Will the Second Amendment Save Hunter Biden From Prison Time on Gun Charges?

The reality is that few people in his situation are actually prosecuted for misstatements — even deliberate ones — on their gun applications.

The indictment of Hunter Biden for falsifying a gun application was inevitable once the judge turned down the original plea bargain. This does not mean, though, that there will be a trial, at least not a full-blown trial.

The likely scenario is as follows: Hunter Biden’s lawyers will try to negotiate a new deal under which he admits the factual allegations in the indictment, but denies that these allegations can be prosecuted as a crime under the Second Amendment. 

Mr. Biden’s lawyers may also claim that by previously agreeing to diversion for that offense, this incitement constitutes double jeopardy. This is called a stipulated plea, under which the basic facts are stipulated to be true but the law is challenged.

Such a plea allows the defendant to appeal the inevitable guilty verdict and raise the Second Amendment and double jeopardy issues, eventually perhaps in the Supreme Court. Both the prosecutor and the judge have to agree to such a stipulated plea, and either may refuse to do so.

In that case, Mr. Biden and his lawyers would have to decide whether to plead guilty, perhaps in exchange for a recommendation of probation, or plead not guilty and have a full trial that they would almost certainly lose.

The reality is that few people in Mr. Biden’s situation are actually prosecuted for misstatements — even deliberate ones — on their gun applications. If they are prosecuted and plead guilty, they generally get a probationary sentence, especially if there are no prior relevant offenses.

The original plea bargain called for a diversionary judgment, without a plea of guilty or a conviction on Biden’s record. This indictment ups the ante, but probably not enough to result in a sentence of imprisonment, especially if there is not a full trial.

Mr. Biden may well also face an additional indictment on his alleged failure to pay several years of taxes in a timely manner. This crime is, too, not often criminally prosecuted for first offenders who eventually paid their taxes.

When it is prosecuted, it usually results in a plea bargain and a probationary sentence. Although the statute of limitations has passed on some other possible crimes, it is likely that investigations are continuing with regard to Mr. Biden’s more recent business history.

There is also the possibility, though it seems unlikely, that Attorney General Garland would appoint a special counsel to investigate connections between Hunter Biden and his father, based on allegations made by several Republican politicians and press pundits.

The opening of an impeachment investigation by Speaker McCarthy may produce evidence warranting the appointment of such a lawyer. But in the absence of such developments, the most likely scenario is some kind of a plea to avoid a full-blown trial in the gun application case, as well as a plea bargain to avoid a trial if there were to be an indictment in any tax case.

Were a full-blown trial to occur in the gun permit case, it would likely be scheduled right in the middle of the presidential campaign season, and at about the same time that President Trump would be on trial.

If there is an indictment in the tax case and a plea of not guilty, that trial too might well occur in the run-up of the 2024 election. What is certain is that the 2024 presidential campaign will be influenced by the trials of Mr. Trump.

Whether they will also be influenced by trials involving President Biden’s son remains to be seen. It will surely be influenced by the charges against him, and the uncharged allegations regarding his business affairs, which Republicans will try to use to counteract the charges against Trump.

What is also relatively certain is that President Biden will not pardon his son — at least not before the election. That would be a political non-starter. The tragedy is that the coming presidential campaign is likely to be as much about our criminal justice system as about the economy, foreign policy, immigration, and other issues that affect all Americans.