Biden is Guilty!
Last week, the first case against Hunter Biden ended with a predictable guilty verdict. With the case decided (at least pending appeal), we can look back and consider if it was worth it.
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Justice in Brief
In the Western District of Washington, a company entered a guilty plea to falsely identifying the source of wood used in bathroom vanities and cabinets imported into the United States. The wood originated in China which requires customs inspections and import duties. To avoid this, the company stated the wood came from Malaysia.
In the District of Minnesota, a man was sentenced to 15 years for joining the Islamic State, a designated foreign terrorist organization. The man left with his family for Morocco and, while there, traveled to Syria to join ISIS. He fought with ISIS until he was injured and captured by Syrian forces.
In the Eastern District of Virgina, a Nigerian man was found guilty of operating a phishing scheme that targeted Americans. Potential victims received emails that appeared to come from trusted sources but were, instead, efforts to obtain private, sensitive information that could be used to obtain money.
A Look at the United States v. Biden
Last week a federal jury in the District of Delaware found Hunter Biden, the son of President Joe Biden, guilty of two counts of false statements related to a firearms purchase and one count of illegal possession of a firearm. The charges stemmed from an investigation conducted by Special Counsel and United States Attorney for Delaware David Weiss. After a week’s long trial, the jury deliberated three hours before finding Biden guilty. The case was not particularly complicated and the proof of guilt was overwhelming. Had the defendant been anyone other than the President’s son, would anyone have even noticed, much less cared?
In 2018, Hunter Biden purchased a firearm from a licensed federal firearms dealer (FFL). Anyone purchasing from a FFL dealer must complete a form whereby the purchaser certifies certain things. One of those things is that the purchaser is not a drug addict as drug addicts are prohibited from possessing a firearm under federal law. On this occasion, Biden completed the form and indicated that he was not a drug addict. Based on this answer, the FFL dealer sold Hunter Biden the gun.
The problem was that Hunter Biden was, in fact, a drug addict. By certifying he was not, he violated three federal laws. The first two relate to the form he completed. The first was the false statement itself. The second was that the false statement caused the FFL dealer’s records to be inaccurate. The third was that when Biden took possession of the gun, he became a drug addict in possession of a firearm, a violation of 18 USC 922(g).
The case was one of only 18 firearms offenses filed in the District of Delaware during 2023. That was the third lowest total among the district courts in the states and DC with only Rhode Island and Hawaii prosecuting fewer. From a national perspective, Biden’s case was one of nearly 6000 unlawful firearm possession cases. In terms of frequency, this was third highest behind immigration and drug offenses.
Before and during the trial, some people asked if the case was worth pursuing. Asked another way, they wondered if this was anyone other than the President’s son, would he have been prosecuted.
The answer to that, of course, is that it depends. There are thousands of unlawful gun possession charges brought every year in federal courts. By that metric, Hunter Biden’s case is hardly unusual. Yet nearly all of those cases involve a convicted felon possessing a firearm. Out of the 5000+ illegal possession cases, only about 150 involve drug addicts. From that perspective, though not unique, Biden’s case falls into a distinct minority.
More significantly is the manner in which Biden was discovered. Most unlawful possession cases involve the police stopping someone, finding the gun, and then arresting the person for unlawful possession. Biden’s case, conversely, originate due to unfounded allegations that Biden’s conduct in Ukraine was unlawful. Then, it switched to conduct in China. By this time, United States Attorney Weiss and his staff were digging deeply into Biden’s life looking for some criminal offense. They came across the gun purchase. The unlawful firearm possession count resulted from the discovery of Biden’s false statement on the purchase application form. Very few of these cases are prosecuted annually, making it appear that Biden was targeted because of his father.
Assuming that Biden was only investigated and prosecuted because of his father’s political position, does that provide him with a defense? (For the record, Donald Trump is making this argument is both his January 6th case in DC and the documents case in the Southern District of Florida.) The answer is unquestionably no because of what a defendant must prove to prevail on a claim of selective prosecution.
To prove a claim of selective prosecution, the defense must establish: (1) there are other, similarly situated, individuals who were not prosecuted and (2) that the reason for not prosecuting was discriminatory on the basis of race, age, gender, or the exercise of a constitutional right. Proving the second prong requires both discriminatory intent and effect. Setting aside the second prong, which does not clearly apply in Biden’s case, the challenge is determining who is similarly situated to Hunter Biden? What factors should we consider? Do we look only at children of Presidents? Or, do we look at white males in their 50s? Biden falls into both categories but the first is far more exclusive. On top of that, the defense must show that the others in his category also committed the crime, were known to the government, and were not prosecuted. This narrows the categories even further. Drug addicted children of former presidents who possess guns is a rather limited club of which Hunter Biden might be the only member.
Even if this is not selective prosecution from a legal standpoint, Biden’s prosecution is undoubtedly the result of his father’s political position. This does not, however, render the case a waste of resources and unduly political. Instead, the case serves significant symbolic value. Cases with symbolic value convey messages to the population at large. As most cases work through the court process without any public attention, those that garner public attention define how the public perceives the court system and how the public “feels” federal law enforcement.
Hunter Biden’s prosecution conveys three distinct messages.
It shows we are serious about gun laws. Few people could tell you that illegal firearm possession is the third most common federal offense. A greater number could probably tell you that felons cannot possess firearms. Now, many people can tell you that drug addicts may not possess a firearm.
It also shows that no one is above the law. If there was someone in a position to avoid federal criminal prosecution, Hunter Biden would be the one. As the President’s son, he would typically come to the Justice Department’s attention. Even if he did, the Justice Department would not be eager to pursue the case, hence the reason Weiss became a ‘special counsel.’ Even with the prosecution, President Biden could have intervened and stopped it (although many would argue he lacks that authority). Finally, with the conviction, President Biden could pardon his son. The fact that none of this happened means (at least theoretically) that everyone who breaks the law is accountable.
The fact President Biden has announced that he will not pardon or commute his son contrasts greatly with former President Trump’s response to his own prosecution. Biden has not commented on the case. He has not intervened in the case. He has not attacked the prosecutors. He has not attacked the witnesses. He has not attacked the judge. Biden has not condemned the process as unfair. Nor has he identified it as undermining the Constitution. By contrast, former President Trump has done all of this and more.
Each one of these purposes sends a message beneficial to our society. If for no other reason, the prosecution of Hunter Biden was necessary for the times we inhabit.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!