As IRS whistleblowers from the Hunter Biden investigation prepare to testify publicly for the first time, former President Donald Trump announced that he expects to be indicted in the Jan. 6 investigation, marking another divergence in the progression of two explosive political cases.
Trump’s claim that he received a target letter from special counsel Jack Smith, who is investigating him on a range of issues, signaled that he might face his second federal indictment in as many months right as Hunter Biden finalizes a plea deal for misdemeanor charges.
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The simultaneous developments in both cases — IRS whistleblowers will appear before the House on Wednesday to lay out allegations of favorable treatment toward the Biden family on Wednesday, while Hunter Biden will appear in court next week — highlight how differently the Department of Justice has handled each.
Here is a guide to how differently the Justice Department has wielded its investigative tools in the Trump & Biden cases.
SEARCH WARRANTS
The FBI executed a search warrant of Trump’s home at Mar-a-Lago in August 2022, surprising the former president’s legal team because, for months prior, Trump’s lawyers had cooperated with the Justice Department on the return of government documents.
A former top FBI agent on the case testified to the House Judiciary Committee that he had raised concerns with Justice Department officials about the decision, arguing that a raid was overly aggressive given the level of cooperation Trump’s legal team had demonstrated to that point.
The Justice Department overruled those concerns and ordered the search warrant executed.
The two IRS whistleblowers, Gary Shapley and another who has so far chosen to remain anonymous, detailed numerous instances in which various Justice Department officials shut down legitimate efforts to get search warrants.
Shapley testified that, by March 2020, the IRS investigative team was “ready to seek approval for physical search warrants in California, Arkansas, New York, and Washington, D.C.” in the course of their Hunter Biden tax investigation.
After Biden clinched the Democratic nomination for president the following month, however, Shapley said the Justice Department began slow-walking the approval process for those search warrants in an effort to reach a point close enough to Election Day that the investigation could be totally halted.
By September 2020, Shapley said, a top official in the Delaware U.S. attorney’s office, Lesley Wolf, shut down IRS efforts to get a search warrant for President Joe Biden’s guest house in Delaware, where Hunter Biden lived for a substantial period.
Wolf “told us there was more than enough probable cause for the physical search warrant there, but the question was whether the juice was worth the squeeze,” Shapley testified.
“She continued that optics were a driving factor in the decision on whether to execute a search warrant,” Shapley told the House Ways and Means Committee. “She said a lot of evidence in our investigation would be found in the guest house of former Vice President Biden but said there is no way we will get that approved.”
Likewise, the anonymous whistleblower confirmed that the IRS investigative team “wanted to do search warrants of physical residences.”
After the IRS finally secured approval to take a limited number of overt investigative steps in Dec. 2020, investigators determined that they were likely to find evidence related to financial crimes in a storage unit used by Hunter Biden.
“[I]t was ultimately decided by [assistant U.S. attorney] Lesley Wolf to not do the storage unit search warrant,” the anonymous whistleblower testified.
WITNESS INTERVIEWS
Special counsel Jack Smith’s team has successfully interviewed dozens of witnesses in his dual Trump investigations.
The witnesses interviewed by grand juries in the Smith investigation range from members of Trump’s family to former aides to his own lawyers, representing an aggressive effort to uncover testimony that can support a case against him.
The Justice Department has already handed over transcripts of witness interviews to a court as it presses to take Trump to trial quickly in the classified documents case, and dozens more witnesses have reportedly spoken to the grand jury about the Jan. 6 case.
In the Hunter Biden investigation, however, the Justice Department sought to put significant limits on who investigators could interview.
The anonymous whistleblower testified that he had put together a list of roughly 30 witnesses he wanted to interview when the IRS investigation was finally permitted to take overt steps. By the time that day arrived, he said, the list “got whittled down to, I think, 10 people on the day of action, some of those people who we were only allowed to serve subpoenas and weren’t allowed to talk to.”
Both whistleblowers testified that senior FBI officials inexplicably tipped off Joe Biden’s presidential transition team the night before investigators planned to seek unannounced interviews with Hunter Biden and a small number of additional witnesses close to the Biden family business dealings.
“This essentially tipped off a group of people very close to President Biden and Hunter Biden and gave this group an opportunity to obstruct the approach on the witnesses,” Shapley said.
Ultimately, Shapley testified, the investigative team managed to land only “one substantive interview.”
The Justice Department’s demands made even that one interview – with Rob Walker, a close business associate to the Biden family – less helpful than it should have been.
Wolf told investigators during a Dec. 2020 meeting that they could not ask any questions about Joe Biden during planned witness interviews, dealing a significant blow to investigators’ ability to build a case.
ATTORNEY-CLIENT PRIVILEGE
The Justice Department handled the issue of attorney-client privilege very differently in the Trump and Hunter Biden cases.
