Opinion: Who wins in the Hunter Biden plea deal

We might have expected a fight from Hunter Biden and his lead trial counsel Abbe Lowell rather than news of Tuesday’s plea deal with the Justice Department. After all, Lowell did not become one of America’s most successful trial lawyers by pleading his clients out.

But the deal, negotiated by Biden’s lead criminal counsel Chris Clark, requiring Hunter Biden to plead guilty to two tax misdemeanors and to admit to felony gun possession, was a good one. That was true for Hunter Biden, his lawyers and prosecutors.

Norman Eisen - CNN

From the defense perspective, the charges for not paying taxes on time and for possessing a weapon while on drugs were not going to be the easiest to defend. In his 2021 memoir, Hunter Biden said he was abusing substances again in 2018, which raised suspicion that he possibly broke federal law when he purchased the gun.

Biden’s counsel has partly attributed these offenses to his client being in the depths of his substance abuse. But, according to the National Institute on Drug Abuse, many people who are tried and convicted are suffering from substance use disorders. So a plea deal minimizes Biden’s risk of incarceration and lets him close this dark chapter of his life.

Of course, it also does the same for his father, lifting a potential complication from President Joe Biden’s reelection campaign. If his son and his legal team had chosen to fight, the case would have played out amid the 2024 presidential campaign and become an even bigger talking point for Joe Biden’s Republican rival.

Hunter Biden and Lowell, both of whom I’ve gotten to know during my tenure in the Obama White House and over my career as a criminal defense lawyer, were undoubtedly attuned to this political dimension.

But make no mistake, entering this plea deal is also the right thing for the government to do. Charges would have been unusual in these circumstances. As a defense lawyer who has handled both firearms and tax cases, it is uncommon for someone to be prosecuted for possessing a firearm if he did not go on to commit some further crime with the weapon obtained.

Additionally, as The New York Times reported, a gun possession charge would have been subject to a vigorous legal challenge, on the grounds that it runs afoul of a recent Supreme Court decision expanding the Second Amendment’s protection of the right to possess a gun.

As for the tax charges, where you have repayment, as happened in Hunter Biden’s case, such matters are usually resolved civilly.

Biden should not be treated better than anybody else, but it would be a betrayal of the rule of law by prosecutors to treat him worse than similarly situated individuals simply based upon his last name. And there was risk that a jury in Delaware might not convict owing to Biden’s compelling personal story of overcoming addiction and his family name.

Next, Hunter Biden will be arraigned and enter his plea. At some point after that, his sentencing will occur. Under the terms of the plea agreement here and those in similar cases, these offenses are very likely not going to generate jail time.

But can we be confident a no jail sentencing will really put Hunter Biden’s legal woes to bed, especially given that David Weiss, the Trump-appointed US attorney overseeing the probe, said the investigation is “ongoing”? Prosecutors may still be looking further into other matters, such as Hunter Biden’s foreign business dealings, a previous focus of their investigation.

However, that is not likely to amount to much, as I discovered when I served as special counsel to House Democrats for the first impeachment trial of former President Donald Trump. The investigation included a deep dive into the issue of Hunter Biden’s foreign business connections, and we found no indication of criminality on his part.

Moreover, Lowell and his co-counsel are skilled defense attorneys and likely would not have resolved Biden’s legal troubles now if more serious charges could still be to come. Indeed, Clark said he believes that with this deal, “the five-year investigation into Hunter is resolved.”

Though we cannot know with certainty, Weiss likely said that the investigation is “ongoing” because he is tying up loose ends. It probably does not hurt that as long as the investigation is technically open, he can more easily fend off illegitimate interference from Trump’s congressional allies. The Justice Department has a policy of limiting the information they provide Congress about ongoing investigations – and with good reason. Politics has no place in the law-enforcement process.

Notwithstanding any loose ends, and all of the GOP claims that Hunter Biden got a “sweetheart deal,” his legal drama will likely soon be in the rearview mirror, both for him and his father. When you combine that with the immediate benefit to Hunter Biden himself, and the wisdom of the plea for prosecutors, this is a just conclusion all around.

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