Hunter Biden's Pardon Features Several Shades of Hypocrisy, Including the Gun Policy Implications

Joe Biden says his son did not deserve prison for violating firearm laws that the president vigorously defends and has made more severe.

President Joe Biden's explanation of the pardon he granted his son on Sunday night is dishonest, hypocritical, and evasive in several ways. He reneged on his repeated promises not to intervene in the federal gun and tax cases against Hunter Biden. Those promises included an explicit commitment to refrain from doing what the president ultimately did anyway. His justification—that his son was "singled out" for political reasons—bears more than a passing resemblance to President-elect Donald Trump's reflexive complaint that every civil and criminal case against him was invalid for similar reasons.

The pardon undermines the elder Biden's high-minded defense of the Justice Department's independence, which he and other Democrats have frequently described as a crucial safeguard against the abuses of self-interested politicians like Trump. Biden's defense of that turnaround also glides over his persistent support for the arbitrary, constitutionally dubious gun laws that his son violated, which the president has portrayed as crucial to preventing violence and promoting public safety.

Last June, a federal jury convicted Hunter Biden of three firearm felonies related to his 2018 purchase of a revolver, which he was prohibited from owning because he was a crack cocaine user at the time. In September, Biden pleaded guilty to nine tax offenses, including three felonies. His father does not claim Hunter Biden was innocent of those charges. Instead, he claims that federal prosecutors treated Hunter more severely than they would have treated a defendant who was not the president's son.

Hunter Biden earned a fortune by trading on his father's name, then repeatedly failed to pay taxes on that income. No biggie, the president says, since "those who were late paying their taxes because of serious addictions, but paid them back subsequently with interest and penalties, are typically given noncriminal resolutions."

The elder Biden also argues that the gun case was highly unusual. "Without aggravating factors like use in a crime, multiple purchases, or buying a weapon as a straw purchaser," he says, "people are almost never brought to trial on felony charges solely for how they filled out a gun form."

The president says he would have been happy with the resolution that his son's lawyers reached with federal prosecutors last year. Under that arrangement, which collapsed amid objections by a federal judge, Hunter Biden would have pleaded guilty to two tax misdemeanors, and the government would have recommended a sentence of probation. Prosecutors also agreed to drop the gun case once Biden completed a pretrial diversion program.

After that deal fell apart and subsequent negotiations were unsuccessful, Biden faced additional charges in both cases. That is what typically happens when a defendant exercises his Sixth Amendment right to trial by jury, and it illustrated the enormous power that prosecutors have to coerce guilty pleas.

A single charge of illegal gun possession under 18 USC 922(g)(3) became three charges, including two based on "how [Hunter] filled out a gun form." One count alleged a violation of 18 USC 922(a)(6), which applies to someone who knowingly makes a false statement in connection with a firearm transaction—in this case, by denying illegal drug use. The other new count, based on the same underlying conduct, involved 18 USC 924(a)(1)(A), which applies to someone who "knowingly makes any false statement or representation with respect to the information" that a federally licensed dealer is required to record. The upshot was that Biden faced a maximum prison sentence of 25 years, quite a jump from zero time behind bars under the nixed diversion agreement.

In the tax case, two misdemeanors became three felonies and six misdemeanors, all of which were covered by Biden's guilty plea. "There was no plea agreement," the Justice Department noted. As a result, the probation sentence that the government was prepared to accept in 2023 became a potential prison sentence of up to 17 years.

Biden's actual sentences probably would have been much shorter than the maximums. But the dramatic escalation in potential penalties epitomized the "trial penalty" that helps explain why 97 percent of federal felony convictions are based on guilty pleas rather than proof beyond a reasonable doubt in a criminal court.

That much was par for the course. Yet President Biden argues that the cases would not have been prosecuted to begin with but for the machinations of Republican legislators. "It is clear that Hunter was treated differently," he says. "The charges in his cases came about only after several of my political opponents in Congress instigated them to attack me and oppose my election."

Those "political opponents," of course, had no power to bring criminal charges against Hunter Biden. That decision was made by David C. Weiss, who served as the acting U.S. attorney for Delaware during the Trump administration and kept that position after Joe Biden took office. In August 2023, Biden's attorney general, Merrick Garland, appointed Weiss as a special counsel charged with overseeing both cases against Hunter Biden.

That designation was aimed at preserving the prosecutorial independence that Joe Biden was keen to defend until last night, and Weiss' willingness to let Hunter Biden avoid incarceration belies any notion that he had it in for the president's son. In fact, that "sweetheart deal" provoked vigorous objections from Republicans who complained that Hunter Biden had benefited from political favoritism—the opposite of what his father claims.

