supporters might engage in civil unrest were their leader to be indicted. About this, Professor Tribe says: “I’m not underestimating the civil unrest that could follow a decision to indict Trump, but when the evidence of his seditious conspiracy and other federal crimes is as overwhelming as it appears it will be, a decision not to indict him would be far worse.”

The publicly available evidence against Trump seems to get stronger each day. According to the New York Times, several witnesses are now saying Trump went through the boxes personally. If so, the defense of mistake or “Can I help it if I hire such stupid people?” would not be available.

The second possibility is that Garland is still investigating the attack, seeking to turn participants who might cooperate and await the report of the House Select Committee, which has already made clear that it believes Trump is guilty.

And, as the New York Times reports, prosecutors are finally scrutinizing the ringleaders of the attack and have “substantially widened” the inquiry beyond those who breached the Capitol. Obviously, although many believe there is an avalanche of evidence against Trump, Garland would want to develop an open-and-shut case.

A third possibility would be to charge Trump civilly. New York Attorney General Letitia James is contemplating a possible civil case against Trump, alleging fraud. Trump recently invoked his Fifth Amendment privilege against self-incrimination nearly 450 times in a deposition in that case, and Garland may decide to let the New York case be the last word.

In the civil case, James need merely prove her charges by the lesser burden of the “preponderance of the evidence,” so why not roll the dice on a table where the odds are better? But Trump has successfully defended congeries of civil actions over the years with great success. He knows how the game is played, and he has always managed to win it.

Then, there is the possibility of a deal. Over 90 percent of federal indictments end in a bargained guilty plea. Garland might seek a deal whereby Trump is not charged criminally on the condition that he not seek public office again. It is highly unlikely that Trump would accept such an agreement, but if the choice is jail or repose in Mar-a-Lago, Trump may well fold. 

Finally, it is possible that Garland has decided to temporize — that is, to do nothing for the time being. This approach smacks of fecklessness. The closer we get to 2023, the more Trump can argue that any decision to prosecute is politically motivated. Delay will hardly keep Trump from running again.

So how will it all end? I would bet that both cases end in some sort of settlement. For example, Hunter Biden will agree not to contest the FARA charges in exchange for a slap on the wrist. Trump will settle with James on the fraud charges, announce he will not run for office and accept some level of responsibility for the riot, after which he will claim he was “beautifully” exonerated.

It’s got to end somewhere. A major ingredient of the rule of law is finality. Perhaps Garland’s Justice Department will announce both indictments on the same day.  

James D. Zirin is a former federal prosecutor in the Southern District of New York.