Month: December 2020

In Trump election fraud cases, federal judges upheld the rule of law


But that’s not enough to fix US politics

A healthy constitutional culture, in which the people and their leaders respect the authority of their Constitution, requires a baseline of trust in the government – a baseline that, in the United States, has eroded from 77% in the early 1960s to 17% today.

This collapse of public confidence paved the way for a populist form of leadership that redirected public faith away from the institutions of government toward a more autocratic leader – Donald Trump – whom voters trusted to consolidate power, neutralize opposition and “drain the swamp” of the experts and bureaucrats he deemed responsible for the government’s malaise.

In the past four years, President Trump has consolidated power to such an extent that the Republican Party has literally declined to adopt a party platform and effectively embraced the president as its alter ego.

After losing the 2020 election by a comfortable margin,
Trump counted on the populist power he had accumulated to force the hands of Republican officials across the country to invalidate the election, despite no creditable evidence of widespread fraud.

The gambit almost worked. Trump’s influence – made muscular by an energetic base poised to punish disobedient elected officials – quieted intraparty criticism, moved a legal team to launch a battery of meritless lawsuits and inspired 18 state attorneys general to request that the Supreme Court overturn a presidential election.

But that strategy ultimately failed, because Trump’s populist control did not extend to the federal courts.

Cases need facts

The legal assault on the election was spearheaded by attorneys who were willing to file suits based on unsupported suspicions and beliefs to perpetuate the president’s populist regime by any means necessary. These groundless suspicions and beliefs – bellowed loudly and often by the president and his entourage – may have gotten traction in politics, but they got none in courts of law. The judiciary’s firewall withstood the populist bomb that President Trump detonated.

Apart from the fact that neither the president nor his enthusiasts could threaten the tenure of unelected federal judges who are appointed for life, judges are a different kind of public official, and the lies, bullying and bombast that work well in populist politics fall flat in courts of law.

When judges hear cases, they follow a uniform system of procedural rules that enable them to evaluate the claims that the parties make and amass a body of information on which they rely to determine facts and ascertain truth. It’s a system that has served the judiciary well for generations, and served it well in the postelection cases that the courts decided in recent weeks.

Judges are lawyers who have been steeped in the rule of law for decades. It begins with three years of law school, where they “learn to think like lawyers” and are graded on their command of substantive and procedural law. Upon graduation, they must demonstrate their proficiency in law by passing a bar exam, and then practice law for years and typically decades before ascending the bench.

‘Trump judges’ aren’t Trump judges

Trump has been criticized for appointing an unprecedented 10 judges whose credentials and experience the American Bar Association deemed so deficient as to warrant an “unqualified” rating. But the vast majority of his 227 appointees possess the traditional qualifications needed to perpetuate the federal judiciary’s entrenched commitment to the rule of law.

Some of the judges who dismissed the Trump election cases were appointed by the president. That may have shocked Trump and his followers, but is unlikely to have surprised Chief Justice John Roberts. In 2018, Roberts called out Trump for attacking “Obama judges.”

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a statement. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”

Some criticized Roberts as naïve or duplicitous. After all, the data show that federal judges are influenced by their ideological preferences. Voters know this and choose a president who will appoint ideologically compatible judges.

These critics, however, miss the mark. Yes, judges are subject to ideological influences in close cases, when the law is subject to conflicting interpretations, and judges tend to favor interpretations that align with their common sense and policy perspective.

But this does not refute Roberts’ point: Federal judges are trained to take law seriously and do their best to uphold the law as they understand it to be written. So when confronted with postelection fraud cases that were not close – that lacked factual allegations essential to proceeding with the case – judges ruled against the president.

As one judge said to Trump campaign lawyers, “Come on now!

Facts and truth

Thanks to those judges, the rule of law held firm against a populist assault.

Celebrating the triumph of the rule of law in the courts, however, obscures the reality that innumerable voters, public officials and lawyers who were ostensibly committed to that rule of law stood ready – for the first time in U.S. history – to overturn a presidential election.

In the past, the majority of Americans drew their conclusions from a common body of information received from the same evening news and morning newspapers.

