Opinion: Why Hunter Biden should have just pleaded guilty

Editor’s Note: Dennis Aftergut, a former federal prosecutor, is currently counsel to Lawyers Defending American Democracy, a nonpartisan organization dedicated to preserving the rule of law. The views expressed here are his own. Read more opinion at CNN.

With Hunter Biden’s conviction Tuesday on federal gun charges in Delaware, there’s one huge takeaway and one huge mystery.

The takeaway is that the rule of law is working. The Department of Justice, in an administration led by Hunter‘s father, President Joe Biden, prosecuted his son and convicted him. It’s hard to conceive of better evidence of a justice system operating without fear or favor.

The mystery is this: Why did Hunter Biden ever test his luck with a jury when a guilty plea would have better served him and so many others who are close to him, not to mention the country?

Hunter Biden was charged in September with three counts related to his purchase and possession of a firearm  while using illegal drugs. The prosecution had powerful proof of his guilt for knowingly making materially false statements on an October 2018 application to purchase a Colt revolver.

In my experience, first-time criminal defendants’ prospects for receiving probation or a shorter term of imprisonment are almost universally improved by pleading guilty rather than by a jury conviction.

And Hunter Biden’s conviction was no surprise. On the Bureau of Alcohol, Tobacco, Firearms and Explosives Firearms Transaction Record that the buyer fills out when purchasing a gun, he had marked “no” next to the question, “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?” The form, which the buyer must sign, states it is a federal crime to falsely answer the questions on it.

The prosecution had showed the jurors text messages that reflected Hunter Biden arranging drug transactions and discussing smoking crack cocaine just days after his 2018 gun purchase. That’s a smoking gun in a case about lying on a firearms purchase application.

His defense apparently ran something like this: When Hunter Biden signed a form attesting that he was not an unlawful user of drugs, he thought his response to the statement was true because he was not using drugs at the moment he signed. As for Hunter’s answer that he was not an addict, his lawyer, Abbe Lowell, argued that Hunter did not knowingly lie — the defendant did not say something that “he believed to be false,”Lowell said — because he hadn’t come to terms with his addiction.

For common-sense jurors, those arguments stood up as well as a tent in a tropical storm.

Of course, Hunter Biden had the right to go to trial; it was his liberty at risk. Anyone in his shoes would have been concerned about imprisonment after a guilty plea. The maximum sentence he faces is 25 years in prison.

Hunter Biden did initially agree to a plea deal, in which he would not have been charged if he stayed out of legal trouble and did not attempt to buy another gun for two years. That matches the Justice Department’s typical, if not universal, practice of agreeing not to prosecute defendants who plead guilty to lying about drug usage in the purchase of a gun and subsequently stay out of trouble.

But that deal fell apart last year after US District Court Judge Maryellen Noreika questioned technical aspects of his original misdemeanor plea arrangement and, more importantly, after MAGA House Republicans screamed “sweetheart deal,” highlighting the lack of jail time included in the original, negotiated plea.

It was only in the wake of the political firestorm that special counsel David Weiss, who has denied bias in his decisions, abandoned the deal. Instead, he charged Hunter Biden differently from similarly situated defendants by indicting him on three felony counts related to lying about drug usage in the purchase of a gun, for which he was convicted Tuesday.

Doing so, Weiss, who was appointed by Attorney General Merrick Garland in August to lead the investigation into Hunter Biden, cast a dark cloud over the Department of Justice, sending a signal that it could be rolled by congressional pressure. Yielding to political pressure is the opposite of what a principled prosecutor should do.

While the original plea arrangement treated the president’s son like any ordinary defendant, Hunter did lie on the ATF form. That’s a crime under the letter of the law. Hunter might have been understandably angered by Weiss upping the charges to felonies, but once Weiss initiated the felony indictments Hunter’s choices were down to pleading guilty or going to trial.

That was especially clear after Noreika rejected Hunter Biden’s pretrial attempt to have the indictment dismissed based on his claim of selective prosecution, which is a notoriously difficult case to make.

Given that reality, and the one about how lesser sentences are usually given to those who plead and are remorseful, even a Hunter Biden convinced that he had been unjustly indicted ought to have taken a felony plea bargain in order to shield his family. If none was offered, he might even have pleaded guilty to all three counts of the indictment.

Instead, at trial prosecutors called both his ex-wife Kathleen Buhle and Hallie Biden, his ex-lover, to testify about Hunter’s drug usage. Hallie Biden is the widow of Beau Biden, Hunter’s deceased brother. Testifying about intimate family matters must have been an enormous emotional trauma for her, as well as for Hunter Biden and his family.

Maybe he thinks he’s got a chance on appeal, given the Supreme Court’s expansion of Second Amendment rights. But successful appeals of criminal convictions are historically very long shots — about 1 in 15 get reversed — and it’s hard to see appellate courts ruling that the right to buy a gun includes the right to lie to get one.

The conviction will hurt Hunter Biden’s father personally, and it can’t help him politically. The right wing’s fact-free attempts to link President Biden to his son’s criminality would have been there even with a plea, but Hunter taking responsibility for his conduct would have diminished the MAGA narrative’s staying power.

One thing’s for sure: The hung jury or the acquittal Hunter Biden was hoping for would have been a political disaster for his father — and for the nation, in this election where the rule of law is on the ballot. For many in the media and for a substantial portion of the electorate, former President Donald Trump’s conviction for falsifying business records in connection with buying Stormy Daniels’ silence to corrupt the 2016 election contrasted with Hunter’s non-conviction would have exponentially amplified the MAGA screams claiming that there are two standards of justice.

President Biden told ABC News before the verdict that he would accept the jurors’ decision, whatever it was. He said had ruled out pardoning his son.

In that, the president not only distinguished himself from Trump’s attacks on his own guilty verdict and his 2020 pardons of friends, but Biden also identified with the trial prosecutor’s most powerful statement about Hunter: “No one is above the law.” By uplifting the rule of law, the president told us that it is even more important to him than his unlimited love for his son.

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