HUNTER BIDEN INDICTED, BUT THESE CHARGES MAY NOT LAST VERY LONG
It's a great time to be an experienced criminal lawyer writing about the law!
I’ll be taking a day off to celebrate Rosh Hashanah, the Jewish New Year. Most American Jews are rather secular, like me, but hold our ancient traditions close to our hearts. Few if any of us believe the world was created 5784 years ago, but we are all in awe of the fact that we’ve been around so long. Jews and Hindus really take the long view, and that’s because we’ve had the long view to take.
I can’t help it; the Hunter Biden headlines caught my attention before I ring out the old and ring in the new, take 5784, so here it goes:
Hunter Biden, President Biden’s surviving son. Courtesy Getty Images.
HUNTER BIDEN - THE SPECIAL PROSECUTOR MAY WIND UP BEING BITTEN IN THE ASS
Hunter Biden was investigated for over two years by Delaware US Attorney David Weiss, a Trump appointee. A plea deal was reached where Hunter would plead to tax misdemeanors for not paying in a timely fashion, and he would be placed in a diversion program for attempting to purchase a gun while denying he was a habitual drug user or addict. (If successful, the gun charge would be dismissed.) The agreement contained a provision that if there were an allegation of violating diversion by engaging in bad conduct, it would be the federal court deciding the matter. This caused the judge assigned to the case, the Hon. Maryellen Noreika, to question whether this was proper under federal criminal procedure. The next thing we knew, the deal was blown up by the government, who refused to resolve the fine point and claimed there was fatal mutual misunderstanding. (Virtually impossible in a signed federal plea agreement.) David Weiss was then made a Special Prosecutor by Attorney General Garland, with multi-jurisdictional authority, meaning he could indict Hunter anywhere in America. The judge did not void the agreement, the government simply refused to keep their word and indicted Hunter. That may not be the end of it; see below.
We now see what all the furor was about. Weiss, in his new and expanded capacity, indicted Hunter on the same gun charges he was willing to divert a few weeks ago, this time violation of 18 U.S.C. sec. 922 (g)(1), a felony. Last month he was willing to divert the case and all of a sudden it is a felony?
There are many outstanding criminal lawyers following this newsletter. I am willing to say without hesitation that none, not even the experienced federal defense counsel (I’ve had a few federal cases in my day, I must say) will be able to recall a US Attorney charging a defendant for saying on a gun purchase form they were not an addict or user of unlawful drugs, unless they were being simultaneously prosecuted for a serious crime involving the firearm.
How Does the Government Prove an Applicant Falls Under the Statute?
What is the definition of an “addict” or a “user?” Is there some way of proving Hunter Biden met the legal or medical definition of “addict” or was using any time near the date he filled out the application? How often must one have “used” to be barred?
That’s one reason we never see such charges in federal court unless they are attached to more serious crimes like drug dealing, kidnapping, murder, or other violent offenses.
Another reason is that federal prosecutors are expected to purses major cases and not hound addicts. In almost all of these cases, the penalties are a refusal to allow the gun purchase and quite likely revocation of any permits or licenses and a prohibition on possessing firearms and no criminal charges.
There has never been such a prosecution in Delaware.
I heard Mike Barnacle say on the Morning Joe show that a federal judge he knows told him that the only way a person gets indicted on this charge alone is if they are phenomenally unlucky or their name is Hunter Biden.
Special Prosecutor David Weiss, who is also US Attorney for Delaware, a Republican nominated by Trump and assigned to this case by AG Garland. Photo courtesy CNBC
THIS SMELLS LIKE SELECTIVE PROSECUTION WITH A POLITICAL MOTIVE
Selective prosecution means that the accused has been singled out for special treatment because of who they are, and the circumstances are so unusual, so rare and so blatant, that the case must be dismissed. There’s no equal protection or due process of law when a prosecutor abuses their power in such a way.
