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

Hunter Biden was always doomed to lose his trial. His best bet is appealing a 'vindictive prosecution.'
  • Hunter Biden was doomed to lose his criminal gun trial.

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

  • Experts told Business Insider before the verdict that he may have a point.

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

When the president's son bought a .38 mm 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 Biden did use cocaine in that time period, federal prosecutors brought an indictment against him. They accused him of lying on the form and unlawfully owning a firearm.

In his opening statement at the trial, Biden's lawyer Abbe Lowell urged jurors in the Wilmington, Delaware, federal court to acquit his client. He argued that terms such as "user of" and "addicted to" were 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 former top lawyer at the Bureau of Alcohol, Tobacco, Firearms, and Explosives, told Business Insider before jurors began deliberating. "They know how to put on a tight gun case."

Biden's trial was not necessarily a lost cause. His lawyers tried to convince jurors that he was seeking treatment and didn't consider himself addicted to drugs on the day he filled out that form, nor in the 11 days in October 2018 when he owned the gun. The jury — in his father's home state of Delaware — could have still ended up deadlocked or acquitted him.

That didn't happen.

On Tuesday, the jury convicted Biden on all three felony gun charges.

But Biden's legal team already had their eyes set on higher courts.

The politicization defense

Decisions from US District Judge Maryellen Noreika, whom Donald Trump appointed when he was president, 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. Some of those motions argued that the case was fundamentally unfair and should never have been brought.

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

Hunter 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.

Biden's primary arguments revolve around the notion that he's the victim of "selective and vindictive prosecution."

The criminal investigation originated under the authority of David Weiss, who was appointed as the US attorney for Delaware by 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 appointed Weiss as a Justice Department special counsel to keep him insulated from outside influences.

Hunter Biden's lawyers have argued this arrangement has perversely allowed Weiss to politicize the proceedings unchecked.

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 charges, with Biden accused of failing 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 in 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," Biden's lawyers wrote in a December filing.

Everyone wanted a plea deal — except Republicans

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

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 BI. 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 rarer. 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 last week.

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

Duncan Levin, a former New York federal prosecutor said the rarity of this application of the charges demonstrated the whole prosecution was political.

"I have never heard of a case that is brought as a stand-alone false claim on an application — ever," Levin told BI during the trial. "Lying to a 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 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."

Levin said the constitutional flimsiness of such a case was why it made more sense for everyone to agree to some kind of nonprosecution deal. The same applies to the tax charges in California, which were brought after Biden had already paid back the taxes and was prepared to plead 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 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 that the charges should be tossed.

Noreika denied the motion, as well as Biden's requests to dig deeper into the Justice Department to look for 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, said 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 told BI during the trial. "I'm sure they regret it."

Before Biden and his lawyers could get an appeals court to listen to them, though, they had to finish the trial.

Biden did have some defenses to muster, Levin said, days before the verdict.

"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, the felony conviction was expected.

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

This story was updated following the jury verdict in Hunter Biden's gun trial.

Read the original article on Business Insider