After approximately five years of investigation, the U.S. attorney for Delaware has reached a plea agreement with Hunter Biden. The Trump appointee has agreed to let the president’s son plead guilty to two federal misdemeanor counts of failing to pay taxes, and enter into a pretrial diversion program on separate felony gun possession charges. The gun charges will eventually be dismissed if he meets certain conditions.
This, obviously, is a good deal. Biden will presumably not go to jail.
Echoing other Republicans, Rep. James Comer, chairman of the House Oversight Committee, scathingly dubbed the plea agreement a “sweetheart deal.”
According to Republicans like Florida Sen. Rick Scott, the plea deal is not just good; it’s nothing less than a gross “double standard of justice.” Writing to Attorney General Merrick Garland on June 21, Scott claimed “the reported plea agreement extended to President Biden’s son is a farcical example of precisely that two-tiered approach to criminal justice by the DOJ under your leadership.”
Echoing other Republicans, Rep. James Comer of Kentucky, chairman of the House Oversight Committee, scathingly dubbed the plea agreement a “sweetheart deal.”
So how good a deal is it, exactly?
Let’s focus on Hunter’s gun possession, since he eventually repaid his overdue taxes. Pretrial diversion means the government will defer prosecution to give an offender an opportunity to successfully complete a period of supervision by the court’s pretrial services offices. This sort of diversion program is initiated at the sole discretion of the U.S. attorney, and is virtually always considered a victory for the defense. It gets the defendant to a “not guilty” result without the risk of trial and conviction. The first part of determining whether Biden’s deal was a good one involves assessing how often federal (not state) prosecutors offer pretrial diversion.
According to a 2016 audit by the Office of the Inspector General, as of August 2015, 78 out of 94 federal judicial districts (83%) had no pretrial diversion program at all. According to U.S. Court statistics, in 2021, “the number of pretrial diversion cases activated decreased 1 percent to 356 and accounted for less than one percent of activated cases.”
Clearly, pretrial diversion is very rare, but it’s also important to consider the context. What do other offenders, who are convicted of the same felon-in-possession of a firearm statute, receive as punishment? Do they all get pretrial diversion?
According to the United States Sentencing Commission, in 2021, the average sentence for offenders convicted of violating 18 U.S.C. § 922(g) was about 55 months. It’s worth mentioning that this particular statute does cover a variety of other conduct — it is, after all, the “felon in possession” statute. Being a “user” of drugs (not easy to prove) violates the same statute as being a felon (supremely easy to prove) in possession of a firearm. Parenthetically, spending a lot of time with the publicly available sentencing statistics leads to the conclusion that no two offenders are really alike. But Hunter Biden, if everything goes right, will get 0 months. That’s about 55 months less than the average.
So this is a great deal for the provable charges. But calling it a “sweetheart” deal implies that Biden received preferential treatment from DOJ. Preferential treatment for a president’s son would certainly conflict with the attorney general’s promise to pursue justice “without fear or favor.” And there’s just no evidence to support that statement. Importantly, we’re not privy to many details about the extent of Biden’s defense team efforts or how their negotiations played out. Because the charges were announced along with Biden’s intent to plead guilty, we can infer that the defense signaled to the government early on that Biden would be interested in pleading guilty. In the federal system, immediate acceptance of responsibility can be the best way to minimize criminal exposure and sentencing. There’s one more unique issue that may have factored into this plea offer: It’s potentially possible at least one prosecutor may have wondered if too harsh an indictment would trigger a presidential pardon. The likelihood of a pardon is arguably tied to the likelihood that a conviction will not stand. And that’s a consideration that may be in the spirit of — if not in the text of — the DOJ’s Principles of Federal Prosecution. I’ve heard a lot of people react with indignation just at the suggestion. Whether any White House influence seeped into the subconscious of the investigating prosecutors, we’ll probably never know. But I would certainly pardon my own child, if they were facing significant prison time. Every defendant, and every plea deal, is different. Many facts and biases must be considered. Take it from a defense attorney who has never been offered federal pretrial diversion. What we do know for certain is that Hunter Biden’s lawyers struck a very good deal for their client, skillfully negotiating an offer of pretrial diversion. That doesn’t make the deal unfair. But it does make Hunter potentially lucky. 
