You can't blame the jury that found Hunter Biden guilty Tuesday for falsely claiming he didn't use drugs on a federal firearms purchase form. Despite defense arguments that the government did not identify Biden's drug use as occurring precisely when he purchased the gun, jurors had ample grounds to conclude that he was in the midst of a crack cocaine addiction before, during and after the transaction.
The case's substantial flaws lie not in the evidence but rather in special counsel David Weiss's decision to bring it in the first place, effectively throwing the book at President Biden's son. That was an abuse of prosecutorial discretion.
The fact is, it has not been the practice of the Department of Justice to prosecute anyone for lying on the federal firearms form, unless a weapon is used in a crime or, in rare cases, there is another mitigating factor: known involvement in a criminal gang, for example. . Hunter Biden, on the other hand, possessed his gun for 11 days and never used it.
Weiss, a former U.S. attorney removed from the Trump administration to avoid any appearance of political interference with the Biden investigation, initially handled the case in a manner consistent with those facts. After a five-year investigation, the Justice Department proposed settling the case with a diversion agreement, which would have allowed Biden to avoid punishment for the weapons charge if he had stayed out of trouble for two years. Biden agreed.
The plea agreement was virtually signed, sealed and delivered when it was filed in federal court in Delaware in July 2023, after which it would be quickly consummated 999 times out of 1,000. But it was Biden's bad luck that the agreement was poorly worded to suggest that U.S. District Judge Maryellen Noreika would make the final determination on whether the terms were met. Understandably, the judge objected to this unorthodox provision and the agreement fell apart in court.
By then, the agreement had become deeply mired in politics. Republicans on Capitol Hill, openly trying to take advantage of Hunter Biden's misconduct to impeach the president, argued that the plea deal was a favorable deal. The month after he broke down, Atty. Gen. Merrick Garland appointed Weiss as a special prosecutor, giving him free rein to continue investigating Biden.
Biden's lawyers, led by Abbe Lowell, bitterly accused the Justice Department of reneging on the plea agreement, attempting to persuade the court that the diversion agreement was still valid. Weiss' long, pointed response made clear that the parties were at odds and that Biden was in trouble.
Weiss soon presented the accusation for which Biden was just convicted. He faces 15 to 21 months in prison under federal sentencing guidelines, although the court is likely to impose a lighter sentence.
Lowell was aggressive in trying to get the indictment dismissed, arguing that Biden was the target of targeted prosecution and that abandoning the deal was illegal. But the legal channels for making such claims are extraordinarily narrow for generally sensible reasons. The system assumes that prosecutors will make charging decisions in good faith and that juries will determine guilt based on the facts.
For the same reason, Biden's defense was unable to present normally superfluous legal arguments at trial over the prosecutor's decision to bring the case. Jurors had to limit themselves to determining the credibility of the evidence, and their quick verdict shows they did not hesitate to conclude that Biden knew he was a drug user when he denied it on the form.
This is not to challenge the idea that Biden lied on the form or engaged in other culpable conduct during a dark period of his life. But the tortuous course of this case illustrates a flaw in special counsel regulations, at least in our current hyperpartisan atmosphere.
Most federal prosecutors work within an oversight structure that seeks to ensure horizontal equity (i.e., similar treatment for similar crimes) and judicious use of federal charges against the most serious offenders. If a rank-and-file prosecutor had drafted Biden's indictment and sent it up the chain of command for approval, the question would have been whether there were aggravating factors that justified the case. And there weren't any.
But because Garland had appointed Weiss as special prosecutor and had decided not to intervene at all, the prosecutor was able to present the case anyway.
The parties exchanged heated arguments after the indictment was filed. Biden claimed that he was singled out for selective prosecution for illegitimate reasons; in fact, his last name. Weiss disparaged it as “fiction designed for a Hollywood script.”
It is difficult to avoid the inference that Weiss bowed to pressure from congressional Republicans by impeaching the president's son. But it is not necessary to unequivocally reach that conclusion to find basic flaws in the case.
Hunter Biden received harsher treatment than any comparable defendant would have received in the normal course of federal prosecutions. That is quite unfair.
Harry Litman is the host of Podcast “Talking about federals” and the Talking about San Diego Speaker series. @harrylitman
