Opinion | Hunter Biden Got Special Treatment — Especially Harsh

Tuesday’s announcement that Hunter Biden, the president’s son, agreed to plead guilty to federal tax and firearm crimes drew widespread criticism from Republicans, who slammed it as a “sweetheart deal.” Actually, Biden was treated harshly and — based on what we know publicly — received more severe treatment than a typical defendant.

The announcement of the charges by United States Attorney for Delaware David Weiss, a Trump appointee, should have been cause for celebration for anyone who believes in the rule of law. After all, although our system is imperfect, the fact that the son of the sitting president was investigated, prosecuted and convicted by the Justice Department demonstrates that no one is above the law.

Yet Republicans recoiled at the announcement, perhaps because Hunter Biden was accused in right-wing publications of everything from corruption to human trafficking, yet was only charged with two misdemeanor tax counts of failure to pay income tax and one count of possessing a firearm while a user of and addicted to a controlled substance.

You don’t have to be a lawyer to figure out that these are hardly the crimes of the century. Many critics have pointed out that Biden will almost certainly not receive prison time as a result of these charges, which is true. But while we don’t know what else he might have done — and as Weiss noted, the “investigation is ongoing” — if this is the extent of Biden’s wrongdoing, he has been treated much more harshly than the typical defendant.

Federal prosecutors charge a lot of firearm offenses every year. They charged 12,261 cases involving a firearm last year alone. The overwhelming majority of those cases involve the possession of a firearm by a felon, and those charges are used by prosecutors as a method to get felons with violent criminal histories or serious gang involvement off the street.

Another often-charged statute criminalizes the possession, use or brandishing of a firearm during the commission of a federal “crime of violence.” I have charged many defendants with gun offenses in my former career as a federal prosecutor, but until this week I had never heard of a prosecution of anyone for possessing a firearm while addicted to a controlled substance before the Hunter Biden case.

When I looked at crime statistics, I could see why. A Syracuse University study found that from 2013 to 2017, the DOJ brought a total of 35,758 prosecutions with a firearm charge as the lead charge in the indictment. Of those, 26,717 were felon-in-possession charges. Only 614 involved a charge for the unlawful shipment, transfer, receipt or possession of a firearm by a drug addict. That makes sense — federal prosecutors focus on large-scale narcotics traffickers, not drug users.

Most of the other former federal prosecutors I’ve spoken with aren’t familiar with a defendant being charged with this statute either. One prosecutor who was familiar with the statute said he charged it once, many years ago, involving a particularly problematic defendant.

As for the misdemeanor tax charges, I prosecuted tax cases and have defended many clients in criminal tax cases, and I’m not familiar with a misdemeanor tax charge ever being brought as the only tax charge in a case. The DOJ’s Tax Division has to approve every tax charge brought by prosecutors, and their practice is to focus on serious felony tax fraud or tax evasion cases. Those serious felony offenses would require evidence of fraud or affirmative efforts to evade taxes. Merely not paying your taxes isn’t enough.

Sometimes, when I charged serious tax fraud cases, I would add easy-to-prove misdemeanor counts to the indictment as a “back stop” of sorts if I lost on the more serious counts. The most typical misdemeanor that was charged is a failure to file a tax return, and that is trivial to prove. Biden was charged with something even less serious — a failure to pay taxes even though he did file a return. And the amount of his unpaid taxes — approximately $100,000 in 2017 and again in 2018 — is typically dealt with as a civil matter, with penalties and interest, rather than as a federal criminal case.

No competent federal prosecutor would initiate a multi-year criminal investigation into someone for merely failing to pay taxes, yet those misdemeanor charges are the only ones to which Biden will plead guilty. This looks like an investigation that has not turned up much.

If Hunter Biden were not the president’s son, it’s not clear whether prosecutors would have investigated for as long or as hard as they did, or that they would have decided to spend additional federal resources prosecuting misdemeanors instead of moving on to the next case.

It’s understandable why Weiss and his team did not want to appear to be pulling punches in a case involving the president’s son. Hunter has become a fixation of the GOP on the Hill, many of whom have publicly — and thus far without evidence — accused him of corruptly trading on his father’s connections to enrich himself and his family. For that wing of the Republican Party, anything short of a lengthy prison sentence will look like favoritism. But for anyone with actual federal criminal law experience, it is obvious that the DOJ’s aggressive prosecution of crimes that are rarely charged is anything but a “sweetheart deal.”