Hunter Biden was doomed to lose trial, appeals policy claims

Despite all the drama, the case against Hunter Biden has always been pretty straightforward.

When the president’s son purchased a .38mm Colt Cobra handgun on October 12, 2018, he had to fill out a government form asking if he was “an illegal user of or addicted to” a “controlled substance.”

He marked “no” on the form and then paid $900 in cash.

Given the mountain of publicly known evidence that Biden used cocaine during this period, federal prosecutors filed an indictment against him. They accused him of lying on the form and illegally possessing a firearm.

In his opening statement at the trial, Biden’s attorney, Abbe Lowell, urged jurors in federal court in Wilmington, Delaware, to acquit his client. He argued that terms such as “user of” and “addicted to” were open to interpretation.

Prosecutors got straight to the point once closing arguments ended. One of the first pieces of evidence they presented to the jury was a section of Biden’s memoir. They played portions of the audiobook — narrated by Biden himself — in which he described his struggle with addiction over a four-year period that overlapped with the purchase of the gun.

“It’s the bread and butter of the U.S. attorney’s office,” Sarah Krissoff, a former Manhattan federal prosecutor and former attorney for the Bureau of Alcohol, Tobacco, Firearms and Explosives, told Business Insider before the jurors begin to deliberate. “They know how to put on a waterproof gun holster.”

Biden’s trial was not necessarily a lost cause. His lawyers tried to convince jurors that he was seeking treatment and that he did not consider himself an addict on the day he filled out that form, nor in the 11 days in October 2018 that he possessed the gun. The jury — in his father’s home state of Delaware — could have deadlocked or acquitted him.

This does not happen.

On Tuesday, the jury found Biden guilty of all three gun charges.

But Biden’s legal team already had its eyes on the higher courts.

The defense of politicization

The rulings by U.S. District Judge Maryellen Noreika, whom Donald Trump appointed when he was president, made Biden’s rise steeper.

In a series of rulings before the trial, she rejected arguments from Biden’s lawyers that would have allowed him to present a stronger defense. Some of these motions argued that the case was fundamentally unfair and should never have been brought.

Biden’s team — led by Lowell, who has previously represented politicians such as Jared Kushner, Sen. Robert Menendez and former Sen. John Edwards — aggressively appealed the decisions.

Hunter Biden Abbot Lowell

Hunter Biden, son of US President Joe Biden, and lawyer Abbe Lowell.


None of the appeals stopped the case from going to trial before higher courts could consider its merits. But they can always be resumed later.

Biden’s main arguments revolve around the idea that he is the victim of “selective and vindictive prosecution.”

The criminal investigation was launched under the authority of David Weiss, appointed US attorney for Delaware by Trump. He brought the indictment during the administration of President Joe Biden, who has promised not to interfere in the matter. U.S. Attorney General Merrick Garland appointed Weiss special advisor to the Justice Department to protect it from outside influences.

Hunter Biden’s lawyers argued that this arrangement allowed Weiss to politicize the proceedings unchecked.

Last summer, attorneys for Weiss and Biden reached a deal that would result in a diversion agreement for the gun-related charges and a guilty plea to a separate set of tax charges. Biden being accused of failing to pay at least $1.4 million to the IRS. But that collapsed during a court hearing when Noreika questioned the technical mechanics of the deal.

Amid the chaos, Trump and congressional Republicans enthusiastically pressured Weiss to indict Biden in the gun case, as well as the separate criminal tax case in California. When Weiss presented the indictments instead of continuing to negotiate a plea deal, those same Republicans rejoiced.

“They have made it clear that they want Mr. Weiss to keep this litigation alive until the presidential election (regardless of its merits) and bring more serious charges to obstruct investigations and prosecutions against him. “former President Trump,” Biden’s lawyers wrote. in a December file.

Everyone wanted a plea deal – except the Republicans

Legal commentators — and even some Republican politicians — have said the pursuit of gun-related criminal charges is highly unusual.

One charge, for falsely filling out the government’s gun sales form, is usually brought as an additional charge in a broader gun-related case, such as a gun-trafficking prosecution, they said. experts told BI. There is no evidence that Biden even loaded or used the gun before his brother’s widow, Hallie Biden, threw it away.

