Preet Bharara:

From CAFE and the Vox Media Podcast Network. This is Stay Tuned In Brief, I’m Preet Bharara. Last year special counsel David Weiss indicted President Joe Biden’s son Hunter Biden on federal gun charges after a failed plea deal. That trial is now underway in the Delaware federal court. Joining me to discuss the charges, takeaways from the first week of trial and what this could mean for President Biden’s reelection campaign is Danny Cevallos. Danny is a noted attorney and legal analyst at MSNBC and has been following the trial closely. Danny, welcome to the show.

Danny Cevallos:

Oh, Preet, I cannot tell you how happy I am to be here. My father-in-law is a huge Preet fan. I would say he’s a low to medium Danny Cevallos fan. So this day is the day I finally get some street cred in his eyes. Maybe. I mean, I still have to overcome a lot of my own shortcomings, but this is it, Preet. I am excited.

Preet Bharara:

Well, you beat me to it. I was going to say, the team forwarded me your email in response to the request to come on the show and it is, I think hands down the champion winner of most enthusiastic response. All caps. “Heck yeah. What took you folks so long?”

Danny Cevallos:

Absolutely. I stand by that, Preet, and actually, let me tell you, I actually got to meet you back in 2017 at a party and you had the nicest things to say to me. I went home-

Preet Bharara:

I told you you were a terrific analyst.

Danny Cevallos:

Oh, thank you. And I went home to my father-in-law and I said, “You’re never going to believe who I met. I know I’m going to be on his show any day now. It’s going to happen.” And I’ve been waiting by the phone, but I get it, Preet. I know you had to go through every other former federal prosecutor in American history before you’d have a criminal defense guy on. So I’m assuming I’m lucky enough to be here because some AUSA from Guam couldn’t make it, right?

Preet Bharara:

All right, we’re not going to have time to talk about Hunter Biden if you keep this up, but I appreciate-

Danny Cevallos:

Oh, sorry. I apologize.

Preet Bharara:

And we will definitely have you on-

Danny Cevallos:

Thank you.

Preet Bharara:

… more, Danny. Let’s see how you do. Let’s see how you do. So can you explain to people very quickly for those who haven’t been following closely because they have lives and other things going on, why it is that we’re at trial? As I mentioned in the intro, people may have a recollection that this thing was all supposed to be wrapped up in a plea deal.

Danny Cevallos:

Yes. So last year, Hunter Biden walked into federal court fully planning to enter a plea and enter into what’s called a diversionary program. And a diversionary program exists at both the federal and state level in some form or another, and it basically means that you enter into a probationary period. Sometimes you enter an actual plea, sometimes you don’t. It depends on the procedure in that court. And then it’s kind of a wait and see. It’s a combination of a wait and see and a one free bite at the apple. If you comply with your terms, you come back six months, whatever the deal is, and you usually get the charges completely dismissed. It is really the best deal that you can get short of an acquittal. And in many ways it can be better than an acquittal because you don’t have to go through trial and you can usually get your record expunged again depending on the procedure, whether you’re in federal court or state court.

This blew up in part because the judge during the actual plea realized that there were some procedural issues, most notably that it placed the… There was some disagreement on whether this was a global resolution, in other words, whether the deleted the possibility of additional charges being brought against Hunter. And also another problem the judge had at some point was the issue of continued monitoring by the court. And that was a fair observation because normally the courts don’t monitor. That’s probation’s job. So that’s why the plea fell apart. That’s what led to-

Preet Bharara:

Just pause on that. Pause that for a moment. I don’t want to belabor it because we’ve talked about it before and I want to get to the actual trial, but it seems a little bit odd. Because why would a defendant plead guilty, particularly a defendant of this type without having certainty that the case was over as to all matters relating to him and David Weiss. Do you think the parties were being a little bit cute?

