Hunter Biden Has a Surprisingly Excellent Legal Defense

Hunter Biden smiling widely.
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For months, conservative media outlets, supporters of Donald Trump, and Republican officials have argued loudly that Hunter Biden has been getting kid-glove treatment in his assorted criminal investigations because he’s President Joe Biden’s son. This week, a major problem emerged with the GOP’s “two-tiered system of justice” allegation when Hunter was charged with multiple felonies stemming from a 2018 firearm purchase. This development reveals that Republicans had it exactly backward: Hunter Biden is receiving especially unfavorable treatment because his father is the president. The new charges, unveiled in an indictment on Thursday, are not just unusual; they would be inexplicable outside of the context of the political attacks on the Biden family. Indeed, they reek of selective prosecution, as if special counsel David Weiss started with the premise that Biden must be charged with something, anything, to satisfy the howling mob, and gun-related crimes were the lowest-hanging fruit.

Weiss, however, may well have miscalculated. The centerpiece of the indictment, an allegation that Biden possessed a gun while using crack, is on extraordinarily shaky constitutional ground; one federal appeals court recently held that the categorical gun ban for drug users violates the Second Amendment. The other two charges pertain to lying on a government form while trying to buy a firearm. These charges are on more solid ground, but for an extraordinarily common offense that almost never results in criminal prosecution.

It appears likely, then, that after a plea bargain between Weiss and Biden fell apart this summer, the special counsel sought to placate Republican critics by bringing the harshest possible charges. Biden deserves some blame here: Rather than accept a mostly favorable plea deal, he and his lawyers demanded sweeping immunity and an end to Weiss’ probe—an overreach that scuttled the agreement and set the wheels in motion for the new indictment. That miscalculation was the decisive factor in Attorney General Merrick Garland’s decision to elevate Weiss, originally a Trump appointee, from U.S. attorney to special counsel. Armed with this broader authority, Weiss was bound to come up with some reason to threaten his target with prison time. This chain of events was entirely foreseeable, a fact that Hunter Biden’s own hubris seems to have stopped him from seeing.

And yet, after Weiss’ lengthy investigation as U.S. attorney, and further probing as special counsel, this indictment was the best he could come up with: an allegation that Biden violated laws that are either constitutionally dubious or vanishingly enforced. Yes, Weiss claims he is still probing Biden’s business dealings, but so are congressional Republicans, and despite their obsessive inquisition, they have yet to identify any criminal conduct, aside from possible tax violations that usually result in financial penalties. Hunter Biden is a deeply flawed man who made many bad decisions, but it is improbable that those decisions would have triggered prosecution if he weren’t the president’s son.

Start with the gun charge. Federal law prohibits the possession of a firearm by anyone who “is an unlawful user of or addicted to any controlled substance.” Standalone prosecutions for this crime are rare: According to an Urban Institute study, 3,695 people were investigated for violating the statute between 2000 and 2016, a rate of roughly 231 people a year. A smaller number of these suspects were charged, and even fewer convicted, though the exact data is unavailable. Notably, a majority of defendants charged with unlawfully possessing a gun for any reason were also charged with a substantive crime, like bank robbery. Charges against a drug user for gun possession are usually brought “in conjunction with, or in lieu of, other drug-related charges,” as professor Dru Stevenson has found. A charge unconnected to a more serious offense, like the one Weiss brought against Biden, is quite unusual.

These prosecutions are also in legal jeopardy because they are difficult to square with the Supreme Court’s 2022 Bruen decision. In Bruen, the court declared that restrictions on the right to bear arms violate the Second Amendment unless they have sufficient “historical analogues” from the 18th and 19th centuries. But there are no historical analogues to the contemporary federal ban on gun possession by illegal drug users. A few regulations from past centuries barred people from carrying or using firearms while intoxicated; they did not impose a categorical ban on gun possession among people who used intoxicants. Once sober, gun owners regained their right to bear arms in public. For that reason, the U.S. Court of Appeals for the 5th Circuit held in August that the categorical ban is unconstitutional unless applied to a person who uses a gun while intoxicated. While the 5th Circuit is often far outside the mainstream, this decision was joined by the liberal Judge Stephen Higginson.

