W hile we were all glued to that other trial involving what’s-his-name, hopefully you’ve been following — as I have — National Review’s coverage of Hunter Biden’s gun case, in which jury selection is set to begin in Delaware federal court on Monday. (See, e.g., James Lynch’s reporting here, here, here, here, here, and here).
The evidence against the president’s son is extremely strong. Naturally, that’s why his lawyers tried so hard to get the prosecution diverted with an eye toward eventual dismissal, even though he should not have been eligible for diversion under Justice Department rules. That effort failed when the sweetheart plea bargain collapsed. Subsequently, Hunter was indicted and, unless there is a last-minute plea deal, the trial will begin.
The Statute of Limitations and Two-Tiered Justice
If ever there was a neon-blinking illustration of the two-tiered justice system imposed by progressive prosecutors in the Justice Department and big-city district attorneys’ offices under Democratic control, it is the statute of limitations.
In former president Trump’s Manhattan prosecution, elected Democratic district attorney Alvin Bragg waited until 2023 to indict business-records-falsification charges that should have been time-barred by 2019 under New York’s two-year statute of limitations for misdemeanors. Bragg, however, inflated the misdemeanors into felonies — 34 of them — by contending that Trump committed them to conceal his commission of another crime. In the end, it turned out that this “other crime” was . . . another misdemeanor that was also time-barred by 2019 — a conspiracy under New York election law. I won’t belabor the record on the bogusness of this other crime. How amazing, though, that if Bragg had tried to indict the business-records misdemeanor and the election-law misdemeanor as separate charges in the same indictment, the case would have been thrown out as a statute-of-limitations violation; but somehow, by smushing the two misdemeanors together into one charge (multiplied 34 times), the indictment Bragg talked a grand jury into approving was deemed viable.
Now, let’s compare this with Hunter Biden’s case. Biden Justice Department prosecutor and faux special counsel David Weiss dragged his feet before finally indicting the president’s son — only after the aforementioned sweetheart plea deal, by which Weiss tried to disappear all potential prosecutions of Hunter, imploded. Because Weiss did that, both Hunter and President Biden profited enormously.
First, in the tax investigation that focuses on Hunter’s monetizing of his father’s political influence, Weiss willfully allowed the statute of limitations to expire on tax years that would have been most humiliating for the elder Biden — those when he was vice president and Hunter was raking in millions from Burisma, the corrupt Ukrainian energy company with whose top execs Joe Biden met and spoke by telephone, and on whose behalf he appears to have pressured the Ukrainian government to fire a prosecutor. Weiss has also gone the extra mile to keep the president’s name out of the Hunter tax indictment, even though Joe Biden is a central player in the facts of the case. (The tax case is scheduled to be tried in September in Los Angeles federal court.)
Second, in the gun case set to begin on Monday, Weiss’s strategic procrastination, though it didn’t quite attain the objective of killing the case, gave Hunter his best — perhaps his only — defense. I explained this late last summer, after the indictment was filed.
The Indictment
The indictment filed last September charges Hunter with three firearms felonies, which combine to a potential 25 years’ imprisonment. As a first offender who is not accused of using the relevant gun in a crime, it is inconceivable that Hunter would be sentenced to anything near 25 years, but a sentence of incarceration is highly likely. This is in no small part thanks to his father’s career of anti–Second Amendment demagogy, which has led the government to enact increasingly severe sentencing provisions. A trial of these charges is thus sure to embarrass the Biden White House.
The first two charges accuse Hunter of lying about his status as a user of illegal narcotics and as an addict. Specifically, count one alleges that Hunter violated §922(a)(6) of the federal penal code by lying on Form 4473, which the government requires for gun purchases. As the Washington Post has reported, Senator Joe Biden made Form 4473 a key part of background checks for gun purchases when he chaired the Judiciary Committee in 1993 (via the Brady Handgun Violence Prevention Act).
Originally, the §922(a)(6) offense carried a maximum penalty of five years’ imprisonment. Hunter, however, will face a potential ten-year sentence because, again as the Clinton-era Judiciary Committee chairman, Senator Joe Biden called for doubling the penalty (via the 1994 legislation he used to refer to as “the Biden Crime Bill” before progressives began castigating it for allegedly turbocharging an era of mass-incarceration).
The second count is closely related: Hunter is accused of lying to the licensed firearms dealer who sold him a handgun after he filled out the Form 4473 — a violation of §924(a)(1)(A) of the penal code, carrying a potential five-year prison term.