Joe Biden views that criticism as further interference with the criminal justice system. "A carefully negotiated plea deal, agreed to by the Department of Justice, unraveled in the courtroom—with a number of my political opponents in Congress taking credit for bringing political pressure on the process," he says. "Had the plea deal held, it would have been a fair, reasonable resolution of Hunter's cases."

That gloss elides U.S. District Judge Maryellen Noreika's objections to the proposed resolution of the two cases. Among other things, Noreika was concerned about a lack of clarity regarding Hunter Biden's immunity from future prosecution, the interaction between the plea deal and the diversion agreement, and the highly unusual role she would have had to play in deciding whether Biden had met the terms of the latter. The president's take also ignores the government's openness to negotiating another plea agreement, albeit on terms that Biden deemed unacceptable.

It is possible that, as the president suggests, Weiss took to heart the criticism of the initial plea deal and was determined to show that he was not giving Hunter Biden special treatment. At the same time, the ultimate decision to throw the book at Biden was not at all unusual. In the rare cases where federal defendants insist on a trial, they can expect to be punished for that decision. That is undeniably a problem, but it is by no means a problem unique to Hunter Biden.

The same is true of another problem to which the president alludes: the haphazard, wildly uneven enforcement of the gun laws that Hunter Biden violated. Survey data suggest that millions of American gun owners are illegal drug users, meaning they are guilty of the same felony that Hunter Biden committed by possessing a firearm. If they bought their firearms from federally licensed dealers and therefore "filled out a gun form," they are also guilty of the two additional felonies that Biden committed during the same transaction by denying his drug use.

Almost none of those potential defendants ever face prosecution. From FY 2008 through FY 2017, for example, federal prosecutors filed an annual average of just 133 charges under Section 922(g)(3).

One reason such cases are rarely prosecuted is that the government generally does not know which drug users are gun owners or vice versa. But Biden publicly admitted his drug use, and his acquisition of the revolver came to light as a result of a bizarre spat with his girlfriend. In that respect, he was very unlucky.

So was Patrick Darnell Daniels Jr., a Mississippi man who had two guns and the remains of a few joints in his car when he was stopped for a traffic violation in 2022. Daniels was convicted of violating Section 922(g)(3) and sentenced to nearly four years in prison. Last year, the U.S. Court of Appeals for the 5th Circuit overturned that conviction, deeming the prosecution inconsistent with Daniels' constitutional right to keep and bear arms.

Hunter Biden's lawyers cited that decision in arguing that the gun charges against him should be dismissed. Noreika rejected their facial challenge, but she left open the possibility that Biden could appeal his conviction by arguing that the ban on gun possession by illegal drug users was unconstitutional as applied to him.

Defending the gun charges, Weiss argued that "the Second Amendment, like the rest of the Constitution, 'protects against invasions of individual rights; it is not a suicide pact.'" He added that "Congress's legislative choice to prohibit individuals who are actively engaged in habitual illegal or compulsive narcotic use from possessing firearms falls firmly within longstanding historical traditions and accords with the Second Amendment."

Notably, Biden sided with Weiss in this constitutional dispute, which pitted the president against his own son. The Biden administration has stubbornly defended Section 922(g)(3) in one case after another, specifically arguing that cannabis consumers are so untrustworthy and dangerous that the government is justified in threatening them with prison if they dare to exercise their Second Amendment rights.

President Biden not only supports that policy; he evidently thought the penalties that his son faced for violating it were not severe enough. The Bipartisan Safer Communities Act, which Biden signed in June 2022, increased the maximum sentence for violating Section 922(g)(3) from 10 to 15 years. It also created yet another possible charge for drug users who obtain firearms, likewise punishable by up to 15 years in prison. If Hunter Biden had bought his revolver after that law took effect and was still using crack, he could have faced four felony charges with a combined maximum penalty of 45 years.

Joe Biden nevertheless argues that his son did not deserve a prison sentence for illegally obtaining a firearm. Those severe penalties, he implies, are meant for other defendants, people who actually pose a threat to public safety. That position seems inconsistent with the Biden administration's insistence that every cannabis consumer—including patients who use marijuana as a medicine with state approval—is a public menace.

In any case, Daniels got almost four years based on nothing more than his status as a gun-owning cannabis consumer. While Hunter Biden is a well-connected man who could afford top-of-the-line legal representation, Daniels is a man of much more modest means with decidedly less political influence. The contrast between their cases is not a good look for a president who periodically decries the unjust and unequal impact of marijuana prohibition.