How I Think, And Feel, About Hunter Biden

Photo of Hunter Biden embracing his father, President Joe Biden. Photo: Carolyn Kaster / AP

You may have noticed that I don’t spill much digital ink writing about Hunter Biden. That’s because, all along, I have understood this for what it is: a politically-driven effort to smear Joe Biden over the checkered history of his troubled son.

Even saying something is “politically-driven” these days creates chum in the water. After all, that is the current language and currency of the right, and particularly of Trump as he faces a growing number of indictments. If Democrats accuse Republicans of going after Hunter Biden for political purposes, the GOP can point to that and say to their own base, “See how this works? If our investigation of Hunter Biden is a witch-hunt, then so is their investigation of Donald Trump!” 

It’s frankly exhausting.

That’s why the wiser thing to do here was to simply let the process work. I have always thought that if Hunter Biden committed crimes, then he should be held accountable. It may be unfair that his actions have been investigated so rigorously, but that’s sadly just the way our politics works. 

That’s why I was relieved, rather than alarmed, to see that the Justice Department had reached a plea deal with him. Now we can really talk about this case with a full understanding of what did, and did not, transpire. Even though the GOP isn’t likely to move on, we now can.

I’ve found it helpful to approach this topic by setting out some basic principles of justice and fairness, especially given the high profile nature of the investigation and the defendant. This provides a framework for assessing whether the case was well and fairly investigated and concluded. Let’s review three considerations.

Consideration One: There should be an independent investigation

Whenever a high profile figure in politics comes under legal scrutiny, we need to make sure we address two important principles of prosecutorial independence. 

First, any investigation should not be politically-driven. That is to say, the Justice Department should have full control of the case without political interference from the White House, and it should not be used as a weapon to investigate and prosecute opponents of the administration. At the same time, the Department should not be pressured in any way to go easy on a defendant or cut special deals just because the White House wants it to.

Second, there must also be extra steps taken to ensure that it appears to the public that there is full independence and no interference from the White House. The appearance of impropriety in the form of political interference, even if there is no actual interference, can be harmful to public confidence in the Department.

How did these principles apply here? The investigation into Hunter Biden began some five years ago, when a laptop purportedly belonging to him was turned over to the FBI. (Today, I won’t get into the many chain-of-custody issues around that piece of hardware.) The Justice Department launched a confidential investigation, which was kept under wraps until just before the 2020 presidential election.

So who was in charge of the investigation? Donald Trump had appointed David Weiss as the U.S. Attorney for the District of Delaware. Trump had also appointed FBI Director Christopher Wray, whose bureau would be conducting the investigation. In short, there was a Republican U.S. Attorney and a Republican FBI Director, both appointed by a Republican president, in charge of the case.

Weiss had broad authority to look into everything and anything related to Hunter Biden, including his business dealings, his taxes, his drug use, and yes, the contents of his laptop which started the whole mess. Was it fair that Hunter Biden, who is a private citizen, had his whole life under such legal scrutiny? No. But did Republicans care? No. Politically-motivated investigations are fodder for their voters. These are the folks who brought us Benghazi and a manufactured scandal over Hillary Clinton’s private email server. That’s the way they roll.

The point was to damage Trump’s chief rival. So the investigation was ordered, and it proceeded. Seen in this light, Trump plainly violated the first principle I discussed above: that investigations must not be politically-driven. He wanted to show that Hunter Biden was corrupt, and that therefore by extension Joe Biden was corrupt, so that this could be used in his own reelection bid. 

But the system, which has many checks and balances, has a way of knocking back people who abuse their power. In Trump’s case, he was so obsessed with the idea of smearing the Bidens that it led to his first impeachment over militarily extorting Ukraine in order to obtain a favor: the bogus announcement by that country of an investigation into his main political opponent. 

Still, as a prosecutor Weiss was independent and had free reign, and he was appointed by Trump, so there isn’t an argument that this was some liberal plot to sweep things under the rug. If there was any “there” there, Weiss would have unearthed it. 

