How ‘Special’ Counsel David Weiss Handed Hunter Biden a Second Amendment Defense

M any things can be said about the Hunter Biden case. One is that it has been a clinic in bad lawyering. Here, I’ll focus again on the prosecution side: Delaware U.S. attorney David Weiss, the faux special counsel who finally indicted the younger Biden on gun charges last week.

As we’ve observed, Hunter’s best hope of beating the indictment’s felony gun charges is the originalist-leaning Court’s Second Amendment jurisprudence. This has to be uncomfortable for President Joe Biden, a longtime anti-gun-rights demagogue who stands to be embarrassed as his son attacks the constitutionality of laws he has championed for decades.

Are there really five votes on the Supreme Court to gut the federal firearms laws? I don’t think so, for reasons I’ll outline in a separate post. For now, though, the point is that the president can thank Weiss for his predicament. If Hunter’s gun case had been competently prosecuted, there would be no Second Amendment issue.

In Justice Clarence Thomas’s 2022 Bruen decision, the Supreme Court continued blazing the trail forged by the late, great Justice Antonin Scalia in Heller (2008), holding that the right to keep and bear arms includes possessing firearms for self-defense, inside or outside the home. In the aftermath of Bruen, appellate courts have called into question the constitutionality of longstanding federal restrictions on gun possession. Indeed, a recent Fifth Circuit decision, United States v. Daniels, construed Bruen to require reversing a conviction involving the very same provision Hunter Biden is accused of violating (in Count Three of the indictment): possession of a firearm by an abuser of controlled substances (Section 922(g)(3)).

Next term, in United States v. Rahimi, the Supreme Court will delve into the knotty question of whether the original understanding of the Second Amendment, which brooked scant gun regulation when adopted in the late 18th century, trumps statutory restrictions on gun possession that have stood for decades. Until then, I’d simply note that Hunter’s case is in Delaware, which is in the Third Circuit. In June, the en banc ruling of that court (i.e., the full court — 15 judges) in Range v. Attorney General held that the federal prohibition on gun possession by felons could not be sustained post-Bruen, at least as applied to defendants convicted of non-violent felonies.

Small wonder then that Abbe Lowell, Hunter’s chief defense lawyer, is speaking confidently about his client’s prospects. In this as in most of his calculations about the case, I believe Lowell is overplaying his hand. Note, however, that if Hunter has a shot at beating the case due to Bruen, it is because of how Weiss has handled — or, rather, willfully mishandled — his gun offenses.

As the indictment relates, those offenses occurred in October of 2018. It is as straightforward as a case gets: Hunter, whose cocaine abuse was notorious (in 2014, for example, he had been booted over it from the Navy sinecure made possible by his last name), lied about his addiction on a required federal firearm form and was thus able to purchase a handgun, which was lost — near a school of all places — because of his carelessness. The only intriguing questions about the case are: (a) whether there were actually two guns (the purchase in the indictment involves a revolver; Hunter is depicted in an unseemly video, taken a few days after the revolver purchase, brandishing a gun that appears to be not a revolver but a Glock); and (b) whether the Secret Service quietly intervened in a failed effort to disappear evidence of Hunter’s crimes. Obviously, if the answer to either question is yes, that could only make matters worse for Hunter.

If you put aside the identity of the subject of the investigation, I daresay this was about as easy as a criminal case gets for a prosecutor. There was no reason not to proceed with a prosecution speedily. The investigation should have been wrapped up in a week or two. Under Justice Department guidelines, Hunter Biden was not eligible for diversion. There is actually no written Justice Department rule that bars prosecutorial actions in the run-up to elections, but even if we take seriously the unwritten, unevenly applied “guidance” against overt actions that could sway voters, Hunter Biden was never a candidate for office, and Joe Biden was not going to be on any ballot between October 2018 and November 2020. That left two years to resolve the case — at least 20 months more than would have been necessary if Weiss had treated it as a normal case.

Bruen was not decided until almost four years after Hunter purchased and lost the gun (and in between, brandished the other gun in crack-infused debauchery that was depicted on his laptop, which the FBI has had since 2018). If Weiss had prosecuted the case competently, Hunter would have been charged and almost certainly pleaded guilty by early 2019. There would have been no Second Amendment defense: At the time, with Bruen not yet decided, all indications were that existing federal prohibitions on gun possession by categories of convicted and unstable people weren’t in any danger of being struck down. As Justice Scalia had put it in an oft-quoted Heller caveat, the Court’s affirmation of robust Second Amendment rights “should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.” At the relevant time, Hunter had no constitutional defense.

Instead, in 2019, Hunter was seen as a drug-addled ne’er-do-well. His cashing in on his father’s political influence was scarcely on the national radar. The millions he’d raked in from corrupt and anti-American regimes, which should have been getting Weiss’s attention, had not gotten America’s attention. Ergo, a reasonably expeditious guilty plea would have resulted in a minimal sentence, probably less than a year’s imprisonment, if any.

Such an outcome for his younger son would have been but a bump in the road for Joe Biden’s 2020 presidential campaign, perhaps even garnering him sympathy so soon after the 2015 death of his elder son, Beau. By the time Bruen was decided in June 2022, Hunter’s case would have been over, with any sentence served and any potential appeal waived.

There is one and only one person at fault for the fact that Hunter’s gun case was still pending, with the statute of limitations about to expire, in September 2023 — David Weiss. He failed to prosecute it. And to reiterate, while Weiss has reportedly (and incredibly) blamed Biden-appointed U.S. attorneys for blocking him from filing tax charges against Hunter in California and Washington, D.C., he can’t even pretend to blame anyone for the failure to quickly prosecute a case in Delaware. Every relevant fact in the gun case happened in Delaware, and Weiss has been the U.S. attorney there the entire time.

The best thing the Hunter Bider defense has going for it is not the Supreme Court. It’s the prosecutor.