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Hunter Biden could be doomed to miss his clear gun criminal trial this week.
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He laid the groundwork for appeals, arguing that he was only charged because he is the president’s son.
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Experts told Business Insider he may have a point — but the appeals courts may not believe it.
Despite all the drama, the trial against Hunter Biden is quite simple.
When the president’s son purchased a 38-millimeter Colt Cobra pistol on October 12, 2018, he was required to fill out a government form that asked whether 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 Hunter Biden did, in fact, use cocaine during that period, federal prosecutors filed an accusation against him. They accuse him of lying the shape and illegally possessing a firearm.
In his opening statement in the trial this week, Biden attorney Abbe Lowell urged jurors in federal court in Wilmington, Delaware, to acquit his client. He argued that terms like “user of” and “addicted to” are open to interpretation.
Prosecutors got straight to the point once opening arguments concluded. One of the first pieces of evidence presented to the jury was a section of Biden’s memoir. They played parts of the audiobook – narrated by Biden himself – where he described his struggle with addiction over a four-year period that coincided with his gun purchase.
“These are the bread and butter of the U.S. attorney’s office,” Sarah Krissoff, a former Manhattan federal prosecutor and attorney for the Bureau of Alcohol, Tobacco, Firearms and Explosives, told Business Insider. “They know how to use a tight gun case.”
Biden’s trial is not necessarily a lost cause. His lawyers could still convince jurors that he was seeking treatment and did not consider himself an addict on the day he filled out the form, nor on the 11 days in October 2018 that he owned the gun. The jury—in his father’s home state of Delaware—could still end up deadlocked or acquit him.
But Biden’s legal team is already eyeing the higher courts.
The defense of politicization
The rulings by U.S. District Judge Maryellen Noreika, appointed by former President Donald Trump, have made Biden’s uphill climb steeper.
In a series of rulings before the case went to trial, she rejected arguments from Biden’s lawyers that would have allowed her 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 represented politicians such as Jared Kushner and Senators Robert Menendez and John Edwards — aggressively appealed the rulings.
None of the appeals prevented the case from going to trial before higher courts could consider its merits. But they could still resume later if Biden loses the trial.
Biden’s main arguments revolve around the notion that he is the victim of a “selective and vindictive process.”
The criminal investigation originated under the authority of David Weiss, who was appointed U.S. attorney in Delaware by Donald Trump. He filed the accusation during the administration of President Joe Biden, who promised not to interfere in the case. U.S. Attorney General Merrick Garland also appointed Weiss as special counsel to the Justice Department to keep him isolated from outside influence.
This agreement perversely allowed Weiss to politicize the process unchecked, Hunter Biden’s lawyers argued.
Last summer, lawyers for Weiss and Biden reached an agreement This would result in a diversion agreement on the weapons charges and a guilty plea to a separate set of tax crimes, where Biden failed to pay at least $1.4 million to the IRS. But that broke down at a court hearing when Noreika questioned the technical mechanisms of the agreement.
Amid the chaos, Trump and Republicans in Congress enthusiastically pressed Weiss to impeach Biden in the gun case as well as the separate crime. tax case In California. When Weiss pressed charges instead of continuing to negotiate a plea deal, those same Republicans rejoiced.
“They made it clear that they wanted Mr. Weiss to keep this litigation alive during the presidential election (regardless of merit) and for him to bring more serious charges as a counterpoint to the investigations and prosecutions of former President Trump,” Hunter Biden’s lawyers wrote in a December document.
Everyone Wanted a Plea Deal — Except the Republicans
Legal commentators – and even some Republican politicians – pointed out the highly unusual application of criminal gun charges.
One, for falsely filling out a government gun sales form, is typically considered an additional charge in a larger gun case, such as a gun trafficking prosecution, experts told Business Insider. There is no evidence that Biden carried 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 rule not to bring charges.
“In the absence of this individual’s status as Hunter Biden, it would be very unlikely that this case would have been brought,” said Krissoff, now a defense attorney at Cozen O’Connor.
The rarity of the accusations demonstrates that the entire accusation is political, according to Duncan Levin, a former federal prosecutor in New York.
“I have never heard of a case presented as a false, independent allegation in an application – ever,” Levin said. “Lying to a gun dealer? I think there are less than 300 brought 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 application of the law in a different criminal case, even violated the Second Amendment.
“Obviously, the conduct that the government should address is if someone is high and high while firing a gun,” Levin said. “Not if someone used cocaine two weeks ago and then picked up a gun at some point and went to a range. It’s incredibly vague what the statute means.”
The constitutional weakness of such a case is why it makes more sense for everyone to agree to some kind of non-prosecution agreement, Levin said. The same applies to tax charges in California after Biden had already paid his taxes and was prepared to plead guilty, Levin said.
And, in fact, that was what should happen. Everyone wanted a plea deal except the Republican politicians.
“Hunter Biden was never the president. He’s not running for public office. He’s not a public servant. He’s a private person,” Levin said. “And these charges are, at best, de minimis. They are the type of charges that would normally not only result in a pretrial diversion, but should also result in a pretrial diversion. The fact that this is at trial is due to the politics, plain and simple.”
According to Krissoff, plea deals fall apart under a judge’s scrutiny all the time. When that happens, prosecutors and defense attorneys often pick up the pieces and try to work out a new deal, she said. It’s usually much easier than going to trial.
“Appeals go bad all the time while you are in court, or when you enter the courtroom, and it may not be clear whether the appeal will be approved or not for a variety of reasons,” she said. “The judge asked a lot of difficult questions and the appeal was not approved. This has happened to me many times in my life, so I’m sure it will happen more.”
Biden’s lawyers argued that the deal to divert the drug charges was still binding even without the judge’s approval and therefore the charges should be dismissed.
Noreika denied the movementas well as Biden’s calls to dig deeper into the Justice Department for possible evidence of political pressure.
But forcing prosecutors to maintain the diversion agreement on the gun charges — which would not cover the tax charges — may have the best chance on appeal, according to Neama Rahmani, president of West Coast Trial Lawyers and former federal prosecutor in California.
“It was stupid to ruin the deal,” Rahmani said. “I’m sure they regret it.”
Before Biden and his lawyers can pursue appeals, they need to wrap up the trial.
Biden has some defenses to muster, Levin said.
“Hunter Biden had just gotten out of an 11-day program and was living with someone who was sober at the time,” he said. “I think it’s a pretty crude way of looking at things to say he was an addict at that time – he was clearly committed to his recovery and had just finished a rehabilitation program.”
However, given the number of arguments the judge has already rejected, there is a strong likelihood that the president’s son will be a convicted criminal before the end of the week.
“When they get to this point, the prosecution usually has a very strong hand,” Krissoff said. “Creative defense lawyers can do some damage and be very effective, so we’ll see. But I doubt even Hunter Biden is optimistic.”
Read the original article at Business Insider
