Hunter Biden faces up to 25 years in prison if convicted on three felony gun charges in a trial that is set to begin in Wilmington, Del., on Monday. In the meantime, his father is behind in many polls, his financial benefactor is reportedly “tapped out” and his best legal arguments require gutting federal gun control laws. An embarrassing trial that he is likely to lose will only make things worse.
An early plea agreement — in which he agreed to plead guilty to two misdemeanor tax charges and enter into a deferred prosecution agreement on the gun charges — fell apart last summer. But a criminal defendant can accept a plea deal from the prosecution anytime before the jury returns its verdict, which means that he might still have a chance to avoid a full trial.
If he can, he should.
To bring federal charges, the Department of Justice manual advises that a prosecutor should believe that the defendant is guilty, that the prosecutor believes he has evidence that will prove the defendant is guilty beyond a reasonable doubt, and that the prosecutor believes that a reasonable jury would convict the defendant. In practice, this means that once the Department of Justice has indicted you, they believe they will win. And they almost always do.
Over a 12-month period ending last fall, just 290 of the nearly 72,000 federal criminal defendants charged by the Justice Department were acquitted at trial. That’s less than one half of 1 percent. (Of course, only 1,379 were convicted at trial — a paltry 2 percent.) The vast majority facing a D.O.J. indictment decided either to plead guilty outright or accept a plea deal, believing that the prosecutor had correctly weighed their chances of winning in front of a jury before bringing the case in the first place.
Hunter Biden has argued that he was only charged because of his last name. And he has a point — there are far more gun crimes committed than can be handled by federal prosecutors. The main charge is that he had a gun while using cocaine, which is a rarely used part of the statute. But that’s usually because drug use is hard to prove compared to other gun charges, like being a felon with a gun. Here, though, prosecutors have noted that “investigators literally found drugs on the pouch where the defendant had kept his gun.” And when prosecutors do bring this charge, people who are found guilty are often sentenced to real prison time — over a year for someone in Hunter Biden’s shoes.
That would be enough of an incentive for most people to plead guilty to federal gun charges. Hunter Biden has even more.
First, there’s his father’s reputation to consider. Theodore Roosevelt is said to have remarked that he could be president or he could control his daughter, but he couldn’t do both. President Biden is faring no better at juggling the two roles. On several occasions he has invited his son to White House events alongside the attorney general who is responsible for prosecuting him. Despite the fact that it is inappropriate for the president to comment on current Justice Department investigations, President Biden was not able to resist publicly stating in May 2023, “My son has done nothing wrong.”
Last week, President Biden visited Beau Biden’s widow, Hallie Biden, at her home near the anniversary of his older son’s death. The problem is that Ms. Biden is also expected to be a key witness against Hunter Biden — and President Biden’s visit raised allegations of witness tampering from the president’s critics. A White House spokesman said the president did not discuss the trial during the visit.
Of course, the trial itself will be embarrassing and painful for Hunter Biden and his family. On top of highlighting his past romantic involvement with his brother’s widow, the prosecution is expected to introduce evidence, including pictures, text messages, and his own statement that he was smoking crack cocaine “every 15 minutes, seven days a week,” despite affirming on a federal form that he was not using any illegal drugs when he purchased the gun.
Second, he is low on money. Since he met Kevin Morris, a Hollywood entertainment lawyer, at a campaign fund-raiser for his father in 2019, Mr. Morris has functioned as a financial lifeline for him, shelling out over $6.5 million to help cover costs related to things like back taxes and child support. He’s even agreed to pay nearly $900,000 for some of Hunter Biden’s artwork. Now on the brink of trial, Mr. Morris has run out of resources to help, according to an associate, and it is unclear how Hunter Biden’s legal team will pay for the expert witnesses they were hoping to have testify at trial. Abbe Lowell, his lead attorney for the trial, has reportedly sought fees of over $1,500 per hour in the past — and he doesn’t work alone.
And third, Hunter Biden’s best arguments aren’t even the ones he can make at trial. In his own memoir, he admitted that he regularly used drugs around the time he bought the gun. That means the outcome of the trial seems largely a foregone conclusion. On appeal, however, Hunter Biden is likely to argue that the law itself is an unconstitutional infringement on his Second Amendment rights to own a gun.
This is a politically tricky, but a legally reasonable argument. After all, the Court of Appeals for the Fifth Circuit already held that the law was invalid as applied to admitted marijuana users. But cocaine is different from marijuana, and then there’s the awkwardness of the president’s son trying to convince the Supreme Court to invalidate part of the most widely used gun control law in the country while his dad campaigns on passing stricter gun control laws.
In short, Hunter Biden should take whatever deal he is being offered. It doesn’t get easier from here.
Ms. Isgur is a senior editor at The Dispatch and the host of the legal podcast “Advisory Opinions.” She served in the Department of Justice from 2017-2019 as the director of the Office of Public Affairs and senior counsel to the deputy attorney general during the Russia investigation.
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