It is with respect to the third count that Hunter’s defense arises, thanks to the dilatory Weiss.
In count three, the president’s son is charged, under §922(g)(3) of the penal code, with illegal possession of a firearm by a person who was at the time “an unlawful user of or addicted to any controlled substance.” Because his alleged offense occurred in 2018, Hunter faces a maximum sentence of ten years’ imprisonment. He is not subject, then, to the newly enhanced term of up to 15 years’ incarceration (see §924(a)(8)) that President Biden signed into law in 2022, after his usual bombast about the need to toughen up federal gun penalties against people who obtain guns illegally. If Hunter is convicted, as is likely, that rhetoric and the enhancement will argue for a more severe incarceration term.
Hunter’s Drug Addiction
Some background regarding this offense, which centers on a Colt Cobra revolver purchased by Hunter on October 12, 2018 — a gun he possessed for about eleven days.
By his own account, including in a 2021 memoir, Hunter was a cocaine addict for years. Indeed, he had been booted in 2014 from a comfy Navy position after testing positive for cocaine. It was a public-affairs-officer slot for which he was too old to be eligible, yet one he just happened to be able to get — and leave without a formal dishonorable discharge — while his father was vice president.
Hunter’s defense attorneys may try to create ambiguity — and, hence, reasonable doubt — regarding the meaning of the statutory terms unlawful user and addicted to. But Weiss (if he’s going to play it straight and actually prosecute the case energetically) should have little difficulty proving the charges.
As I’ve previously related, images from Hunter’s infamous laptop, taken during the same 2018 time frame as the events in the indictment, depict him naked, cavorting with a prostitute, and brandishing a second handgun (it appears to be a Glock) during what appears to be a binge. Moreover, with respect to the revolver that is charged in the indictment, Hunter’s then-girlfriend Hallie Biden (who was also his widowed sister-in-law) evidently took the gun from him and tried to discard it, near a school, out of fear that he’d hurt himself or someone else in his drug-addled condition.
Weiss’s Politically Motivated Delay Yields a Defense for the President’s Son
So how did Weiss give Hunter a defense?
Since the evidence against Hunter is daunting, he should have been indicted within a few weeks of the October 2018 attempt to discard the gun. The incident was reported to state and federal law enforcement immediately. Yet, not only was no effort made by state or federal authorities to arrest Hunter, the Secret Service reportedly tried to erase the paper trail.
To be clear, this was not a “lie and try” case — one in which an ineligible person lies on the 4473 form, is discovered before the sale is consummated, and doesn’t get the gun. Hunter got the gun and, being Hunter, handled it recklessly — which, of course, is exactly why the law bans gun possession by drug addicts. Those cases get prosecuted.
Then as now, though, Weiss was the U.S. attorney for Delaware, where former–vice president Biden — then preparing a 2020 presidential run — had been a U.S. senator for decades and where Weiss (a Trump appointee) would not have been appointed absent the support of the two Biden-allied Democratic senators. You’ll no doubt be shocked to learn that, despite having proof that would have led to a swift prosecution against a non-connected offender, Weiss did not lift a finger to indict Hunter Biden for nearly five years.
In the interim, the Supreme Court decided the Bruen case, upending the seemingly settled legitimacy of long-standing prohibitions on gun possession by drug abusers, among others, in Second Amendment jurisprudence.
More background.
Writing for the Court in District of Columbia v. Heller, its seminal 2008 decision upholding the right to keep and bear arms, the late, great Justice Antonin Scalia had taken pains to state that nothing in the ruling “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill” or to other categorical bans that had been in place for decades. Two years later, the Court reaffirmed this cautionary note in McDonald v. City of Chicago, in a majority opinion by Justice Samuel Alito clarifying that the Second Amendment right was enforceable against the states.
Consequently, when Hunter purchased the revolver in October 2018, there was no reason to doubt the viability of §922(g)(3). Drug addiction had long been analogized to mental illness. The prohibition of gun possession by addicts and other “unlawful users” of drugs had thus been enacted as part of the Gun Control Act of 1968. By 2018, it had been a fixture in federal law for a half century. If he had been indicted in a timely fashion in late 2018 or early 2019, Hunter would have had little choice but to plead guilty. That is the course usually taken by first offenders with no real defense — it enables them to take advantage of the federal sentencing guidelines’ provisions that reduce penalties against defendants who plead guilty and accept responsibility for their crimes.
