As prosecutors reportedly weigh whether Hunter Biden will be indicted for alleged tax fraud, the DOJ’s little-known Tax Division and its leadership could become key players in the potential case against the president’s son.
But there’s a notable absence on the DOJ’s roster.
The director for the Tax Division, a Senate-confirmed position, has yet to be filled—because President Joe Biden, despite being almost two years into his term, hasn’t nominated one. The vacancy stands in contrast to five of the seven DOJ divisions and all of DOJ leadership, all of which have been confirmed.
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A nominee to the Civil Division of the DOJ was made in 2021, but was later withdrawn.
And though Joe Biden has appointed an “acting” director, the lack of nomination means lawmakers on both sides of the aisle haven’t been given the opportunity to weigh in on leadership of the DOJ division that, per DOJ policy, has power of approval over whether to pursue Hunter’s alleged tax crimes—among other high-profile tax cases.
And that absence begs the question: What’s the holdup?
As with any nomination to the Senate—confirmation hearings for a given nominee risk turning into a political circus. Conservative media and Republicans have long amplified incremental details about the younger Biden’s case and personal life, meaning a confirmation hearing for anyone potentially involved in the younger Biden’s case could be subject to mayhem.
“It strains credulity that any Democratic senators would vote against a nominee to head the Tax Division,” said a Treasury Department official familiar with the issues presented by the vacancy at Justice. “But it’s not hard to imagine that confirmation for a position with even a tangential relationship to anything relating to Hunter… would become a free-for-all.”
The right has seized on nearly every aspect of Hunter Biden’s life, from his business dealing to his struggles with addiction. Just this week, Fox News broadcast a private 2018 voicemail from Joe Biden to his son, in which the elder Biden states, “It’s Dad. I called to tell you I love you. I love you more than the whole world, pal. You gotta get some help. I don’t know what to do, I know you don’t either, but I’m here no matter what you need.”
The case against Hunter Biden dates back to 2018, when investigators began looking into whether he had failed to disclose all of his taxable income, including some from offshore business dealings. The younger Biden is also facing an investigation into whether he lied on a form to purchase a gun in 2018 as well. (The Tax Division would not be involved with the gun charge.)
The Washington Post reported last week that federal agents believe there is sufficient evidence to charge Hunter Biden for his alleged tax crimes and the falsification of his gun-purchase information. U.S. Attorney General Merrick Garland has tasked the decision on whether or not to file charges against Biden to Delaware U.S. Attorney David Weiss, a Trump-era appointee.
David Hubbert, the acting director of the DOJ’s Tax Division, is a career member of that office and was appointed by Biden in February 2021. According to the DOJ’s website, despite not being confirmed by the Senate, “Hubbert continues to serve as the Head of the Tax Division” almost two years into the president’s term.
The lack of a permanent replacement for Hubbert has not gone unnoticed. Last year, five House Democrats wrote to Biden urging him to nominate a permanent Tax Division chief.
Not doing so, they said, risks the integrity of the agency.
“The continued reliance on an Acting Attorney General hinders the division’s ability to promote voluntary compliance with the tax laws, enforce the nation’s tax laws, and perhaps most importantly, maintain public confidence in the integrity of the tax system – the very prerequisites of the division’s mission…” Democratic Reps. Bill Pascrell (N.J.), Judy Chu (CA), Dwight Evans (PA), Tom Suozzi (N.Y.) and Steven Horsford (NV) wrote in July 2021.
“It is impossible for the American people to have confidence in their tax system if the government itself does not demonstrate a sustained commitment to engage the machinery of that system and make it fair for all citizens,” the lawmakers added.
The sentiment of the lawmaker’s letter at the time was focused on the broader responsibilities of the head of the Tax Division, which is a key player in cracking down on white-collar crime and big-dollar tax evaders. Biden has prioritized beefing up accountability against tax cheats in other aspects of his administration—including by increasing funding for the Internal Revenue Service.
Biden has assiduously avoided discussing his son’s business dealings or the investigations into them while in office, part of a broader policy of respecting a proverbial brick wall around the Department of Justice that has frustrated some Democratic allies in the past. The White House did not comment for this report.
When asked about Hunter’s potential prosecution for tax crimes during an interview with CNN’s Jake Tapper on Tuesday, the president has focused on his love for his son and acknowledging that Hunter’s struggles with substance use in the past have caused him pain in recent years.
“I’m proud of my son,” Biden said.
“I’m confident that what he says and does are consistent with what happens,” Biden continued, emphasizing that he “didn’t know anything about” the gun application issue. “I have great confidence in my son. I love him and he’s on the straight and narrow, and he has been for a couple years now, and I’m just so proud of him.”
The Department of Justice did not respond to a request for comment, nor did Hunter Biden’s lawyer, Chris Clark.
The only other DOJ division without Senate-confirmed leadership is the Civil Division. Biden nominated Harvard University counsel Javier Guzman to the Civil Division seat in 2021—before later withdrawing Guzman’s nomination for personal reasons.
The DOJ divisions for antitrust, civil rights, criminal, environment and natural resources as well as national security all have Senate-confirmed leadership. All of the top-tier leadership at DOJ, including attorney general, deputy attorney general, associate attorney general and solicitor general have all been Senate-approved as well.
To be sure, Biden isn’t alone in failing to seat a Senate-confirmed director for the Tax Division. It’s been roughly eight years since the division has had a confirmed director.
While former President Donald Trump nominated Richard Zuckerman to lead the Tax Division in February 2020, he was never confirmed, as his nomination timed out before the turn of the new Congress after the election.
Large-scale investigations like those into Hunter Biden’s taxes and gun form can take years to complete—especially when under the political lens seen in this case. And the timeline for a decision on whether to charge the president’s son remains unclear.
But Biden—aided by Democratic control in the Senate—could nominate a Tax Division head anytime.
