WASHINGTON — The charges brought against President Joe Biden’s son Hunter Biden are rarely prosecuted, legal experts say.
Hunter Biden was charged Thursday with three felony gun-related counts, including possession of a firearm by a person who is an “unlawful user of or addicted to any controlled substance." Under a plea deal that later fell apart, Biden was also charged with two misdemeanor charges of failing to pay taxes, which he later reimbursed; those charges are not included in Thursday's indictment.
The federal gun charge, which makes it unlawful for a drug addict to possess a weapon, is a rarely used statute that is facing legal challenges and has recently been used as a catch-all charge against white supremacists.
Like the gun charge, the tax charges are rarely brought against first-time offenders and even more rarely result in jail time, Andrew Weissmann, a former FBI general counsel and NBC News contributor, tweeted Tuesday. "This is if anything harsh, not lenient," he wrote.
Former federal prosecutor Renato Mariotti agreed. "It insults the intelligence of the American people to compare misdemeanor tax charges to a scheme to steal Top Secret documents and obstruct justice when the government asked for them back," he tweeted, comparing the charges against Hunter Biden to the recent federal indictment against former President Donald Trump. "If anything, Hunter Biden was treated harshly — those crimes are rarely charged."
The case is being overseen by the U.S. Attorney’s Office for the District of Delaware, which is headed by Donald Trump appointee David Weiss, who was named special counsel in the case.
The gun charge itself is under legal threat. A federal appeals court ruled in June that the government cannot ban those convicted of nonviolent crimes from possessing a weapon, and a federal court in Texas recently ruled — following a major Supreme Court case last year that expanded gun rights — that the ban on drug users possessing weapons violates the Second Amendment.
The charge, when brought, has often been used in high-profile cases where the underlying conduct doesn't violate any obvious federal criminal statute. Last week, the mother of a 6-year-old boy who shot his teacher in Newport News, Virginia, pleaded guilty to the charge — possessing a firearm while using marijuana — along with a charge of making a false statement.
The charge has resulted in serious prison time in other cases. A 23-year-old from Waterloo, Iowa, was recently sentenced to nearly five years in federal prison for possession as a drug user, while another 23-year-old in Lincoln, Nebraska, received three years in federal prison on the charge. Other sentences have not been as harsh: A man arrested during a burglary call in Vermont in May 2022 received a sentence of time served in March 2023. (There are undoubtedly other recent cases; but those that resulted in nonsubstantial sentences are also less likely to be mentioned in press releases issued by U.S. Attorney's Offices.)
The charge has also recently been used against white supremacists when their conduct did not provide an obvious violation of any other criminal statute, including against a white supremacist who was arrested in Washington, D.C., and found with a stash of weapons after his brother died by suicide. In that case, a federal public defender who had been working for 30 years said he “never had a case in which the government went forward" with the addict-in-possession charge. A judge concurred that the charge was unusual. The white supremacist was ultimately sentenced to time served after less than a year behind bars.
Chuck Rosenberg, a former top federal prosecutor and acting administrator of the U.S. Drug Enforcement Administration and a current NBC News legal analyst, noted that the addict-in-possession charge is used "sparingly," but said that did not mean it was used improperly in Hunter Biden's case, as each case needed to be evaluated on the individual evidence.
Paul Butler, a former federal prosecutor and an NBC News legal analyst, said on MSNBC on Tuesday that the deal Hunter Biden reached was a decent outcome for the president's son, but not the "sweetheart deal" that Trump and his allies have made it out to be.
While the plea agreement spells out that prosecutors will recommend a probationary sentence, the federal judge who ultimately sentences Hunter Biden is not bound to that agreement and could ultimately decide that the charge warrants incarceration. Court dates have not yet been set in the case.