Hunter Biden & The Rule of Law

Tuesday started with news that Judge Aileen Cannon had entered a preliminary order in U.S. v. Trump that included a mid-August trial setting. Unfortunately, that’s not going to be the actual trial date. It’s a place holder for the real date, which will be set down the road, once the judge has a more realistic sense of how long pretrial motions (the inevitable challenge from Trump to the D.C. judge’s ruling that permits prosecutors to use his lawyer Evan Corcoran’s notes/tapes) and classified evidence issues will take to resolve, including time for appeals if there are any.

We can still glean important information from the order. At least so far, Judge Cannon is treating this case like any other case, entering the same sort of routine scheduling order. But that’s no reason for DOJ to go to sleep. They appear to be prioritizing a speedy path, focused on getting to trial. Even at arraignment, they avoided very normal requests from the prosecution, like ordering a defendant to surrender his passport or limiting foreign travel, apparently in the interests of avoiding any sort of legal challenge—Trump might argue such action violates his rights as a candidate. Even if not meritorious in the least, that can slow down the pace. The special counsel seems, at least as of now, unlikely to file a recusal motion. It’s not even clear they will challenge Judge Cannon’s participation in the case if she makes another beyond the pale ruling that they have to appeal, although that would entail little if any delay if partnered with an appeal of a substantive ruling.

If that’s the case, we will only be able to contemplate the wisdom of that strategy following a completed trial, if there is one. Once a jury is empaneled, the government’s opportunity to appeal bad rulings by the judge is extremely limited because of double jeopardy. A jury’s decision to acquit is not appealable. And a judge’s decision to dismiss the case under Federal Rule of Criminal Procedure 29, which we’ll discuss in the weeks ahead, is appealable only in very limited circumstances, mostly when the judge dismisses the case after the jury votes to conviction. The government can retry a case following a hung jury—where one of more jurors won’t join in the majority’s vote to convict. But a second trial is often more difficult and complicated than the first go-round, and not an idea situation. In other words, there are plenty of way the judge, if she is still inclined to, could balance the scales of justice in Trump’s favor.

Prosecutors appear to be traveling on the hope that the judge is more interested in restoring her good reputation than in the prospect of being the first Supreme Court nominee in Trump’s second administration. It seems like that would be the smart move for her, but it’s hard to forget the sting of her rulings in the search warrant case that gutted the government’s ability to investigate for a time and were only discontinued because of an order from the 11th Circuit Court of Appeals. Only time will tell which path Judge Cannon is on, which is rather disconcerting.

The big news today also came this morning, when a plea deal for Hunter Biden was announced. After five years of investigation by a Trump-appointed U.S. Attorney whom the Biden administration kept in place to handle the investigation as a special counsel, Hunter Biden will plead guilty to two misdemeanor tax charges of failure to file. Although custody of up to one year in prison is authorized by statute for a misdemeanor conviction, it’s unlikely he will be sentenced to custody here. He was also charged with one felony count of being a drug user or addict in possession of a firearm. He will be permitted to enter a pretrial diversion agreement on that charge, which means that if he successfully completes a program—typically they involve conditions like maintaining employment, refraining from drug use, and not committing any new crimes—the gun charge will be dismissed and will not appear on his record.

Republicans are already complaining that the younger Biden has received extraordinarily lenient treatment and drawing a comparison to Trump, who they, of course, maintain is the victim of a political witch hunt. Nothing could be further from the truth.

Biden is charged with two counts of not paying his taxes under 26 U.S.C. § 7203. This is the charge used widely by U.S. Attorney’s offices in cases like Biden’s. It is the correct charging result in this situation, once prosecutors decided they had sufficient evidence to prove the elements of the crime beyond a reasonable doubt.

The gun charge strikes me a bit differently. The statute is 18 U.S.C. § 922(g) which lists categories of people who are prohibited from possessing firearms. The statute is frequently charged—the most recent statistics available from the United States Sentencing Commission suggest that just over two-thirds of all federal firearms prosecutions (which make up about 14.2% of all criminal cases charged in federal court) involve the illegal possession of a firearm, but the overwhelming majority of those cases involve someone who is prohibited from having a gun because of a prior felony conviction. Hunter Biden is charged under a rarely used provision that prohibits anyone “who is an unlawful user of or addicted to any controlled substance” from having a firearm.

The fact that the section is not charged frequently doesn’t mean it’s wrongfully charged here, but because of its potential widespread application, it’s usually reserved for cases that involve more than simple possession—for instance, cases where there is obstruction of justice as well.

This charge will be held in abeyance while Hunter Biden is given the opportunity to complete pretrial diversion. Given the nature of the charge, this seems entirely appropriate. Pretrial diversion is authorized by DOJ and each office is required to have a policy governing when it should be used.

The Justice Manual explains that “Pretrial diversion (PTD) programs divert certain offenders from traditional criminal justice processing into alternative systems of supervision and services.  PTD programs provide prosecutors with another tool – in addition to the traditional criminal justice process – to ensure accountability for criminal conduct, protect the public by reducing rates of recidivism, conserve prosecutive and judicial resources, and provide opportunities for treatment, rehabilitation, and community correction…Individuals who successfully complete a PTD program may qualify for a range of case outcomes, including the declination of charges, dismissal or reduction of charges, or a more favorable recommendation at sentencing.  Unsuccessful participants may be charged or, for participants who have already been charged, may be returned to or remain in the traditional criminal justice process.”

