As the deadline looms for Hunter Biden and James Biden to respond to subpoenas from congressional Republicans, President Obama’s White House counsel says that a precedent set by President Trump and the Supreme Court allows members of the Biden family to fight back. 

The White House’s former top lawyer, Neil Eggleston, who served Mr. Obama between 2014 and 2017, tells the Sun that prior to the Trump administration, he would not have seen any justification for members of the president’s family to assert executive privilege, which typically covers employees of the executive branch, including the president. 

“Until a couple of years ago, I would have said that there was essentially no protection — executive privilege protection — for subpoenas to Hunter Biden or to the president’s brother because they are not government officials,” he says. 

In a letter announcing the subpoenas that was sent to Hunter Biden’s attorneys, the chairman of the House Oversight Committee, James Comer, justified his action by saying it is part of “ongoing efforts to craft legislative reforms to federal ethics and financial disclosure laws.” Mr. Comer is referring to Hunter and James Biden’s business practices, which Republicans claim involved leveraging the family name to make money overseas.

Mr. Eggleston, though, says these subpoenas are not actually part of any legislative effort. Yet it would still be permissible for Republicans to seek testimony and documents from the Biden family, he says, if not for a Trump-era Supreme Court decision limiting congressional committees’ ability to go after the president for personal matters. 

Trump v. Mazars, which was decided in 2020, held that the House committees — then controlled by Democrats — could not subpoena Mr. Trump’s tax returns, which he famously refused to make public during his 2016 campaign and over the course of his presidency. 

In a 7-2 decision, the high court held that the committee was not performing a legislative function by attempting to obtain the tax returns but rather trying to conduct a criminal investigation into the sitting president, which is a power reserved solely for the executive branch. Justices Samuel Alito and Clarence Thomas were the dissenters in that case. 

Mr. Eggleston says that the Mazars precedent now affords President Biden and his family the ability to refuse to comply with the subpoenas on the grounds that Mr. Comer and congressional Republicans are not performing legislative duties. 

“The Supreme Court ruled that … there was still executive privilege protection because these kinds of subpoenas can be used to harass the president, interfere with the president’s ability to perform his duties, and as a result said that there was executive privilege protection,” Mr. Eggleston says. “If I were the White House, I would be making that argument, and I would think about litigating the whole thing.”

Mr. Eggleston also says that the White House may end up not taking that course of action because it may not want to appear to be covering up wrongdoing where there is none. 

“The reason not to is I think the White House wants to take the position that, ‘There’s nothing to see here, we’re not really hiding anything.’ So as a political matter they may decide not to, but I think as a legal matter, I think they’re entitled to argue just as President Trump did in the Mazars matter that this is intended to harass the president and to be embarrassing to the president,” he says. “It is not a legitimate legislative  inquiry, which is one of the critical tests that the Supreme Court issued in Mazars.”

“Pre-Mazars, I would have said none of this material was covered by any kind of executive privilege, but the Supreme Court changed the rules in Mazars, and if they apply to President Trump, they certainly apply to President Biden,” Mr. Eggleston says. 

Mr. Comer recently issued a raft of subpoenas to people in the Biden orbit. In addition to subpoenaing Hunter and James Biden, Mr. Comer has also sent subpoenas to their business associates Rob Walker, Eric Schwerin, and Mervyn Yang. Also subpoenaed are two people involved in the sale of Hunter’s paintings: his art dealer, George Bergès, and a donor to Mr. Biden, Elizabeth Naftali, who purchased the art. 

Mr. Comer hopes to interview these persons behind closed doors using staff lawyers as he builds a case for impeaching Mr. Biden. Should these Biden associates resist the subpoenas, it could considerably delay House Republicans’ impeachment timetable.