Will Hunter Biden go to prison? Here’s what happens next after his conviction.
Can he still vote for his dad? What about his upcoming trial on tax charges?
Hunter Biden’s conviction on three felony gun-related charges presents complicated legal and political challenges — for his father, President Joe Biden, and for the justice system as a whole.
The verdict is certain to ripple across an already tense and unsettled political landscape, coming just two weeks after Donald Trump’s own conviction on felony charges in New York.
Here’s a look at some of the key questions about what comes next.
What happens now?
There are several routine steps that all federal defendants must complete following a conviction. First, Biden will have to sit for an interview with a probation officer from the U.S. Probation and Pretrial Services System. He will be asked about his personal history, mental health and the circumstances that resulted in his conviction, among other questions.
The probation office will use that information to write a presentence report for Judge Maryellen Noreika, who oversaw the trial and will handle the sentencing. After the verdict was issued on Tuesday, Noreika said she expects to hold a sentencing hearing in about four months.
At some point before the sentencing hearing, prosecutors and Biden’s lawyers will each submit sentencing memos to the judge that recommend punishment and summarize Biden’s personal and family history, his relationship to his community and any factors related to his conviction, such as his history of substance abuse.
After reviewing the presentence report and the sentencing memos, the judge will impose a punishment for Biden at a sentencing hearing. Though Biden faces a maximum of 25 years in prison for the three counts, the judge has a menu of other sentencing options short of prison, including probation, home detention or even a curfew.
Is Biden going to prison?
The likelihood that Biden is sentenced to prison is “pretty low,” said Jeffrey Brown, co-chair of Dechert LLP’s enforcement and litigation practice, who previously served as co-chief of the general crimes unit in the Manhattan U.S. attorney’s office.
“I think he has a lot of sympathetic factors in his favor that would argue for a non-incarceratory sentence,” Brown said. Those include Biden’s lack of criminal history, the likelihood that many people, including some prominent figures, will write to the judge in support of him and the fact that the charges against him aren’t ones that commonly go to trial.
The judge must consider sentencing disparities, Brown said, and “I’d be surprised if there’s a lot of precedent for people going to trial, getting convicted and sentenced to prison for this offense.”
If he’s sentenced to prison, will he be able to remain free while he appeals?
Biden has a significant chance of being able to delay any prison sentence while he appeals the verdict, Brown said. He predicted that if Biden does receive a prison sentence, it will be fairly short, and judges sometimes allow defendants to delay shorter sentences while they appeal — otherwise, a defendant might serve the entire sentence before the appeal is resolved.
Even if Biden can’t delay any prison sentence, Brown said, he may not end up in prison by Election Day. That’s because his sentencing hearing likely won’t take place until October, and after that he would need to be designated to a prison facility and receive a surrender date, making it a “close call” whether Biden would be ordered to report to prison by early November.
“Everything would have to go very quickly and smoothly for him to be in jail on Election Day,” Brown said.
Can Hunter Biden still vote for his dad?
It depends. If Biden is registered to vote in Delaware, it’s highly unlikely. The state only permits felons to vote after they complete their entire sentence — including any period of probation or supervised release, which would typically last at least a year. That means if Biden is sentenced roughly four months after his conviction, he will be ineligible to vote this election cycle.
But Biden has been living recently in California. If he is registered there, it’s a different story. The state allows felons to register and vote so long as they’re not serving time in a local, state or federal prison or detention facility. Given that Noreika signaled that she’ll hold a sentencing hearing in October, Biden would almost surely have a chance to cast an early ballot, if not vote on Election Day itself, before any potential prison sentence kicks in.
Can Joe Biden pardon his son?
The president said last week that he would not pardon his son.
But he can always go back on that promise. And a pardon is not his only option.
Presidents have nearly unfettered power to pardon federal crimes, and they can use the pardon power — which is enshrined in the Constitution — for virtually any reason and for any person except, perhaps, themselves.
He could also commute any prison sentence that his son receives, leaving the criminal conviction intact while sparing his son time in a federal lockup.
The real question for the president is his view of the politics. Pardoning his son after a jury conviction would fuel Republicans’ claims that Democrats have tilted the justice system in favor of their allies and against their adversaries. It would also seem to conflict with Biden’s paeans to the sanctity of the criminal justice system following Trump’s own jury conviction in Manhattan.
Trump himself wielded the pardon power almost exclusively for the benefit of political allies and friends. But Biden’s choice appears certain to arrive at the most sensitive moment of his reelection campaign at a time his opponent is facing federal charges in Washington, D.C., and Florida.
There is precedent, though, for politically controversial pardons of family members — issued, of course, after an election. In January 2001, on his final day in office, President Bill Clinton pardoned his brother Roger Clinton Jr. for a 1985 drug conviction.
What about Hunter Biden’s other criminal case?
Special counsel David Weiss, the Trump-appointed federal prosecutor who brought the gun case, has also indicted Biden in a separate case in California. In some ways, that case, which is scheduled to go to trial in September, poses a more serious threat: It charges him with a vast array of tax crimes spanning years, including failing to pay millions of dollars worth of taxes on time despite living an extravagant lifestyle.
His conviction in Delaware is unlikely to have much of an impact on the proceedings in California. While prosecutors could use the underlying evidence that led to his Delaware case as part of an effort to show Biden’s state of mind during the years he was allegedly skirting his taxes, evidence of unrelated criminal proceedings or past convictions are typically not permitted into evidence. That’s because it could prejudice the jury into convicting someone based on evidence unrelated to the charged crimes.