Amid reports federal agents allegedly have enough to charge Hunter Biden with tax and gun crimes, legal expert Alan Dershowitz on Newsmax said former President Donald Trump should be rooting for no charges from Attorney General Merrick Garland.
"I'll tell you the man who should be most interested in assuring that Biden does not get prosecuted, and it's not Joe Biden: It's Donald Trump," Dershowitz told Thursday's "The Record With Greta Van Susteren." "Let me explain why; it's counterintuitive: Unless they indict Biden Jr., they will not credibly be able to indict Trump.
"But if they indict Biden Jr., Garland will be able to say, 'Look how fair we are: We didn't go after Trump; we indicted the son of the president, and we indicted the man who's going to be running against the president.'
"Fair is fair, and that's why politics inevitably plays a role in this, because in all of these cases, there's an element of subjectivity."
Van Susteren noted in 2018, when the Hunter Biden investigation reportedly began, there was close to a 60% prosecution rate on criminal referrals for lying on gun forms — as Hunter Biden is alleged to have done because of admitted drug use.
"Look, I hate the fact that we just weaponized the criminal justice system on both sides, and I think we're seeing this as an example," Dershowitz said. "I think the defense attorney was right when he said the only reason that they're going after this guy [is] because of his last name. I don't think they would generally do that. On the other hand, if the facts make out a clear case of criminal violation, and they, you know, obviously have to go for it."
But, Dershowitz added, prosecution might depend on finding "willfulness" to commit an alleged crime.
"Did he make the 'to be or not to be' decision, from Hamlet: to be or not to be a felon?" Dershowitz asked. "Do I deliberately lie to get a gun license, knowing full well that I'm using drugs, or is it just slippage? The same thing with income taxes? There are a lot of bad income tax returns filed but never prosecution because blame it on the accountant.
"In order to get a prosecution here, you have to show willfulness to a high level of certainty," Dershowitz continued. "You have to show that this man set out to commit crime — not that it was negligent, not that it was careless, not even that it was reckless — and I just don't know if you ever come up to that standard."
There is a clear political conundrum here, too, according to Dershowitz.
"Even though every case should be considered separately, when you have the son of the current president under investigation and the potential future candidate for president against the incumbent under investigation, there is no way that some degree of politics, some degree of balance won't be used by the Justice Department," he said.
"But, it will ultimately come to Garland's desk and the buck stops there, and he has to make a very, very difficult decision, but I don't think we're going to see one of them prosecuted and the other not. I think if one gets prosecuted, it raises the likelihood that the other will be prosecuted."
Ultimately, Thursday's reports by The Washington Post and The New York Times raise the question of whether the leaks about evidence against Hunter Biden might have been felonious.
"I don't like leaks of grand jury material," Dershowitz concluded. "I think there ought to be an investigation of how The Post and The Times got this story. Did they get it from an FBI agent who feloniously disclosed grand jury material? That's a serious crime."
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