Did Hunter Biden get a "sweetheart deal"?

Hunter Biden in 2016 (Kris Connor/WireImage)

In a May interview, President Joe Biden said that his son, Hunter, "has done nothing wrong." That turned out not to be true. On Tuesday, Hunter Biden was charged with two misdemeanor counts of failure to pay income tax and one felony charge of unlawful possession of a firearm. (According to prosecutors, Hunter Biden falsely said he was not using drugs on a government form when purchasing a handgun.) Hunter Biden agreed to a deal in which he will plead guilty to the two tax charges in exchange for prosecutors recommending a sentence of two years probation. The gun charge will be dropped at the conclusion of Hunter Biden's probation if he meets certain conditions, including remaining drug-free and agreeing never to own a firearm. 

Republicans are not satisfied. 

"If you are the president’s leading political opponent, the DOJ tries to literally put you in jail and give you prison time," House Speaker Kevin McCarthy (R-CA) said. "But if you are the president’s son, you get a sweetheart deal."

Congressman James Comer (R-KY), chairman of the House Oversight Committee, said the plea deal reflected a "two-tiered system of justice." Hunter Biden, according to Comer, "is getting away with a slap on the wrist." Comer claimed "evidence uncovered by the House Oversight Committee reveals the Bidens engaged in a pattern of corruption, influence peddling, and possibly bribery."

This is the heart of the issue. The core complaint of Republicans is not that they believe Hunter Biden was treated leniently for failing to pay his taxes or lying about drug use. Republicans are upset that Hunter and Joe Biden, who they refer to as "The Biden Crime Family," have not been charged with accepting millions in bribes from foreign nationals. 

The problem is there is no credible evidence to support that allegation.

For years, Republicans have been desperate for proof that Joe Biden abused his power as Vice President to influence the Ukrainian government for cash. Trump was so eager to advance that narrative that it resulted in Trump's first impeachment. 

More recently, Republicans have focused on a document produced by the FBI known as an FD-1023. An FD-1023 is a form "special agents use to record raw, unverified reporting from confidential human sources." According to the FBI, "FD-1023s merely document that information; they do not reflect the conclusions of investigators based on a fuller context or understanding. Recording this information does not validate it, establish its credibility, or weigh it against other information known or developed by the FBI in our investigations."

Comer says he was informed about an FD-1023 from June 2020 by a whistleblower. The FBI, after some negotiation, provided a redacted copy of the FD-1023 to the entire House Oversight Committee and an unredacted version to Comer and his counterpart in the Senate, Chuck Grassley (R-IA).

According to a letter from Comer and Grassley, the FD-1023 "describes an alleged criminal scheme involving then-Vice President Biden and a foreign national relating to the exchange of money for policy decisions." On June 12, Grassley said in a speech on the Senate floor that, according to the FD-1023, the confidential source told the FBI that the foreign national has 17 "audio recordings of his conversation[s]" with Joe and Hunter Biden documenting the bribery scheme. 

More information about the FD-1023 was leaked to Fox News. According to the Fox News report, the FD-1023 alleges that Joe Biden was offered a $5 million bribe by a Burisma executive. Some Republicans who have viewed the document say that the executive was Burisma owner Mykola Zlochevsky. In exchange, Joe Biden allegedly used his influence as Vice President to oust Ukrainian prosecutor Viktor Shokin, who was investigating Burisma for corruption. (Hunter Biden was also allegedly offered $5 million, presumably to help get his father on board.)

But this story makes no sense. 

First, Shokin was not investigating Burisma for corruption. So it wouldn't make sense for Burisma to bribe either Biden with $5 million to end an investigation that was not happening. 

Second, Joe Biden did pressure Ukraine to oust Shokin, but that was "the official position of the U.S. government, a position that was also supported by other Western governments and many in Ukraine, who accused Shokin of being soft on corruption." It is illogical for Burisma to pay Joe and Hunter Biden $5 million each to push a position that was already the official policy of the U.S. government and its allies.

Finally, Zlochevsky told Rudy Giuliani, who was seeking dirt on the Bidens as Trump's campaign attorney, that he never spoke to Joe Biden. 

Of course, the larger problem is that there is no indication that these audio recordings actually exist. One thing that Republicans haven't mentioned about the FD-1023 is that the confidential source told the FBI "that it is not unusual for Ukrainian business executives to brag and show off and that he could not offer any opinion as to the veracity of the allegations he was relaying." That fact was revealed by Congressman Jamie Raskin (D-MD), who has also viewed the document. 

Even some of Biden's most strident Republican critics acknowledge that it is very likely that allegations in the FD-1023 are fallacious. "[T]ake that with a grain of salt. This could be coming from a very corrupt oligarch. Who could be making this stuff up," Senator Ron Johnson (R-WI) said. 

The fact that Hunter Biden or Joe Biden were not charged with accepting bribes does not reflect a "sweetheart deal" or a "two-tiered system of justice." It reflects the fact that there is no credible evidence that they accepted bribes. No one can be charged or convicted based on tapes that no one has and that almost certainly do not exist. 

Did Hunter Biden get off easy on the tax and gun charges?

Legal experts have noted that the charges brought against Biden are “rarely prosecuted.” Biden’s firearm charge is related to lying about his drug use on his gun application. But officials say that “tens of thousands of Americans, out of the 25 million who buy guns each year, lie on their forms and are not prosecuted.”

Similarly, first-time tax charges are rarely prosecuted, and when they are, it rarely leads to jail time. Andrew Weissmann, a former Justice Department prosecutor, tweeted that Biden’s charges are “if anything harsh, not lenient.” Biden paid off the full amount he owed, more than $100,000, in 2021.

Just over a year ago, Trump advisor Roger Stone reached an agreement with the federal government to pay more than $2 million in unpaid taxes. Unlike the criminal charges against Biden, the charges against Stone were brought to court as a civil case. The average person would be prosecuted for these crimes only alongside “more serious offenses,” Law Professor Douglas Berman told the New York Times. 

“If these are the only offenses, most prosecutors are going to say it’s not worth a federal case — they would say: Let’s not make a federal case of it for the average person because it’s not worth it to bring a case unless there’s reason to be concerned that there’s a public safety issue or the trust that everyone is treated equally under the law is at stake,” Berman said.

Hunter Biden's plea deal was struck with U.S. Attorney David Weiss, who was appointed by Trump in 2017. Typically, when new presidents are elected, U.S. attorneys offer their resignation. But the Biden administration asked Weiss, who began his investigation into Hunter Biden in 2018, to remain in office.