The Hunter Biden counter-offensive: A strategy long overdue, or a political minefield

For years, as Hunter Biden faced a protracted criminal probe, he was told to cooperate with prosecutors and wait quietly for exoneration. That strategy, favored by veteran Democrats who came of age in a less pugilistic political era, failed.

The president’s son is now under one indictment, is bracing for another and has become the face of the Republican impeachment probe of his father. And now, he’s directly taking on his adversaries. Over the past three months, Hunter Biden has filed a barrage of lawsuits and has challenged his indictment on gun charges by attacking the prosecution as tainted by Republican pressure. He is even trying to subpoena Donald Trump.

The counteroffensive will play out in courtrooms and in public just as his father ramps up his reelection campaign.

Among Joe Biden’s advisers and Democratic Party operatives, there’s disagreement on its potential political repercussions, according to eight people close to the president and his son. Most were granted anonymity to discuss the sensitive topic.

Some White House staff are “irritated that he’s being more aggressive, because he is not clearing the tactics and the strategy,” said one former 2020 campaign aide.

Some aides worry, too, that Hunter Biden’s courtroom counterpunching only brightens the spotlight on his legal entanglements, foreign business activities, and personal struggle with drug addiction. For these aides, too much engagement with opponents, including Rudy Giuliani and the conservative media, risks legitimizing their most extreme attacks on the president’s family.

But many allies of the president — especially those who cut their teeth during the Trump presidency — see it differently. One called the cautious approach “outdated 1990s rationale” and said that, in the 21st century, it’s reckless to leave allegations unrebutted. For this camp, there was something to learn from Trump’s scandal playbook: It pays to talk loud, move fast and punch hard.

“The American public likes to see people fight back,” said Jamal Simmons, a former communications director for Vice President Kamala Harris. “People who fight for themselves tend to get the benefit of the doubt from the public. And I actually think that probably does help the president in the long run.”

Hunter Biden keeps his father aware of his legal moves, according to a person close to his legal team, and the team sends word to top White House staff before making major moves. The moves themselves are entirely up to Hunter Biden and his lawyers — and that’s as it should be, aides emphasize, because the president has vowed to stay out of his son’s legal affairs.

Hunter Biden, his lawyers and the White House declined to comment. But among the small cadre of advisers close to the president’s son, the newly aggressive approach was long overdue.

“How does he possibly keep his head down?” a person close to his legal team said. “They have lifted his head above everyone else’s, and they’ve been trying to lop it off for four years.”

Cooperation at the outset

Hunter Biden’s legal fights run on three tracks: criminal, congressional and civil.

In criminal court, special counsel David Weiss charged him in September with illegally owning a gun as a user of illegal drugs, and Weiss is also considering charges for failure to pay federal income taxes.

In Congress, House Republicans are running a sprawling investigation of his foreign business deals, including his stint on the board of a Ukrainian gas company.

And in the civil arena, he is either a plaintiff or defendant in at least five ongoing lawsuits, ranging from a case against Giuliani to a case against his father’s own IRS.

But it wasn’t always this way. In 2018, in the middle of Trump’s presidency and before Hunter Biden became the political lightning rod he is today, federal law enforcement officials quietly opened an investigation into his tax affairs. The probe was not publicly known at the time. Lawyers and advisers around the president’s son privately urged him to cooperate when they learned he was under scrutiny.

So the president’s son stayed largely silent in the media. He kept a mostly low profile, engaged with the Justice Department, and signed two agreements pausing the statute of limitations on charges federal prosecutors were weighing. Those agreements helped keep Hunter Biden in legal limbo for years, but they also gave his lawyers more time to try to talk prosecutors out of charging him.

In October 2020, the New York Post published an article reporting that Hunter Biden left a laptop at a Delaware computer shop. Giuliani had reportedly provided the newspaper with emails from the laptop about Hunter Biden’s business activities.

Just weeks before the 2020 election, the article claimed that the emails showed corruption by Joe Biden. To date, no evidence has emerged showing that Joe Biden made policy decisions as vice president to help his son’s business interests. A Politifact analysis concluded that “[n]othing from the laptop has revealed illegal or unethical behavior by Joe Biden as vice president with regard to his son’s tenure as a director for Burisma, a Ukraine-based natural gas company.”

In the years after the laptop’s release, Hunter Biden held back from taking any legal action against the people who shared and published his purported emails — staying cautious instead of expanding his legal battleground.

New lawyer, new strategy

Despite this strategy of hunkering down, the clouds looming over Hunter Biden didn’t blow over. Instead, they darkened.

The Justice Department investigation broadened to include not just financial issues but also Hunter Biden’s purchase of a handgun in 2018, a time when he has said he was frequently using crack cocaine.

