How Hunter Biden’s next trial could hurt Joe

A Delaware jury just convicted Hunter Biden of three felonies: lying to a federally licensed firearms dealer, lying on a federal background check and possessing a firearm while “an unlawful user of or addicted to any controlled substance.” Republicans will cheer the result for holding a Biden family member accountable, while Democrats will complain about selective prosecution brought under political pressure.

The verdict, however, should not obscure a deeper truth. Hunter Biden’s conviction for illegal firearm possession signals no greater corruption, aside from the Justice Department’s inexplicable delay in bringing the charges and the earlier, flawed plea bargain that would have given him only a slap on the wrist.

Instead, the firearm case distracts from the real scandal: whether Hunter took money from foreign companies and even governments to peddle influence through his father, now the sitting president of the United States. That will form the basis of a second federal trial of Hunter Biden in Los Angeles in September for tax evasion, just in time to influence the November elections.

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Although Hunter is facing a maximum of 25 years in prison for the firearm conviction, he is unlikely to receive any jail time. He is a first-time, non-violent offender, he is unlikely to flee, and he continues to enjoy U.S. Secret Service protection.

Assuming that Hunter appeals, Judge Noreika will almost certainly grant him bail based on the Supreme Court’s June 2022 Bruen decision and perhaps on the upcoming Daniels and Rahimi decisions.

Hunter’s case is the mirror-image opposite of Donald Trump’s prosecution in Manhattan. Unlike the Trump case, the grand jury’s indictment against Hunter was clear. Federal prosecutors did not slice and expand the three charges into 30-plus separate charges.

All the evidence, including Hunter’s audio book and his text messages with drug dealers, clearly proved his abuse of, and addiction to, illegal drugs around the time that he purchased the firearm. Hunter knowingly lied to the firearms dealer, on the federal firearms background check form, and possessed the firearm illegally.

It would have taken some fortitude for a Delaware jury to have reached its unanimous verdict in the face of the Biden family’s prominence, especially with the First Lady of the United States making special trips from France to attend the trial.

Going to trial reflects the hubris that brought Hunter to this point. After the highly unusual plea deal granted by Special Counsel and U.S. Attorney David Weiss’s office imploded last summer, Hunter’s attorneys should have negotiated a new one. The defense attorneys thought that they could reach a sweetheart deal that would relieve Hunter of any jail time for any and all federal charges.

In a normal plea bargain, Hunter would have had to do, at most, a couple of months of home detention followed by probation, and perhaps community service. For example, actress Felicity Huffman only did 11 days in a low-security, “Club Fed” federal prison for her role in the “Varsity Blues” college admissions scandal.

But Hunter, in his arrogance, believed that he should either get no jail time at all or go to a Delaware jury, which he seems to have expected to bend the knee to the Biden family and acquit in defiance of the facts and the law.

The felony convictions now sharply increase the stakes, but Hunter seems wedded to his hubristic path. In September, Hunter again risks a trial, this time on nine federal tax charges based on his alleged evasion of $1.4 million in taxes over a four-year period. If Hunter is convicted of even one of the nine charges, he will receive no favorable sentencing treatment as a first-time offender. If Hunter is convicted, he faces the serious possibility of jail time.

But even more important is the information that the trial could place before the public just two months from the November elections. The tax charges potentially implicate President Joe Biden himself. Hunter received millions of dollars from foreign companies, governments and foreign government-controlled entities, often involving regimes that are distinctly unfriendly to the United States, such as China and Russia.

A normal special counsel investigation would delve into possible influence peddling, improper lobbying and the possible routing of funds to Joe Biden and the Biden family. This is the only way that Weiss can recover his reputation after, either intentionally or incompetently, he allowed the statutes of limitations to expire on Foreign Agents Registration Act (FARA) and tax charges against Hunter from 2014-2016, when his father was vice-president.

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If DOJ does conduct a full investigation, they may well uncover the type of corruption that the DOJ prosecutes under the Foreign Corrupt Practices Act (FCPA) all the time – bribing important government officials by paying off their relatives.

It is also possible that Abbe Lowell and his team will negotiate a nice plea deal for Hunter on the tax charges – it’s always possible up until the moment the jury reads its verdict – but even then, the handgun convictions means that any plea deal cannot be as lenient as it could have been last year.

Finally, Hunter’s cases exacerbate the Democrats’ “lawfare.” Weiss’ office initially avoided charging and prosecuting Hunter for the gun, tax or FARA crimes, and allowed the charges that would have most directly implicated President Joe Biden to expire.

Democrats, who claim to re-establish “norms,” instead set the precedent that overly partisan and aggressive local prosecutors can use prosecution to target political opponents – even a former president of the United States or the current opposition candidate for the highest office in the land. Partisan advantage or revenge never should be a motive for impeachment or criminal proceedings.

Prosecutors would do well to remember then Attorney General Robert Jackson’s speech warning that prosecutors should beware of “picking the man and then searching the law books, or putting investigators to work, to pin some offense on him… the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies.” His words are as wise now as they were then.

John Shu is a legal scholar and commentator who served in the administrations of Presidents George H. W. Bush and George W. Bush.

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John Shu is a legal scholar and commentator who served in the administrations of Presidents George H. W. Bush and George W. Bush.