Danny Cevallos:

At the time, I found myself thinking, well, I would more chalk this up to an oversight by both sides or a lack of communication. I didn’t get the sense that either side was being cute. Probably on the defense side, they were thinking this is a good deal. Diversion is an amazing deal. I got to be honest with you, Preet, I’ve never even had an offer of diversion in any of my federal cases. I wasn’t aware it even existed. That’s how rare and how good a deal diversion can be. So maybe the defense rushed in thinking, okay, diversion, we’re not going to ask a lot more questions. But I also think it’s fair to say that both sides should have looked at this a little more closely and anticipated this being an issue. I don’t think it was any side trying to be cute or trying to game the other side. I mean, this is an unusual investigation. It’s a special counsel situation and I think it was probably just something that was a mistake on both sides.

Preet Bharara:

So before we get to this trial, there are two cases pending against Hunter Biden. Why are there two?

Danny Cevallos:

One is a tax case, the other is this firearms case, and now they’re being brought separately with the one now in Delaware proceeding. We’re almost finished with that one. And then Hunter Biden is in the central district of California on a tax case, which at the time, procedurally, again, in an attempt to resolve this globally, the case had to actually be transferred, dismissed, and then re-brought by the government out in California. That was the tax case. But now they’re proceeding separately and that was a jurisdictional reason. And now they’re proceeding separately in this Delaware case is nearly over.

Preet Bharara:

So the criminal case in Delaware relating to a firearm, could you explain what the charges are? The three counts?

Danny Cevallos:

Sure. This is really two different crimes. It’s a possession crime and it’s also a false statements crime. On the false statements side, Hunter’s charged with giving a false statement on what is called a form 4473, and it’s a form that you fill out at the gun store. And one of the questions on it is, and I’m paraphrasing, “Are you an unlawful user or an addict of a controlled substance?” And the controlled substance is any of the schedules. And interestingly enough that question omits alcohol abuse, that’s not part of the statute. So the allegation is that Hunter Biden lied when he answered, “No, I am not,” because he was at the time, according to the government, an addict or an unlawful user. And then the second is pretty closely related. It’s just that portion of the statute 922G3, which prohibits the possession of a firearm by an addict or an unlawful user of controlled substances in this case, crack cocaine. Now the overall statute, as I’m sure 922 is brought all the time in federal court.

Preet Bharara:

My first trial ever as a federal prosecutor was a 922G case. So that’s very common on the ground usually that someone is a convicted felon and is not able to possess a gun.

Danny Cevallos:

Right.

Preet Bharara:

I don’t remember, certainly not as a line prosecutor and it never came to my attention when I oversaw the whole office for seven and a half years, this other sub provision of that statute being employed, of not being allowed to possess a firearm if you were addicted to or have a substance abuse problem. What’s your understanding of how common a charge that is?

Danny Cevallos:

Not only is it uncommon, not only is it only brought in a handful of circumstances, but when it is brought, it almost always is brought as an add-on to other crimes. So for example, the FBI executes a search warrant, they find a bunch of guns, a bunch of drugs, they have evidence of the commission of a crime. And then normally that’s when you might see this added on. This is anecdotal, but of the former prosecutors and defense guys I’ve talked to, I’m not aware of a case where it was brought as a standalone charge. We’re talking about 922G3. This is the addict or unlawful user in possession subsection, and I’m just not aware of that ever having been brought. I’m sure it has, but this is the first that I’m aware of.

And Preet, you probably noticed, I’ve noticed I think, which is that when it’s prosecuted by itself like this, it creates a kind of awkward, unusual situation in that the government has to put on evidence that the defendant is an addict, which they don’t need in the vast majority of other drugs and gun cases. I’ve never had a case where the government bothered to put on evidence that hey, the defendant uses drugs, he’s an addict. They just need to prove that the drugs were there or that a crime was committed or that a firearm was there. So this is actually from an evidence standpoint, somewhat unusual for me to watch this go on and watch witness after witness testify that the defendant just was an addict or an unlawful user.

Preet Bharara:

Now, from what you said about the frequency of this charge, can someone in good faith reasonably criticize it because it’s so uncommonly brought and might want to infer that Hunter Biden, and I don’t know if this is true or not, is being treated differently and more harshly because his last name is Biden. Is there anything to that potential criticism?