With the explosion of the information age and the decline of traditional media, that common body of information has disappeared, as the marketplace of ideas has been flooded with limitless information, the truth or falsity of which is increasingly difficult to assess. The consequences are voiced by a nihilistic spy in the latest “Call of Duty” video game: “There is no truth – only who you choose to believe.” And this, it would seem, has become the mantra for many public officials and their constituents.

Americans encountered a similar problem once before, during industrialization, when the nation was deluged with a flood of false and misleading information about new drugs, foods and consumer products – a problem that the administrative state ultimately emerged to regulate.

The trouble is that the government can’t regulate the marketplace of ideas the way it does the marketplace of goods and services – the First Amendment won’t allow it. In most cases, the government cannot prohibit you, media outlets or politicians from telling lies.

So the challenge is to reestablish a way to evaluate the reliability of information upon which we must depend for finding facts and ascertaining truth. Because if that can’t be done, the nation’s ability to elect its leaders and govern itself in an orderly and principled way will be lost.

The Constitution is fragile. It works because we the people will it to work, and that will is being tested, perhaps as never before. The judiciary passed its latest test. The American people will be tested again in the years to come – and the future of the democracy hangs in the balance.


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Hunter Biden: What was he doing in Ukraine and China?

Hunter Biden and his father, President-elect Joe Biden, have been frequently attacked by President Trump and his associates of wrongdoing in regards to Ukraine and China, which they both deny.

The issue has resurfaced following news that Hunter Biden’s tax affairs are under investigation by federal prosecutors in Delaware.

During the election campaign, the New York Post reported on an alleged email in which an adviser from a Ukrainian energy company, Burisma, apparently thanked Hunter for inviting him to meet his father, Joe Biden.

Asked about the allegations, Joe Biden told a reporter it was a “smear campaign”. No criminal activity has been proven, and no evidence has emerged that Mr Biden did anything to intentionally benefit his son.

Claims of influence-peddling are common in Washington DC and Mr Trump’s children have also been accused of conflicts of interest in lucrative business deals overseas. They, too, deny wrongdoing.

What did the New York Post say?

The New York Post story focused on an email from April 2015, in which an adviser to Burisma, Vadym Pozharskyi, apparently thanked Hunter Biden for inviting him to meet his father in Washington.

Hunter, Joe Biden’s second son, was a director on the board of Burisma – a Ukrainian-owned private energy company while his father was the Obama administration’s pointman on US-Ukrainian relations. Hunter was one of several foreigners on its board.

The New York Post article did not provide evidence that the meeting ever took place. The Biden election campaign said there was no record of any such meeting on the former vice-president’s “official schedule” from the time.

But in a statement to Politico, the campaign also acknowledged that Mr Biden could have had an “informal interaction” with the Burisma adviser that did not appear on his official schedule, though it said any such encounter would have been “cursory”.

“Investigations by the press, during impeachment, and even by two Republican-led Senate committees whose work was decried as ‘not legitimate’ and political by a GOP colleague, have all reached the same conclusion: that Joe Biden carried out official US policy toward Ukraine and engaged in no wrongdoing,” said Andrew Bates, a spokesman for Mr Biden.

Mr Biden’s team has also decried the New York Post story as “Russian disinformation”, though it did not say the emails were bogus.

The New York Post article has been shared by President Trump and his allies. Two of his former advisers, Steve Bannon and Rudy Giuliani, were involved in providing the story and the hard drive containing the alleged emails, to the newspaper.

Mr Giuliani says the messages were found on a laptop that Hunter dropped off at a Delaware repair shop in April 2019.

Sceptics have noted that Mr Giuliani travelled in December 2019 to Kyiv where he met Ukrainian lawmaker Andriy Derkach, whom the US Treasury has designated as a longtime Kremlin agent. Mr Giuliani has acknowledged trying dig up dirt on the Bidens in Ukraine.

But the US Director of National Intelligence, John Ratcliffe, said in a recent interview with Fox Business that the purported emails were not connected to a Russian disinformation effort.

