W hen Joe Biden says he won’t pardon his son Hunter (see our Brittany Bernstein’s report on the president’s ABC interview), I believe him . . . although my statute of limitations for this highly suspect statement lapses on November 6, 2024.
Biden’s cogent moments are ever rarer in our observation, but we can safely assume they are consumed by politics (as they have always been). Right now, that means consumed by how to stumble across the finish line first on November 5, with the race appearing to be neck-and-neck with Donald Trump at this stage — when, to borrow Yogi Berra’s inimitable observation, it gets late early out there. Biden is sufficiently desperate that, when not empowering Hamas to satisfy his left fringe, he is finally feigning concern about the border crisis he created — a sop to the majority of voters.
Hunter is now a 54-year-old deadbeat dad who squandered on sex, drugs, and rock ’n’ roll the millions he made peddling the “Biden brand” (also known as “access to the Big Guy”) to agents of corrupt and anti-American regimes, and whose bills — including a gigantic tax bill — have been paid by his Hollywood lawyer “sugar bro,” who reportedly is now tapped out . . . despite quietly taking ownership of Hunter’s 10 percent stake in a lucrative investment fund controlled by agents of China.
Joe Biden’s vice presidency, his entry into the 2020 presidential campaign as the favorite, and his control over the executive branch — including, of course, the Justice Department — shielded Hunter from prosecution (and himself from being implicated) for over a decade. But last summer’s effort by Biden’s Justice Department and defense lawyers to whitewash the president’s Hunter problems in time for the 2024 campaign exploded in clouds of arrogance and incompetence wafting from a failed sweetheart plea deal that could not withstand even modest judicial scrutiny. This meant Hunter had to be indicted: Given the public attention drawn to his plight, dropping the serious cases against him would have been more politically toxic than charging them. The best that Attorney General Merrick Garland and his serviceable “special counsel” David Weiss could do was ensure that (a) the statute of limitations killed the counts based on Hunter’s 2014–15 monetization of his father’s tenure as vice president, and (b) the president’s name was kept out of the tax indictment despite his being the willing cash cow at the center of it.
Pardon Calculations
In a tight race with the momentum seemingly against him (Trump’s recent criminal conviction in Manhattan notwithstanding), the president’s political fortunes hinge, in part, on making some tough calculations about the troubled son who wasted the fortune generated by Dad’s political power.
One such calculation is that, with the effort to scuttle prosecution via plea bargaining having failed, Joe has not and assertedly will not use his pardon power to preclude trials of the indictments that have been filed. This means a great deal of embarrassment for the president and anxiety for Hunter. Day by day this week, the daunting evidence in the ongoing gun trial has mounted (as this was written, our James Lynch reported that the prosecution rested its case after just a bit over three days of presenting evidence). Things are sure to get worse come September, just two months before Election Day, with the scheduled start of the tax case in which the president’s involvement will be impossible to ignore.
Why doesn’t President Biden just issue a pardon to end the agony? For the same reason the Biden Justice Department refuses to release the recording of the president’s interview by Robert Hur — the special counsel who declined to recommend felony charges against him because of his diminished mental state. Biden and his advisers realize the political hit for pardoning Hunter before Election Day would be even worse than that brought on by the humiliating trial evidence — just as they assess that the political hit for stonewalling on the Hur recording, though not insignificant, is soft compared to the tornado they’d face if the recording were made public.
What could change the pardon calculation, I surmise, is a sentence of imprisonment. As shameless a political weather vane as Joe Biden has always been, as knee-jerk ready to exploit family tragedy for fleeting political advantage as he has proved to be through five decades in public life, it’s hard to imagine that the president would let his son be sent to a penitentiary when he had the power to prevent it. (And I could be wrong about this, but I suspect the media-Democrat messaging about such a pardon would be so sympathetic to Biden that the political fallout would be less damaging than Republicans imagine.)
I’m betting the White House, the Biden campaign, and Hunter’s defense team have carefully evaluated the situation and determined that the president’s son will not face a term of incarceration prior to the election, even if he is convicted next week — as is very likely to happen. I am also betting that this determination informed President Biden’s vow to ABC that he won’t pardon Hunter.
Federal Sentencing Guidelines
Press coverage tends toward sensationalism, so it is common in criminal cases to base reporting about potential imprisonment on the statutory maximum penalties. In Hunter’s case, that’s 25 years: ten for unlawful possession of the gun, ten for lying on the required federal form, five for lying to the licensed firearms dealer. Yet it is no more accurate to say that Hunter faces a possible 25 years of imprisonment than it is to say he faces a possible zero years of imprisonment; after all, none of the charges against him has a mandatory minimum incarceration term.
