In defending himself against gun charges, the president’s son is employing a strategy seemingly aimed at winning on appeal.
In defending himself against gun charges, the president’s son is employing a strategy seemingly aimed at winning on appeal.
F rom what I can discern, Hunter Biden’s defense strategy in his ongoing criminal trial is to seek appellate reversal of his likely conviction on Second Amendment grounds — which is rich given his father’s career as a demagogic opponent of gun-rights. The question comes down to this: Is the best analogy for Hunter’s cocaine addiction alcohol abuse or mental illness?
The president’s son is charged with three felony offenses arising out of his acquisition of a handgun despite his allegedly being a drug addict. Yesterday’s highlight was the prosecution’s admission into evidence of Hunter’s infamous laptop.
As is relevant to the case, the laptop provides a trove of inculpatory evidence that the president’s son was binging on cocaine around the time of his October 12, 2018, purchase of a Colt Cobra .38 revolver. It is a crime under federal firearms law (§922(g)(3)) for a drug user or addict to possess a gun. Moreover, Hunter claimed on a required federal form and in information provided to the licensed firearms dealer that he was neither an unlawful user of, nor addicted to, narcotics — actionable false statements as alleged in the indictment.
More consequential to the national interest, the FBI clearly knew that Hunter’s laptop was authentic for months before (a) senior bureau officials hinted to social-media platforms that press reporting about the Biden laptop could be disinformation from foreign (in particular, Russian) intelligence services; (b) former intelligence officials — aligned with Democrats and spurred by now–secretary of state Antony Blinken (then with the Biden campaign) — deceitfully suggested in a public letter, shortly before the 2020 election, that the laptop reporting was a product of Russian disinformation; and (c) Joe Biden, though undoubtedly aware that the laptop was genuine, used this fraudulent assessment by the former intelligence agents at a presidential debate to rebut then-president Trump’s contentions about the laptop.
Thus far, the trial seems strange in that the defense is not responsive to the charges. Hunter — seeking sympathy for his drug addiction and claimed redemption — is undoubtedly hoping for jury nullification in Wilmington, Del., the small pond where, for decades, the Biden family has been the big fish.
Of course, hope is not a strategy. So, beyond the nullification gambit, Hunter’s lawyer, Abbe Lowell, has suggested to the jury that Hunter was drinking heavily, not ingesting cocaine, at the relevant time. To my mind, this is an ill-conceived defense. First, heavy drinking and drug abuse are hardly mutually exclusive activities; to the contrary, booze would have made Hunter less inhibited about indulging his longstanding cocaine habit. Second, the evidence that Hunter was strung out on cocaine is overwhelming, and he is the source of most of it — the government is making liberal use of his contemporaneous texts and his memoir.
More to the point, as we’ve just seen in the Trump trial in Manhattan, the judge’s legal instructions to the jury can be the whole ballgame in a criminal trial. In the pretrial litigation, Judge Noreika sided with the government on the question of what must be proved to establish that Hunter was ineligible to possess a gun. Accordingly, she plans to instruct the jury that prosecutors need to show that Hunter was using or addicted to drugs around the time of the gun purchase.
In the teeth of this, as our James Lynch reports, “The defense is claiming that Biden was not a crack addict at the very moment of the gun purchase, based on his apparent behavioral changes.” Putting aside that the evidence is not bearing out this defense claim, it is beside the point. To convict Hunter, the government doesn’t need to prove that he was “a crack addict at the very moment of the gun purchase”; just that he was using drugs or addicted to them in the period of time proximate to the purchase — which could be days before and/or after.
So what is the point of stressing the moment of purchase?
I believe it is because Hunter’s strategy is to win on appeal, on Second Amendment grounds. As I contended in a column earlier this week, Hunter’s only real defense in the case is a robust interpretation of the Supreme Court’s recent decision in Bruen. It is a defense Hunter is able to mount only because Biden Justice Department prosecutor David Weiss failed to charge him in the weeks after his offense was fully investigated by law enforcement — as he would have been if his last name weren’t Biden. Had Hunter been timely charged in late 2018 or early 2019, the case would have been disposed of long before Bruen was decided on June 23, 2022 — nearly four years after Hunter’s gun purchase.