Other US media say they have been unable to verify the authenticity of the emails. Hunter has neither confirmed nor denied that he dropped off a laptop at the location.

Hunter joined Burisma in 2014, and remained on the board until April 2019, when he decided to leave.

What are the Bidens accused of in China?

The New York Post cited a purported email from Hunter Biden in August 2017 indicating he was receiving a $10m annual fee from a Chinese billionaire for “introductions alone”, though it is unclear who was involved in the alleged introductions.

Another purported email, which Fox News said it had confirmed, reportedly refers to a deal pursued by Hunter involving China’s largest private energy firm. It is said to include a cryptic mention of “10 held by H for the big guy”.

Fox News cited unnamed sources as saying “the big guy” in the purported email was a reference to Joe Biden. This message is said to be from May 2017. Both emails would date from when the former US vice-president was a private citizen.

A former business associate of Hunter has come forward to say he can confirm the allegations.

Tony Bobulinski told Fox News that, contrary to Joe Biden’s statements that he had nothing to do with his son’s business affairs, Hunter “frequently referenced asking him for his sign-off or advice on various potential deals” in China.

Mr Bobulinski, who is reportedly a US Navy veteran, separately told Fox News’ Tucker Carlson that he met on two occasions with Joe Biden to discuss business deals with China, the first time in May 2017 when the former vice-president was a private citizen.

He claims he asked Joe Biden’s brother, James, whether the family was concerned about possible scrutiny of the former vice-president’s involvement in a potential business deal with a Chinese entity. Mr Bobulinski told Fox News that James Biden replied: “Plausible deniability.”

Mr Bobulinski was invited by Mr Trump to be his guest at the final presidential debate in Nashville, Tennessee on 22 October.

What is known about Hunter’s dealings in China?

In 2013, Hunter flew aboard Air Force Two with his father, who was then vice-president, on an official visit to Beijing, where the younger Biden met investment banker Jonathan Li.

Hunter told the New Yorker he just met Mr Li for “a cup of coffee”, but 12 days after the trip a private equity fund, BHR Partners, was approved by the Chinese authorities. Mr Li was chief executive and Hunter was a board member. He would hold a 10% stake.

BHR is backed by some of China’s largest state banks and by local governments, according to US media.

Hunter Biden’s lawyer said he had joined the board in an unpaid position “based on his interest in seeking ways to bring Chinese capital to international markets”.

His lawyer also said his client did not acquire his financial stake in BHR until 2017, after his father had left office in the US.

Hunter resigned from the board of BHR in April 2020, but still held his 10% stake in BHR as of July this year, according to the company report.

The inquiry is being conducted by federal prosecutors in Delaware. US media quote sources saying it relates to business dealings with foreign countries including China.

Mr Biden said he was confident he would be shown to have done no wrong.

What are the Bidens accused of in Ukraine?

President Trump and his allies have accused Joe Biden of wrongdoing because he pushed, while vice-president, for the Ukrainian government to fire its top prosecutor, who was investigating the company for which Hunter worked.

In 2016, Joe Biden called for the dismissal of the Ukrainian prosecutor Viktor Shokin, whose office had Burisma and other companies under investigation.

However, other Western leaders and major bodies that give financial support to Ukraine also wanted the prosecutor dismissed because they believed he was not active enough in tackling corruption.

What else has the Biden campaign said?

Shortly before the final presidential debate, the Democrat’s camp released a statement denying wrongdoing.

“Joe Biden has never even considered being involved in business with this family, nor in any overseas business whatsoever,” said the statement.

“He has never held stock in any such business arrangements nor has any family member or any other person ever held stock for him.

“What is true is that Tony Bobulinski admitted on the record to Breitbart that he is angry that he was *not* able to go into business with Hunter and James Biden [Joe Biden’s brother].”

What did this have to do with impeachment?

In 2019, details emerged of a phone call President Trump had made to the president of Ukraine, in which he had urged the Ukrainian leader to investigate the Bidens.

This led to charges by the Democrats that Mr Trump was trying to illegally pressure Ukraine to help damage his election rival, resulting in impeachment by the House of Representatives.

