Hunter Biden will make his second court appearance on Tuesday as he faces three criminal charges related to his purchase of a firearm in 2018 and the possibility of further charges stemming from his foreign business dealings.
The court appearance is expected to be brief and uneventful, as lawyers for the president’s son have already indicated their client plans to enter a not-guilty plea, and a judge has already indicated the terms of his pretrial release are not likely to change substantially from what the court set during his first appearance in July.
CALIFORNIA US ATTORNEY WHO DECLINED TO CHARGE HUNTER BIDEN UNDER SCRUTINY
However, the arraignment will mark a significant step in a case that, after years of developing quietly, has featured shocking twists and turns over the past several months.
President Joe Biden has remained largely silent on his son’s legal troubles since a plea deal offered to Hunter Biden by Delaware U.S. Attorney David Weiss, now a special counsel, collapsed in court on July 26.
That deal had included a pretrial diversion agreement for the alleged gun offense, meaning prosecutors had agreed not to bring charges on the matter in exchange for Hunter Biden adhering to a set of conditions set by the government.
Weiss withdrew the plea deal days after the July 26 hearing. Unable to agree on the extent of immunity Hunter Biden should receive, his defense team and Weiss’s team of prosecutors appeared to become openly hostile toward each other.
Christopher Clark, Hunter Biden’s lead defense attorney, quit the case to preserve his ability to testify about the original plea deal negotiations as a witness, as did several other attorneys on the team.
Weiss’s prosecutors revealed in a court filing on Aug. 11 that “following additional negotiations after the hearing held on July 26, 2023, the parties are at an impasse and are not in agreement on either a plea agreement or a diversion agreement,” asking the court to throw out the deal.
In mid-August, Politico and the New York Times each received a trove of communications between defense lawyers and Weiss’s office. The communications appeared to show how closely prosecutors worked with Weiss’s office and the Justice Department for more than a year before Hunter Biden was indicted on misdemeanor tax charges this June.
The communications showed how Hunter Biden’s defense lawyers were given the opportunity in May to draft versions of the plea agreement they wanted their client to receive. The earlier versions of the agreement did not require Hunter Biden to plead guilty to anything, although prosecutors changed their position around the time two IRS whistleblowers told Congress about what they saw as a pattern of preferential treatment toward the Biden family.
Hunter Biden’s lawyers have since laid the groundwork for a defense strategy that includes accusing Weiss of caving to Republican demands for Hunter Biden’s prosecution. Clark’s withdrawal from the defense team in August means he could, as a witness, testify that Weiss did not appear interested in indicting Hunter Biden until after the whistleblowers stirred controversy on Capitol Hill.
Weiss did not refile any charges related to Hunter Biden’s taxes. The original plea deal contained two misdemeanor tax charges related to his failure to pay taxes on income earned in 2017 and 2018.
The two IRS whistleblowers, and later two additional IRS officials, told Congress that U.S. attorneys in Washington, D.C., and California blocked Weiss from charging Hunter Biden with tax crimes in their respective jurisdictions. The strongest tax cases needed to be brought in those districts, not in Delaware, where Weiss served as U.S. attorney, the whistleblowers said.
It’s unclear whether Weiss will pursue another indictment in the Central District of California, where some of the more recent alleged tax offenses may have occurred.
In the gun case for which Hunter Biden will appear in court on Tuesday, prosecutors accuse the president’s son of knowingly lying on paperwork to purchase a .38 caliber revolver. Hunter Biden indicated on the paperwork that he was not an illegal drug user, even though he at the time was battling an addiction to crack, according to his memoir.
The gun purchase came to light in 2021 following reports that Secret Service agents had shown up in 2018 at the Delaware gun shop where Hunter Biden bought the firearm and demanded the shop owner hand over the purchase paperwork.
Hallie Biden, the widow of Hunter Biden’s late brother Beau and Hunter Biden’s girlfriend at the time, had thrown the gun into a grocery store dumpster after discovering it in Hunter Biden’s truck.
When she went back to retrieve the firearm, it was gone, and the grocery store manager called the police to report the incident.
Police questioned Hunter and Hallie Biden at the time. While the Secret Service was no longer protecting Hunter Biden at that time because Joe Biden was out of office, the then-former vice president reportedly worked in an unofficial capacity with some agents based out of the agency’s Wilmington, Delaware, office.
The alleged involvement of Secret Service agents and the bizarre circumstances under which Hunter Biden lost and later recovered his gun could arise during a potential trial in the gun case.
Hunter Biden already submitted his fingerprints and had his mugshot taken when he arrived in court for his July 26 initial appearance, so he may not repeat that part of the process on Tuesday.
His lawyers have already signaled that in addition to challenging prosecutors’ motivations for bringing gun charges five years after the alleged offense, they plan to build a defense around Hunter Biden’s Second Amendment rights.
Abbe Lowell, Hunter Biden’s new lead defense attorney, has said publicly that he does not think the gun law under which his client is being prosecuted is constitutional.
His defense team could cite a precedent set by a 2022 Supreme Court ruling in New York State Rifle & Pistol Association Inc. v Bruen, which held that gun laws must be “consistent with the Nation’s historical tradition of firearm regulation.”
Preventing someone from exercising his or her Second Amendment rights because of a substance abuse issue may not fit that requirement, giving Hunter Biden’s attorneys an opportunity to mount a defense that could prove politically difficult for Joe Biden.
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The president and many Democrats have argued for restrictions on gun ownership that go far beyond active drug use. Joe Biden said in a statement after Bruen that he was “deeply troubled” by the ruling.
Hunter Biden's appearance on Tuesday will also come after a judge sided with Weiss on whether the president's son needed to attend the hearing in person. Hunter Biden's attorneys argued that the hearing was simply a formality and that the Secret Service detail would cause disruption to the Delaware courthouse; Weiss's team argued that Hunter Biden should face the same attendance requirements as every other defendant.