In any event, Bruen holds that the contours of the right to possess firearms are shaped by the original understanding of the Second Amendment, its understanding when it was applied to the states by the 14th Amendment in 1868, and American traditions of restrictions on gun rights stemming from those assumptions.
The federal prohibition on gun possession by users of and those addicted to illegal drugs goes back a half century, to 1968. A half-century seems like a long time, but the meaning of the Second Amendment protection was obviously developed many decades earlier. There simply is not a deeply rooted historic tradition in the United States of banning drug users from possessing guns.
Understand: I am not arguing that we shouldn’t ban drug users, and especially drug addicts, from possessing guns. Personally, I’d be fine with amending the Second Amendment to add a number of the restrictions that have been in federal statutory law for decades. But absent an amendment, the Supreme Court has made clear that we are governed by the original understanding of the right to keep and bear arms, which predates much of what we now know about drug addiction and other pathologies.
The Court has acknowledged that history didn’t stop in 1791 or 1868. It is frequently necessary to apply the principles derived from the original understanding of constitutional guarantees to new situations. A common approach to this exercise is drawing analogies. Hence, the question: Is cocaine addiction, or at least frequent cocaine use (including crack use), more like habitual alcohol abuse or mental illness?
America has always been a hard-drinking society. Historically, it has long been assumed that when an armed person is intoxicated, he may be disarmed. On the frontier, it was not uncommon for patrons to be disarmed on entering saloons. But their guns were given back to them when they left, just as the intoxicated person’s gun was returned after he’d slept it off.
By contrast, there is a long tradition of depriving the insane — particularly those who had been adjudicated as mentally incompetent — of many fundamental rights, including the right to possess firearms (to say nothing of the right to liberty). When Congress in 1968 enacted a prohibition on weapons possession by those who’d been found mentally deficient or been committed to asylums, it was codifying a ban that had existed in various states for well over a century.
Last year, in United States v. Daniels, the Fifth Circuit overturned the conviction of a recreational marijuana user who’d been charged with unlawful firearms possession. The tribunal reasoned that there was no deeply rooted tradition of gun-rights restrictions based on drug use. It thus analogized the situation to alcohol consumption, as to which restrictions on gun possession were traditionally limited to people presently under the influence. The government has appealed the Circuit’s decision, but has asked the justices to hold its petition for review in abeyance until after the presumably imminent decision in United States v. Rahimi, another Fifth Circuit case. There, reasoning from Bruen, the Circuit overturned the conviction of a man whose gun possession violated a different but related provision of §922 — i.e., Hunter is charged under subsection (3) due to his drug use, while Rahimi was charged under subsection (8), which targets people subject to domestic-violence protective orders.
Clearly, Hunter hopes that the Supreme Court will use Rahimi to cast further doubt on federal firearms restrictions — although, of course, the coming ruling may cut the other way, to the advantage of prosecutors. In the interim, Hunter’s defense is trying to make a record that, despite his undeniable history of drug abuse, he was neither using cocaine, nor under the influence of cocaine due to recent use, at the precise time when he bought the revolver.
This is not a defense designed to win at trial. Again, Judge Noreika has already ruled against Hunter’s Second Amendment claim that §922(g)(3) is constitutionally invalid on its face; and Noreika rejected the defense’s request that she instruct the jury that, to convict him, the government must prove he was using drugs at the moment he purchased the gun.
It is apparent, then, that Hunter’s defense is playing the long game. Yes, he hopes to get lucky with jury nullification. In the main, though, he is trying to position himself to argue on appeal that Noreika construed federal gun restrictions too broadly; that his status as a cocaine user — even a heavy one — did not vitiate his Second Amendment rights; that he made a convincing record that he was not using cocaine when he bought the gun; and that the prosecution’s evidence of his drug use around the time of the gun purchase is insufficient to support a conviction beyond a reasonable doubt.
I don’t think it is going to work. It is, however, a sensible strategy in light of the daunting evidence of guilt — and the president’s son can thank the president’s Justice Department for inexcusably delaying his prosecution so he could try it.