What drives punishment in federal cases is the sentencing guidelines, which calculate what a sentence should be within these broad statutory parameters — such that we talk more realistically about sentences of, say, 18 to 24 months rather than zero to 20 years in a typical, unexceptional felony case. Judges are not required to follow the guidelines, but they generally do — i.e., the more narrow guidelines calculation, rather than the broad statutory range of punishment, dominates litigation over what sentence the judge should impose. (A judge may sentence above or below the guidelines calculation but must stay withing the statutory range.)
Another thing to consider: Sentencing is the hardest thing judges have to do. It is not a dry legal issue; it is flesh-and-blood, sometimes life-and-death, control over the course of a fellow human being’s life. The judge does not consider only the crimes proved at trial but the person’s entire life — the good, the bad, and the prospects for future, law-abiding productivity. In my experience, judges struggle with this excruciating burden and, but for cases involving truly hardened criminals, tend to err on the side of leniency. They often rationalize that the stigma of conviction is, if not punishment enough, a factor that weighs in favor of lighter incarceration terms and alternatives to detention (e.g., probation, treatment, and community service).
With that as background, let’s think about Hunter’s likely sentencing in the gun case. I am assuming that (a) sentencing would occur about three months after a jury verdict (during which the court’s probation department conducts an investigation of the defendant’s life and crimes and prepares a report with a guidelines calculation for the judge’s consideration), and (b) Hunter will be granted bail pending sentence (judges have broad discretion on that in a nonviolent felony case).
Bottom line, I believe Hunter will get a no-prison sentence on the gun charges and that the most he risks is a sentence of about 15 months’ imprisonment — a possibility I regard as unlikely.
In essence, Hunter’s sentence would be controlled by guidelines §2K2.1, which addresses unlawful possession of firearms. Under grouping rules (see §3D1.2), the three counts in the indictment would be treated as a single offense because they arise out of one transaction involving one gun. (An objective of the federal guidelines is to prevent prosecutors from inflating the sentence by parsing a single crime into multiple statutory offenses — as Manhattan DA Alvin Bragg did in Trump’s case, turning a single business-records allegation into 34 felony counts.)
As perusal of 2K2.1 illustrates, what exacerbates firearms-possession crimes for sentencing purposes are factors that are not present in Hunter’s case: He does not have a prior record of violent crimes, and he was not in possession of an extraordinarily dangerous weapon.
Federal sentencing works like this. The guidelines (a) assign points for “offense factors” to derive an “offense level,” and (b) place the defendant within one of six criminal-history categories (CHC). These calculations are plotted on a grid, called the “Sentencing Table,” which yields the sentencing range. In this instance, CHC is easy: To my knowledge, Hunter has no criminal history to speak of, so he’s in Category I, the least severe.
The “offense factor” computation starts with a “base offense level,” which is just a baseline of points assigned to a statutory crime. (Appendix A of the guidelines matches statutory offenses to guidelines sections.) Once the base level is established, aggravating and mitigating offense factors that typically feature in the crime are weighed, with points added or deducted accordingly.
I don’t see Hunter’s “base offense level” exceeding 14 points under §2K2.1. He was not a prior violent felon, and I’m aware of no evidence that he was seeking to use the revolver described in the indictment for criminal purposes. (Compare, e.g., 2K2.2’s assignment of 26 points for a defendant whose unlawful possession followed two convictions for violent felonies.) To the contrary, Hunter appears to have purchased the gun for common “sporting purposes” (as §2K2.1(b)(2) puts it). There’s no evidence he fired it unlawfully. He might, therefore, be entitled to a reduction to a total offense level of just 6, under §2K2.1(b)(2).
(Two asides: First, I hedge because this reduction to level 6 is unavailable if the gun is “unlawfully used”; I do not know whether the circumstances of Hallie Biden’s discovery of the gun in Hunter’s belongings, and her foolish decision to discard it in a trash bin near a school, would give rise to an “unlawful use” that could be attributed to Hunter; nor do I know whether Hunter thought he needed a gun because he occasionally bought crack from shady characters in dangerous places, which would also be an unlawful use. Second, I am not factoring in the second gun, a Glock, that there is reason to believe Hunter unlawfully possessed during the relevant time frame; to my knowledge, Weiss has not alleged unlawful possession regarding this suspected gun, which Hunter was depicted in laptop images brandishing while cavorting with a prostitute — on our present state of knowledge, we can’t even say for sure whether it was a real gun.)
