The latest indictment of Hunter Biden adds to an embarrassing series of missteps in this case that makes the Department of Justice look petty and unable to withstand political pressure.
They look petty because Special Counsel David Weiss, who was given the new title of special counsel after already having worked on the case for five years, acts like he has hurt feelings following the spectacular public crash and burn of his attempt to plead out the case.
The pettiness seems on view in a letter from Hunter Biden’s legal team documenting Weiss’ refusal to meet prior to the tax indictment being brought. Such a refusal violates a norm in white-collar criminal defense where defense counsel are afforded a last-ditch effort to avoid indictment. No legal strategic reason exists for Weiss to turn down such a meeting unless he was concerned about wasting time, which would be ironic for a man who has spent nearly half a decade on a case. What’s one more meeting?
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Weiss has no business having hurt feelings about his poorly handled plea bargain that collapsed under the commonsense questions asked by the presiding judge about the scope of the agreement and whether it was appropriate for the court—rather than the prosecution—to determine if Biden would be in compliance with the terms of his diversion agreement.
The diversion agreement would have “diverted” the gun charges from prosecution so long as Biden fulfilled certain conditions, which typically include community service and staying out of future criminal trouble. When I was a prosecutor, a failed plea bargain in open court would have necessitated some explaining back at the office, but the remedy was to go back to the drawing board. That is, unless the plea broke down because the defendant refused to admit guilt, which is not what happened in this case, as Biden was ready, willing, and able to accept criminal guilt. But if the plea broke down because of a lack of clarity or an error of law, then the solution was to fix the terms. A plea bargain is, in essence, a contract between the prosecution and defendant, and contract terms get revised all the time without the deal collapsing. But what you would never do as a prosecutor is to punish a defendant out of embarrassment or in an attempt to insulate yourself from political criticism. And Weiss faces plenty of both.
High-profile cases put a lot of pressure on both law enforcement and prosecutors, and a case involving any relative of a sitting president—much less a child of the president—is plenty high profile. Those kinds of cases require careful and thorough preparation to make sure the legal analysis is fair and can stand up to extra scrutiny. Weiss is failing on both.
Indicting Hunter Biden for tax evasion when he has already paid back the taxes smacks of unfair treatment. As former Attorney General Eric H. Holder, Jr. put it on CNN, numerous former U.S. Attorneys—both Democratic and Republican—told him that they would not have brought the tax case.
The amount is not astronomical like the case of telecommunications entrepreneur Walter Anderson, who made TIME magazine’s list of Top Ten Tax Dodgers, pled guilty and paid $400 million in penalties and fees. Perhaps more importantly, other more egregious cases have been resolved not by criminal prosecution but civilly. For example, in 2021, Roger Stone was sued by the federal government to collect over $1.5 million in federal income taxes dating back to 2007. Stone was not prosecuted, only subject to a civil suit.
In another high-profile case, a partner at a major law firm and his wife paid $7.3 million in April of this year to resolve taxes that had been unpaid between 2001 and 2006 as well as other years. Again, there was no criminal prosecution, only a civil lawsuit.
Moreover, Weiss’ indictment includes gratuitous digs at what can only be construed as Hunter Biden’s character rather than his alleged tax evasion. For example, Weiss states that Biden spent “money on drugs, escorts and girlfriends, luxury hotels and rental properties, exotic cars, clothing and other items of personal nature, in short, everything but his taxes.”
Weiss’ rhetorical flourish seems silly since I suspect most people who fail to pay the taxes also spend their money on things other than paying their taxes. Weiss’ focus on the more sensationalistic aspects of the spending seems to be a result of his wanting to play in the echo chamber of the holier-than-thou conservative right. But Biden isn’t being prosecuted for being a drug addict or engaging in prostitution. He’s being prosecuted for tax evasion.
DOJ guidelines for pursuing tax matters in criminal prosecutions emphasize seeking to “achieve maximum deterrence.” Such deterrence can certainly be achieved by prosecuting high-profile defendants. The actor Wesley Snipes comes to mind. He went to jail for three misdemeanor convictions after owing the government about $7 million in unpaid taxes and having failed to file any returns from 1999 through 2001. Snipes’ defense also begged to be made an example out of as it included the claim that the IRS was an illegitimate government agency.
A review of TIME magazine’s Top Ten Tax Dodgers shows most of them are celebrities in their own right, like Willie Nelson, Pete Rose, O.J. Simpson. Hunter Biden is not a celebrity in his own right, however, but a celebrity due only to being the son of the president of the United States. That’s a poor reason to make an example out of him.
Oh, one more thing. According to his legal team, Hunter Biden is owed a refund.
