National Post (National Edition)
Joe Biden's momentous decision
BIDEN DOESN'T HAVE THE FAMILY OPTION THE KENNEDYS DID.
— RAYMOND DE SOUZA
U.S. President-elect Joe Biden is facing a dilemma that no president has had to confront in 60 years: how to choose an attorney general whose department will decide whether to prosecute his family?
In 1960, John F. Kennedy prevailed in an exceptionally close vote. Many believe, then and now, that he stole the election. Of the corrupt political machines that delivered for him in Chicago and Texas, JFK would exclaim, “Thank God for a few honest crooks!”
Indeed, so widespread was the view that JFK stole the 1960 election that even laudatory Kennedy biopics invariably include a scene where old Joe Kennedy Sr. says some version of, “Don't buy a single vote more than necessary. I'll buy an election for my son, but I'll be damned if I'm going to pay for a landslide.”
Richard Nixon, who conceded the election to avert the “agony of a constitutional crisis,” nevertheless believed that there was widespread voter fraud.
JFK did not know what evidence of voting fraud may have been collected by J. Edgar Hoover's FBI. Independent of the election, JFK likely suspected that the FBI had more than a little interest in his father's dubious business dealings, and everyone in Washington believed that the Kennedy patriarch was a crook, and not of the honest kind.
So what does a president-elect do when he comes from a corrupt clan, as JFK did? He keeps it in the family. And the family, led by Joe Kennedy Sr., opted for an efficient, if brazen, solution: JFK appointed his brother, Robert, to be attorney general, so the Kennedys would have nothing to worry about from the Department of Justice, or its investigative branch, the FBI.
JFK was the youngest man ever elected president. Biden is the oldest, so the dynamic this time around is not the son protecting the father, but the father protecting the son.
Hunter Biden, who collected a remarkable array of lucrative foreign consultancies while his father was vice-president, has revealed that he is under investigation by federal officials. His father's new attorney general will ultimately decide how his case proceeds. And Biden doesn't have the family option the Kennedys did, given that in 1967 Congress passed an anti-nepotism statute.
Twenty years before JFK gave the justice department to his brother, president Franklin D. Roosevelt's new attorney general addressed federal prosecutors. FDR's pick, Robert H. Jackson, would go on to serve on the Supreme Court, though he is likely better known as the chief American prosecutor at the Nuremberg trials.
“If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants,” said Jackson in 1940. Here lies “the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.”
Justice in the United States is far from blind. She knows what she is doing and to whom. Abuse of prosecutorial power is a long-standing problem, but in recent decades the dynamic has become more political.
President Donald Trump complained bitterly that he and his associates were the victims of political attacks masquerading as criminal matters. He is right about that. How could he not be? Political prosecutions have been on the rise for decades.
Even Kenneth Starr, the special prosecutor who investigated president Bill Clinton over Whitewater and Monica Lewinsky, conceded afterwards that his investigation should not have expanded as it did. Starr's metastasizing probe, as Jackson warned in 1940, was a prosecutor searching for a crime to fit a defendant, not the other way around.
Gross miscarriages of justice have followed at the highest levels, two of which took place against Republicans during the George W. Bush administration, namely that of Scooter Libby and Sen. Ted Stevens. There are Democrats who have been removed from office by prosecutorial abuse, as well, perhaps the most prominent being Don Siegelman, the Alabama governor who was railroaded for bribery in a case that by no stretch could credibly be considered a crime. It is a bipartisan problem.
Biden is thus in a bind. For the good of the country, he has publicly professed a desire to correct the politicization of justice, the problem identified by Jackson in 1940.
At the same time, he knows that an indictment of his son will consume months of his presidency, as he fends off allegations that he was complicit in Hunter's business. From the other direction, many of his ardent supporters are lusting after setting the prosecutorial hounds upon Trump and his family.
The stakes are high. It might be the most momentous decision Biden makes, even before he takes the oath of office.