Critics suspect a softball ethics verdict coming on Hunter Biden's law license

By Paul Sperry 
Real Clear Wire

Although Hunter Biden got away with multiple crimes thanks to his father’s unprecedented pardon, he still faces punishment for his conduct before the District of Columbia Bar. Even presidential clemency cannot shield him from possible suspension of his law license.

But former President Biden’s pardon has muddled – and delayed – the process of deciding Hunter’s professional fate, according to the D.C. attorney who is leading the investigation into his fitness to practice law in the nation’s capital. And legal critics view this as favoritism possibly leading to a resolution short of disbarment.

“This is a very complicated situation because of the pardon,” Hamilton Fox of the bar's Office of Disciplinary Counsel said in an interview with RealClearInvestigations. Fox serves as the prosecutor in disciplinary cases for members of the D.C. Bar.

With Biden’s firearms and tax-evasion convictions wiped clean, Fox said, he and his investigators have to “prove” all over again that he violated the law before they can pursue a case against him for possible disbarment.

"Essentially, there is a process that we follow once there is a criminal conviction, but the pardon disrupted that process,” Fox explained. "After the pardon, there is no criminal conviction, but the misconduct that occurred doesn’t go away. So now we are required to start over.” 

Added Fox: “Instead of relying on the conviction, we have to follow the normal procedure and prove the misconduct.”

After a jury in Delaware found Biden guilty of three gun-related felonies last June, his license was automatically suspended because any felony is considered a “serious crime” under D.C. Bar rules. But his suspension is temporary pending an investigation to determine if his criminal acts were serious enough to meet the bar’s “moral turpitude”threshold for more severe and lasting punishment, including long-term suspension or even disbarment.

Such misconduct generally requires criminal intent or recklessness. Offenses involving “violence,” such as reckless use of firearms, and “dishonesty,” such as cheating on taxes, fall into this category.

On Dec. 1, two weeks before Biden was scheduled for sentencing in both the gun case and a felony tax conviction in California, his father issued a blanket pardon nullifying his guilt and sparing him expected prison time.

Hunter Biden has been a member of the D.C. Bar since 2007 and has used his license to practice law there for a number of years. Though he now works as an artist, his paintings have lost value since his father opted not to seek a second term.

A Washington watchdog group suspects investigators for the D.C. Bar are not serious about punishing Biden and are dragging their feet in the probe, which is now entering its ninth month.

“While Hunter Biden’s pardon for committing felonies was bad enough, the D.C. Bar’s slow-walking disciplinary action against him based on the pardon is outrageous and inexcusable,” said Paul Kamenar, counsel to the National Legal and Policy Center, an ethics watchdog that previously filed a formal complaint against Biden with the Justice Department alleging he violated the Foreign Agents Registration Act.

Kamenar argued there is no reason to re-prove the crimes committed by Biden. “That’s a lame excuse,” he said. He pointed out that Biden originally pleaded guilty to the gun charges, before a judge ripped up a “sweetheart deal” he made with prosecutors and forced a trial which ended in a jury unanimously finding him guilty on all counts. Biden copped a plea to the tax charges as well. 

Fox’s own ethics adviser has said a presidential pardon shouldn’t impact bar discipline. “[It] relieves a criminal or criminal defendant of the punishment, but it doesn’t necessarily have any effect on the ethics violation,” said Saul Jay Singer, senior legal ethics counsel to the D.C. Bar.

Records reviewed by RCI reveal that staff errors by lawyers working for Fox have resulted in additional delays. In one misstep, attorneys were supposed to file an updated “status report” on the Biden case on Dec. 21, but did not do so until Jan. 7.

“Disciplinary Counsel’s failure to file this update was inadvertent,” Fox’s staff attorneys explained to the D.C. Court of Appeals Board on Professional Responsibility, the legal body hearing the Biden case.

The belated status report simply stated, “The investigation remains ongoing,” while adding that “the parties intend to discuss possible dispositions of this matter soon.”

In other words, Kamenar said, Fox plans to enter into settlement talks with Hunter’s lawyers on how to dispose of the charges.

“Considering the slap on the wrist the D.C. Bar gave former FBI attorney Kevin Clinesmith for his felony criminal conviction for altering a CIA document to obtain a FISA search warrant to spy on a Trump adviser, it’s not surprising that Fox appears to be giving Hunter undeserved leniency,” Kamenar added.

Fox negotiated a light sentence for Clinesmith, a registered Democrat who sent anti-Trump rants to FBI colleagues after the 2016 election and then doctored evidence against Trump aide Carter Page, as RealClearIinvestigations first reported. 

Even the Democrat-controlled Board on Professional Responsibility noted that the deal was “unusual.” Clinesmith was let off with “time served” after just seven months of suspension. His D.C. Bar status was restored to “active member” in “good standing.” (Clinesmith was legally represented by Eric Yaffe, the former chairman of the Board on Professional Responsibility. Yaffe is a major Democratic donor, records show, who’s supported Hillary Clinton, Barack Obama, and Joe Biden.)