Pretrial diversion is intended to prevent future crimes and encourage rehabilitation by diverting offenders into programs where they receive community-based services that can include mental health and substance abuse treatment. They conserve prosecutive and judicial resources. Hunter Biden is precisely the type of defendant who can qualify for a program like this, as a nonviolent, first-time offender. In any event, it was up to the special counsel to exercise his discretion or not, as to whether this option would be available, and he chose to do so.

Far from getting a sweetheart deal, Hunter Biden is being held accountable for his conduct in a fashion that is consistent with similarly situated defendants, reflects his willingness to admit to his crimes, and is designed to continue his progress in recovery towards being a productive citizen.

Although the press release that accompanies the charges today indicates that investigation is ongoing, there is no suggestion Hunter Biden is the subject of any continuing investigation. The U.S. Attorney in Delaware, serving as special counsel in this matter, did not bring charges of public corruption or business fraud against the younger Biden. But assertions that Biden committed those crimes has become a mainstay for Republican politicians in recent weeks. They’ve touted the story of a “Biden Crime Family,” with the baseless allegation that President Biden was involved in accepting bribes in some fantastical connection with his family’s business dealings. There is, of course, no evidence of any of this. But members of the House intent on investigating maintain there is more coming.

Their key allegation has been that President Biden received a bribe from a foreigner in exchange for some official action while he was vice president. The “evidence” they offered was an FBI form used to record unverified tips. Somehow, they got wind of the form’s existence, (which feels like something that does merit further inquiry) and blew it completely out of proportion. The FBI receives all sorts of tips that don’t pan out and this one didn’t. Agents reviewed it and closed the inquiry. While Republican members demanded the form, they dropped their request for it after they were shown it privately. No beef.

The FBI explained it like this, “The FBI regularly receives information from sources with significant potential biases, motivations, and knowledge, including drug traffickers, members of organized crime, or even terrorists. … Recording the information does not validate the information, establish its credibility, or weigh it against other information known or developed by the FBI.”

But, Republican-led House committees will continue to investigate these baseless allegations. It’s a strategy straight out of Trump’s playbook. Open an investigation. There doesn’t have to be any basis for it; it can be wholly meritless. But if you repeat the baseless allegations frequently enough, people will begin to accept them and they can be put to great political use. Once you open the investigation, the damage is done.

That’s the conduct that led to Trump’s first impeachment after Ambassador Paul Sondland testified that all Trump’s cronies wanted the Ukrainians to do was announce an investigation into Joe Biden and his son Hunter’s work for the Ukrainian company, Burisma. Ambassador Sondland testified, “I never heard … anyone say that the investigations had to start or had to be completed. The only thing I heard from Mr. Giuliani or otherwise was that they had to be announced in some form, and that form kept changing.” In other words, an investigation is just something to use against an enemy. As Trump said to Ukrainian President Zelensky, “I would like you to do us a favor, though.”

Trump did the same thing after the 2020 election, when he tried to enlist top officials at DOJ to give legitimacy to his claims that he’d actually won the election. He told them, “Just say that the election was corrupt + leave the rest to me and the R. Congressmen,” according to notes taken by the acting Deputy Attorney General. Investigations serve political purposes, not the American people, in Trump world.

This illustrates why DOJ takes care before it opens an investigation, why they make sure there is sufficient predication for it. There has to be a basis for believing a crime has been committed. An investigation can be opened “when facts or circumstances reasonably indicate that a federal crime has been, is being, or will be committed.” It is not a high bar. But it cannot be made up from whole cloth or contrary to known facts. While a “reasonable indication” is a lower standard than probable cause, there must be “an objective, factual basis for initiating the investigation; a mere hunch is insufficient.”

That’s the line between how DOJ has conducted its work and how Trump cronies, who are running an actual witch hunt in the House of Representatives, conduct themselves. With the charges against Hunter Biden now made public, political actors will apparently continue to keep what they hoped was true alive with an investigation that they control.

Two of the primary goals of our criminal justice system are finding the truth and holding people accountable for their conduct. Those goal help support a legal system that acquires the respect of citizens and the confidence that we have a fair system of justice. Opening investigations in order to mislead people and to secure their votes on the basis of lies is anything but the American ideal of service by our elected officials. But it is the strategy that Republicans are pursuing. Even after the evidence they demanded to see failed to provide a basis for further investigation, they ignored it and continued down that path.

There is a better way. What we saw happen today is a testament to the rule of law and this administration’s commitment to it. A president’s son was charged with crimes and will pay the price for them. An appropriate price. We live in a country where that can happen, where the White House stands aside and permits investigation, prosecution, and conviction of a family member of a sitting president to proceed without interference. It’s a tragedy in many ways for the Biden family, but it is also a salute to our country and our commitment to the law. It shows us who we can be if we make the right decisions, and by comparison, who we must not let ourselves become.

That, in a nutshell, is the stark choice our country faces in the not too distant future.

Tonight, I wanted to make sure I thank all of your who are renewing your annual subscriptions to Civil Discourse, as we start our second trip around the sun together. Your monthly and yearly subscriptions provide the support that lets me devote so much time and energy to this work. Special thanks to all of our founding members too.

If you’re not already a paid subscriber and you’re enjoying Civil Discourse, I hope you’ll consider up-subscribing (if that’s a word). But we live in challenging times, and I understand that not everyone can or wants to buy a paid subscription. I’m happy to have you here either way. I’m glad we’re all committed to saving the Republic. She needs us.

We’re in this together,

Joyce