I want to follow up on David’s post below about Hunter Biden being hit with federal gun charges. Tax charges are presumably coming in another jurisdiction. But the gun charges are frankly weird. As David notes, it is very uncommon, perhaps as much as unheard of, for someone to be charged with lying about substance abuse when buying a gun unless it’s part of prosecution for some other felony. So maybe you buy a gun, use it to commit a felony and then prosecutors charge you for that felony and also hit you for lying about your drug use when you bought the gun. I haven’t spoken to anyone who can think of another example. Former DOJ Inspector General Michael Bromwich said simply today, “It doesn’t happen. DOJ will need to produce data in discovery, which will show this is the most selective of prosecutions.”
I wanted to share some thoughts on two parts of this. One question is what amounts to selective prosecution – what counts as selective prosecution but before we get to that just what happened here in a global sense, with the plea deal falling apart, Weiss becoming special prosecutor and now these charges.
Earlier this week the Times and the Post got access to a transcript of lawmakers interview with the lead FBI agent on the Hunter Biden investigation. He disputed most of the key allegations made by IRS whistleblower Gary Shapley and others. You can see the details about that here and here. That’s gotten much less attention than the original whistleblower claims. If you go back to the original reports about how the plea deal fell apart it sounds like then-US Attorney and now Special Counsel David Weiss had empowered his deputy to negotiate a plea deal and then, while that was happening, seemed to lose confidence in the deal he had authorized her to negotiate. This all happened while House Republicans were moving into overdrive about Shapley’s and others’ allegations. The Times at least reported that Weiss told others he didn’t want to settle for a few misdemeanor charges as special prosecutors often do since it would either amount to or appear like selective prosecution. Then the plea deal blew apart in front of the judge. Now we have charges that at the least are extremely uncommon under these circumstances.
What happened? There’s really no plausible explanation other than that House Republicans simply rolled Weiss. They dramatically upped the scrutiny of his decision making; they undoubtedly got the MAGA crazies making threats and I would imagine got Weiss worried his reputation would be besmirched by attacks claiming he’d given the younger Biden a sweetheart deal. This is the result.
Next let’s discuss what amounts to selective prosecution.
A few weeks ago we discussed the fact that it’s quite likely that Hunter Biden wouldn’t have been prosecuted or even investigated for any alleged crimes were it not for the fact that he was the President’s son who had his life exposed to the light of day when his computer hard drive found its way to Steven Bannon and Rudy Giuliani. Trump and his defenders routinely make this argument about the Stormy Daniels hush money case and other investigations into his business practices. But that’s simply never the standard; and it’s not a defense.
Especially in white collar cases prosecutors can never investigate and prosecute all the offenders. Even if prosecutors were much more aggressive with white collar crime this would likely always be the case. It’s no defense to say that only 20% of people who commit this crime get charged. Indeed, it’s always been the case that best way to get charged with tax fraud or other white collar crimes is to get notorious and get prosecutors to start looking into your business dealings. Paul Manafort can certainly claim that was the case with him, even if his crimes were much more serious.
I don’t know enough about tax law and the specific evidence pertaining to Hunter Biden to know whether he should be charged or whether the government would be likely to get a conviction. But the fact that Biden already paid a lot of back taxes and had agreed to plead guilty to two misdemeanor charges at least suggests he wasn’t operating by the books.
Whatever happens on the tax front, though that’s altogether different from these gun charges.
We’ve managed to arrive at the point where Hunter Biden may end up being the only target of a genuinely selective prosecution. Indeed, one so clear cut and transparent that I really don’t quite know what Weiss was thinking.