Another charge, for possession of a firearm by a person who has used or is addicted to a controlled substance, is even rarer. And according to Krissoff, federal prosecutors in Manhattan had a policy of not filing charges at all.

“Absent this individual’s Hunter Biden status, it would be very unlikely that this case would have been brought,” Krissoff, now a defense attorney at Cozen O’Connor, said last week.

Hunter Biden Gun Form

Biden’s Bureau of Alcohol, Tobacco, Firearms and Explosives form for his gun purchase. Biden answered “no” to question “e,” which asked about addiction and drug use.

US Department of Justice

Duncan Levin, a former federal prosecutor in New York, said the rarity of this prosecution demonstrated that the entire prosecution was political.

“I have never heard of a case being brought as a standalone misrepresentation on a claim — ever,” Levin told BI during the trial. “Lying to a gun dealer? I think there are less than 300 a year, out of 25 million background checks. I think that speaks for itself.”

A separate federal appeals court in Texas ruled last year that the law’s application in another criminal case violated the Second Amendment.

“Clearly, the conduct that the government should be addressing is whether someone is taking drugs and using drugs while shooting a gun,” Levin said, “not whether someone one used cocaine two weeks ago and then picks up a gun at some point, and to some extent what the law means is incredibly vague.

Levin said the constitutional fragility of such a case was why it made more sense for everyone to agree to some sort of non-prosecution agreement. The same goes for the tax charges in California, which were filed after Biden had already paid back taxes and was ready to plead guilty, Levin said.

And in fact, that’s what was supposed to happen. Everyone wanted a plea deal except Republican politicians.

“Hunter Biden has never been president. He’s not running for office. He’s not a public official. He’s a private person,” Levin said. “And these charges are de minimis at most. These are the type of charges that not only would typically result in pretrial diversion, but they were intended to result in pretrial diversion. The fact that these are of a trial is due to political reasons, plain and simple.”

According to Krissoff, plea deals constantly fall apart under a judge’s scrutiny. When that happens, prosecutors and defense attorneys usually pick up the pieces and try to draft a new deal, she said. This is usually much easier than going to trial.

Merrick Garland testifying to House Congress

U.S. Attorney General Merrick Garland testifies before a House Judiciary Committee hearing on “oversight of the U.S. Department of Justice” on Capitol Hill.

REUTERS/Evelyn Hockstein

“Pleas go south all the time when you’re in the courtroom or when you enter the courtroom, and it can be difficult to know whether the plea is going to go through or not for a variety of reasons,” he said. she declared. “The judge asked a lot of tough questions, and the plea was unsuccessful. This has happened to me several times in my life, so I’m sure it will happen again.”

Biden’s lawyers argued that the diversion agreement on the drug charges was still binding even without the judge’s approval and that the charges should be dropped.

Noreika rejected the request, as well as Biden’s demands to dig deeper within the Justice Department for evidence of political pressure.

But forcing prosecutors to honor the diversion agreement on gun-related charges — which would not cover tax charges — might have the best chance on appeal, said Neama Rahmani, president of West Coast Trial Lawyers and former federal prosecutor in California.

“It was stupid to blow up the deal,” Rahmani told BI during the trial. “I’m sure they regret it.”

Before Biden and his lawyers could get an appeals court to listen to them, they had to finish the trial.

Biden had some defenses to muster, Levin said, days before the verdict.

“Hunter Biden had just come out of an 11-day program and was living with someone who was sober at the time,” he said. “I think that’s a pretty cringey way of looking at it, to say he was a drug addict at that time – he was clearly committed to recovery and had only just finished a rehab program.”

However, given the number of arguments the judge has already rejected, the felony conviction was expected.

“By the time they get to that point, the prosecution usually has a very strong hand,” Krissoff said last week. “Creative defense lawyers can do damage and be very effective, so we’ll see. But I doubt even Hunter Biden is optimistic.”

This story has been updated following the jury’s verdict in Hunter Biden’s gun trial.