‘What about Hunter Biden?’ We now have the answer

“We have a two-tier justice system,” House Speaker Kevin McCarthy (R-Calif.) told The Hill. “Hunter’s plea deal on tax charges will not slow down House Republicans’ investigation into the Biden family’s business dealings. If you are the president’s leading political opponent, the DOJ tries to literally put you in jail and give you prison time. But if you are the president’s son, you get a sweetheart deal.”

We have a “two-tiered justice system,” former Vice President Mike Pence and presidential hopeful has been saying since February. Conceding that he could not defend the allegations against Trump, who is charged with willfully retaining national defense information, conspiracy to obstruct justice, concealing documents and making false statements, Pence repeated the MAGA mantra of a weaponized Justice Department and a two-tiered justice system.

Chairman of the House Oversight Committee Rep. James Comer (R-Ky.) had this to say: “Let’s be clear: the Department of Justice’s charges against President Biden’s son Hunter reveal a two-tiered system of justice. Hunter Biden is getting away with a slap on the wrist when growing evidence uncovered by the House Oversight Committee reveals the Bidens engaged in a pattern of corruption, influence peddling, and possibly bribery.”

Where’s the evidence? No one has seen it yet, but it is “growing,” and somehow it has always been there.

And Republican presidential candidate and Gov. Ron DeSantis (R-Fla.) called the plea bargain a “sweetheart deal.”

“What about Hunter Biden? What about his laptop?” they all shrieked every time there was some new move to hold former President Donald Trump criminally accountable for his many misdeeds.

Hunter Biden is more to be pitied than censured. A recovering drug addict, he faces a problem in common with millions of Americans.

He is trying to get his life back together and, remember, he is not the president, and he is not running for president. Here are the facts. Hunter Biden’s addiction led him to fail to pay his taxes in 2017 and 2018. His lawyers say he eventually paid all that he owed.

Hunter Biden also purchased a gun. The Gun Control Act of 1968 makes it unlawful for someone who is “an unlawful user of or addicted to marijuana or any depressant or stimulant drug to purchase a gun.”

In 2018, Hunter purchased a .38 revolver, answering “no” on the six-page federal form 4473 to the question: “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant narcotic drug or any other controlled substance.”

That statement was false, and probably gets prosecutors around the issue of whether Hunter had a constitutional right to own a gun in his home. According to Hunter’s 2021 memoir, he was actively using crack cocaine the year he bought the gun. Hunter’s girlfriend threw the gun away about two weeks after the purchase.

On these facts, it is highly probable that if this were you or I, we would not be criminally prosecuted. In the panoply of gun crimes, the unlawful purchase by an addict pales by comparison to the purchase by a convicted felon or a straw man who is buying for someone prone to violence.

The data indicate that although what Hunter Biden did is a felony punishable by five years’ imprisonment, the odds of being charged for lying on the form are miniscule. 

In the fiscal year when Hunter purchased his gun, prosecutors received 478 referrals and filed 298 cases out of 27 million background checks required under the law. There are no data on the success rate of the prosecutions.

Two-tiered system of justice? The Justice Department instituted its investigation of Hunter Biden in 2018 and continued through the heyday of Donald Trump’s attorneys general, Jeff Sessions and Bill Barr, when Justice was really weaponized.

The case was assigned to David Weiss, the U.S. Attorney Trump appointed in Delaware. When Biden became president, the investigation was ongoing and had reached no conclusion. Biden could have fired Weiss and rewarded some Democratic crony with the prestigious post. He was empowered to do this. When Trump got in, he ordered 46 of the Obama-era prosecutors to tender their resignations immediately.

Yet, Biden wisely refused to fire the Trump-appointed Weiss, who continued the inquiry into his son. A fairer, more transparent process is hard to imagine.

Now Weiss has negotiated a conventional plea bargain that is standard in such cases. The government is spared the expense of prosecution, Hunter will plead guilty to two misdemeanor tax counts; he has evidently paid the government more than $100,000 in back taxes owed on $1.5 million in income in 2017 and 2018; and he will be under the supervision of the probation department for two years. In addition, he will have to enter a pre-trial diversion program, an option frequently applied to non-violent offenders who are battling substance abuse.

Trump immediately took to Truth Social to trash the announcement, derisively comparing the disposition to a traffic ticket. “The corrupt Biden DOJ just cleared up hundreds of years of criminal liability.” No one has ever accused Trump of understatement.

Trump has been scrounging around for dirt on the Bidens since July 2019, when he made the “perfect phone call” to Ukrainian President Volodymyr Zelensky linking the Congress-approved delivery of Javelin missiles to investigating putative corrupt conduct by Hunter Biden in Ukraine.

Zelensky refused, and the call led to Trump’s first impeachment. Zelensky got his Javelins, and Trump never came up with the goods.

In announcing the indictment of Donald Trump, Special Counsel Jack Smith said: “we have one set of laws in this country, and they apply to everyone.” Well said. The case against Hunter Biden establishes that we indeed have “one set of laws,” not one for the wealthy and the powerful and the connected, and another for you and me.

The Trump/MAGA drumroll of Hunter Biden’s laptop, Burisma and China is an unconvincing “what about.” The answer to a “what about” is not to excuse Trump but to prosecute Hunter Biden. This has happened.

Hunter Biden may have gotten a break on a low-level crime. Justice must be tempered with mercy, and the plea bargain announced yesterday in any event must be approved by the sentencing judge.

Yesterday, we witnessed a blow for the rule of law and the independence of the Department of Justice. Now, what about Donald Trump? He stands charged with a much more serious crime in the federal court. In our country, no one is above the law.  

James D. Zirin is a former federal prosecutor in the Southern District of New York.