Best defense a good offense? Hunter sues the IRS

AP Photo/Julio Cortez

Is the best defense a good offense? What happens when the offensive turns out to be a really dumb and potentially self-defeating strategy? Ladies and gentlemen, we may be about to find out.

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As the Washington Post reports this morning, Hunter Biden’s attorneys have decided to sue the IRS rather than wait around for another indictment for tax evasion. The complaint? Whistleblowing to Congress and the media violated the privacy Hunter cultivated by, er … riding on Air Force Two for his business trips:

President Biden’s son Hunter Biden filed a lawsuit Monday against the Internal Revenue Service, charging that when agents who were investigating him told Congress and news reporters about their concerns that the case was not being managed properly, they violated his privacy rights as a taxpayer. …

Biden charges in the lawsuit that when two IRS agents went to Congress and news organizations complaining of alleged mishandling of the investigation by Justice Department officials, they disclosed information about the investigation, and about Biden’s taxes, that the law aims to keep secret.

“This assault on Mr. Biden’s rights involved the public disclosure of his confidential tax information during more than 20 nationally televised and non-congressionally sanctioned interviews and numerous public statements,” the lawsuit charges.

The disclosures included “detailed allegations regarding the specific tax years under investigation, the amounts of deductions, the nature of those deductions, and allegations of liability regarding specific tax years and the amount thereof, that could only be known to them based on a review of the physical tax returns themselves,” the lawsuit contends.

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It’s true that personal tax forms and filings are supposed to be kept private, even for public persons — a point Democrats conveniently overlooked with Donald Trump. But that’s not the same issue as dealing with tax investigations. The returns are private, but not necessarily any criminal or civil violations resulting from them — especially when the evidence of such misconduct has already been made public through other means. The laptop had some evidence of manipulated income streams, for example, and public comment/testimony from figures like Tony Bobulinski had tended to corroborate some of it.

Furthermore, the specific information released in House investigations of the matter are privileged, and again we can cite the Trump tax-return effort by Democrats as a precedent. To the extent that IRS agents/investigators brought this information to House Oversight, though, that is completely legitimate. They didn’t just dig up Hunter’s tax data on a whim, after all; the IRS and the Department of Justice had collaborated for years on criminal investigations of Hunter Biden. The IRS agents/investigators brought the information to Congress to allege that the DoJ had lied about their independence in the investigation and had acted corruptly in allowing the statute of limitation to run out on some charges rather than incur the ire of Hunter’s dad, also known as President Joe Biden.

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Indeed, whistleblowers not only have an option to inform Congress of potential corruption and malfeasance, one can even argue that they have a duty to do so.

Now, if the IRS agents/investigators had first gone to the media, then they wouldn’t be whistleblowers — they’d be leakers and liable for that violation. But that doesn’t appear to be what’s being alleged, at least according to the Post’s description of the complaint. CNN’s description of the complaint is more clear:

“Despite clear warnings from Congress that they were prohibited from disclosing the contents of their testimony to the public in another forum, Mr. Shapley and Mr. Ziegler’s testimony only emboldened their media campaign against Mr. Biden,” the lawsuit states. “And finally, since their public testimony before the House of Representatives on July 19, 2023, the agents have become regular guests on national media outlets and have made new allegations and public statements regarding Mr. Biden’s confidential tax return information that were not previously included in their transcripts before the Committee on Ways and Means.”

Specifically, Hunter Biden’s attorneys point to details Shapley shared in an interview with CBS News that aired in late June. During the interview, Shapley alleged that Biden took certain personal expenses as business expenses, including “prostitutes, sex club memberships, hotel rooms for purported drug dealers,” and that Biden owed $2.2 million in unpaid taxes, the lawsuit alleges.

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Team Hunter wants to hold the whistleblowers accountable for the eventual publication of this material by House Oversight and its subsequent publication by the media (such as it was). Once they notified the relevant congressional committee and the data was made public, the whistleblowers can and did comment in the media about their testimony, but that was a function of the committee’s public hearings, not the IRS nor the whistleblowers. Trying to apply liability for accurate congressional testimony to the witnesses will not go well for the Bidens.

As for the subsequent media appearances and the additional disclosures outside of congressional testimony, Team Biden may have a somewhat stronger argument, but I doubt a court would take it seriously. To the extent that more specific issues in Hunter’s tax claims were revealed, it was to expose alleged misconduct and corruption in the DoJ, a matter of serious public concern and obviously a legitimate issue for congressional oversight. Revealing the “hookers and blow” business expenses made clear just how egregious the failure to press felony charges actually was. And besides, it’s tough to argue that this testimony was more damaging or even novel after the exposure of the laptop data and the public corroboration of it by Bobulinkski and others.

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It’s hard to take this seriously, in other words, as anything other than an intimidation tactic to silence potential corroborators, and as a PR stunt. Hunter’s legal team wants to paint him as a victim of the vast machinery of, er, um … his father’s administration. In doing so, they hope to distract attention from the more serious questions not of Hunter’s tax evasion but of his father’s participation in Hunter’s business affairs and the disposition of the firehose of foreign income that filtered through the 20 or so LLCs controlled by Bidens over the last several years. More than $20 million has already been identified through suspicious activity reports (SARs) from Treasury, and the tax implications of that may also be of interest even apart from the corruption issues.

The problem for Hunter is that this lawsuit will allow for a lot more of that conversation to take place, especially if it moves to discovery. It raises the stakes by doubling down on Hunter’s supposed victim status. They are now publicizing the case even further with their “offense” strategy in a manner reminiscent of Hunter’s inexplicable decision to fight his baby momma rather than quietly settle the case. Hunter ended up ‘winning’ in most aspects of that contest, but only after publicizing his very strange claims to be indigent while driving an expensive car and living in high-priced SoCal housing. This has much lower chances for success in court but practically dares the media to keep doing deep dives into Hunter’s finances.

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Sometimes Clausewitz’ (?) strategy of the best defense being a good offense pays off. Other times, the War Games strategy applies: “Sometimes, the winning move is not to play.”

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David Strom 3:30 PM | June 20, 2024
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