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PaperclipPerfector  10mo ago (text post)   33020 thread views

Culture War Roundup for the week of June 19, 2023

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In an interesting development in US politics, Hunter Biden has apparently reached an agreement with the Justice Department that will allow him to avoid felony firearms and tax charges in exchange for pleading guilty to two misdemeanors.

Hunter Biden Reaches Deal to Plead Guilty to Misdemeanor Tax Charges

Hunter Biden agreed with the Justice Department on Tuesday to plead guilty to two misdemeanor tax charges and accept terms that would allow him to avoid prosecution on a separate gun charge, a big step toward ending a long-running and politically explosive investigation into the finances, drug use and international business dealings of President Biden’s troubled son.

Under a deal hashed out with a federal prosecutor who was appointed by President Donald J. Trump, Mr. Biden agreed to plead guilty to misdemeanor counts of failing to pay his 2017 and 2018 taxes on time and be sentenced to probation.

The Justice Department also charged Mr. Biden but, under what is known as a pretrial diversion agreement, said it would not prosecute him in connection with his purchase of a handgun in 2018 during a period when he was using drugs. The deal is contingent on Mr. Biden remaining drug-free for 24 months and agreeing never to own a firearm again

Right-wing political factions are upset with this agreement. I believe the core argument is best exemplified by Andrew McCarthy at the National Review

The Intentionally Provocative Hunter Biden Plea Deal

Under Justice Department policy, even with a plea agreement, the government is supposed to seek a plea to the “most serious,” readily provable “offense that is consistent with the nature and full extent of the defendant’s conduct.” Hunter Biden committed tax offenses that could have been charged as evasion, which is punishable by up to five years’ imprisonment for each count. Furthermore, he made a false statement that enabled him to obtain a firearm; that’s a ten-year felony under legislation pushed through by then-senator Joe Biden to show how very serious Democrats are about gun crime.

Biden apologists have tried to minimize that transaction as a “lie and try” case, which they say is often not prosecuted. But such non-prosecution (though it shouldn’t happen) occurs because of what you’d infer from the “try” part — i.e., the liar got caught and failed to obtain the gun. Hunter’s case, to the contrary, is a lie and succeed case. He got the gun. What’s more, he was then seen playing with it while cavorting with an “escort” (see the New York Post’s pictorial, if you’ve got the stomach for it). Shortly afterwards, he and his then-paramour — Hallie Biden, the widow of his older brother — managed to lose the gun near a school (it was later found by someone else).

Those are the kinds of gun cases that get charged by the Justice Department even if the suspect hasn’t, in addition, committed tax felonies by dodging taxes on the millions of dollars he was paid, apparently for being named Biden.

I have seen arguments and counter-arguments flying around the internet about the appropriateness of this legal action. Those in favor argue that any non-violent offender would be offered a lenient deal. Those arguing against reference past cases for tax crimes and paperwork-related firearms offenses that resulted in far more grievous punishments. In both cases, the other side argues that since the facts of the cases do not map 100% perfectly to this one, they cannot be used as precedent for deciding the fairness of this action.

What do you think? Was this action fair, in an ethical sense? Was this action within precedent, and if so, what other historical actions are you using as your guideposts? Do you think the choice to offer pretrial diversion was politically motivated? I'm interested to hear your opinions.

Goodness. I didn’t realize this idiot was still working his way through the legal system.

I’m not opposed to pretrial diversion as part of a larger bargain. Still not a good look. I tend to agree with this take: if lying about drugs isn’t worth prosecuting here, maybe it shouldn’t be asked at all.

Interested in hearing what our resident lawyers have to say about the likelihood of conviction on these charges. How hard would it be to actually prove he was high in the two weeks he had the gun? Any political motivation is going to take a back seat to that calculus.

Interested in hearing what our resident lawyers have to say about the likelihood of conviction on these charges. How hard would it be to actually prove he was high in the two weeks he had the gun?

I am not a lawyer and this isn't legal advice, but the law isn't about owning a firearm as a drug user, but lying on this form, which asks:

Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?

The ATF's older published rule is that :

Moreover, under the proposed definition, a person must be a current user of a controlled substance to be prohibited by the GCA from acquiring or possessing firearms. Although there is no statutory definition of current use, applicable case law indicates that a person need not have been using drugs at the precise moment that he or she acquired or possessed a firearm to be under firearms disabilities with respect to acquiring or possessing a firearm as an unlawful user of a controlled substance...

The proposed definition is also consistent with the definition of ‘‘current drug user’’ applied by the Department of Labor in its administration of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101–12213. Regulations issued pursuant to the ADA indicate that the term ‘‘current user’’ is not intended to be limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use occurred recently enough to indicate that the individual is actively engaged in such conduct.

Similarly, the definition of ‘‘addicted to any controlled substance’’ is based on Federal law, 21 U.S.C. § 802, and defines an ‘‘addict’’ as an individual who uses any narcotic drug and who has lost the power of self- control with respect to the use of the narcotic drug.

More recent guidance is even more explicit:

If there is evidence that an individual admits, within the past 12 months, to using or possessing a controlled substance, the federal drug prohibition 922(g)(3) would apply. Admission of use/possession of a controlled substance may often be found within the narrative of a criminal incident report. An admission of drug use/possession does not have to result in a drug arrest to be disqualifying.

Individuals admitting to illegal use/possession of a controlled substance are prohibited from the receipt/possession of a firearm for one year from the date of admission. It should be noted this must be a self-admission. If a second party states the controlled substance belongs to another subject, either would be disqualified based solely on that statement.

Hunter bought the gun Oct. 12, 2018, and Hallie threw it in the trash Oct. 23, 2018. Hunter's book details on-and-off cocaine use from at least his dismissal from the Navy Reserve until early 2019, but particularly emphasizes 2018 as "I was smoking crack every 15 minutes" after falling off the wagon in spring of that year.

It's not quite a signed confession, but there's few easier cases to prove than when someone literally writes a book about it followed by an interview tour.

Sorry, I realized that it was about lying on the form rather than use. My thought was that he had a plausible defense of being on the wagon during, say, that month. Thank you for pointing me to the one-year limit.

It does in fact sound like this should have been open-and-shut.

which is what he is getting anyway.

As a small nitpick, the firearm charge is being put through a pretrial diversion program.

The probation is for the tax charges.

I am not licensed to practice law, but my discussions with a few lawyers seem to suggest that pretrial diversion for a federal firearms charge is fairly rare, compared to probation or other penalties.

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