The U.S. Attorney’s Office from the District of Delaware has recently announced a plea agreement with Hunter Biden for tax and gun crimes. See “Tax and Firearm Charges Filed Against Robert Hunter Biden,” United States Justice Department press release, June 20, 2023, available at https://www.justice.gov/usao-de/pr/tax-and-firearm-charges-filed-against-robert-hunter-biden. Under the proposed plea agreement, which must be approved by a federal judge, Hunter Biden would plead guilty to misdemeanor tax crimes and a felony firearm crime, but he would not serve prison time unless he violates the terms of his probation or diversion.
Some people believe that this must have been a sweetheart deal, or even a corrupt deal, because a person whose last name was Biden will not get prison time under this deal. Those people, however, probably have very little understanding about how the criminal justice system actually works.
I am a former federal prosecutor and a current federal criminal defense lawyer. I have tried federal tax and gun cases as both a prosecutor and a defense lawyer. I do know how the criminal justice system works, both on the state and the federal level. I also know how federal prosecutors make decisions and what kind of a result should be typical in this type of case.
In order to understand what happened in Hunter Biden’s case, it is essential to understand the types of charges involved. I will therefore discuss both the tax charges and the gun charge. Before I do that, though, I want to say a few words about the prosecutor in this case, whose name is David Weiss.
Mr. Weiss was appointed to be the U.S. Attorney for the District of Delaware by Donald Trump. Before that, he had spent many years as the First Assistant U.S. Attorney and an Assistant U.S. Attorney. The First Assistant is the number two person in the federal district, behind only the U.S. Attorney. An Assistant U.S. Attorney is a federal prosecutor who handles and tries cases.
What this tells me is that Mr. Weiss spent many years as a dedicated public servant prosecuting federal criminal cases. As someone who has done that and who has gone through Justice Department training, I can tell you that the idea that a federal prosecutor like David Weiss is part of some kind of “deep state” is complete nonsense. People who have been in that role for many years invariably believe in the mission of the Justice Department—representing the United States government in federal courts and taking people who commit serious crimes off the street. The fact that Mr. Weiss is a Trump appointee means that he is a Republican. He would not have been appointed if he was not.
Some people have apparently tried to convince themselves that, because a person whose last name is Biden may not do jail time, then President Biden must have forced this result. Again, this is nonsense.
First, the federal prosecutor who is in charge of the investigation—David Weiss–was appointed by Donald Trump. Traditionally, U.S. Attorneys appointed by a prior President resign when a new President is elected. President Biden, however, allowed Mr. Weiss to stay on because he was already in the process investigating Hunter Biden. President Biden therefore avoided the possible appearance of impropriety that would have followed if he had removed the federal prosecutor who was investigating his son.
Second, if there was any pressure or undue influence on him, David Weiss would have said so. After all, he is a Republican who has no expectation of higher employment in a Democratic administration, and, if anything, he would be considered a hero by his own party if he revealed improper conduct by Democrats. But he has not done that. In fact, he has denied that any such pressure or intimidation existed. See C. Herridge, R. Lagare, U.S. Attorney Defends Hunter Biden Probe Amid GOP Accusations, CBS News, July 1, 2023, available at https://www.cbsnews.com/news/david-weiss-u-s-attorney-defends-hunter-biden-probe-amid-gop-accusations/.
But let’s look at the charges to which Hunter Biden will reportedly plead guilty and discuss why the prosecutor may have chosen them.
THE TAX CHARGES AGAINST HUNTER BIDEN
Hunter Biden has been investigated for failing to pay taxes he owed during 2018 and 2019. Reports indicate that the amount of tax he may have owed for those two tax years, in total, could be as much as $1 million. However, it appears that, by 2021, he had paid his tax debts in full.
If a person fails to pay their taxes, does that mean they would normally go to jail? The answer is clearly, “No.” First of all, many many Americans who fail to pay all of the taxes they owe, reach civil settlements with the IRS, in which they agree to pay some or all of what they owe, possibly in addition to fines and interest. These types of civil cases and settlements are not criminal cases, and they cannot, by definition, result in jail time. In most cases, this is the path the IRS pursues when someone simply fails to pay taxes they owe.
There are two criminal laws, however, that may apply to an individual’s failure to pay income taxes they owe. The first is failure to file a return or to pay taxes owed. This is a misdemeanor. Hunter Biden will reportedly plead guilty to violating this statute in the two tax years in question. This statute states:
Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return, keep any records, or supply any information, who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $25,000 ($100,000 in the case of a corporation), or imprisoned not more than 1 year, or both, together with the costs of prosecution.
26 U.S.C. §7203 (emphasis added).
The second criminal law that might apply is tax evasion. This crime is a felony. This statute states:
Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000 ($500,000 in the case of a corporation), or imprisoned not more than 5 years, or both, together with the costs of prosecution.