Danny Cevallos:

I think it’s a fair criticism that because this is a charge that is almost never brought, that I think you could fairly say that this could have political undertones. On the other hand, Preet, rarely do you have a situation where a defendant has written a book that anyone has read about his drug use during this particular time or has created his own evidence in the form of photographs or well, text messages and photographs on social media. That’s something that the government and police mine all the time with a lot of success. I can’t tell you how many defendants get themselves convicted because of what they post on social media or text message or even from a prison phone call.

Preet Bharara:

I’ve often said, I can barely remember the old days. I don’t know how we convicted anyone before text messages.

Danny Cevallos:

You’re so right. And it’s interesting, I first started noticing it in my juvenile cases many, many years ago. That’s when that evidence started coming in because they were the early users of things like social media and text messaging. And pretty quickly it spread to everybody. But emails have been convicting people for a long time. So I guess you could say that the government has been aided by some unusual evidence here, which would be Hunter’s book and a whole lot of evidence of his crack cocaine use. But yes, I mean I think just the real awkwardness, for lack of a better word of this prosecution in that it’s just rare to see someone with some of the government put on evidence that someone is just addicted as opposed to possession of drugs, the existence of drugs, the existence of a firearm, the operability of a firearm. So that has been unusual and I think it’s fair to say that because it’s unusual, it is something that could have some political undertones.

Preet Bharara:

So from the perspective of many lawyers, myself included, the actual technical elements of the crime, and you’ll get to the evidence in a moment, it’s fairly easily made out. If the government can prove that Hunter Biden was an addict and he purchased the gun, it’s fairly straightforward to prove to the jury that he lied and he was improperly in possession of that firearm. But what about some of these other aspects of the case? Do they matter at all? For example, the testimony and the evidence suggests that Hunter Biden only possessed the gun for 11 days. It was never fired, it was never used, it was never brandished so far as we know. It was found by his girlfriend and then thrown in the trash, she thought better of it and tried to recover it from the trash. Do those circumstances of the brevity of the possession and the lack of its use have any bearing on the case at all?

Danny Cevallos:

They do to the defense’s theory because the defense’s theory is an interesting, and I would say clever one, which is the government’s case… I agree with you. And for that reason, I think the jury is going to quickly be unanimous one way or another because I don’t think you can dispute possession. I don’t think you can dispute much about the form 4473. It really comes down to Hunter’s awareness as to whether or not he was an addict. So while I think they could go into the jury room and reach a conclusion on that pretty quickly, I do think even though addict is defined in the US code, there is a definition that they’ll get. I still think addict is something that different people will define differently from their life experience. And anyone who has known someone who struggled with substance abuse knows that that’s the last person who thinks they’re an addict. It’s everybody else in their family. So I think-

Preet Bharara:

Yeah, but the testimony has been both from Hunter Biden’s own book and from various people with whom he had relationships that he was basically nonstop smoking crack. At one point he was buying powder cocaine and he didn’t trust his dealer, so he was cooking it into crack himself. And we’re not talking about marijuana, we’re not talking about some other lesser substance. We’re talking about literally crack cocaine on a regular basis in and around the time that the gun was purchased, if not on that particular day. Fair?

Danny Cevallos:

Fair. But take a look at, there’s this case US V. Daniels out of the 5th Circuit, I’m sure you’ve heard of it. Hunter Biden has tried to raise it to even get the case dismissed without success. And it’s a really interesting case because it deals with someone who was a admitted lifelong user of marijuana and the police found him with firearms and even I believe marijuana paraphernalia and possibly maybe the drug itself. But the point was the defense was there was no evidence that he was anything but sober at the time of possession.

Now, slightly different facts and slightly different outcome, but I mean that has been the thrust of the defense here, which is yes, you may have evidence that I was a drug addict in the month of October or maybe in November of 2018 or October 2018. But have you proven beyond a reasonable doubt that on these 11 days I was an addict or an unlawful user, and even Hallie Biden, who was, I think by any measure, the government’s star witness admitted on cross-examination, she wasn’t sure. Her memory wasn’t perfect as to whether or not during that span of time he was addicted or under the influence of crack cocaine. So there may be a glimmer of hope for the defense here, although, I mean, if I’m betting, I’m still betting heavily on the government here.

