Hunter Biden’s plea deal may resolve his immediate legal troubles, but it has only exacerbated the persistent debate over whether the president’s son is being treated too harshly, too leniently or just like any other citizen.
Republicans are bashing the agreement — which allows Biden to plead guilty to two misdemeanor tax crimes and avoid prison on a felony gun charge if he stays out of trouble — as an outrageous sweetheart deal. But independent legal experts say the truth is more complicated.
Two former IRS lawyers said Biden’s deal is not an outlier and is similar to what ordinary taxpayers could expect if investigated for similar conduct. Two other former tax officials told POLITICO that Biden could have faced stiffer charges.
And while former President Donald Trump is railing against the deal, experts noted an irony: Trump himself likely could have gotten a similar deal if he had cooperated with federal investigators eyeing his retention of government documents. Instead, Trump is accused of obstructing those investigators and is now under indictment and facing significant prison time.
Maggie Abdo-Gomez, a Miami tax attorney and former IRS lawyer, said it’s rare for people to face criminal charges for simply failing to pay their taxes.
“I’ve only seen them — one time — prosecute someone for failure to pay taxes,” she said. “Because the truth is, if we prosecuted for failure to pay taxes, the jails would be full. Forget the drug dealers and the murderers and everybody else. I have a small practice, and I’ve got tons of people that owe taxes.”
“The laws were enforced as if it had been anybody else,” she added, regarding Hunter’s case. “I would say probably a little stricter, because failure to pay is very common.”
Caroline Ciraolo, acting head of the Justice Department’s Tax Division for the last year of the Obama administration, said the case’s resolution didn’t strike her as outside the norm. If the Justice Department had found evidence that Hunter Biden lied or took other “affirmative acts” to dodge his taxes, he likely would have faced tougher charges, she said.
“If there was evidence of affirmative conduct, then under DOJ policy the charge would have been felony evasion of payment,” she added. “And that’s not the case here. And after five years and an investigation that crossed two administrations on different sides of the aisle, I would imagine that if there was evidence of affirmative conduct, we would not be looking at the information we’re looking at right now.”
But that’s not a consensus view. Kathy Enstrom, who spent more than two decades doing criminal investigation work at the IRS, said the president’s son could have faced tougher charges. She left the IRS two years ago, while the Biden investigation was ongoing, but said she had no visibility into the probe. Usually, she said, agents in IRS Criminal Investigation recommend felony charges in cases like this one.
“This is a little bit unique in terms of how they’re utilizing the 7203 misdemeanor charge,” she said, referring to the provision of the U.S. code under which Biden is pleading guilty. “I just haven’t seen that too often, mostly because the agents of IRS CI work the most egregious cases, and when they move forward with investigations, they’re looking toward a felony conviction, not necessarily something less than that. The resources of IRS CI are very limited and so that’s their main goal, ultimately — a felony conviction.”
Mark Milton, who spent four years as a trial attorney in the Justice Department’s Tax Division, also said misdemeanor tax charges are unusual. He added that the court filings detailing the charges were “very bare bones,” which gives the public — and the judge who will handle sentencing — minimal clues regarding Hunter Biden’s financial wrongdoing.
“In my experience, prosecutors want felonies in tax cases,” he said. “The fact that he’s only pleading guilty to misdemeanors suggests special treatment.”
Attorney General Merrick Garland has sharply pushed back against allegations of special treatment, including in new comments on Wednesday. He noted that the U.S. attorney who supervised the investigation and agreed to the plea deal was appointed by Trump.
The plea deal includes a so-called diversion program – sometimes used for defendants with substance abuse issues — that will result in prosecutors dropping the gun charge if Hunter Biden complies with the program’s conditions. The charge itself — possessing a firearm while being a user of illegal drugs — is not a charge the Justice Department frequently prosecutes.
Brandon Beck, formerly an appellate lawyer in the Office of the Federal Public Defender for the Northern District of Texas, said that the Justice Department may have been wary of a constitutional challenge to the gun law.
“It’s something that’s probably a little bit unusual, but it could be explained by the constitutional problems with (g)(3),” Beck said, referring to the statutory provision that prohibits drug users from having guns. “Or it could be explained by preferential treatment of the son of the president. And how would you know? They both could explain it.”
“I would always think, if the president’s your dad, your life’s a little bit easier,” he added.
Trump himself has claimed on social media that the plea deal is “a massive COVERUP & FULL SCALE ELECTION INTERFERENCE ‘SCAM’ THE LIKES OF WHICH HAS NEVER BEEN SEEN IN OUR COUNTRY BEFORE.”
But Elkan Abramowitz, a long-time Manhattan criminal defense attorney, said Trump himself could have gotten a similar deal if he had fully cooperated with investigators scrutinizing his retention of classified documents.
“I think that if Trump wanted to work out a deal for the documents case, he would have gotten a misdemeanor as well under similar arrangements,” he said. “So I don’t think there’s anything extraordinary.”
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