In the Trump classified documents case, prosecutors successfully pushed to strip Trump of his attorney-client privilege with one of his top lawyers, Evan Corcoran, based on a narrow exception to the law.
Using what’s known as the crime-fraud exception, the Justice Department argued that because Trump may have discussed his intentions to obstruct the government with his lawyer, his private legal communications were no longer protected and therefore subject to scrutiny by investigators.
Critics have suggested the DOJ’s reliance on the exception is among the most questionable of the special counsel’s decisions in building his indictment but notes that Corcoran took following his conversations with Trump make up a significant part of the evidence presented in the indictment.
By contrast, the Justice Department gave extraordinary deference to Hunter Biden’s attorney-client privilege, keeping a substantial amount of communications out of investigators’ hands.
Shapley testified that, as the IRS probed potential tax crimes committed by Hunter Biden, the Justice Department appeared to shield a broad range of communications from the investigation under the guise of attorney-client privilege, including emails between Hunter Biden and his business partners on which his lawyer was simply copied, but not a part of the conversation.
Shapley also said the Justice Department did not challenge the Hunter Biden legal team’s attempt to exploit a loophole by using what’s known as a Kovel agreement. That arrangement allows a defense team to extend attorney-client privilege to communications between their client and other associates, such as their accountants or tax preparers, by engaging the associates on behalf of their client.
IRS investigators attempted to persuade the Justice Department to challenge what Hunter Biden’s lawyers said were “verbal Koval agreements” with Hunter Biden’s accountants, but the Justice Department refused, preventing investigators from talking to key figures in potential tax crimes.
Hunter Biden’s status as an attorney himself – he graduated from Yale Law School in 1996 – caused the Justice Department to shield even more of his communications from investigators.
The anonymous whistleblower testified that all records obtained through electronic search warrants for various email accounts, cloud storage accounts, and Quickbooks accounts went through a filter review that removed any potential attorney-client privilege information before investigators got to see it.
Shapley said FBI and Justice Department attorneys were often involved in that filter process.
LAWYER COOPERATION
Although Trump’s lawyers were working with the Justice Department, DOJ officials still decided to proceed aggressively with the classified documents case.
Trump’s attorneys had proactively invited FBI and Justice Department officials to visit Mar-a-Lago weeks before the raid and, at one point during the visit, even gave a top Justice Department official on the case a tour of the storage room where Trump was storing documents marked classified.
The FBI proceeded with the raid anyway, declining to give those same lawyers advanced notice that they would be searching their client’s home.
But in the Hunter Biden investigation, the DOJ gave Hunter Biden’s legal team ample opportunity to block investigators.
A former FBI supervisory agent told the House Oversight Committee this week that Hunter Biden’s lawyer was essentially given the opportunity to intercept IRS investigators in Dec. 2020. The agent’s testimony corroborated previous testimony from the two IRS whistleblowers.
Shapley testified that on the day investigators finally had the chance to seek their planned witness interviews, he and an FBI agent were told to wait in a car outside Hunter Biden’s home in California, were not permitted to approach the house themselves, and should wait to receive a call from Hunter Biden’s lawyers instead.
Hunter Biden’s lawyers declined to allow any interviews with Hunter Biden.
In another instance, IRS investigators pressed U.S. Attorney David Weiss, who is ostensibly in charge of the investigation, on the need to search a storage unit belonging to Hunter Biden. Weiss agreed, according to Shapley, and said they could search the unit if no one accessed it for 30 days.
Wolf then “simply reached out to Hunter Biden’s defense counsel and told him about the storage unit, once again ruining our chance to get to evidence before being destroyed, manipulated, or concealed.”
In other words, both times investigators attempted to interview witnesses central to the case, Justice Department officials ensured that Hunter Biden’s lawyers had advanced notice to stop the interviews from taking place.
REPUTATIONAL CONCERN
Pushing back against criticism that the Justice Department has acted politically in its aggressive pursuit of Trump, even as he runs for president, DOJ officials have insisted that they made decisions solely to guard the principle that no one is above the law.
A different calculation appears to have governed decisions in the Hunter Biden investigation.
Two months ahead of the 2020 presidential elections, one of the IRS whistleblowers testified, a top Justice Department official “issued a cease and desist of overt investigative activities due to the coming election.”
Wolf, the assistant U.S. attorney in Delaware, told IRS investigators in a series of what Shapley described as “odd statements” that she was concerned about what the Hunter Biden probe could do to the DOJ’s image.
Her comments included a worry “that DOJ was under fire and it was self-inflicted.”
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“She stated that DOJ needed to repair their reputation,” Shapley testified.
No such concerns appear to have held investigators back from investigative activity involving a current presidential candidate.