Preet Bharara:

Is that too narrow a defense to try to parse out the particular hours, moments and days when Hunter Biden may or not have been using a drug? And combined with that is my question about what reasonable doubt means. So if the government shows, look, he was basically talking about himself as an addict. There’s testimony that he used these very substantial narcotics before and some point after. Use your common sense, ladies and gentlemen. You can’t have a reasonable doubt that during these 11 days that was using the substance or can there be reasonable doubt based on the absence of the evidence that you’ve described?

Danny Cevallos:

Yeah, there it is, Preet. You’ve honed in on what I believe will be the crux of closing argument, and I wouldn’t be surprised if the government’s closing argument is pretty close to exactly what you just said, and that’s going to be it. The government’s going to say, look, we’ve got some bookends here. They’re pretty good. People are also testifying he was using it every 20 minutes. So you can draw an inference that he was using it during these 11 days. And of course the defense… And again, if we’re balancing it out, does the defense or the government have the stronger argument? I’d lean towards the government, but I mean that’s the life of criminal defense in federal court is you got to try some long shot ideas. So I mean, it’s a defense that they’ll be able to argue. It’s whether or not the jury buys it on any level. And you’re absolutely right. They may say, okay, we don’t have time stamped photographs of him using crack or any admissions that he was using crack while he had the firearm in his possession.

But they’re going to be fighting against some very strong inferences, and that’s going to be the magic word in the prosecution’s closing. It’s going to be inference, it’s going to be you can draw an inference from all the evidence we put on and don’t be fooled by the defense suggesting that we have the burden to prove every moment of every day during the month of October 2018 that Hunter Biden was an addict or an unlawful user. And again, we also have the 4473, the false statement. So that’s a slightly different burden. Was Hunter himself even aware? Did he knowingly lie on that form if he himself believed that, hey, I’ve been clean and sober for 11 days, I’m on a brand new lease on life. I feel great. I am not an addict or an unlawful user. That might be the stronger argument for the defense. The tougher argument is saying that he was not addicted or an unlawful user during those 11 days in the face of all this evidence.

Preet Bharara:

Can you describe the nature of some of this testimony? I’ve heard it described as emotional, wrenching, compelling, and also how the jury might be reacting to it even though we as lawyers are sort of parsing out the elements and talking about whether or not the government has an open and shut case. The flavor of the testimony, can you talk about that for a moment?

Danny Cevallos:

Sure. Again, I approach it from a criminal defense attorney’s standpoint, and I think about the witnesses that have been called so far and at least the most compelling headline worthy witnesses have been Hunter Biden’s ex-wife, then his ex-girlfriend who he met at a gentleman’s club when she was working there. And she took the jury on a wild ride through Hunter Biden’s life during that time of using drugs and partying. And then you heard from Hallie Biden who was the widow of Beau Biden and Hunter Biden’s ex-girlfriend after Beau died. And yes, I mean this had to be very emotional for folks like Hallie Biden, for the entire Biden family, but it’s really in service of the government showing that over an extended period of time, Hunter Biden was a user or an addict of crack cocaine. I think it’s been also very compelling evidence ’cause it just doesn’t paint Hunter Biden in a fantastic light.

And I don’t know that a lot of people are saying that, but I mean just strictly thinking about these witnesses in a criminal prosecution, the government’s done a good job of painting Hunter Biden as a guy who is out of control, and they’re not doing that to be unsympathetic to the scourge of addiction. In fact, the more out of control Hunter Biden is that services the idea that he might’ve been an addict at the time that he possessed this firearm. But I think the government has done a good job of calling witnesses to create the atmosphere that during an extended period of time, Hunter Biden was using crack all the time, and that will service their inference argument that they make in their closing. It has been emotional for a witness like Hallie Biden who I view as a kind of victim in all of this.

I mean, she’s a tragic figure. She’s gone through a lot of painful things. Could you say that her throwing the gun in the dumpster was inexplicable? Was it strange? Yeah, but I mean, I think doing criminal defense, and I’m sure in your experience, people in times of stress do some strange things. So as much as that might’ve been an odd choice, I mean she was going through a really difficult time. So to that extent, I mean in many criminal prosecutions, especially when addicts are involved, there are a lot of victims and victims are often family members who love them.

