Hunter Biden may be doomed to lose his trial. His best bet is appealing a 'vindictive prosecution.' (2024)

In his opening statement at the trial this week, Biden's lawyer Abbe Lowell urged jurors in the Wilmington, Delaware, federal court to acquit his client. He argued that terms such as "user of" and "addicted to" were open to interpretation.

Prosecutors got straight to the point once opening arguments concluded. One of the first pieces of evidence they presented to the jury was a section of Biden's memoir. They played portions of the audiobook — narrated by Biden himself — where he described struggling with addiction over a four-year period that overlapped with the gun purchase.

"These are the bread and butter of the US attorney's office," Sarah Krissoff, a former Manhattan federal prosecutor and former top lawyer at the Bureau of Alcohol, Tobacco, Firearms, and Explosives, told Business Insider. "They know how to put on a tight gun case."

Biden's trial is not necessarily a lost cause. His lawyers may still convince jurors that he was seeking treatment and didn't consider himself addicted to drugs on the day he filled out that form, nor in the 11 days in October 2018 when he owned the gun. The jury — in his father's home state of Delaware — may still end up deadlocked or acquit him.

But Biden's legal team already has their eyes set on higher courts.

The politicization defense

Decisions from US District Judge Maryellen Noreika, whom Donald Trump appointed when he was president, have made Biden's uphill climb steeper.

In a series of rulings before the case went to trial, she dismissed arguments from Biden's lawyers that would have allowed him to put on a stronger defense. Some of those motions argued the case was fundamentally unfair and should have never been brought.

Biden's team — led by Lowell, who has previously represented politicians including Jared Kushner, Sen. Robert Menendez, and former Sen. John Edwards — has aggressively appealed the decisions.

None of the appeals stopped the case from going to trial before higher courts could consider their merits. But they can still be taken up at a later date if Biden loses the trial.

Biden's primary arguments revolve around the notion that he's the victim of "selective and vindictive prosecution."

The criminal investigation originated under the authority of David Weiss, who was appointed as the US attorney for Delaware by Trump. He brought the indictment during the administration of President Joe Biden, who promised not to interfere with the case. US Attorney General Merrick Garland appointed Weiss as a Justice Department special counsel to keep him insulated from outside influences.

Hunter Biden's lawyers have argued this arrangement has perversely allowed Weiss to politicize the proceedings unchecked.

Last summer, Weiss and Biden's lawyers reached a deal that would result in a diversion agreement for the gun charges and a guilty plea for a separate set of tax charges, with Biden accused of failing to pay at least $1.4 million to the IRS. But that fell apart in a court hearing when Noreika questioned the deal's technical mechanisms.

Amid the chaos, Trump and Republicans in Congress enthusiastically pressured Weiss to charge Biden in the gun case, as well as in the separate criminal tax case in California. When Weiss brought the indictments instead of continuing to negotiate a plea deal, those same Republicans gloated.

"They made it clear that they wanted Mr. Weiss to keep this litigation alive through the presidential election (regardless of merit) and for him to bring more serious charges as a foil for the investigations and prosecutions of former President Trump," Biden's lawyers wrote in a December filing.

Everyone wanted a plea deal — except Republicans

Legal commentators — and even some Republican politicians — have said the application of the criminal gun charges is highly unusual.

One of them, for falsely filling out the government's gun sales form, is typically slapped on as an additional charge in a larger gun-related case, like a gun-trafficking prosecution, experts told BI. There's no evidence that Biden even loaded or used the gun before his brother's widow, Hallie Biden, threw it out.

Another charge, for possessing a firearm by a person who has used or is addicted to a controlled substance, is even rarer. And according to Krissoff, federal prosecutors in Manhattan had a rule not to bring the charge at all.

"Absent this individual's status as Hunter Biden, it would be very unlikely that this case would've been brought," Krissoff, now a defense attorney at Cozen O'Connor, said.

Duncan Levin, a former New York federal prosecutor, said the rarity of this application of the charges demonstrated the whole prosecution was political.

"I have never heard of a case that is brought as a stand-alone false claim on an application — ever," Levin said. "Lying to gun dealer? I think there are fewer than 300 brought a year, of 25 million background checks. I think it speaks for itself."

A separate federal appeals court in Texas ruled last year that the application of the statute in a different criminal case violated the Second Amendment.

"Obviously, the conduct that the government ought to be addressing is whether somebody is on drugs and high while they're shooting a gun," Levin said, "not whether somebody used cocaine two weeks ago and then picks up a gun at some point, and goes to a range. It's incredibly vague what the statute even means."

Levin said the constitutional flimsiness of such a case was why it made more sense for everyone to agree to some kind of nonprosecution deal. The same applies to the tax charges in California, which were brought after Biden had already paid back the taxes and was prepared to plead guilty, Levin said.

And, in fact, that's what was supposed to happen. Everyone wanted a plea deal except for Republican politicians.

"Hunter Biden was never the president. He's not running for office. He's not a public official. He is a private person," Levin said. "And these charges are at very most de minimis. They're the type of charges that not only would typically result in a pretrial diversion, they were supposed to result in a pretrial diversion. The fact that this is on trial is due to politics, clear and simple."

According to Krissoff, plea deals fall apart under a judge's scrutiny all the time. When that happens, the prosecutors and defense lawyers usually pick up the pieces and try to craft a new agreement, she said. It's usually much easier than going to trial.

"Pleas go south all the time while you're in the courtroom, or when you're walking into the courtroom, and it can be unclear whether or not the plea is going to get through for various reasons," she said. "The judge asked a lot of hard questions, and the plea didn't make it through. That has happened many times to me in my life, so I'm sure it will happen more."

Biden's attorneys have argued that the diversion agreement on the drug charges was still binding even without the judge's approval and that the charges should be tossed.

Noreika denied the motion, as well as Biden's requests to dig deeper into the Justice Department to look for evidence of political pressure.

But forcing prosecutors to uphold the diversion agreement on the gun charges — which would not cover the tax charges — may have the strongest chance on appeal, said Neama Rahmani, the president of West Coast Trial Lawyers and a former federal prosecutor in California.

"It was idiotic to blow up the deal," Rahmani said. "I'm sure they regret it."

Before Biden and his lawyers can go to the appeals, though, they have to finish the trial.

Biden does have some defenses to muster, Levin said.

"Hunter Biden had just gotten out of an 11-day program and was living with somebody who was sober at the time," he said. "I think it's a pretty crabbed way of looking at it, to say he was an addict at that time — he was clearly committed to his recovery and had just finished a rehab program."

Given how many arguments the judge has already rejected, however, there's a strong chance the president's son will be convicted of a felony charge before the end of the week.

"By the time they get to this point, the prosecution usually has a very strong hand," Krissoff said. "Creative defense attorneys can do some damage and be very effective, so we'll see. But I doubt even Hunter Biden is optimistic."