26 U.S.C. §7201 (emphasis added).
Why might a reasonable prosecutor allow someone to plead guilty to the misdemeanor instead of the felony? Let’s look at the differences.
Under section 7203, merely failing to file a return or failing to pay a tax is a misdemeanor. In order for the crime to be a felony, a person must do more than just fail to file a return or fail to pay the tax they owe. Section 7201 says that the something else is a “willful[ll] attemp[t]…to evade or defeat any tax.”
The courts have said that an attempt to evade or defeat a tax means that the taxpayer takes “a specific act to mislead or conceal.” United States v. McGill, 964 F.2d 222, 233-34 (3rd Cir. 1992). On the other hand, “[o]missions, including failure to report, do not satisfy the requirements of [the felony tax evasion statute].” Id. Delaying paying taxes is not tax evasion. See United States v. Jewell, 614 F.3d 911, 923 (8th Cir. 2010). These principles have been the law in this country for decades. They follow from the Supreme Court’s 1943 holding in United States v. Spies, 317 U.S. 492, 499 (1943), that mere failure to file a return or failure to pay taxes owed, without more, does not constitute felony tax evasion.
Examples of specific acts that can constitute attempts to evade or defeat tax include the willful filing of a false tax return, “placing assets in the name of others; dealing in currency; causing receipts to be paid through and in the name of others; and causing debts to be paid through and in the name of others.” McGill, 964 F.2d at 230.
During the time period in question, it has been widely reported that Hunter Biden’s life was a mess. He was apparently addicted to drugs and had been through numerous personal and professional problems. He has admitted not paying the taxes he owed, and possibly not filing returns, but as we have seen, that is only a misdemeanor, without more. In order for a federal prosecutor to charge felony tax evasion, they would have to be able to prove, beyond a reasonable doubt, a specific willful act, as opposed to an omission, that was designed to mislead or conceal.
The fact that Hunter Biden apparently paid his taxes after the fact does not mean he did not commit a crime, but it suggests that he was perhaps trying to delay rather than to avoid. A prosecutor could also consider that Hunter Biden seems to have overcome his drug addiction in recent years and that he has apparently paid his taxes in full and on time after 2019. If there was not an easily provable specific act of evasion, all of these factors indicate that the misdemeanor crime of failure to pay or failure to file was the right one.
Jail time for misdemeanor tax crimes is rare. If the misdemeanor crime was appropriate, a deal that avoided jail time seems perfectly appropriate, too.
THE GUN CHARGE
According to an Information filed in the District of Delaware on June 20, 2023, Hunter Biden possessed a firearm during an eleven-day period from October 12-23, 2018, at a time when he was a user of, or addicted to, a controlled substance, in violation of 18 U.S.C. §922(g) and 924(a)(2). The gun possession was discovered after Hunter Biden’s sister-in-law, with whom he was involved in a romantic relationship at the time, apparently disposed of the gun in a trash can at a nearby store because she was afraid he would harm himself with it. See M. Pengally, “Secret Service linked to Incident Inovlving Hunter Biden’s Gun,” The Guardian, March 25, 2021, available at https://www.theguardian.com/us-news/2021/mar/25/hunter-biden-gun-cover-up-secret-service. There is no evidence that the gun was ever used to commit a crime.
According to a Justice Department press release, there is a plea agreement for pretrial diversion for this count. See “Tax and Firearm Charges Filed Against Robert Hunter Biden,” United States Justice Department press release, June 20, 2023, available at https://www.justice.gov/usao-de/pr/tax-and-firearm-charges-filed-against-robert-hunter-biden. Pretrial diversion means that, if Mr. Biden successfully completes a probationary period, the Justice Department will dismiss this charge, and he will not have a conviction.
Prosecutions under this statute are rare, mostly because it is normally difficult to prove that a person was a “user of, or addicted to,” an illegal drug while they were possessing a gun. In this case, however, Hunter Biden admitted in his autobiography that he was addicted to drugs and was using them during this period.
When I first heard that the investigation of Hunter Biden included this potential charge, I thought it was almost nit-picking. The charge is for possessing a gun for eleven days almost five years ago while he was using drugs, when he is apparently clean now. I doubt a federal prosecutor would have brought this charge against anyone who was not in some sort of political spotlight. It just strikes me as something that David Weiss felt he had to do to satisfy Republicans in Congress who had heard that this charge was possible.
So, pretrial diversion sounds about right to me. If Hunter Biden satisfies all of the conditions of his probationary period, which will probably include drug testing, he should not have that conviction on his record. If he relapses, or otherwise materially violates his conditions, a conviction for this felony will be almost automatic, and he could potentially end up with prison time.
As a former federal prosecutor, I have no problem with the plea agreement that David Weiss reached with Hunter Biden. I don’t know Mr. Weiss personally, but his resume indicates that he is the type of dedicated and experienced public servant that I would trust to serve the public interest on behalf of the Justice Department.
Law Office of John M. Helms