The 11-day period when Biden had a gun coincided with renewed struggles with crack cocaine and alcohol, as he admitted in his memoir. But there is no evidence that he carried or used the firearm while under the influence of crack. Unless Weiss can prove otherwise, this charge may flounder in court. It is especially vulnerable at the U.S. Court of Appeals for the 3rd Circuit, which encompasses Delaware; a coalition of conservative and liberal judges on the 3rd Circuit has begun to wield Bruen against categorical bans on gun ownership.

Aware, perhaps, that this single charge would look weak, Weiss brought two accompanying charges, both accusing Biden of lying about his drug use on a federal form when buying the gun. (He allegedly committed two offenses—lying to both the dealer and the federal government—but the charges are basically identical.) Obviously, Biden should not have done this; it was a wrongful act that deserves scorn and scrutiny.

But does it merit prosecution? Federal prosecutors don’t seem to think so, at least when the suspect isn’t named Hunter Biden. These forms are designed to identify individuals who are prohibited from buying guns before they are sold a weapon. Gun sales by licensed dealers are subject to a background check processed by the National Instant Criminal Background Check, or NICS. In theory, law enforcement should investigate most NICS denials; that’s because a denial indicates that a buyer told the dealer he was eligible to purchase a firearm, but was later found to be ineligible. In other words, a NICS denial may signal that the buyer lied on their forms. (A 2016 federal audit found that less than one percent of one percent of denials are due to false positives.)

Law enforcement, though, does not follow up on each NICS denial, because that would be impossible. A Government Accountability Office report examining data for fiscal year 2017 found that 112,090 people were denied a gun after a NICS background check. ATF referred 12,710 of those individuals for investigation. And a grand total of 12 people faced federal charges, a rate of 0.01 percent.* Most of these individuals, moreover, were charged for lying about a past felony conviction, not drug use.

There are other ways that law enforcement might discover that a gun buyer lied on their form. In a typical case, an individual might be found in possession of a weapon, and an investigation will show that they lied to the dealer when purchasing it. The Washington Post reported, based on data from the Department of Justice, that 433 of these cases were referred to federal prosecutors in fiscal year 2020, while charges were filed in 243 of them. Although the DOJ has not released the precise data, an overwhelming majority of these cases were almost certainly charges for lying about a criminal record, given that about 90 percent of people barred from buying a gun are disqualified by a felony conviction. (The number of people denied a gun because of drug use is about 3 percent.) These charges were also frequently accompanied by more serious criminal charges. Further, the DOJ did provide the Washington Post with specific data for Delaware, where Biden was charged; it shows that in fiscal year 2019, no one faced federal prosecution for lying on a federal form when trying to buy a gun.

Recall that about 200 million Americans now live in states where marijuana is legalized for recreational or medical purposes, and that marijuana users are still forbidden from buying a gun. With about 17 million gun sales a year, it is a safe bet that many purchasers are lying about drug use. And yet prosecutions of these lies are statistically close to zero.

Hunter Biden should not have used crack cocaine, lied to the government, or illegally bought a gun. Nor should he have helped to blow up a favorable plea bargain because it did not give him absolute immunity. But his own misdeeds do not make it acceptable for Weiss to cook up three charges that an ordinary citizen would never face. Selective prosecution claims are essentially impossible to prove, so Hunter cannot use the flagrantly political motives here to defeat the indictment. That makes this case an unfortunate reflection of the criminal legal system’s inability to restrain prosecutors’ worst impulses. These lawyers have vast discretion, and we trust them to exercise it responsibly; Weiss has broken that trust. Most victims of prosecutorial overreach are indigent people of color; Biden, by contrast, has a team of well-paid lawyers who will provide him with stellar representation, including a strong constitutional challenge. That advantage doesn’t change the fact that his prosecution is fundamentally, irredeemably unjust.