Looking at the sentencing table, if Hunter is at offense level 6 and CHC I, he would be looking at a likely sentence of zero to six months’ imprisonment. Furthermore, because such a calculation would land him in “Zone A” (the lightest sentencing category — see §5C1.1), the court would not have to impose a sentence of incarceration.
The guidelines would not dictate a sentence of imprisonment unless the court concludes that Hunter is at offense level 14 — but even then, it would only be 15 to 21 months. Hunter, as usual, would have himself to blame for this: If he had pled guilty and accepted responsibility for his actions, rather than forcing the court to conduct a trial, he would have been entitled to a 2-point reduction that would have brought his offense level down to a zone (such as Zone C for level 12) in which a prison term would not be required. (See §3E1.1.)
In any event, I believe Judge Noreika will find Hunter’s offense level is closer to 6 than 14. If I’m right, the guidelines would not dictate an incarceration term, though Noreika would have discretion to impose one. If she concluded level 14 applied, I believe she’d impose a sentence at the bottom of the range — 15 months.
Bail Pending Appeal
Since we are considering Hunter’s legal troubles in conjunction with his father’s political situation — in particular, the campaign calendar — we need to cover another important matter, bail pending appeal.
Under the federal penal code (§3143), even if the judge imposes a sentence of incarceration, a defendant may remain at liberty during the appeals process (which can take several months) if his appeal raises a substantial question of law, or if it is likely to result in a reduced sentence that would be shorter than the time it takes for the appeal to run its course. Hence, I believe that, even in the unlikely event that Judge Noreika were to impose a 15-month prison sentence, she would grant Hunter bail pending appeal. He would have an arguably colorable appellate claim because the parameters of the Second Amendment are unsettled; and if Hunter can convince the appellate court that Noreika’s guidelines calculation was too high, he might be able to avoid a prison term on resentencing.
Complication: The Tax Case
Meantime, there is the matter of the September 5 tax trial. I was surprised that Hunter didn’t plead guilty in the gun case, but I understand it: The gun charges don’t implicate his father and, given that Weiss’s dilatory conduct of the investigation gave him a Hail Mary Second Amendment claim under the Supreme Court’s 2022 Bruen ruling, Hunter figured he might as well go for it. Still, I’d be stunned if — assuming the failure of additional frantic attempts to delay the tax trial — Hunter and Weiss didn’t reach a plea deal on the tax charges. Otherwise, evidence that would hurt President Biden will be paraded in a high-profile legal showdown in the weeks right before the election.
Hunter’s problem, however, is that the tax case presents offenses much more serious than the gun case in terms of potential punishment. Even with Weiss’s lowballing of his tax crimes (by letting the statute of limitations for tax years 2014 and 2015 lapse), the president’s son would probably start at a guidelines base offense level 20 (under a generous application of §2T4.1’s tax-loss table), and he would now potentially be in CHC II because of gun convictions. I don’t have enough information at this point to do a more precise guidelines calculation, factoring in upward and downward adjustments, but it’s safe to estimate that we’re talking about a sentencing range in the neighborhood of 37 to 46 months’ imprisonment (compared to zero to six or, at most, 15–21 for the gun case). Even if Hunter pleads guilty and gets a reduction for accepting responsibility for his crimes, his tax case is very likely to call for a prison sentence of two years or more.
Nevertheless, if Hunter could reach a plea deal reasonably close to the scheduled September 5 trial date, then he and Weiss could probably persuade the court to postpone sentencing until early next year — i.e., after the election. If not, and if the trial is not delayed until after the election, I imagine the case will take three weeks or more to try (tax cases can be plodding affairs, but the evidence does mount). If Hunter were convicted in early to mid October, he’d probably be continued on bail pending sentence, which would be scheduled for early 2025.
Twice Convicted but Not Imprisoned
That is to say, even if he stands twice convicted by November 5, I doubt that Hunter Biden will be in custody as, in all probability, his appeal in the gun case proceeds and he awaits sentencing in the tax case. Ergo, if Biden loses the election, he could pardon Hunter before leaving office on January 20, 2025; if he wins the election, he could wait on a pardon until a sentence of imprisonment is imposed, probably in the tax case sometime in February or March 2025.
President Biden is thus likely to make good on his “no pardon for Hunter” promise from now through November 5. After that, I wouldn’t plan on holding him to those words.