After the collapse of the Hunter Biden plea bargain, it was telling that the Biden Team seemed most insistent on one demand: the gun charge agreement was still in full effect. Many of us noted that Hunter’s placement into the pre-trial diversion program not only contradicted the position of his father and the Biden Administration on such charges, but was sharply in contradiction with similar contemporaneous cases. Perhaps for that reason, the Biden attorneys were apoplectic in maintaining that the gun charge was inked and sealed. The Justice Department just declared, however, that it is dead as Dillinger. That is the problem when your counsel tells the prosecutor in open court to “just rip up” the plea deal.
In a motion to vacate the prior briefing order, the Justice Department on Tuesday filed a categorical rejection of the Biden claim and told the court “to reiterate, the now-withdrawn diversion agreement, by its own terms, is not in effect.” The Justice Department pointed out that the Biden argument was manifestly wrong since Margaret M. Bray, the Chief United States Probation Officer for the District of Delaware, never signed off on the agreement.
That means that Biden could be treated like other defendants. Indeed, usually when a plea deal is rejected, the Justice Department will seek maximal charges and sentencing.
A recent decision of the United States Court of Appeals for the Fifth Circuit could present an interesting twist in this ongoing saga. Hunter Biden could oppose the position of the Biden Administration in its tough take on such gun violations — a position repeatedly championed by his father.
In U.S. v. Daniels, the treatment of Patrick Darnell Daniels was starkly different from the President’s son. Daniels was found with a handgun and found to be a regular user of marijuana. He was convicted of the unlawful possession of a firearm due to his drug use and sentenced to four years in prison.
The Fifth Circuit recently reversed the trial court, ruling that the federal statute conflicts with the Second Amendment. While the trial judge found that Daniels’ drug use placed him outside of the protection of the Second Amendment, the Fifth Circuit relied upon the Supreme Court’s 2022 decision in New York State Rifle and Pistol Association v. Bruen to toss out the sentence. The court ruled that “even as a marijuana user, Daniels is a member of our political community. Therefore, he has a presumptive right to bear arms. By infringing on that right, § 922(g)(3) contradicts the plain text of the Second Amendment.”
What was most striking was the concurrence of Judge Stephen Higginson, who registered his clear disagreement with Bruen: “It is also important to acknowledge that other gun safety laws, especially longstanding status-based prohibitions previously understood to be constitutionally unassailable, have been recently struck down by courts across the country as they attempt to faithfully implement Bruen.”
Biden’s team is likely to now argue that he had a right to the gun, even as a serious drug user. However, he will have to address also knowingly falsifying a federal form to gain possession.
Of course, the most pressing question is whether the new Special Counsel will reconsider a host of crimes not charged under the earlier deal. Some of those crimes were allowed to expire under the statute of limitations. Many of us remain perplexed why any prosecutor would allow such an expiration to occur, particularly when the statute of limitations could have been extended. Weiss was supposed to be called before Congress to answer that question when Attorney General Merrick Garland inexplicably made him Special Counsel. It is now expected that he will refuse to answer such questions as part of his “ongoing investigation.”