Dear Reader,

Let’s start by taking the emotional energy out of Hunter Biden. To liberals, he’s a blameless victim, unfairly targeted because of his last name, with a lifetime of relentless profiteering, access-peddling, and deadbeat-fatherism dismissed with a wave of the hand and a declaration that, well, he’s an addict. (As if being an addict somehow excuses decades of horrible personal behavior. Plenty of addicts are decent people; Hunter is not.) To conservatives, Hunter is the favorite subject of far-flung conspiracy theories, the epitome of greed and vice and guns, drugs, prostitutes and all that, and the government should spend even more years trying to find that elusive link that will finally bring down the man (and, let’s be real, his father). Hunter has become the subject of the Right’s own Derangement Syndrome.  

Ok, now that’s all out of our system. Whew. (Felt good, actually.) 

Now that that’s done, there’s this: nothing about the deal struck between the Justice Department and Hunter Biden is remarkable. If anything, it’s a fairly standard resolution of a mundane (or perhaps less) federal case.

As we’ve discussed before, the fact that it took DOJ five years to resolve this case – from 2018 until now, about half that time under the Trump administration and half during the current tenure of Joe Biden – is mystifying, and inexcusable. There’s no way this case should have taken five years, or even one year, to complete. I chalk up the delay to a collective, cross-partisan reluctance to make a call on a politically loaded case, and to the age-old prosecutorial tendency to pass the buck when the case looks like a dog. 

But after half a decade of wheel-spinning, we finally have the end result. Hunter will plead guilty to two tax misdemeanors, he’ll be charged with but not have to plead guilty to an obscure firearms offense, and he’ll walk with probation. 

It’s crucial to understand who the players are here. The primary decision-maker on the Justice Department’s end is David Weiss, the U.S. Attorney for the District of Delaware. Weiss started as a federal prosecutor in the 1980s; left for private practice; came back to DOJ in 2007 under the Bush administration; served throughout the Obama years; and then was nominated to the U.S. Attorney post by Donald Trump in 2018, with the support of both of Delaware’s Democratic U.S. Senators. When Joe Biden took office in 2021, he had every right and ability to get rid of all 93 U.S. Attorneys, but he left Weiss in place. Try to find some political leaning in that bio.

Both Weiss and Attorney General Merrick Garland have stated publicly that Weiss, and nobody else, made the call on the Hunter case. That’s exactly how this process should have worked, and Garland did the right thing to steer clear and let Weiss decide. The Attorney General only gets directly involved in charging decisions on the most sensitive, high-stakes cases; this one was properly left to the local U.S. Attorney. 

So let’s break down the deal, starting with the tax side. The Information (essentially the same thing as an indictment, but agreed to in advance by both sides) alleges that Hunter Biden made about $1.5 million in each of 2017 and 2018. (This is the result of the aforementioned greedy profiteering, as he took hundreds of thousands of dollars in income for jobs he either had no qualifications to do, or didn’t do at all.) In each of those years, he willfully – meaning intentionally, and not accidentally – failed to pay “in excess of” $100,000 in federal taxes. The Information doesn’t specify how far “in excess of” $100,000 but, just: more. Hunter eventually paid those taxes, plus interest and penalties, once this case came around. That doesn’t get a person out of a charge, of course, but it matters in the prosecutorial balancing of practical factors relevant to a charging decision.

I’m going back to my days as a prosecutorial supervisor here. If one of my colleagues had come to me and said, “We’ve a guy who, four or five years ago, intentionally failed to pay six figures in taxes, but he’ll pay now” – I’d have said, ok, take a quick probation plea or send it over to civil. There’s nothing at all unusual in my experience, or reflected in any broader data, about resolving a tax non-payment case with a misdemeanor plea; in fact, many such cases are declined for criminal prosecution altogether and sent for civil enforcement instead. 

Then there’s the gun charge, alleging that Hunter possessed a firearm while he was addicted to drugs. The deal is that Hunter does not have to plead guilty but rather, if he stays clean and doesn’t get re-arrested, the charge will eventually be dropped as part of a pretrial diversionary program. This one’s a Rorschach test of sorts. On one hand, federal firearms defendants virtually never get a walk. On the other hand, it’s exceedingly rare for anybody to be charged under this obscure statute in the first place. I did dozens of federal firearms cases and virtually all of them involved either firearm use in connection with some other serious crime or firearm possession by a previously convicted felon. In all honesty, I had never even heard of the statute charged in the Hunter case – possession of a firearm by an addict – until his case came around. The law itself is of dubious validity practically (who exactly qualifies as an “addict” and how do we determine that?) and constitutionally (conservatives have contemplated challenging the law as an improper infringement on the Second Amendment).      

Critics howl and point to the recent case of the rapper Kodak Black, who lied on a firearms purchase form by claiming he was somebody else, and received a sentence of 46 months in prison. (Donald Trump, on his final day in office, pardoned Black before completion of the sentence.) If anything, that case makes my point. Black used false personal identifying information on the purchase form to evade a commonly-charged federal law that prohibits convicted felons from possessing guns; because of his lengthy rap sheet, he pretended to be somebody else, and illegally obtained not one but three guns. At the time of the purchase, Black had already been convicted of first-degree assault and battery, and he had been arrested and charged with various drug, weapons, and robbery offenses. According to prosecutors, two of Black’s illegally-obtained guns were later found at crime scenes. One of those guns had a live round in the chamber, bore Black’s fingerprints, and, prosecutors allege, was fired at a “rival rap artist.” 

Hunter Biden’s case bears little resemblance. Agan, going back to my prosecutor days: if a supervisee had come to me and said, “Hey, we’ve got this case involving an addict who had a gun five years ago for about two weeks; the gun wound up in a dumpster and it’s long gone now” – I’d have wondered why we were even considering such a case. If it’s part of a bigger case and the guy is willing to reach a quick deal, fine. But if not: why bother?

We’ve heard Hunter-haters declare, within minutes of announcement of the disposition, that he got a “sweetheart deal.” I don’t think that’s accurate, as we just discussed, and I know for sure that nobody really knows at this point, beyond a handful of folks at DOJ. How can we excoriate a deal as fair or unfair if we don’t know the universe of what DOJ had in the first place? If they had compelling evidence of some more-serious federal crime and didn’t charge it, then there could be cause for alarm. But all the indicators here are to the contrary. First, remember that this case lived under the Trump administration for two-plus years – yet they never found a basis to charge him with more serious crimes, or anything at all. And, in all the furor that has arisen around the Hunter plea deal, I’ve not heard anybody make a compelling argument identifying what specific federal crime – and I mean an actual crime on the books, not just general bad behavior or wild speculation – DOJ should have charged and could have proved to a jury beyond a reasonable doubt. 

Regular readers of this column know that I’m no Hunter Biden fan, or apologist. I think the man is despicable, and I reject the rampant excuse-making for him from some on the left. If Congress wants to spend more time investigating him, have at it; if they actually find some tangible evidence firmly linking him and his family to broader wrongdoing, then it’s important for us to know that. But when it comes to the actual prosecution of Hunter Biden, and the resolution struck this week, there’s simply no genuine basis for outrage. 

Stay Informed,

Elie

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