But Weiss dragged his feet. The only explanation is politics. The Justice Department’s unwritten rule discouraging public-enforcement actions when elections are imminent applies only to candidates, and only within 60 days of an election — it does not apply to a candidate’s son, let alone two years before an election. An indictment of Hunter would have been very unpopular among Delaware Democrats, however, so Weiss had to figure that filing one would cost him his coveted U.S.-attorney slot if Biden or another Democrat won in 2020. What a surprise, then: Weiss did nothing. And then Biden won, so Weiss continued doing nothing.
Meantime, in 2022, the Supreme Court decided New York State Rifle & Pistol Association, Inc. v. Bruen. Writing for the Court, Justice Clarence Thomas clarified that restrictions on the right recognized in Heller could be upheld only if they reflect or are tightly analogous to restrictions that were in place when the Second Amendment was ratified in 1791, or when the 14th Amendment — by which the Second Amendment is incorporated against the states — was ratified in 1868. As a result, if a firearms restriction is not supported by the original understanding of the right to keep and bear arms and thus reflected in our history and traditions, the courts are likely to invalidate it.
Even though the restriction in §922(g)(3) against drug abusers and addicts has been in place for decades, there was no such restriction at the time of the Founding or during Reconstruction. The viability of the restriction is thus in question. Mainly it hinges on the strength of the analogy of drug addiction to mental illness — there being a tradition of restricting the insane from gun possession (and the exercise of some other rights). Also relevant is the difference between an unlawful user, who may occasionally ingest illegal drugs but not be addicted to them, and an addict. For the former, a categorical ban is not consistent with the original understanding of the Second Amendment; the latter, to the contrary, would be easier to analogize to mental illness, so the argument for ineligibility is stronger.
Hunter Challenges §922(g)(3) ‘Facially’ — Not ‘As Applied’
Implicitly, Hunter seems to be conceding that he was a drug addict when he acquired the gun.
As Judge Maryellen Noreika observed in denying his pre-trial motion to dismiss the indictment, Hunter raised only a “facial” challenge to §922(g)(3). That is the hardest claim to win because the litigant must show that the disputed provision is unconstitutional on its face — i.e., there are no conceivable applications in which it would pass constitutional muster. To repeat, drug addiction is very similar to mental illness in the concerns it raises regarding gun possession; ergo, I do not believe the Supreme Court would uphold a facial challenge.
Hunter did not raise an “as applied” challenge — i.e., a claim that §922(g)(3), even if valid in some applications, was invalidly applied to him. I have to assume his experienced lawyer, Abbe Lowell, advised him that an as-applied challenge would require making representations that he was not an addict at the relevant time; such representations would be undermined by other things Hunter has said about his condition and probably would not be true.
In the unlikely event that the defense can develop evidence at trial that Hunter wasn’t a drug addict when he denied being one on the form and acquired the gun, he may be able to posit a constitutional as-applied challenge post-trial (assuming he is convicted). Still, he didn’t make an as-applied challenge pre-trial, so Judge Noreika understandably agreed with the weight of post-Bruen jurisprudence in the lower courts, which has rejected claims that §922(g)(3) is unconstitutional. Hunter tried to appeal this decision, but, as James has reported, the Third Circuit peremptorily rejected this gambit as premature (i.e., there is no pre-trial appeal on this issue — Hunter can appeal it, along with any other claims of error, if he is convicted).
If Weiss had prosecuted Hunter more than four years ago, as he should have, Hunter would have no Second Amendment defense. Since he had no reason to believe there was such a defense pre-Bruen, and since it would have been profoundly embarrassing for his father if he had claimed that restrictions on gun possession that Joe Biden had long advocated for are unconstitutional, he would not have made a Second Amendment claim. The later Bruen ruling would have been unavailing for him, and, by the time the Bruen decision was announced in June 2022, he’d probably have already served whatever prison term had been imposed.
Finally, though Hunter would have no Second Amendment defense without Weiss’s dithering, what he has isn’t much. As I’ve contended above, it is likely to fail. Just as important, even if it got traction on count three, it would not be a defense to the first two counts in the indictment. That is, even if the government shouldn’t have been able to restrict Hunter’s gun possession, he had no Second Amendment right to lie on Form 4473 and to the licensed firearms dealer.
I really believed Hunter would plead guilty. But, just as Donald Trump has employed a strategy of delay hoping he can make the federal cases against him go away if he wins the election before they can be tried, Hunter has tried his own dilatory tactics. He and his counsel know that the politics of a pardon get easier after the 2024 election, even if the Biden White House keeps insisting there will be no pardon. But those tactics, like David Weiss’s delay tactics, have failed. Time is up.