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" timing:  That 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.)