Editor’s Note: Julian Zelizer, a CNN political analyst, is a professor of history and public affairs at Princeton University. He is the author and editor of 25 books, including the New York Times best-seller, “Myth America: Historians Take on the Biggest Lies and Legends About Our Past” (Basic Books). Follow him on Twitter @julianzelizer. The views expressed in this commentary are his own. View more opinion on CNN.
On Tuesday, news broke that Hunter Biden had reached a plea deal with the Justice Department. The president’s son will plead guilty to two tax misdemeanors and agreed to a deal involving a felony gun charge, according to a Justice Department filing.
While details are still forthcoming, one thing is certain — the news strikes a blow to one of the key Republican responses to the federal indictment of former President Donald Trump: whataboutism.
The GOP has argued that the Justice Department has two standards for justice – and that it holds Republicans, particularly Trump, President Joe Biden’s main political rival, to a different standard than it does Democrats. To prove their point, they have cited Hunter Biden’s alleged misconduct and claimed the Justice Department has not been nearly as aggressive in its pursuit of justice regarding him.
But this is clearly not true. The Justice Department investigated and reached a plea deal with the president’s son, a decision that will surely be politically explosive for President Biden as he heads into the 2024 election cycle. And David Weiss, the leading US attorney and Trump appointee on the case, has said the investigation is “ongoing,” so there may yet be more to come. The White House said the president hasn’t had any interference in the probe.
Despite this, leading Republicans were quick to criticize the Justice Department’s plea deal. In a statement to CNN, former Ambassador Nikki Haley said the deal “only raises further questions” about the “double standard of justice.” Meanwhile, House Speaker Kevin McCarthy told reporters, “If you are the president’s leading political opponent, the DOJ tries to literally put you in jail and give you prison time. If you are the president’s son, you get a sweetheart deal.” And Trump himself compared the deal to “a mere ‘traffic ticket’” on Truth Social.
Despite their protests, though, these Republicans have a much weaker case – and the nature of the investigations themselves bears that out. The former president is under a 37-count federal indictment that alleges he willfully retained classified documents after he left office and refused to turn them over to the National Archives when asked repeatedly.
Trump, according to the indictment, went to great lengths to prevent the government from getting its hands on material that included details about nuclear capabilities, military plans – and more. Trump has denied all charges against him. In an interview with Brett Baier on Fox News on Monday night, the former president said he wanted to get his “things out” before handing over the boxes of documents for which he was subpoenaed last year. “These boxes were interspersed with all sorts of things,” he told Baier.
In contrast, the investigation into Hunter Biden, which did not involve anyone who once resided in or who currently occupies the Oval Office, is not of the same gravity. According to the Justice Department, it revolves, at least in part, around missed federal tax payments in 2017 and 2018, a crime that carries a far lower sentence than the potential charges Trump could be facing in the classified documents case.
But, of course, for much of the GOP, this wasn’t about the actual substance of these investigations. The whataboutism was a Republican effort to suggest that Joe Biden was abandoning the Watergate-era strictures that aimed to ensure the Justice Department administers the legal system impartially and without the political imprint of the president.
The Watergate scandal revealed that then-President Richard Nixon had treated the Justice Department like an arm of his own electoral interests — deploying his muscle to block the investigation and to pursue other objectives, such as bringing to an end a key anti-trust case. After Nixon, the Justice Department adopted regulations to ensure that this would never happen again.
The charge of political meddling with the Justice Department has always been ironic given that more than any other president in recent times, it was Trump who put those Watergate-era regulations through a stress test. Trump had seemingly little regard for them, treating the Justice Department as a potential weapon to advance his own interests.
One of the most striking moments took place during the January 6 congressional committee investigation, when the public learned just how far Trump had been willing to go to use the Justice Department to advance his false claims of a fraudulent election. The only thing that stopped him was the decision by most top Justice officials to say no and even threaten mass resignation.
In sharp contrast, we now have yet more evidence that Joe Biden has stayed out of the Justice Department investigation into his son. Though the Justice Department has many critics, including Democrats who have faulted it for being so slow in investigating the former president out of fear of seeming too political, it has now offered more proof it abides by the Watergate-era stricture of keeping itself at arms-length from the president in order to maintain its independence.
Bottom line: Whataboutism has always been a weak argument – particularly in comparison to the magnitude of the probes into Trump’s actions while president. The argument has been a way to distract the public from the charges at hand rather than to engage them – and to reflexively point the finger at someone else they claim to be more sinister.
Nonetheless, the Justice Department will need to walk a fine line as it pursues charges in the Trump case. It has and will continue to face accusations by Trump and his supporters that the probes are purely political – designed to weaken his 2024 prospects.
The best response the Justice Department can give is to prove that claim false through action rather than rhetoric. With this plea deal, we have evidence that the Justice Department’s attention is less focused on election outcomes and more focused on the endurance of our legal system against the immense pressure it has been facing.