And when Republicans took control of the House in 2022, they zeroed in on Hunter Biden’s financial dealings, accusing him of a cornucopia of crimes — and accusing the Justice Department of going easy on him. House Republicans have also put Hunter Biden at the center of their impeachment inquiry, arguing that the president may have corruptly benefited from his son’s business activities. So far, they have failed to produce evidence of wrongdoing by the president.

Late last year, Hunter Biden retained Abbe Lowell, an elite and combative defense lawyer whose clients have included Democratic Sen. Bob Menendez, former Democratic Sen. John Edwards and even Trump’s son-in-law, Jared Kushner. Lowell successfully defended Menendez against corruption charges in 2017, and is now representing him in a new corruption case. He fended off campaign finance charges against Edwards, the Democratic nominee for vice president in 2004. And he helped Kushner navigate special counsel Robert Mueller’s Russia probe.

After Lowell came on board Hunter Biden’s team, the legal strategy for the president’s son began to change.

In February, his team threatened to sue Fox News Channel over what they described as Tucker Carlson’s false suggestion that Hunter and Joe Biden were involved in a money laundering scheme. After John Paul Mac Isaac, the owner of the Delaware computer shop, sued Hunter Biden, Hunter Biden sued him right back in March. (Mac Isaac has also sued POLITICO and others for defamation and civil conspiracy; the case remains pending.)

Meanwhile, in private talks with the federal prosecutors running the criminal probe, Hunter Biden’s lawyers were using aggressive negotiating tactics, even threatening at one point to put Joe Biden on the witness stand if prosecutors charged Hunter Biden with the gun crime.

A failed plea and a sharp escalation

This summer, it seemed like the approach was starting to pay off. On June 20, Biden’s lawyers and federal prosecutors unveiled a plea deal that could have resolved his criminal problems without any prison time.

“Hunter feels happy to move on with his life,” one of his lawyers told MSNBC that day.

But after a tumultuous hearing on July 26 during which a federal judge raised questions about the agreement, the plea deal collapsed.

Meanwhile, the investigation itself was becoming a political story, with IRS whistleblowers telling Congress that Weiss — the Trump-appointed U.S. attorney for Delaware who had been leading the probe since its inception — had been hampered in various ways. Weiss, for his part, has insisted that he never faced interference.

On Aug. 8, less than two months after it had seemed poised to end, the criminal investigation of Hunter Biden escalated. Attorney General Merrick Garland made Weiss a special counsel, formally giving him more independence and empowering him to bring charges against Hunter Biden anywhere in the country.

A few weeks later, Weiss obtained an indictment in Delaware over Hunter Biden’s 2018 gun purchase. The president’s son faces felony charges for owning a gun while using illegal drugs and for lying on a federal gun-purchase form. He might stand trial next year during the heat of his father’s reelection campaign.

Hunter Biden and his team viewed the move as a sign Weiss had turned draconian. They have long argued that it’s the first time anyone has been charged in Delaware with owning a gun as a drug user without any other aggravating circumstances — such as using the gun to commit a crime.

Many House Republicans have accused Weiss of going easy on the president’s son by not charging him with crimes related to lobbying and campaign finance. But Hunter Biden’s team had a different view: In their eyes, the only explanation for bringing the gun charge at all was unrelenting political pressure from Republicans.

For Team Hunter, the special counsel announcement meant quiet patience was untenable.

“We’re not playing for a tie,” said a friend of Hunter Biden. “We’re playing for setting the record straight, and accountability for those who have harmed him.”

Hunter Biden, the plaintiff

Hunter Biden’s previous defense lawyer, Chris Clark, who led negotiations with the Justice Department, is no longer on his legal team. He withdrew from the case in August, citing concern that he may be a witness in potential litigation over the failed plea deal. Lowell is now at the helm. He, Hunter Biden and attorney Kevin Morris — who helped the president’s son pay his outstanding tax debt, and who advocated for Lowell’s hiring — operate autonomously, independent of pressure or management from national Democratic operatives.

Morris has long advocated a bare-knuckle approach and works closely with Lowell. According to Hunter Biden’s friend, Morris has told associates, “We want to go on offense because we know we can win. That’s the whole point.”

And now that’s happening. Hunter Biden is going to court.

In September, the president’s son sued Giuliani and Giuliani’s former lawyer Robert Costello for allegedly hacking into his data and distributing it. He’s brought similar allegations against former Trump White House aide Garrett Ziegler, who has distributed contents from the laptop. The lawsuits accuse Giuliani, Costello and Ziegler of violating the federal Computer Fraud and Abuse Act and a California data privacy law. Ziegler told POLITICO the lawsuit is “frivolous” and that he will respond to it next month.

