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June 20, 2023

A "sweetheart deal"?: Minor (mostly uninformed) musings about Hunter Biden's prosecution and plea deal

I woke up this morning to the surprising news of a prosecution and plea deal for Hunter Biden (basics here), and then I spent most of the rest of the day in the car.  Thus, I have had precious little time to carefully review and reflect on all the particulars (and subsequent commentary) regarding how the US Attorney in Delaware decided to approach the prosecution and plea of the son of the sitting President.  But, despite being under-informed on all the facts and on typical DOJ practices, I still cannot resist sharing a few musings on this high-profile plea:

1.  "Iceberg" timingThat Hunter was subject only now to what might be called "modest" charges after years of investigation leads me to wonder what has been going on beneath the surface with this criminal investigation (and internal DOJ debates over exactly what charges should be brought and how they might be settled).  Hunter and his lawyers were obviously made aware — recently? long ago? — about potential charges and negotiated this deal, and I wonder what kind of negotiating timeline and process was involved to result in a plea that nearly ensures that Hunter can entirely avoid any felony convictions.

2.  Avoiding felony convictions:  I am inclined to describe Hunter's deal as a sweetheart not so much because he seems likely to avoid prison time, but because he is likely to avoid any felony convictions.  US Sentencing Commission data show a good percentage of tax fraud offenders get non-prison sentences and most firearm offenders have significant criminal history that leads to prison time.  Even if Hunter had pleaded guilty to felony tax and gun charges, his lawyers would have been able to make effective sentencing arguments that he should just get probation for these offenses.  But, of course, the actual plea deal involves Hunter pleading guilty only to misdemeanor tax charges and to enter a "Pretrial Diversion Agreement with respect to the firearm [charge]" so that he will likely avoid any felony convictions.  I surmise that both of these "plea moves" are pretty rare — tax fraud defendants rarely get to plead only to misdemeanor charges and illegal gun possession defendants rarely get a diversion agreement.

3.  Echoes of Bruen:  The Supreme Court's landmark Second Amendment ruling in Bruen gave Hunter and his lawyers an interesting new argument to contest the gun charges.  At least two district courts (as noted here and here) have decided § 922(g)(3) is unconstitutional, and I suspect the US Attorney in Delaware (and others inside DOJ) did not want to shine a bright light on this issue through a contested prosecution of the president's son.  This factor certainly could justify — and may well have motivated — the "Pretrial Diversion Agreement" approach to the gun charge against Hunter.  (That said, Hunter also could have been subject to prosecution for lying on the form needed to buy a gun, and that charge would seem less likely to be subject to Second Amendment challenge.)

4.  "Sweetheart deals" for everyone?:  Other than persons who relish the idea of a Biden behind bars, I suspect most folks thinking about all the 3553(a) sentencing factors would have a hard time making a strong case that Hunter needs to be sent to federal prison for a long time.  (Please know that I would make the same 3553(a) assertion about Donald J. Trump.)  In other words, but for all the political acrimony, I sincerely believe relatively few could make a very potent argument that Hunter really needs to be incarcerated for an extended period.  In turn, to the extent arguments are being made that Hunter is benefitting from a "sweetheart deal," I would say that the problem is not that Hunter is getting a huge leniency break, but rather that similarly situated persons are too often subject to unduly severe treatment by our harsh federal criminal justice system.

5.  Hunter could still get significant prison time.  Though I expect Hunter will end up sentenced to probation on his tax misdemeanor charges, he is facing up to two years in prison.  Though I would be surprised if a sentencing judge would seriously consider maxing Hunter out, I would not be shocked at all if the judge were to decide that some short period of incarceration was needed to "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense" and "to afford adequate deterrence to criminal conduct."  18 USC 3553(a)(2)(A) and (B).  (Perhaps for my own amusement, I am already wondering if the District of Delaware has any local rules for the filing of amicus briefs in a sentencing proceedings.) 

June 20, 2023 at 11:51 PM | Permalink


Former financial crimes AUSA; my read of the guidelines is 24-30 months. Based on tax loss bet 550k and 1.5M (per Wash Post article). No reduction for the post-offense payment of amount owed. Interesting to see if plea agreement gives him right to withdraw if court does not impose the recommended sentence of probation.

Posted by: AS | Jun 21, 2023 6:28:34 AM

It is also notable that Hunter Biden and his Arkansas attorneys also appear to have resolved his child support proceedings, where he was facing contempt proceedings and a July 2023 trial. This is an illegitimate child that Hunter fathered with a stripper in D.C. The pregnant stripper then moved back home to Arkansas, which is why the child support case is in an Arkansas state court. Hunter Biden's monthly child support payments were reduced to $5,000 from $20,000, by agreement of the parties. The parties also agreed that the child will not have her legal name changed to "Biden"! It looks like Tuesday was a very good day for Hunter.

Posted by: Jim Gormley | Jun 21, 2023 6:58:52 AM

Spot-on Prof, as usual.

Bruen arguments would have been an absolute nightmare in that 1) they are strong ones and 2) would have drug this out probably through the next election cycle.

I have written elsewhere (NACDL) that I think 922(g)(3) is particularly suspect to constitutional challenge. I am sure that Mr. Biden's defense team (rockstars) would have been prepared to take this at least through the circuit courts absent the diversion deal.

Posted by: Zachary Newland | Jun 21, 2023 10:17:04 AM

There are a lot of things on the laptop that look criminal. Plus there is FARA. Manafort got a lot of time.

