The case’s substantial flaws lay not in the evidence but rather in special counsel David Weiss’ decision to bring it in the first place, in effect throwing the book at President Biden’s son. That was an abuse of prosecutorial discretion.
The fact is that it hasn’t been Justice Department practice to prosecute anyone for lying on the federal firearms form unless a gun is used in a crime or, in rare cases, another extenuating factor exists — known involvement in a criminal gang, for example. Hunter Biden, by contrast, possessed his gun for all of 11 days and never used it.
Weiss, a former U.S. attorney held over from the Trump administration to avoid any appearance of political interference with the Biden investigation, initially handled the case in a way that was consistent with those facts. After a five-year investigation, the Justice Department proposed to dispose of the case with a diversion agreement, which would have allowed Biden to avoid punishment on the gun charge if he stayed out of trouble for two years. Biden agreed.
The plea agreement was all but signed, sealed and delivered when it was presented in a Delaware federal court in July 2023, whereupon it stood to be swiftly consummated 999 times out of 1,000. But it was Biden’s terrible luck that the agreement was poorly written to suggest that U.S. District Judge Maryellen Noreika would make the final determination as to whether the terms were satisfied. The judge understandably balked at this unorthodox provision, and the agreement unraveled in court.
By then the deal had become deeply embroiled in politics. Republicans on Capitol Hill, who were openly trying to leverage Hunter Biden’s misconduct into an impeachment of the president, alleged that the plea agreement was a sweetheart deal. The month after it fell apart, Atty. Gen. Merrick Garland made Weiss a special counsel, 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 deal, attempting to persuade the court that the diversion agreement was still valid. Weiss’ lengthy, biting response made it clear that the parties were at loggerheads and that Biden was in very hot water.
Weiss soon brought the indictment on which Biden was just convicted. He faces 15 to 21 months in prison under federal sentencing guidelines, though it’s likely that the court will impose a lighter sentence.
Lowell was aggressive in trying to get the indictment dismissed, arguing that Biden was a target of selective prosecution and that abandoning the agreement was unlawful. 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 could not make normally extraneous legal arguments at trial about the prosecutor’s decision to bring the case. The jurors had to stick to determining the credibility of the evidence, and their prompt verdict shows that they did not hesitate in concluding that Biden knew he was a drug user when he denied it on the form.
This isn’t to quibble with the notion that Biden lied on the form or that he engaged in other culpable conduct during a dark period of his life. But the tortuous course of this case illustrates a flaw in the special counsel regulations, at least in our current hyperpartisan atmosphere.
Most federal prosecutors work within a supervisory structure that seeks to ensure horizontal equity — that is, like treatment of like offenses — and sensible use of federal charges against the most serious offenders. Had a rank-and-file prosecutor drafted the Biden indictment and sent it up the chain of command for approval, the question would have been whether there were aggravating factors to justify the case. And there weren’t.
But because Garland had made Weiss a special counsel and resolved to be completely hands-off, the prosecutor was able to bring the case anyway.
The parties exchanged heated arguments after the indictment was brought. Biden claimed that he was singled out for selective prosecution for illegitimate reasons — in effect, his last name. Weiss disparaged that as “fiction designed for a Hollywood script.”
The inference that Weiss caved to pressure from congressional Republicans in charging the president’s son is hard to avoid. But it’s not necessary to unequivocally reach that conclusion to find basic fault with the case.
Hunter Biden was singled out for harsher treatment than any other comparable defendant would have been in the normal run of federal prosecutions. That’s injustice enough.
Harry Litman is the host of the “Talking Feds” podcast and the Talking San Diego speaker series. @harrylitman