Now, about that second consideration. Weiss was still investigating Hunter Biden when Joe Biden entered the White House in 2021. At that point, President Biden could have fired Weiss. In fact, it is customary for an incoming president to ask all the U.S. attorneys serving under the past president to step down. But President Biden left Weiss in place. 

Why? Because to ask Weiss to step down would violate the second principle about not even giving the appearance of impropriety or political interference. Even if there was nothing unusual or wrong about asking Weiss to step aside, it could be viewed as a politically-driven request.

So Biden left Weiss in place to conduct his investigation, despite knowing that Hunter would be used as a political punching bag. For the sake of preserving the institution and integrity of the Department of Justice, he kept Trump’s appointee in charge of his own son’s case. And that deserves much respect.

More than that, Attorney General Merrick Garland reiterated that Weiss would have broad authority to bring whatever charges he felt were appropriate, to investigate wherever he needed to, even outside of Delaware, and to bring charges wherever was appropriate.

It’s important to note at this point that there was little else that the White House or Justice Department could do to improve transparency and independence around Weiss and his investigation. Moreover, the Republicans have been in control of the House since the beginning of this year and have led oversight and held hearings for five months. If there was anything to be found, they had ample time to do so.

Consideration Two: The president’s son should be treated like any other defendant

The decision by Weiss over whether and what charges to bring against Hunter Biden needed to pass another smell test: They should be in line with charging decisions and sentencing for other defendants who have similar records and were accused of similar crimes. That helps the public understand that the Justice Department neither plays favorites, nor metes out harsher penalties, based on political considerations. It isn’t always perfect, especially when the Justice Department has its finger on the scale as it did during the last administration, but it’s where prosecutors generally strive to aim.

Simply put, were Hunter Biden to be found or to plead guilty to crimes, then in a just system he should get no more or less favorable treatment than any other person when it comes to deals and sentencing.

So how does the announced plea agreement measure up? As journalist Steve Reilly observed, based on federal records and audits of the types of crimes charged here, “The vast majority of people who engage in the tax and gun lawbreaking that Hunter Biden is accused of are never even prosecuted.” That isn’t because the government doesn’t want to do so, but rather that it lacks adequate resources to go after the thousands of people who violate these laws each year. But let’s break it down.

The tax charges. In the first pair of charges, Hunter Biden is accused of misdemeanor tax offenses (for “willful failure to pay federal income tax”) because he did not pay his taxes on time in 2017 and 2018, amounting to over $100,000 in unpaid amounts from each of those years. It’s important to remember that he actually did wind up paying the overdue taxes, but did so late. It’s also important to understand that he is not accused of willful tax evasion, which covers the intentional, criminal hiding of income to evade tax liability.

Hunter Biden pled guilty to the two tax charges and was put on probation instead of being sent to jail. This is standard practice when it’s a first time offense and the government has already been made whole by repayment of the owed taxes with late penalties and interest. Moreover, in order for the plea deal on the taxes to move forward, as legal analyst Andrew Weissmann noted, it would also have to be signed off on by the Department of Justice’s Tax Division.

In some ways, on the tax charges, this was a harsher penalty than others similarly situated have faced. For example, Trump ally and advisor Roger Stone was accused of skipping out on $2 million in unpaid taxes—far more than what Hunter Biden owed. But Stone was only hit with a civil suit, not a criminal one. Hunter was criminally charged and got probation, while Stone faced no charges. 

As a counterpoint, Republicans like to point to the case of actor Wesley Snipes. Snipes failed to pay income taxes in the late 1990s and early 2000s and went to jail for three years for that crime. The GOP cite this as evidence that Hunter Biden received a slap on the wrist by comparison. But we need to Snope the Snipes case, because it is distinguishable. The amount Snipes owed was around $7 million, and Snipes had outright refused to pay the tax, claiming that the IRS was an illegitimate government agency and that he was a non-resident alien and therefore not subject to U.S. taxes, even though he was born in the U.S. Snipes’s level of willful nonpayment differed markedly both in intent and in amount.

