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Law and Order


OPINION | HUNTER BIDEN GOT SPECIAL TREATMENT — ESPECIALLY HARSH

The president’s son pleaded guilty to charges that probably wouldn’t have been
brought if his last name were different.



Hunter Biden's plea deal involved two misdemeanor tax counts of failure to pay
income tax and one count of possessing a firearm while a user of and addicted to
a controlled substance — charges that are almost never pursued as criminal
matters, the author writes. | Carolyn Kaster/AP Photo

Opinion by Renato Mariotti

06/22/2023 01:02 PM EDT

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Renato Mariotti is Legal Affairs Columnist for POLITICO Magazine. He is a former
federal prosecutor and co-host with Asha Rangappa of the “It’s Complicated”
podcast.

Tuesday’s announcement that Hunter Biden, the president’s son, agreed to plead
guilty to federal tax and firearm crimes drew widespread criticism from
Republicans, who slammed it as a “sweetheart deal.” Actually, Biden was treated
harshly and — based on what we know publicly — received more severe treatment
than a typical defendant.

The announcement of the charges by United States Attorney for Delaware David
Weiss, a Trump appointee, should have been cause for celebration for anyone who
believes in the rule of law. After all, although our system is imperfect, the
fact that the son of the sitting president was investigated, prosecuted and
convicted by the Justice Department demonstrates that no one is above the law.



Yet Republicans recoiled at the announcement, perhaps because Hunter Biden was
accused in right-wing publications of everything from corruption to human
trafficking, yet was only charged with two misdemeanor tax counts of failure to
pay income tax and one count of possessing a firearm while a user of and
addicted to a controlled substance.



You don’t have to be a lawyer to figure out that these are hardly the crimes of
the century. Many critics have pointed out that Biden will almost certainly not
receive prison time as a result of these charges, which is true. But while we
don’t know what else he might have done — and as Weiss noted, the “investigation
is ongoing” — if this is the extent of Biden’s wrongdoing, he has been treated
much more harshly than the typical defendant.

Federal prosecutors charge a lot of firearm offenses every year. They charged
12,261 cases involving a firearm last year alone. The overwhelming majority of
those cases involve the possession of a firearm by a felon, and those charges
are used by prosecutors as a method to get felons with violent criminal
histories or serious gang involvement off the street.

Another often-charged statute criminalizes the possession, use or brandishing of
a firearm during the commission of a federal “crime of violence.” I have charged
many defendants with gun offenses in my former career as a federal prosecutor,
but until this week I had never heard of a prosecution of anyone for possessing
a firearm while addicted to a controlled substance before the Hunter Biden case.

When I looked at crime statistics, I could see why. A Syracuse University study
found that from 2013 to 2017, the DOJ brought a total of 35,758 prosecutions
with a firearm charge as the lead charge in the indictment. Of those, 26,717
were felon-in-possession charges. Only 614 involved a charge for the unlawful
shipment, transfer, receipt or possession of a firearm by a drug addict. That
makes sense — federal prosecutors focus on large-scale narcotics traffickers,
not drug users.

Most of the other former federal prosecutors I’ve spoken with aren’t familiar
with a defendant being charged with this statute either. One prosecutor who was
familiar with the statute said he charged it once, many years ago, involving a
particularly problematic defendant.

As for the misdemeanor tax charges, I prosecuted tax cases and have defended
many clients in criminal tax cases, and I’m not familiar with a misdemeanor tax
charge ever being brought as the only tax charge in a case. The DOJ’s Tax
Division has to approve every tax charge brought by prosecutors, and their
practice is to focus on serious felony tax fraud or tax evasion cases. Those
serious felony offenses would require evidence of fraud or affirmative efforts
to evade taxes. Merely not paying your taxes isn’t enough.

Sometimes, when I charged serious tax fraud cases, I would add easy-to-prove
misdemeanor counts to the indictment as a “back stop” of sorts if I lost on the
more serious counts. The most typical misdemeanor that was charged is a failure
to file a tax return, and that is trivial to prove. Biden was charged with
something even less serious — a failure to pay taxes even though he did file a
return. And the amount of his unpaid taxes — approximately $100,000 in 2017 and
again in 2018 — is typically dealt with as a civil matter, with penalties and
interest, rather than as a federal criminal case.




No competent federal prosecutor would initiate a multi-year criminal
investigation into someone for merely failing to pay taxes, yet those
misdemeanor charges are the only ones to which Biden will plead guilty. This
looks like an investigation that has not turned up much.

If Hunter Biden were not the president’s son, it’s not clear whether prosecutors
would have investigated for as long or as hard as they did, or that they would
have decided to spend additional federal resources prosecuting misdemeanors
instead of moving on to the next case.

It’s understandable why Weiss and his team did not want to appear to be pulling
punches in a case involving the president’s son. Hunter has become a fixation of
the GOP on the Hill, many of whom have publicly — and thus far without evidence
— accused him of corruptly trading on his father’s connections to enrich himself
and his family. For that wing of the Republican Party, anything short of a
lengthy prison sentence will look like favoritism. But for anyone with actual
federal criminal law experience, it is obvious that the DOJ’s aggressive
prosecution of crimes that are rarely charged is anything but a “sweetheart
deal.”



 * Filed under:
 * White House,
 * Justice Department,
 * Opinion,
 * Joe Biden,
 * Joe Biden 2020,
 * Department Of Justice,
 * Firearms,
 * Hunter Biden,
 * Drug Addiction,
 * Law And Order


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