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WASHINGTON – Republican lawmakers have slammed Hunter Biden’s plea agreement regarding tax evasion and firearm offense charges as a “sweetheart deal,” raising questions as to whether Biden was treated equally under the law compared to other defendants.
Last month, Biden agreed to plead guilty to two misdemeanor counts of failing to pay federal income tax after a five-year investigation. He also agreed to enter a pretrial diversion program that could dismiss a felony charge regarding his unlawful possession of a Colt Cobra 38SPL revolver despite being a drug user. He will appear in court Wednesday in Wilmington, Delaware.
But the existence of a plea deal has sparked outrage among conservatives, who say the charges are too lenient.
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House Committee on Oversight and Accountability Chairman James Comer, R-KY., who is leading an investigation into Biden’s business dealings in Ukraine, alleged the charges “reveal a two-tiered system of justice” in a statement last month.
“These charges against Hunter Biden and sweetheart plea deal have no impact on the Oversight Committee’s investigation,” Comer wrote.
Likewise, the House Judiciary GOP tweeted that “Hunter Biden should be looking at a minimum of five years in prison. But since he’s a Biden, he gets a slap on the wrist.”
Here’s what legal experts say about the charges and whether it constitutes a sweetheart deal.
On Biden’s unlawful possession of a firearm
Biden was charged with 18 U.S. Code § 922 (g)(3), which makes it unlawful for a user of, or someone addicted to, any controlled substance to possess a gun.
Legal experts USA TODAY interviewed agreed the pretrial diversion program was justified.
While the maximum sentence under the statute is 10 years in prison, prosecutors have wide discretion to defer prosecution or seek diversion programs and often do so in cases like Biden’s where the offender has no criminal record, the charges are minor and the case does not involve aggravating circumstances like use of the firearm in a criminal act, according to Cheryl Bader, a former federal prosecutor who runs the Criminal Defense Clinic at Fordham Law.
“I think the feds would not have been bothered with this kind of case if the subject wasn’t the president’s son,” Bader said. “This is probably a instance where being the president’s son − and having the eyes of the nation watching − precluded Hunter Biden from flying under the radar with a ‘sweetheart deal.'”
Joan Meyer, a partner at the law firm Thompson Hine, agreed, noting that while a charge related to a firearm typically is not the subject for pre-trial diversion, the fact that Biden had no criminal history and wasn’t using, or contemplating using, the gun for violence likely justified the diversion resolution.
“My opinion is that if a prosecutor has already decided a defendant is going to get pretrial diversion on a gun charge, it is probably not worth the time and resources it takes to bring the case,” Meyer said. “It should not have taken five years to come up with that resolution.”
Although it is difficult to pinpoint a case exactly that of Biden’s, there have been similar cases where defendants have received prison time. For instance, a man in Iowa who possessed a firearm while being an illegal user of a controlled substance received almost five years in federal prison in March, according to the U.S. Attorney’s Office. He also purchased guns for other people who couldn’t lawfully obtain a gun.
In another case, the rapper Kodak Black was charged under a different subsection of the same 18 U.S. Code § 922 statute as Biden for falsifying information on federal forms to buy firearms and was sentenced to 46 months in prison. However, his lengthy records of arrests factored into his sentence.
Bennett Capers, a law professor at Fordham University, previously told USA TODAY there are a lot of factors that go into determining what someone’s offense level is, and that’s before any criminal history is taken into account.
“Two people who commit the same offense can still have wildly different sentences,” Capers said.
On Biden’s failure to pay taxes
Biden allegedly received more than $1.5 million in taxable income in 2017 and owed the federal government an excess of $100,000 by April 2018, according to a court filing. He received another excess of $1.5 million in taxable income in 2018 and again failed to pay his taxes.
Legal experts have mixed views on whether the two misdemeanor counts constitute a sweetheart deal.
Maggie Abdo-Gomez, a Miami tax attorney and former IRS lawyer, argued the misdemeanor counts were proper under the law and that prosecution for failure to pay taxes is not very common.
“As an attorney who has spent her entire career − nearly 40 years − working as an attorney for the IRS and then defending taxpayers before the IRS, I can tell you that I have numerous clients who owe the IRS substantial sums of taxes and are not prosecuted,” Abdo-Gomez said.
Shanlon Wu, a former federal prosecutor, went a step further and argued that Biden was treated more harshly than most tax offenders for two reasons: the amount of the tax evasion was relatively modest and Biden had paid back the amount last year. Wu said that it would be “unusual” for the government to pursue criminal charges “unless there’s something else going on that’s part of a bigger plot.”
On the other hand, Mark Milton, who served as a trial attorney in the Justice Department’s Tax Division for four years, told USA TODAY that the case is unusual since he’s noticed misdemeanor charges in tax cases to be rare.
“In my experience, when the government can show that there’s been a willful evasion of payment, that is brought as a felony,” Milton said. “So that’s what I think when people talk about, especially people with experience in negotiating plea agreements with the Department of Justice or U.S. Attorney’s offices, they will almost never agree to a misdemeanor when they have the facts to show there was a willful evasion of payment.”
In any case, the facts of Biden’s case are still not widely known at this point, according to Meyer.
“The IRS whistleblowers alleged that potential violations were not pursued, like Biden charging sex clubs and prostitutes as business expenses.” Meyer said. “If those allegations are true, that sounds more like felony tax evasion, not merely failure to pay. We don’t know what the facts show but if Biden was taking illegitimate business expenses like those the whistleblowers outlined, he would have been given better treatment than the average defendant in similar circumstances.”
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