By Rabbi Rachel Esserman

I imagine that some people are wondering why I haven’t written about the Hunter Biden criminal probe, especially now that a special counsel has been appointed. There’s a simple reason: our justice system is proceeding in the appropriate manner. The judge decided that the plea bargain for tax evasion and the weapon charges was too vague, and the two sides were unable to agree on a new plea bargain. The special counsel is now looking into the matter. As for the charges themselves, few people go to jail for tax evasion. (And tax evasion is so common that at least half of the United States would be in jail if the IRS went after them, says the daughter of a certified public accountant.) As for the gun charge, I won’t object if Biden is jailed for owning the gun: if he was poor and black, and had a public defender as a lawyer, that would be the mostly likely result so his wealth and status should not protect him.

As for his father, President Joe Biden, not commenting on his son’s difficulties, that’s also the appropriate course of action. No one with political influence should be speaking about criminal cases. That could affect those available for jury selection and create problems for the judicial system. The president’s personal thoughts should remain personal. 

There remains the question of Hunter claiming to others that he could influence his father’s decision making. The crux of this is not whether Hunter made that claim, but whether the president would have actually done what Hunter suggested. People often say things that aren’t true in order to make themselves look more important or influence other people’s behavior. Claiming to have political power is not a crime. This case would rest on whether the president acted on what his son suggested. But Hunter claiming that he has influence is covered by the right to free speech. 

Freedom of speech: that’s actually the defense’s claim in another set of indictments. In this case, the defense says their client’s right to free speech means it wasn’t illegal for him to lie about the results of an election. That’s one of the defenses former President Donald Trump is using. I know some of you are saying, “Ha! I knew she was going to use this column to talk against Trump.” First, I am not happy that a former president has been indicted. This is a profoundly sad time for our country, but it’s not the first time a president has been involved in illegal actions: Gerald Ford pardoned Richard Nixon before any charges could be filed, but Nixon’s henchmen went to jail for their illegal actions.

The question with the Trump indictments is not what he said, though, because it’s not illegal to lie unless you are under oath. (Lying to law enforcement is generally, but not always, considered a crime.) It’s whether what he did that qualifies as a crime. I can’t speak to that because I haven’t heard all the evidence. Yes, I believe he is a frequent liar (fact checks have made that clear), but I don’t know if his actions qualify as criminal. That’s the purpose of the trial: to reveal all the evidence and let a jury decide. I can only hope that the members of the jury are as open minded as I am trying to be. 

One big difference, though, between the Biden and Trump cases are the reactions of the defendants. As far as I’ve seen, both the current president and his son have not commented about those involved in Hunter’s case nor have they revealed information that is supposed to stay private. That is not true in the Trump case: the former president has condemned and made threatening statements against those involved. He has also released information that the judge said should not be revealed. If Trump was poor or black, he would already be jailed until his trial for ignoring the judge’s ruling.

If we are to have equal justice, then if either of these men are found guilty, they should go to jail. Their high priced lawyers are trying to prevent that, something that is allowed under our justice system. What is not allowed is trying to influence or subvert the system by declaring those who are doing their jobs – the investigators, the judges, the district attorneys and special counsels – are thugs or deranged. The act of demonizing those who disagree with you is destroying our civil society. Think Biden and/or Trump are guilty? That’s your privilege. Acting against those working on their cases in the courts of our country? That may not always be illegal, but it’s certainly immoral.