I have no reason to question David Weiss’s integrity on anything before this plea agreement blew up, but it is an inescapable conclusion that he yielded to political pressure from the Republican Congress. I am not saying he did so for ideological reasons, but as we know, the relationship between the US Department of Justice and the Republican Insurrectionist Congress is fraught with hostilities. This means that a US Attorney who crosses them could suffer in a variety of ways: budgets, investigations, name dragged through the mud, no more appointments from Republicans. (Every federal prosecutor I’ve ever met harbored a desire to someday sit on the bench, preferably federal, but they’ll take a state judgeship if offered at the right time.)
The judge didn’t blow up the deal, and simply questioned a procedural aspect which could have easily been remedied. The new felony charges are the same that Weiss was willing to divert not long ago. Weiss acted when the Republican Congress began braying like jackasses about “preferential treatment” for Hunter which their own investigations proved not to be the case. Weiss filed a charge almost never seen in federal court.
Abbe Lowell, Hunter Biden’s lawyer, will file a motion to dismiss for selective prosecution. He’s got a lot of facts to work with, a lot of inescapable conclusions.
Judge Noreika appears to be a knowledgeable stickler for the law. Selective prosecution cases are rare and hard to prove, but there is at least even odds the motion to dismiss for selective prosecution will be granted.
The Fifth Circuit Court of Appeals Has Declared the Statute is Unconstitutional
The conservative Fifth Circuit Court of Appeals handed gun control opponents a huge victory when they declared the statute under which Hunter is charged to be unconstitutional. To sum it up, the Court found it violated due process to impose a blanket ban on owning a gun under the language of the statute, even for drug addicts and users; the Court noted that we are taking about a Constitutional right.
Delaware is in the Third Circuit, not the Fifth, so the finding of unconstitutionality is not binding on the federal trial court in that state. (A trial court could decide to follow it, or the Third Circuit could rule the same way and if they do, that’s it for this prosecution.)
No one can say for certain how the US Supreme court would rule on the question, but the odds look good for striking the statute down everywhere.
So where is the NRA and where are all the Second Amendment people? They have urged striking this statute. Why aren’t they out protesting this treatment of Hunter Biden?
When we consider the rarity of such charges, and that they were brought at a time when the statute is assailed as unconstitutional, the selective prosecution claim looks even stronger.
THE FEDERAL COURT MAY GRANT HUNTER BIDEN’S MOTION TO ENFORCE THE PLEA AGREEMENT
Abbe Lowell, Hunter Biden’s defense counsel. His clients have included John Edwards, Jared Kushner, Sen. Robert Menendez, among others. Photo courtesy Winston & Strahan, LLP
Abbe Lowell is going to file a motion to compel the plea agreement. He has a very strong case.
A plea agreement is a contract, and once the parties have signed and filed the agreements with the federal trial court, the only question is whether the defendant will admit to what is required to be proven in open court. There’s no option by either party to just walk away after agreeing to a deal. A court can allow it upon motion, or a court can refuse to abide by it, neither of which occurred here. The government did not attempt to remedy the procedural glitch and instead caved in to far-right Republicans in the House.
That is a not a valid reason for the government to be released from the promises they made to the defense and to the Court. Hunter could not simply walk away after he signed.
The judge may well decide that the plea can work simply by striking the language about her deciding potential violations, or she could order the parties to work it out, or of course, Weiss can agree to work with Lowell.
THE BOTTOM LINE: NO ONE EXCEPT THE CRAZY INSURRECTIONIST REPUBLICANS IN CONGRESS AND THEIR FOLLOWERS CARE IN THE LEAST ABOUT HUNTER BIDEN
If shows up on no lists of Americans’ concerns or their election issues.
Most Americans have personal experience with someone caught in the throes of substance abuse and have become more compassionate and understanding than the Insurrectionist Congress is able to grasp.
If Americans are concerned about criminality in politics, here’s where their focus ought to lie:
Twice impeached, four times indicted, twice adjudicated a rapist, soundly defeated former President Donald Trump. Mug shot courtesy of Fulton County, GA
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