Preet Bharara:

It also occurs to me as you’re describing the way the government is putting in its evidence that part of what it may be doing either directly or incidentally, is trying to show the jury, even though they don’t have to prove this, this wasn’t a guy who had a joint in his apartment that he occasionally used and possessed a firearm. This was an out of controlled person on very, very serious drugs. And the underlying theme of which is he had no business having a firearm because that’s dangerous and that’s problematic, and that’s why we have the statute. So that’s an observation I just had when I heard you speaking. My other question is, which of the following dynamics do you think is more likely to prevail?

On the one hand, will the jury be impressed by the fact that most of these witnesses are people who would love interests of Hunter Biden, close to him, may still have strong feelings for him still and think, well, that’s pretty incriminating if the people closest to him are coming forward and incriminating him in this crime. Or to the contrary, are they repelled by that and will it backfire because the government is using former love interests of Hunter Biden to make their case, to put him away and lock him up?

Danny Cevallos:

That’s an interesting question. I go back to the point that it’s unusual for the government to have to put on evidence that somebody is just hopelessly addicted to drugs. That’s the nature of this particular subsection of the statute. And who better to do that than the people who are with Hunter at all times, who are with the defendant at all times? Those are family members and they’re paramours, they’re girlfriends, ex-wives. But you also hit on a point that I think is really compelling, and just to go back a week ago to the Donald Trump trial in New York that featured several witnesses who hated Donald Trump, and I always think it’s very compelling when the government calls witnesses that really don’t have it in for the defendant. They’re not looking to bury him. None of these witnesses are cooperating witnesses of the kind that I’ve seen where they bring them in the shackles and their prison graves, and they’re obviously people with terrible criminal records and who have motivations to lie.

None of that is really going on. Yes, there is some element of cooperating witness in the Hunter Biden trial, but on the whole, especially the family members, they’re people that don’t want to do damage to Hunter Biden presumably, or at least they don’t seem to have any ire for him on the stand. And I think that’s the best kind of witness. The best kind of witness is the witness who likes the defendant, who would rather not be there or is even neutral about them. And so I think those are really good witnesses. I don’t think it backfires on the government at all because I don’t think they’ve done it in a tawdry way.

I mean, just to give you an example also of just some momentary examples of how good the government is at finding evidence. At one point they introduced a photograph of Hunter with a T-shirt, and it’s kind of a play on the Adidas symbol I believe, and it says addict, I mean, how on the nose can you get? The government’s really good at coming up with evidence like that and putting it in, and little things like that really make their case. I mean, that’s why they have a 95% conviction rate. I mean, they’re putting on good evidence here.

Preet Bharara:

Yeah. But we’re also selective in what we bring and what we don’t bring. It’s a self-selecting process. Could you talk for a minute about who this jury is and how you think it plays for the defense versus the prosecution and what the theory of jury nullification might be

Danny Cevallos:

I mean, I understand that it’s a diverse jury, it’s a Delaware jury, and I’m actually from not too far from this area. And this is a state where… As I predicted this would happen during jury selection, people on the jury more had not views of Joe Biden as president. There was a problem in selecting a jury of people who actually knew the Bidens because it’s a small community. I think this is a pretty good jurisdiction for the defendant. And I also think that the issue of addiction could come up if you’re talking about jury nullification, I think the issue of addiction is a really interesting one. Like I said before, it’s a rare issue to be deliberating over, and I think everybody comes to the table with different views about addiction and it can cut both ways.

I mean, not everyone within an addicted person in their family is sympathetic to that person. In fact, a lot of times they’ve had it up to here with that person. And so if you’re talking about jury nullification, that might be an issue. I don’t know if I seized on some of the points you were hoping I’d hit, but in terms of knowing the Bidens, I think it’s a name in this part of the country in Delaware that people recognize and they actually know. And that might be a good thing for Hunter Biden. And this area of Delaware too, I know happens to have a really big drug problem. So as much as you may have gotten potential jurors out during voir dire who have too strong a feelings, I think everybody from that area of the state has a general understanding about the scourge of addiction.

