Judge Maryellen Noreika’s decision last week to throw out the diversion agreement that special counsel David Weiss initially offered Hunter Biden has left the president’s son with fewer options for fighting the three felony charges he faces for allegedly lying on paperwork to purchase a gun in 2018.
After spending weeks arguing the court should still consider the diversion agreement binding, lawyers for President Joe Biden’s son may now have to confront the substance of the charges facing Hunter Biden.
“The defense has largely ‘put it all on black’ in seeking to enforce the earlier agreement,” Jonathan Turley, a constitutional law professor at George Washington University, told the Washington Examiner. “However, that agreement was not fully executed when the plea overall collapsed.”
“At the time, Biden counsel told the Justice Department to ‘just rip it up,’” Turley added, referring to an intense exchange between Hunter Biden’s lawyers and prosecutors in court on July 26. “Those words have come back to haunt them.”
Weiss’s team filed the diversion agreement for the gun charge in June alongside a plea deal concerning misdemeanor tax charges. When Noreika’s questions about immunity provisions caused Hunter Biden to switch his plea to not guilty, the tax-related plea deal came off the table, but the fate of the diversion agreement remained unclear until last week.
Hunter Biden’s team had begun preparing a motion to dismiss the gun charges based on the belief that the agreement would survive.
“Mr. Biden maintains that the ‘stand alone,’ ‘bilateral’ … Diversion Agreement … that both parties signed remains in force, and he will seek to dismiss the Indictment against him pursuant to the immunity provisions of that Agreement,” Abbe Lowell, Hunter Biden’s lead defense attorney, wrote in an Oct. 5 court filing.
Now, Hunter Biden’s lawyers may need to devise an entirely new strategy.
They have already begun to preview one argument that could prove politically awkward for Joe Biden: that the gun law under which Weiss charged Hunter Biden is unconstitutional.
“This would be embarrassing for at least two reasons,” Andrew McCarthy, a former federal prosecutor, told the Washington Examiner. “First, Joe Biden championed the law under which Hunter has been charged. Second, if it weren’t for Weiss’s inexcusable delay in charging Hunter, there would be no Second Amendment defense. The Supreme Court’s Bruen case was not decided until four years after Hunter’s gun offense.”
McCarthy was referring to the Supreme Court’s decision in New York State Rifle & Pistol Association Inc v. Bruen, a 2022 case that provided a new legal framework for evaluating gun laws. The Bruen decision forces courts to weigh whether firearm restrictions fit into the “historical tradition” of Second Amendment rights.
Noreika, the judge overseeing Hunter Biden’s case, has already signaled sympathy toward legal challenges brought after Bruen. She put a partial stop to Delaware’s laws banning so-called ghost guns last year, noting the restrictions on owning such firearms could violate people’s Second Amendment rights.
Hunter Biden is not only charged with illegal possession of a gun but also faces false statement charges for allegedly lying about his substance abuse at the time he purchased the gun in October 2018.
While Hunter Biden’s attorneys have suggested they plan to argue their client was sober at that point, the public record will make that claim difficult to demonstrate.
For example, Hunter Biden wrote in his memoir, Beautiful Things, that he was struggling with addiction throughout late 2018 and early 2019.
“I had returned [to the East Coast] that fall of 2018, after my most recent relapse in California, with the hope of getting clean through a new therapy and reconciling with Hallie [Biden]. Neither happened,” Hunter Biden wrote.
The substance abuse continued into the spring of the following year, according to the book.
“By the time my plane touched down in Los Angeles in March 2019, I had no plan beyond the moment-to-moment demands of the crack pipe,” Hunter Biden wrote.
Between the fall of 2018 and the spring of 2019, Hunter Biden spent time in Delaware, where the gun purchase occurred.
At the time he possessed the gun, he was still in a romantic relationship with his brother’s widow, and she tossed the firearm into a dumpster after discovering it in his truck. The incident caught the attention of Delaware police, who questioned both Hunter and Hallie Biden, as well as the FBI.
Hunter Biden noted in the book that his “inability to stay sober” led to the collapse of his relationship with Hallie Biden in the fall of 2018.
Hunter Biden raged at Hallie Biden in the hours after she discarded his gun on Oct. 23, 2018, according to text messages uncovered last year by the Washington Examiner. In the heated exchange, Hallie Biden begged him to check into a rehab center, and Hunter Biden blamed her for blocking his path to sobriety.
In other words, significant evidence exists to suggest Hunter Biden was not clean when he bought and kept the gun, complicating the defense strategy for his lawyers.
“I don’t think Hunter has a factual defense to the gun charges,” McCarthy said. “In fact, if he went to trial, that would be more embarrassing. It would come out, for example, that there were probably two guns involved, not merely the one that was charged.”
McCarthy cited photographs discovered on Hunter Biden’s abandoned laptop that appear to show the president’s son brandishing a different kind of gun than the one he faces charges for purchasing.
What’s more, the reported involvement of Secret Service agents who attempted to confiscate Hunter Biden’s purchase paperwork from the Delaware gun shop on the same day Hallie Biden threw the gun into the dumpster could surface at trial and cause political headaches for Joe Biden, McCarthy noted.