Cue the outrage from former President Donald Trump and his allies over the just announced Hunter Biden plea deal.
Of course, no one really expected Trump and his supporters to ever be satisfied with any outcome of the long-running Hunter Biden investigation that did not result in a conviction of his father, President Joe Biden.
But the truth of the matter is that Attorney General Merrick Garland did Hunter Biden no favors in this case by leaving the original Trump-appointed prosecutor on the case, and approving a plea deal on charges that for anyone else would likely have resulted in no criminal charges being brought.
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DOJ opened the investigation into Hunter Biden some five years ago—which is a remarkably long time to investigate and prosecute a tax evasion case involving about $1.2 million and a false statement about being a drug user. The investigation was opened by Trump’s Justice Department in 2018 and overseen by the original Trump-appointed United States Attorney for Delaware, David Weiss, whom Attorney General Garland left in place despite the fact that new attorney generals typically ask for the resignations of U.S. Attorneys appointed in the previous administration.
The AG’s decision to keep Weiss in place likely was Garland’s effort to show the public that no politics would affect the investigation. The immediate reaction by such political leaders, such as House Speaker Kevin McCarthy, makes plain that Garland miscalculated his ability to blunt Republican attacks on the DOJ.
Under the terms of the plea deal, Hunter Biden must plead guilty to two misdemeanor counts of failing to pay his taxes in 2017 and 2018—for which he apparently underpaid by $100,000 each year. (In 2021, he paid the shortfall.) That makes the tax case a bit of an outlier, since prosecutors usually have little appetite for bringing criminal tax cases when the taxpayer has already paid the amount owing.
Biden’s legal team was no doubt well aware of that and probably hoped the payment made—plus the fact that the liability was not that great—would cause the DOJ to decline to bring any criminal charges at all. In exchange for Biden pleading guilty the prosecutors will seek only probation and no jail time.
With regard to the firearms charge, Biden will receive what is referred to as diversion from prosecution. That means if he completes the conditions of his probation in the tax convictions, then Biden will not be convicted for having stated in paperwork to buy the gun that he did not use drugs and did not have a drug problem—when, in truth, he was addicted to crack cocaine at the time.
His self-admitted drug addiction likely played a role in prosecutors allowing him to seek pre-trial diversion, as diversion is frequently used as a means of holding drug addicts to accountability while not making them take a felony on the records in light of their addiction. In fact, it is rare for prosecutors to pursue criminal charges for this kind of false information on a gun ownership application form unless the gun was also used to commit some other crime, such as a robbery, to cite one example.
Here, however, there is no evidence Biden used the gun in any crime. He apparently only had the gun for two weeks before his then-girlfriend threw it away in a trash dumpster.
Notably absent from the plea deal are any charges arising from Biden’s infamous laptop—a potential piece of evidence that might hold the record for worst chain of custody in history.
Despite various analyses that indicate some evidence actually came from the laptop, it is hard to imagine any prosecutor wanting to rely on evidence that was already handled by scores of others, including Rudy Giuliani.
Oh, and there’s the problem of whether any of the data on the laptop actually indicates criminal conduct. To the extent the laptop and the rest of the GOP’s complaints are really about family members of presidents profiting off their family name—they have a point, but not a criminal case. From FDR’s son, Richard Nixon’s brother, Jimmy Carter’s brother, to Donald Trump’s children—the sketchy nature of profiting from the president’s family name remains an issue, but so far not one that can be solved by criminal charges.
So the result of this five-year long investigation is that a recovering drug addict who paid his taxes late and lied about using drugs to purchase a firearm will be convicted of tax evasion, and be given pre-trial diversion for lying on his gun ownership application. It is likely that any other drug addict who was not the son of a sitting president would not have been prosecuted for these charges.
But AG Merrick Garland—ever sensitive to accusations of DOJ looking political—kept the original prosecutor on the case to insulate DOJ from accusations of political partisanship, and refused to exercise what could easily be considered reasonable prosecutorial discretion in refusing to bring criminal charges for such minor offenses.
As usual, Garland’s efforts to avoid political backlash are doomed to failure.
Frankly, DOJ would have taken just as much criticism if Garland had removed the original Trump-appointed prosecutor and declined to bring any criminal charges. Now the DOJ will simply wait for the inevitable calls for hearings into the plea deal and the likely summoning of the prosecutor to Capitol Hill to face questions.
However, the prosecutor David Weiss has issued a statement saying that his investigation of Hunter Biden is “ongoing.” It’s possible this could stave off any congressional inquiries, since the case is still active. But the prospect of Weiss continuing to investigate is a disturbing one that raises the specter of Special Counsel John Durhams’s dead-man-walking investigation of the Russia probe that took four years and produced nearly nothing.
Attorney General Garland would be doing the country and tax payers a big favor if he simply pulled the plug on any further investigation into Hunter Biden, and simply took the heat for doing so.
