Hunter Biden may be doomed to lose his trial. His best bet is appealing a 'vindictive prosecution.'

  • Hunter Biden may be doomed to lose his clear-cut criminal gun trial this week.

  • He’s laid the groundwork for appeals, arguing he’s only charged because he’s the president’s son.

  • Experts told Business Insider that he may have a point — but appeals courts may not buy it.

For all the drama, the trial against Hunter Biden is pretty simple.

When the president’s son bought a .38-millimeter Colt Cobra handgun on October 12, 2018, he was required to fill out a government form that asked whether he was “an unlawful 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 in that time period, federal prosecutors brought an indictment against him. They accuse him of lying on the form and unlawfully owning a firearm.

In his opening statement at the trial this week, Biden’s lawyer, Abbe Lowell, urged jurors in the Wilmington, Delaware, federal court 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 they presented to the jury was a section of Biden’s memoir. They played portions of the audiobook — narrated by Biden himself — where he described struggling with addiction over a four-year period that overlapped with the gun purchase.

These are the bread and butter of the US attorney’s office,” Sarah Krissoff, a former Manhattan federal prosecutor and top lawyer at the Bureau of Alcohol, Tobacco, Firearms, and Explosives, told Business Insider. “They know how to put on a tight gun case.”

Biden’s trial is not necessarily a lost cause. His lawyers may still convince jurors that he was seeking treatment and didn’t consider himself an addict on the day he filled out that form, nor the 11 days in October 2018 that he owned the gun. The jury — in his father’s home state of Delaware — may still end up deadlocked or acquit him.

But Biden’s legal team already has their eyes set on higher courts.

The politicization defense

Decisions from US District Judge Maryellen Noreika, an appointee of former President Donald Trump, have made Biden’s uphill climb steeper.

In a series of rulings before the case went to trial, she dismissed arguments from Biden’s lawyers that would have allowed him to put on a stronger defense case. Some of those motions argued the case was fundamentally unfair, and should have never been brought.

Biden’s team — led by Lowell, who has previously represented politicians including Jared Kushner and Sens. Robert Menendez and John Edwards — has aggressively appealed the decisions.

Hunter Biden abbe lowellHunter Biden abbe lowell

Hunter Biden, son of US President Joe Biden, and attorney Abbe Lowell.ROBERTO SCHMIDT/AFP via Getty Images

None of the appeals stopped the case from going to trial before higher courts could consider their merits. But they can still be taken up at a later date if Biden loses the trial.

Biden’s primary arguments revolve around the notion that he is the victim of “selective and vindictive prosecution.”

The criminal investigation originated under the authority of David Weiss, who was appointed as US Attorney for Delaware by Donald Trump. He brought the indictment during the administration of President Joe Biden, who promised not to interfere with the case. US Attorney General Merrick Garland, too, appointed Weiss as a Justice Department Special Counsel to keep him insulated from outside influences.

This arrangement has perversely allowed Weiss to politicize the proceedings unchecked, Hunter Biden’s lawyers argued.

Last summer, Weiss and Biden’s lawyers reached a deal that would result in a diversion agreement for the gun charges and a guilty plea for a separate set of tax crimes, where Biden failed to pay at least $1.4 million to the IRS. But that fell apart in a court hearing when Noreika questioned the deal’s technical mechanisms.

Amid the chaos, Trump and Republicans in Congress enthusiastically pressured Weiss to charge Biden in the gun case, as well as the separate criminal tax case in California. When Weiss brought the indictments instead of continuing to negotiate a plea deal, those same Republicans gloated.

“They made it clear that they wanted Mr. Weiss to keep this litigation alive through the presidential election (regardless of merit) and for him to bring more serious charges as a foil for the investigations and prosecutions of former President Trump,” Hunter Biden’s lawyers wrote in a December filing.

Everyone wanted a plea deal — except Republicans

Legal commentators — and even some Republican politicians — have pointed out the highly unusual application of the criminal gun charges.

One of them, for falsely filling out the government’s gun sales form, is typically slapped on as an additional charge in a larger gun-related case, like a gun-trafficking prosecution, experts told Business Insider. There’s no evidence that Biden even loaded or used the gun before his brother’s widow, Hallie Biden, threw it out.