Also in September, Hunter Biden sued the IRS for allegedly failing to keep his tax information from becoming public, citing the fact that IRS agents who investigated him testified to Congress in detail about his financial dealings. Lawyers for those agents have consistently defended their disclosures as lawful.

Earlier this month, Hunter Biden sued Patrick Byrne, the former CEO of Overstock.com, for defamation after Byrne suggested that Biden had solicited a bribe from Iran.

And on Nov. 15, Hunter Biden’s lawyers launched perhaps their most ambitious legal salvo yet: They attempted to subpoena Trump, former Attorney General Bill Barr and other top officials in the Trump Justice Department. The gun charges against Hunter Biden may represent a “vindictive or selective prosecution” that violate his constitutional rights, Lowell wrote in a court document seeking a judge’s approval for the subpoenas. The subpoenas, Lowell argued, may help shed light on the “sustained, almost-nonstop public pressure campaign, led by Mr. Trump and his allies in Congress.”

Hunter Biden is also taking an aggressive tack in response to the House Republicans' ongoing probe. In a letter Tuesday to House Oversight Chair James Comer, Lowell countered House Republicans’ subpoena for Hunter Biden to testify behind closed doors next month. Instead, he proposed a public hearing on Dec. 13 — or another date next month they can agree to — arguing it would “prevent selective leaks, manipulated transcripts, doctored exhibits, or one-sided press statements.”

A delicate relationship with Democrats

The person close to Hunter Biden’s legal team described the new legal strategy as “aggressive defense.”

How that strategy interacts with his father’s own aggressive defense — his campaign to hold onto the White House — is complex, fraught, and in many ways an open question.

Some of the president’s allies argue the politics surrounding Hunter Biden are already baked in. As long as the president himself is not found to have done something wrong, anything that happens in his son’s cases is unlikely to cause any more political harm to the president, these aides argue.

Other White House aides and outside Democratic operatives are concerned about Hunter Biden’s strategy. His team rolled out the lawsuits independent from the president’s political operation.

That’s in part because Hunter Biden himself is not close with many of the staff surrounding his father. He has told friends they are largely strangers, and that he can’t expect strangers to defend him when he won’t defend himself.

And for years now, he has made major decisions about media strategy without seeking his father’s aides’ blessing. He participated in a lengthy July 2019 New Yorker profile without seeking any guidance from his father’s campaign. Three months later, he sat for a "Good Morning America" interview without bringing along a campaign staffer. Three former 2020 campaign aides said staff were surprised to learn he’d taped the sit-down.

“We got up like everybody that morning to watch 'Good Morning America,'” one of those former campaign aides said.

And in the first year of his father’s presidency, he released a memoir describing his drug addiction in sometimes stomach-churning detail.

But the president’s son has told friends that he believes his instincts — shaped by decades near the political spotlight — have been vindicated. The New Yorker profile was widely viewed as a positive portrayal, and White House staff routinely cite his memoir when questioned about him.

‘The political expediency of sacrificing Hunter’

The upshot is that Hunter Biden is operating relatively independently to shape his own narrative — a narrative that mixes politics and law and that is largely outside the control of the president’s advisers and defenders.

Consistent with the president’s vow to honor the Justice Department’s independence, the White House does not comment on Hunter Biden’s criminal case or his other legal issues. Conservative lawmakers and pundits, however, feel no such strictures. And their voluminous attacks have received limited public rebuttal from the left.

Instead, two Capitol Hill Democrats have told POLITICO that they view the politics on the issue as fixed, so the prospect of going on offense is all risk and no reward. In general, they are comfortable defending the president, but not his son.

And some don’t just abstain from the debate. Rep. Jerry Nadler (D-N.Y.) called the first son “a disturbed man” who “may have very well done some improper things.” And Rep. Jamie Raskin (D-Md.) told ABC News in August that the president’s son “did a lot of really unlawful and wrong things.” Nadler and Raskin are the top Democrats on committees involved in the Republicans’ impeachment probe.

Hunter Biden’s team finds this troubling.

“Intentionally or not, they’re betting on the political expediency of sacrificing Hunter,” said the friend who spoke to POLITICO.

“The greater good is served by accountability and vindication, and not by acquiescence to political prosecution and the effort to dehumanize him,” the friend added.

And some of the president’s allies wish the strategic-silence approach had ended sooner.

“Look at what it’s done to the president’s reputation,” said a former senior White House aide. “A man once known for his integrity is now — most people believe — he’s either corrupt, lying, or was involved in his son’s criminal enterprise. All of which would never be the case if they had been responding to these kinds of smears from the beginning.”

Nicholas Wu, Benjamin Guggenheim and Jordain Carney contributed to this report.