Preet Bharara:

Right. I’ve made an observation about this case. It does make for a little bit of a strange bedfellow situation. If it wasn’t Hunter Biden, ordinarily your average progressive would say, we need to enforce very aggressively these gun laws, and whether you’re somebody who has been a convicted felon, you shouldn’t have a gun, and that’s why we have 922G. Or if you’ve engaged in domestic violence, you shouldn’t have a gun. Or if you’re an addict, you just shouldn’t have a gun. And then the other hand, there are conservatives ideologically who would in the ordinary case, and they’re fighting these things in court right now.

There’s a case in the Supreme Court relating to 922, and they would say, you have a constitutional right to have a firearm, and just because you’re a convicted felon, once you’ve served your time, you shouldn’t be precluded from having a gun for the rest of your life. This addict subsection of the statute is vague. It’s difficult to understand when you’re talking about a constitutional right. Is there anything about that that strikes you as odd how you can tell how someone feels about the case based on what tribe they’re on, not withstanding what their otherwise ideological preferences would normally be?

Danny Cevallos:

Well, sure. I mean, an even simpler analysis is a week ago people who are pretty far along on one side or other of the ideological spectrum, were very pro-defense, were like defense attorneys in the Trump New York trial, and now those same folks are very pro-prosecution. So I mean, that’s kind of a simple litmus test that I’ve just noticed from week to week. I mean, there are people who sounded like defense attorneys last week who are now very pro-prosecutor mentality folks. So yes, I think so. I think you’re onto something there, and I think that folks who are sympathetic to Hunter Biden probably see this as an unfair prosecution. But I do agree with you that here’s the thing about this particular subsection, and it’s kind of more a philosophical debate because of how rarely it’s brought. If it were brought more often, it might be more of a policy debate, but it’s scarcely ever brought by itself, this addict in possession part of the statute.

But 922 itself is a very important statute, and it’s very much under attack. I mean, it’s literally in front of the Supreme Court right now in a case called Rahimi, and it’s going to be before the Supreme Court again in a case called Range. And just what in the last month, the Solicitor General Prelogar made the argument to the Supreme Court that there’s one thing we need to make sure of, and it’s that irresponsible people, and she clarified, she meant people who are not responsible for their own actions should not have firearms. So I think the policy behind a 922G3 an addict in possession statute is very strong. I mean, when we’re talking so much these days about the classes of people who should be disarmed, the case before the Supreme Court right now is about whether you’re under a domestic violence order.

Some of the others are about even the felon in possession statute. What if you’re a nonviolent felon from 20 years ago? But one of the things I think has a pretty strong policy and is even rooted to some degree in the history and traditions is disarming people who are habitual drug users and under Biden’s defense team already tried this motion, a facial challenge based on the idea that this statute should be invalidated and that was already denied. So I think this is a case where the policy behind the statute is a good one, but when it actually comes down to prosecuting it, the burden of proof is difficult. It’s a strange position. I can’t think of another time where either the government or a state prosecutor put on evidence witness after witness to say that my client or a defendant was just an addict. Hey, this person is an addict, and that was an element of the crime.

Preet Bharara:

Yeah, it’s very interesting as a constitutional matter. If you’re a person who believes in the inviolability of the right to bear arms and the right to possess a firearm under the Second Amendment, your argument about this section, which makes sense from a policy perspective in many ways, the argument I suppose is yeah, but there’s not been a due process adjudication of someone being an addict in any way, shape or form. That’s part of what’s going on in the domestic violence example or the temporary restraining order example as well. That if you’re going to go and take someone’s basic fundamental constitutional right away, if that’s your view, how can it be on some loosey goosey understanding of whether someone is or is not an addict? We don’t take away someone’s right to vote so casually, and I don’t know if that’ll have any store in the intermediate courts, but I don’t know frankly how arguments like that will fare in the Supreme Court.

I guess we’ll find out. You’re not a political analyst nor am I. But A, do you have any view about how this might affect the election and B, is it wrong that we’re even spending so much time talking about Hunter Biden who is not running for president, who is not a political figure in any way, who’s a private citizen who happens to be the son of the president? Are we doing something wrong by giving it so much attention on TV and on this podcast?