Mr Trump denied he’d done anything wrong, and he was later acquitted by the Republican-controlled US Senate.

Has anything been proven against the Bidens?

While no criminal activity has been proven, it has raised questions about potential conflicts of interest.

A senior State Department official raised such concerns as far back as 2015.

US Republican lawmakers launched an investigation and this summer found that Hunter’s work for the Ukrainian firm was “problematic” – but there wasn’t evidence that US foreign policy was influenced by it.

No criminal charges were proven against Burisma either. The company issued a statement in 2017 saying “all legal proceedings and pending criminal allegations” against it were closed.

Last year, Yuriy Lutsenko, the prosecutor in Ukraine who succeeded Viktor Shokin, told the BBC that there was no reason to investigate the Bidens under Ukrainian law.

There’s nothing illegal about sitting on a board of a company whilst family members serve in government, although Hunter Biden now says that serving on the Burisma board may have been “poor judgement”.

Hunter Biden’s lawyers said in statement in October 2019 that he had undertaken “these business activities independently. He did not believe it appropriate to discuss them with his father, nor did he.”

Hunter told the New Yorker magazine that on the only occasion he had mentioned Burisma: “Dad said, ‘I hope you know what you are doing.'”

Amid all the scrutiny, the Democratic White House nominee said last year that if he is elected president, no-one in his family will hold a job or have a business relationship with a foreign corporation or foreign government.

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The Bidens and Beijing

Tax questions about Hunter’s income raise again the question of how he earned it.

By James Freeman on Twitter and Parler.

Hunter Biden may have wanted to hold 10% for the “big guy,” but did he forget to set aside 37% for Uncle Sam? A tax investigation focused on the Biden family’s highly questionable sources of income may finally force them to answer precisely how such income is generated in the first place.

The Journal’s Ken Thomas and Sabrina Siddiqui report:

Hunter Biden, the son of President-elect Joe Biden, said in a statement Wednesday that the U.S. attorney’s office in Delaware is “investigating my tax affairs,” putting his financial dealings in the spotlight, as his father builds his administration.

Hunter Biden said he takes the matter “very seriously” and is “confident that a professional and objective review of these matters will demonstrate that I handled my affairs legally and appropriately.”

The Justice Department declined to comment on Wednesday.

Exactly one year ago, Speaker of the House Nancy Pelosi (D., Calif.) and six Democrats chairing House committees unveiled their plan to charge President Donald Trump with impeachment articles which did not claim he had committed any crimes. Mr. Trump’s alleged offense was suggesting that a foreign government look into Hunter Biden dealings which any reasonable person would say deserved examination. A source now tells the Journal that the feds began investigating Biden taxes in 2018. One year ago today, did any of the congressional Democrats know that as they were accusing Mr. Trump of non-crimes, the subject of his scrutiny was already under U.S. criminal investigation?

And no, the investigation wasn’t manufactured by Mr. Trump, according to the Journal’s reporting:

The investigation was sparked in part by reports of suspicious activity filed by a bank that handled foreign transactions related to Hunter Biden, one person said…

The younger Mr. Biden said in the statement that he learned about the investigation for the first time Tuesday through his legal counsel, who he said was advised of it by the U.S. attorney’s office on the same day. The Biden transition declined to say when the president-elect learned of the investigation.

Now why won’t Joe Biden’s office say when he learned about the investigation? Perhaps there’s a difference of opinion within the family about whether Tuesday is a plausible moment for the subject of a two-year-old investigation to learn about it.

“What is curious is that Hunter Biden says that he just learned of the investigation on Tuesday,” observes George Washington University law professor Jonathan Turley on Twitter. “Yet, many of us have discussed the 2019 subpoena in the case for his laptop as an obvious indicator of a criminal investigation.”

Ben Schreckinger at Politico writes:

The federal investigation into President-elect Joe Biden’s son Hunter has been more extensive than a statement from Hunter Biden indicates, according to a person with firsthand knowledge of the investigation…

The person said that, as of early last year, investigators in Delaware and Washington were also probing potential money laundering and Hunter Biden’s foreign ties. The person spoke on the condition of anonymity because they are not authorized to discuss the matter publicly.