Another charge, for possessing a firearm by a person who has used or is addicted to a controlled substance, is even more rare. And according to Krissoff, federal prosecutors in Manhattan had a rule not to bring the charge at all.

“Absent this individual’s status as Hunter Biden, it would be very unlikely that this case would’ve been brought,” Krissoff, now a defense attorney at Cozen O’Connor, said.

Hunter Biden gun formHunter Biden gun form

Hunter Biden’s Bureau of Alcohol, Tobacco, Firearms and Explosives form for his gun purchase. Biden marked “no” for question “e,” which asked about his drug addiction and use.US Justice Department

The rarity of the charges demonstrates the whole prosecution is political, according to Duncan Levin, a former New York federal prosecutor.

“I have never heard of a case that is brought as a stand-alone false claim on an application — ever,” Levin said. “Lying to gun dealer? I think there are fewer than 300 brought a year, of 25 million background checks. I think it speaks for itself.”

A separate federal appeals court in Texas ruled last year that the application of the statute in a different criminal case even violated the Second Amendment.

“Obviously, the conduct that the government ought to be addressing is whether somebody is on drugs and high while they’re shooting a gun,” Levin said. “Not whether somebody used cocaine two weeks ago and then picks up a gun at some point, and goes to a range. It’s incredibly vague what the statute even means.”

The Constitutional flimsiness of such a case is why it makes more sense for everyone to agree to some kind of non-prosecution deal, Levin said. The same applies to the tax charges in California, after Biden had already paid back the taxes and was prepared to plea guilty, Levin said.

And, in fact, that’s what was supposed to happen. Everyone wanted a plea deal except for Republican politicians.

“Hunter Biden was never the president. He’s not running for office. He’s not a public official. He is a private person,” Levin said. “And these charges are at very most de minimis. They’re the type of charges that not only would typically result in a pretrial diversion, they were supposed to result in a pretrial diversion. The fact that this is on trial is due to politics, clear and simple.

According to Krissoff, plea deals fall apart under a judge’s scrutiny all the time. When that happens, the prosecutors and defense lawyers usually pick up the pieces and try to craft a new agreement, she said. It’s usually much easier than going to trial.

merrick garland testifying house congressmerrick garland testifying house congress

U.S. Attorney General Merrick Garland testifies before a House Judiciary Committee hearing on the “Oversight of the U.S. Department of Justice” on Capitol Hill.REUTERS/Evelyn Hockstein

“Pleas go south all the time while you’re in the courtroom, or when you’re walking into the courtroom, and it can be unclear whether or not the plea is going to get through for various reasons,” she said. “The judge asked a lot of hard questions and the plea didn’t make it through. That has happened many times to me in my life, so I’m sure it will happen more.”

Biden’s attorneys have argued that the diversion agreement on the drug charges was still binding even without the judge’s approval, and so the charges should be tossed.

Noreika denied the motion, as well as Biden’s requests to dig deeper into the Justice Department for potential evidence of political pressure.

But forcing prosecutors to uphold the diversion agreement on the gun charges — which would not cover the tax charges — may have the strongest chance on appeal, according to Neama Rahmani, the president of West Coast Trial Lawyers and a former federal prosecutor in California.

“It was idiotic to blow up the deal,” Rahmani said. “I’m sure they regret it.”

Before Biden and his lawyers can go to the appeals, though, they have to finish the trial.

Biden does have some defenses to muster, Levin said.

“Hunter Biden had just gotten out of an 11-day program and was living with somebody who was sober at the time,” he said. “I think it’s a pretty crabbed way of looking at it, to say he was an addict at that time — he was clearly committed to his recovery and had just finished a rehab program.”

Given how many arguments the judge has already rejected, however, there’s a strong chance the president’s son will be a convicted felon before the end of the week.

“By the time they get to this point, the prosecution usually has a very strong hand,” Krissoff said. “Creative defense attorneys can do some damage and be very effective, so we’ll see. But I doubt even Hunter Biden is optimistic.”

Read the original article on Business Insider

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