The firearm charge. Hunter Biden also agreed to enter a diversion program after being charged with unlawful possession of a firearm. It was unlawful because he was a user of, and addicted to, a controlled substance at the time, but he lied about that fact on a federal form. By entering into the diversion agreement, this means he is not technically pleading guilty to gun charges. Rather, those are put on hold provided he complete some kind of drug rehabilitation program. If he violates the terms of the agreement, he will be sent to jail.

One difficult fact for Hunter Biden, and for his family, is that he was a long-time user of crack cocaine. He was smoking it every 15 minutes, according to his autobiography. Biden bought a Colt Cobra 38SPL revolver around October 23, 2018, while he was using drugs. The gun was later found, allegedly thrown in the trash by Joe Biden's daughter-in-law Hallie Biden, who is the widow of his other son, Beau. 

If the above provokes some wild images and scenes for you, understand that Hunter Biden’s life has been filled with tragedy and personal demons. As a child, he lost his mother and baby sister in a terrible car crash. He lost his older brother to cancer. He was addicted to dangerous drugs, and he has struggled to get clean. My own instinct is to feel compassion for him and hope he can stay sober and get the help he needs.

As with the tax charges, this sentence for the firearm charge is appropriate for a first-time offender. There is no evidence that Biden intended to use the gun to harm others. If anything, Hallie Biden reportedly feared he was going to use it to kill himself. It is somewhat ironic that the party that howls about government regulation of and overreach on firearms wants the president’s son to go to jail for years simply for illegally possessing one.

Consideration Three: Charges should be brought only where the evidence supports them

A final consideration is this: the law and the charges ultimately brought should reflect the facts and evidence.

After five years of an investigation, and media scrutiny beyond anything that any other private citizen would face, all that Weiss and his investigators decided to bring were misdemeanor tax charges and a diversion for a firearm charge. Because that’s what the facts and evidence support.

Notably absent from Weiss’s deal with Hunter Biden is anything about the other allegations that have swirled endlessly around the president’s son, including claims that he and his father corruptly used their positions to earn millions of dollars from places like Ukraine and China.

Let’s be clear. There is little doubt that Hunter Biden sought to leverage his family name to land lucrative deals. No one believes that Hunter Biden has anything but his family name to offer as a board member on foreign companies. But we also need to be quite careful here: Bandying your family name around to get paid as a “consultant” does not mean that your powerful father actually agreed to it, or worse still got cut in on any money you made. What Hunter Biden did was distasteful and morally questionable, but it was not illegal.

And after five years and an alleged laptop full of communications, there is still no evidence that Joe Biden helped his son land any deals, took any money, or even had any knowledge about what Hunter Biden was doing to trade in on his family name. On the contrary, it seems Joe Biden kept his son’s activities at a distance precisely to avoid this entanglement.

After all this time, Weiss and his team don’t have any further goods on Hunter Biden to charge him with corruption (or illegal porn, or other drug-related offenses). So it’s time for the public to accept that there is nothing there. The most that the GOP has managed to produce, as late as yesterday, are two IRS agents who claim their recommendations to bring harsher felony charges were ignored. But that doesn’t negate the fact that Weiss had the ability all along to charge whatever he felt he should based on the facts and evidence.

The plea deal with Weiss’s office is intended as a comprehensive resolution of all federal investigations into Hunter Biden. The results may leave a very bitter taste in the mouths of Fox and other right-wing media audiences, who have been conditioned to believe that there is an entire “Biden crime family” that is getting away with everything. 

Instead, what we have at the end is what we have always had: a sad tale of a very troubled individual who has faced personal tragedy, made some terrible mistakes, overplayed his hand to make quick money, spent that on drugs and women, then failed to pay his taxes and lied about his addiction to acquire a gun. He happens also to be the president’s son, so he’s under a lot of scrutiny, and now he’s going to be given an opportunity to get his life back together. 

Through all of this, his father and his family still love and support him, because that’s what good people do.

As one political commentator succinctly noted, the plea deal shows another important thing: that the president’s own son can be investigated, prosecuted and convicted, even while that president sits in the Oval Office. And that is a win for the independence of the Justice Department, for the rule of law and for the future of our country.