In addition to the probe into Hunter Biden, federal authorities in the Western District of Pennsylvania are conducting a criminal investigation of a hospital business in which Joe Biden’s brother James was involved. Federal officials have asked questions about James Biden’s role in the business, according to a second person with direct knowledge of that investigation, who said it remains ongoing.

The Bidens maintain that they are innocent and the Justice Department isn’t commenting.

“Federal criminal investigation into Hunter Biden focuses on his business dealings in China” is the headline on a CNN dispatch from Evan Perez and Pamela Brown, who write:

Investigators have been examining multiple financial issues, including whether Hunter Biden and his associates violated tax and money laundering laws in business dealings in foreign countries, principally China, according to two people briefed on the probe.

Some of those transactions involved people who the FBI believe sparked counterintelligence concerns, a common issue when dealing with Chinese business, according to another source.

It surely is a concern, especially when the manifestly unqualified son of a leading American politician scores financial coups in China—in ventures that no one seems able to fully explain. The Journal’s Mr. Thomas and Ms. Siddiqui note:

A Republican Senate investigation earlier this year looked into Hunter Biden’s finances, examining a series of payments it alleged he received from entities linked to Chinese oil company CEFC China Energy Co, among others. The GOP findings, based on documents obtained from the Treasury Department, showed that Hunter Biden’s law firm, Owasco PC, received nearly $5 million from CEFC…

Hunter Biden has owned 10% of a Shanghai private-equity firm, known as BHR Partners, since 2017 through a corporation registered in Delaware and was formerly a director there.

Perhaps by now the Bidens and BHR have come up with a good explanation of what exactly Hunter Biden was doing for the business. Readers may recall when this issue came up last year and Cissy Zhou and Jun Mai tried to get an answer from BHR for readers of the South China Morning Post:

The company has repeatedly declined to elaborate on the younger Biden’s role at the firm when contacted by the South China Morning Post via phone, mail and visits to the office. But Jonathan Li Xiangsheng, the firm’s chief executive and Hunter Biden’s partner, has said the company was working on an explanation about the American’s role.

Li refused to comment on the younger Biden when reached by the Post on Monday.

A recent visit to the firm’s registered address in Beijing found a small, plainly decorated office, where a receptionist said she had never seen Hunter Biden.

It’s also not easy to explain many other Biden connections. Politico’s Mr. Schreckinger runs through some of the more disturbing associations:

Hunter Biden has also pursued deals with Chinese oil magnate Ye Jianming and an associate of Ye’s, Patrick Ho. In 2018, Ho was convicted in the Southern District of New York of violating the Foreign Corrupt Practices Act over his attempts to bribe government officials in Chad and Uganda.

Another business partner of Hunter Biden’s, Devon Archer, was convicted in 2018 in the Southern District of New York on unrelated fraud charges. Bank records showing foreign payments to Hunter Biden surfaced as a part of that case.

After a judge overturned Archer’s conviction in late 2018 (an appeals court reinstated the conviction last month), prosecutors in the SDNY securities fraud unit revisited Archer’s case and began last year to scrutinize those foreign payments to Hunter Biden, looking for signs of money laundering, according to the person with firsthand knowledge of the investigation. But after conferring with prosecutors in Delaware, whose investigation was already well underway and acknowledged Wednesday by Hunter Biden, prosecutors in the SDNY securities fraud unit ceased their probing without opening a separate, formal investigation, the person said.

Looking at the roster of Biden associates, this column’s most celebrated alumnus might mischievously ask: Why do bad things keep happening to them? But where and with whom the Biden family chooses to do business has nothing to do with coincidence.

When your humble correspondent and Maria Bartiromo were interviewing the president last summer for a book, Mr. Trump mentioned that he used to wonder why his Beltway adversaries always use Russia when advancing conspiracy theories about him. He chuckled as he recounted the moment he understood why and said, “They never use China. You know why? ’Cause they’re all getting rich on China.”

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