Hunter Biden’s legal threats have no merit — and raise serious constitutional and political questions

Hunter Biden appears to have finally achieved clarity.

Months after The Post’s October 2020 reporting, Biden was warning reporters that his “alleged” laptop might be Russian disinformation — or it might be his. He seemed tortured by doubt in a 2021 CBS News interview: “For real, I don’t know. I don’t have any idea — I have no idea whether or not.”

It now appears he does know “for real.” His lawyers sent letters Wednesday requesting investigations into figures associated with former President Donald Trump who have used information from the laptop. The first son’s sudden shift to the offense follows a meeting of a Legion of Doom of Democratic operatives reportedly planning attacks on potential witnesses against Hunter.

At the same time, Biden agents are planning to create a large legal fund for the next stage. In a city where influence peddling is the leading industry, Hunter’s plight could easily become a cause célèbre. Indeed, there hasn’t been a greater sense of urgency or outpouring of humanity since the Kato Kaelin housing crisis.

A picture of Hunter Biden from his laptop.
Hunter Biden admitted on Wednesday that he is the owner of the laptop.

The letters to federal and state prosecutors seem to confirm the plan for a scorched-earth strategy. The Biden lawyers accuse people using the laptop contents of possibly violating federal and state laws “in accessing, copying, manipulating, and/or disseminating Mr. Biden’s personal computer data.”

The Biden team is also threatening media that have covered the story, including Fox News, with defamation lawsuits. (For the record, I appear as a legal analyst on Fox News.) And it’s asking the IRS to consider removing the tax-exempt status of groups that used the material such as Marco Polo, a charitable organization run by Garrett Ziegler — in a letter copied to the agency’s criminal investigation unit chief.

The letters raise serious constitutional and political concerns. Critics using publicly available material are allowed to reach their own conclusions about the implications of these files.

A picture of Donald Trump.
Hunter Biden’s lawyers sent letters requesting investigations into figures associated with Donald Trump who allegedly used information from the laptop.

The Biden team, for example, threatens a lawsuit against Fox News host Tucker Carlson while demanding a retraction of “false and defamatory statements.” It maintains Carlson falsely portrayed Hunter Biden as involved in a “money laundering scheme to finance President Biden’s lifestyle” by paying him $50,000 a month in rent. It claims the story was debunked.

But Hunter Biden is a public figure who must shoulder a high standard for defamation of “actual malice,” requiring that a false statement be made “with knowledge that it was false or with reckless disregard of whether it was false or not.” Courts are highly protective of the exercise of opinion, particularly on subjects of great political significance like influence peddling.

The laptop’s legal status is also key. To all appearances, Hunter abandoned the laptop at John Paul Mac Isaac’s Wilmington, Del., computer repair shop. That’s different from the claims of Hunter’s sister, Ashley, who triggered a nationwide FBI investigation into the theft of her diary. While she left her diary at a third party’s home, she insists she did not abandon or forget it. Under standard terms of the agreement, an item left beyond a certain number of days at a business or rental housing becomes abandoned property. It can generally then be left on the curb, sold, or given away.

A picture of John Paul Mac Issac.
The infamous laptop landed at John Paul Mac Isaac’s computer repair shop in Wilmington, Del.
Robert Miller

What’s most striking about the Hunter Biden claim is the delay. For more than two years, Hunter has refused to admit the laptop is genuine despite email recipients confirming the content of the communications. The laptop also shows Hunter engaged in potential crimes from drug use to prostitution offenses. Yet he insisted it might all be those pesky Russians again.

Now the laptop is his, and he is fighting mad. Indeed, he’s shocked that anyone would treat his property in this fashion — a property he left at a computer shop and failed to claim for years.

In the effort to target Marco Polo, the Biden team insists it “has operated as little more than a thinly disguised political operation to attack the Biden administration and the Biden family.” That sounds more vindictive than virtuous. Indeed, if the Biden administration started yanking the tax-exempt status of Biden critics, it would trigger an outcry over weaponizing the IRS. (A similar controversy during the Obama-Biden administration involving IRS official Lois Lerner led to a financial settlement with targeted conservative groups.)

A picture of Tucker Carlson.
The Biden team threatens a lawsuit against Fox News host Tucker Carlson while demanding a retraction of “false and defamatory statements.”
Getty Images

Biden’s team seems at points as conflicted as its client. After denouncing the use of his personal property and files, it suggests they might not be his files at all. It claims that “downstream recipients of what has been purported to be Mr. Biden’s hard drive have reported anomalies in the data, suggesting manipulation of it.”

You certainly do not want to be downstream in any Hunter Biden scandal, but this raises questions as to whether these files are authentic while claiming ownership of them.

Notably, Biden has not brought a civil lawsuit for a privacy tort claim despite the bluster and bombast of these letters. The reason is simple: He does not have a privacy case against the media or critics.

Under the tort of “public disclosure of embarrassing private facts,” you can be sued for publishing even true statements that a reasonable person would find offensive. Showing Hunter’s selfie videos allegedly having sex with prostitutes would qualify as embarrassing to most people. But the tort has an exception for “newsworthy” stories or matters of great public interest. Biden may not be the energy or transportation expert his previous positions suggest, but he is most certainly newsworthy.

What is clear is that the letters mark a new chapter in this saga as his legal team attempts to move from the hunted to the Hunter.

Jonathan Turley is an attorney and a professor at George Washington University Law School.