Kamenar questioned the impartiality of Fox, a Democrat who like Hunter is a Yale Law School alumnus. Federal Election Commission records show Fox, a former Watergate prosecutor, has contributed several thousand dollars to Democratic political candidates, including Obama. 

While Fox declined to comment on accusations of bias, he addressed concerns about a settlement in lieu of punishment for Biden. “A disposition means we agree upon a sanction and don’t try the case,” Fox said. “But it is different and more complex than a plea bargain in a criminal case.”

Asked if a deal is in the works, Fox said that such matters are “confidential.” Hunter Biden’s attorney did not respond to requests for comment.

However, Fox suggested his office is using an old case involving Reagan administration official Elliott Abrams as a precedent. In 1992, President Bush pardoned Abrams of perjury charges related to the Iran-Contra scandal. The next year, the D.C. Bar found Abrams committed the crimes and suspended him from practice for one year. 

Contrast With Giuliani et al.

Kamenar believes Hunter’s crimes are serious enough for the bar to suspend his license for at least three years. He pointed out that the D.C. Bar’s rules for professional conduct expressly state that criminal conduct such as “willful failure to file an income tax return” reflects “adversely on fitness to practice law.”

In a recent report responding to Biden’s pardons, Special Counsel David Weiss, who prosecuted Hunter, said his tax crimes were serious and egregious, and he should have known better as a trained attorney.

“As a well-educated lawyer, Mr. Biden consciously and willfully chose not to pay at least $1.4 million in taxes over a four-year period,” from 2016 to 2020.

Weiss said Biden’s crimes were not “inconsequential” or “technical” tax code violations, but were part of a deliberate “scheme” to cheat the IRS that can’t be “explained away by his drug use.”

“After becoming sober, he chose to file false returns to evade payment of taxes he owed,” the special prosecutor wrote. “Instead of paying his taxes, he chose to spend the money on [female] escorts, luxury hotels, and exotic cars,” and even wrote off the prostitutes as business expenses on tax returns he eventually filed.

Regarding his illegally obtained gun, Weiss said Biden “carelessly left it unsecured on a property where children lived.” And in an additional “aggravating factor,” he noted, Biden lied on a federal form to obtain the revolver, along with a speed loader and hollow-point bullets.

“As a Yale-educated lawyer, he understood that he was lying on the background check form he filled out and the consequences of doing so,” Weiss said. “But he did it anyway, because he wanted to own a gun, even though he was actively using crack cocaine.”

Asked if he will use Weiss' report as guidance in his probe of Hunter Biden, Fox replied, "I have it."

Other critics point out that Fox, in contrast, has thrown the book at embattled Republican members of the bar. He recommended the disbarment of Trump lawyers and advisers Rudy Giuliani, Jeffrey Clark, and Paul Manafort, for example.

Giuliani’s conduct “calls for only one sanction, and that’s the sanction of disbarment,” Fox said. “What Mr. Giuliani did was use his law license to undermine the legitimacy of a presidential election, to undermine the basic premise of the democratic system that we all live in, that has been in place since the 1800s in this country.”

Fox accused Clark of being “intentionally dishonest” about the 2020 election results. But the board rejected his request for disbarment and has recommended a two-year suspension. His case is still being heard by the court of appeals.

“Mr. Clark is in front of the D.C. Bar’s Board because the head of the D.C. Office of Disciplinary Counsel dislikes the advice he believes Mr. Clark gave to former President Trump,” Clark’s attorney said. “If this power grab by the D.C. Bar is successful, it will transform the head of the D.C. Office of Disciplinary Counsel, a local government official, into the most powerful lawyer in the country, granting him a permanent supervisory role and veto over the highest counsels of the federal government.”

Last year, government ethics watchdog Larry Klayman, founder of Judicial Watch and Freedom Watch, filed a complaint against Fox over what he called selective prosecution of Republican members of the bar and favorable treatment for Democratic lawyers.

In the court filing, he wrote: “Once Fox took over as Disciplinary Counsel, ODC has steadily transformed into a highly partisan tool and weapon of the entire District of Columbia attorney discipline apparatus with the apparent goal of removing prominent conservative and Republican activist attorneys from the practice of law in the District of Columbia.”

Added Klayman: “Fox has made it clear that he hates President Trump and those who support him. He has made a point to personally try disciplinary complaints against pro-Trump Republican individuals, despite the fact that the chief disciplinary counsel generally does not perform that function.”

He pointed to a Politico article that reported that the D.C. Court of Appeals “had to step in and stop his attempts to strip away Trump Department of Justice official Jeffrey Clark’s constitutional Fifth Amendment rights, and tellingly, Fox responded by saying, ‘I’m not going to push that hearing back unless somebody cuts off one of my arms.’”

“This shows his animus towards conservative and Republican activist attorneys who are pro-Trump,” Klayman said.

Paul Sperry is an investigative reporter for RealClearInvestigations. He is also a longtime media fellow at Stanford’s Hoover Institution. Sperry was previously the Washington bureau chief for Investor’s Business Daily, and his work has appeared in the New York Post, Wall Street Journal, New York Times, and Houston Chronicle, among other major publications.