Danny Cevallos:

So I talked about this yesterday. I was filling in from Michael Smerconish on his SiriusXM show, and I think that Donald Trump’s conviction last week helps him. I think Hunter Biden’s conviction or acquittal either way doesn’t hurt Joe Biden. I think if anything, Joe Biden and Jill Biden have both come off as sympathetic figures here because I think almost everybody in the United States knows someone who has struggled with addiction and they get that. I mean, you can conclude, and I think fairly that Hunter Biden is not a great guy. You conclude in your opinion that he’s a guy who’s had a lot of opportunity and he squandered it. He’s not the typical drug addict who came from nothing and had few options and drugs was just another of a very limited set of options. But I don’t think that really harms Joe Biden and to your second question on whether we should be covering this, I mean, I always find fascinating, any prosecution like this that is rare.

I think it’s a good thing to test statutes like this that are rarely prosecuted. I find it interesting from a criminal defense perspective, but should it be something that the eyes of the country are on? Well, yeah, no, in an election year, I think there’s an argument to be made that if it’s the son of the sitting president and it’s never happened before to the son of a sitting president, I think it’s interesting enough. And I mean simply as I’ve said from a criminal defense perspective and the statute itself, I’m doing a fair amount of watching if for no other reason than I just find it interesting that a statute, a subsection that is so rarely prosecuted is being prosecuted.

Preet Bharara:

Last question, Joe Biden has said, and I was a little bit surprised by this, he has said that he will not pardon his son even if convicted. Do you buy that?

Danny Cevallos:

That was the biggest shock to me in the news of the last week because I’ve been-

Preet Bharara:

He didn’t need to say that, and I don’t know what he could have said otherwise, and I don’t want to debate the merits of it, but win or lose if he gets convicted, I think there’s a serious likelihood that the father pardoned his son, don’t you?

Danny Cevallos:

Not only that, let me yes and to what you just said, not only that, and I don’t want to be macabre, but I’m sure Joe Biden realizes that let’s say he wins another term, he might not want to wait until the last day of his term the way most presidents do. If you’re going to do something like Bill Clinton and pardon your brother, you want to wait until close to the end of your term. I mean, Joe Biden, I mean, if you just go by the actuarial tables, and I don’t mean to sound so dark, but there’s a possibility he may not make it to the end of his second term.

So not only do I think he will pardon him, I feel like I have no doubt that he will. I just think about as a parent, I think any parent would do that, and I would expect that if he wins the election, he might do it relatively soon after he is inaugurated to his second term or after he wins the election, because who wouldn’t do that? I found that to be the most surprising piece of news of the last week that Joe Biden said that. Honestly, not only would I not be surprised, I wouldn’t even fault him that much if he goes back on that promise because he’s a father and Hunter is his son.

Preet Bharara:

Look, and he has an argument we discussed earlier, and I don’t have a particular view on it. He has a plausible argument to himself, his conscience, and a lot of the voting public, that it was a politicized prosecution that given the infrequency of it generally, that wouldn’t have occurred if the father weren’t in fact, Joe Biden. So we will see how all this unfolds. We went longer than usual Danny, because it’s great to talk to you. We will have you on again.

Danny Cevallos:

Oh, thank you. That was what I was waiting to hear.

Preet Bharara:

You did great.

Danny Cevallos:

I’m so thrilled. I cannot tell you it is really an honor. I’ve been looking forward to this, and I am just thrilled to be on your show. Thank you so much for having me.

Preet Bharara:

Danny Cevallos, thanks so much. For more analysis of legal and political issues, making the headlines become a member of the CAFE Insider. Members get access to exclusive content, including the weekly podcast I host with former U.S. Attorney Joyce Vance. Head to cafe.com/insider to sign up for a trial. That’s cafe.com/insider. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me @PreetBharara with the #AskPreet. You can also now reach me on Threads, or you can call and leave me a message at (669) 247-7338. That’s (669) 24-PREET, or you can send an email to letters@cafe.com. Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The deputy editor is Celine Rohr. The editorial producer is Noa Azulai. The associate producer is Claudia Hernández, and the CAFE team is Matthew Billy, Nat Weiner, and Jake Kaplan. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay tuned.