Posted by: federalist | Jun 21, 2023 10:17:53 AM

Would be interesting to hear your take on this:


Posted by: federalist | Jun 21, 2023 10:19:34 AM

Zachary Newland --

"Bruen arguments would have been an absolute nightmare in that 1) they are strong ones and 2) would have drug this out probably through the next election cycle."

Bruen arguments would have been credible, but only a small minority of courts have gone along with them in any form. When I was doing appeals for the USAO, I would have had no problem requiring Hunter to plead to the gun charge or go to trial. Taking on credible defense arguments is not a "nightmare;" it's just part of the job. The possibility of losing is part of life as a litigator, no big deal. And it's far from clear that the USAO would have lost in any event.

Happy to see that you went to Georgetown, though. I hear the adjunct faculty there is top notch.

Posted by: Bill Otis | Jun 21, 2023 11:12:37 AM

Bill, Hunter's legal team could and would have brought a motion to dismiss the 922(g)(3) claim based on Bruen and the recently decided Range en banc decision. Based on Range, I would think a district judge would be inclined to grant the motion to dismiss and DOJ would then need to decided whether to pursue this issue in the (pro-2A) Third Circuit. Where is the upside for taking all that on at this particular time?

Posted by: Doug B | Jun 21, 2023 12:44:54 PM

Doug, he still lied--that's a crime too.

Posted by: federalist | Jun 21, 2023 1:11:04 PM

Doug --

I disagree with your premise. I don't think a district judge in Florida would feel any need to follow Range, which is from a distant circuit and distinguishable on its facts (cocaine dealing is historically much more associated with violence than pot). And Range thus far stands alone among the circuits. With that as the state of play, I think a Florida district judge would follow the traditional rule that an Act of Congress is presumed constitutional until SCOTUS says otherwise.

But even if I thought otherwise, I would still go with the gun charge, the facts of which Hunter admitted. I just don't buy the idea that the government should give up on a factually easily provable offense because there is an ongoing legal debate in which the defense side has one or two victories (pending further review). The government, like any serious advocate, needs to have more of a spine than that.

Posted by: Bill Otis | Jun 21, 2023 5:23:17 PM

And there's the fact that he lied on the application . . . .

With respect to the back taxes--did Hunter pay all of his state taxes?

Isn't it funny how Doug gives cover for this atrocious double standardism. Why should ANYONE pay taxes? Just wait until the IRS comes knocking.

Posted by: federalist | Jun 21, 2023 6:25:35 PM

Hunter Biden's attorneys may be leaving him an out if anything goes wrong with his diversion plan on the gun charge, 18 U.S. Code section 922(g)(3). If the U.S. Supreme Court subsequently finds that gun statute unconstitutional, Biden can file either a 2255 Habeas Corpus Motion, or for a Writ of Error Coram Nobis (if he is no longer in custody or on supervised release) under the All Writs Act, 28 U.S. Code section 1651(a). Compare, United States v. Lynch & Campenella, 807 F. Supp.2d 224 (E.D. Pa. 2011) (Coram Nobis and Habeas Corpus granted to two co-defendants following the Supreme Court's "Skilling" decision on honest services fraud.

Posted by: Jim Gormley | Jun 21, 2023 10:29:48 PM

Bill, I think you are conflating cases as Hunter is being prosecuted in Delaware, not Florida. And a Delaware federal district judge is bound by Range. And even if the district judge distinguished Range to reject a motion to dismiss a 922(g)(3) count, Hunter's team could and would appeal directly to the court that just ruled --- by a vote of 11-4, I believe --- that the Second Amendment precludes certain applications of a seemingly more defensible provision of 922(g).

You worked in DOJ, Bill, so you would know better than me when and how federal prosecutors should confidently bring constitutionally questionable charges. But both Bruen and Range are controlling law in Delaware, and both can be fairly read to make 922(g)(3) charges suspect. These are the echoes of Bruen originalism placing much of federal gun control law on shaky constitutional ground.

Posted by: Doug B | Jun 21, 2023 10:37:49 PM

Doug --

You're right that I confused Florida and Delaware. Just too many sleazy high-powered defendants to keep up with these days! This means that the Delaware district judge will feel more of a pull than if he/she were in Florida -- but not enough more, in my view, to change my conclusion. It's still the case that (1) Range does not deal with this specific subsection; (2) I believe there is language in Range cautioning against expanding it beyond that case's specifics; (3) the presumption of constitutionality still exists absent a direct holding from SCOTUS (n.b., Range is still alone among the 12 circuits in reaching its conclusion); and (4) cocaine is much more historically associated with violence than pot. That would be enough for the government to think it has a reasonable shot at defending the statute in Hunter's situation.

Federal prosecutors shouldn't and won't treat parts of a statute as invalid absent more and more direct authority than exists here. It's above their pay grade. The argument for constitutional invalidity is reasonable and credible, but not so powerful at this stage that a prosecutor on his own, and without a directive from the SG, should just flush the statute as a dead letter. Most federal criminal cases are easy, but when you get a potentially hard one, you don't just fold. You go out and earn your money.

Posted by: Bill Otis | Jun 22, 2023 12:10:20 AM

Bill, it's clear he lied on the form--that's a crime, irrespective of the constitutional issue related to possession. And did he make good with the state taxing authorities--if he did not, were I the judge, he'd get maxed.

Posted by: federalist | Jun 22, 2023 9:33:40 AM


Posted by: federalist | Jun 22, 2023 2:12:46 PM


Posted by: federalist | Jun 22, 2023 2:46:37 PM

Why no charges for acting as an unregistered foreign agent?

Posted by: TarlsQtr | Jun 23, 2023 1:35:05 PM

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