Hunter Biden’s Gun Trial: Key Facts

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The jury selection for Hunter Biden’s inaugural federal criminal trial commenced Monday in Delaware. Biden is facing trial on three charges: two counts of false statements and one count of unlawful firearm possession, related to a Colt Cobra 38SPL revolver he allegedly purchased and possessed in Delaware in October 2018. If convicted, he faces up to 25 years imprisonment.

The prosecution’s case is fairly straightforward. Biden has battled addiction to various narcotics for years, even being discharged from the U.S. Navy Reserve after failing a mandatory drug test in June 2013. In his 2021 book, Beautiful Things, he candidly discussed that during the relevant period “[a]ll my energy revolved around smoking drugs and making arrangements to buy drugs — feeding the beast.” Amidst this addiction, he purchased a handgun.

All gun owners will recognize ATF Form 4473, a document that asks prospective firearms purchasers if they are legally eligible to own a firearm before completing a sale. One question asks whether the purchaser is “an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”

The prosecution will argue that Biden answered “no” to this question on his Form 4473 when the truthful answer was “yes,” leading him to unlawfully obtain a firearm. Essentially, Hunter Biden is being prosecuted not for his addiction, but for lying about it to unlawfully acquire and possess a firearm.

For a long time, it seemed Hunter Biden might evade accountability for his actions. However, following substantial public pressure, a plea agreement was reached, allowing him to plead guilty to two misdemeanor tax offenses despite allegedly failing to pay over $1.4 million in taxes by understating his income and inflating his expenses. These offenses alone carry a maximum of 17 years in prison. The agreement also allowed him to avoid responsibility almost entirely for his gun offenses through a deferred prosecution agreement, which is rare for firearms offenses.

To further sweeten the deal for Biden, the agreement did not require him to cooperate with the government, which is usually a stipulation in plea agreements, especially when extreme leniency is given.

In the spring of 2023, the deal encountered a major roadblock. Two IRS whistleblowers alleged political interference in their investigation of Hunter Biden’s taxes by Department of Justice officials, who reportedly limited the scope of the investigation. A New York Times investigation revealed that the U.S. attorney changed their stance on requiring Hunter Biden to plead guilty to misdemeanor tax offenses shortly after the whistleblowers came forward.

Biden’s legal team subsequently demanded immunity for “any other federal crimes” he might have committed, beyond the gun and tax-related matters. This broad immunity request was too extensive for the prosecution, leading to the collapse of the plea deal, which was ultimately rejected by the federal judge.

The case has also sparked intriguing questions about the Second Amendment, as Hunter Biden’s lawyers argued that the federal law under which he was charged infringes upon his constitutional right to own a firearm. Relying on the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen, Biden’s attorneys contended that the charges should be dismissed because there is no “historical tradition” in the U.S. of prohibiting users of illicit substances from obtaining firearms based on addiction alone, as opposed to a criminal conviction for drug charges.

Federal courts remain divided on the law’s constitutionality. While this argument did not prevent Biden’s case from going to trial, it might be pertinent in an appeal. If Biden’s argument prevails, it could potentially expand Second Amendment rights to a group currently not protected under federal law.

Hunter Biden’s legal challenges won’t conclude with his Delaware trial. He is also under indictment for failing to pay taxes from 2016-2019. Additionally, a congressional investigation into his foreign business dealings and lobbying is ongoing. However, these legal troubles could disappear post-November election if President Biden is reelected and chooses to pardon him, likely without significant political repercussions.

Andrew Pardue
Andrew Pardue
Andrew Pardue is an associate at Holtzman Vogel Baran Torchinsky Josefiak PLLC specializing in election and campaign finance law. Prior to joining the firm, Andrew served as a law clerk for the D.C. Criminal Code Reform Commission and the Office of the Virginia Attorney General’s Civil Litigation Division, Consumer Protection Section. He also interned in the chambers of Magistrate Judge Lawrence Leonard of the US District Court for the Eastern District of Virginia.

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