With jury selection starting in Wilmington, Delaware, Hunter Biden's trial on federal gun charges is officially under way. But as Dispatch columnist Sara Isgur argues in the pages of the New York Times, Biden can still potentially avoid a verdict from a jury... so long as he takes a plea deal at some point before the trial wraps up. 

Isgur believes that Hunter Biden should take a deal if one is offered to him, arguing that only a handful defendants in federal cases are ever acquitted.

To bring federal charges, the Department of Justice manual advises that a prosecutor should believe that the defendant is guilty, that the prosecutor believes he has evidence that will prove the defendant is guilty beyond a reasonable doubt, and that the prosecutor believes that a reasonable jury would convict the defendant. In practice, this means that once the Department of Justice has indicted you, they believe they will win. And they almost always do.

Over a 12-month period ending last fall, just 290 of the nearly 72,000 federal criminal defendants charged by the Justice Department were acquitted at trial. That’s less than one half of 1 percent. (Of course, only 1,379 were convicted at trial — a paltry 2 percent.) The vast majority facing a D.O.J. indictment decided either to plead guilty outright or accept a plea deal, believing that the prosecutor had correctly weighed their chances of winning in front of a jury before bringing the case in the first place.

Isgur points out that Biden faces a distinct possibility of a federal prison sentence if he is convicted of lying on a Form 4473 about being an "unlawful" user of drugs when he purchased a revolver, as well as possessing a firearm as an unlawful user for a period of about a week-and-a-half before his sister-in-law and former girlfriend discovered the gun and tossed it in a grocery store dumpster to get rid of it. 

But Isgur also argues that Hunter should essentially take one for Team Biden; copping to a plea deal to help out his dad's flailing campaign. 

First, there’s his father’s reputation to consider. Theodore Roosevelt is said to have remarked that he could be president or he could control his daughter, but he couldn’t do both. President Biden is faring no better at juggling the two roles. On several occasions he has invited his son to White House events alongside the attorney general who is responsible for prosecuting him. Despite the fact that it is inappropriate for the president to comment on current Justice Department investigations, President Biden was not able to resist publicly stating in May 2023, “My son has done nothing wrong.”

Last week, President Biden visited Beau Biden’s widow, Hallie Biden, at her home near the anniversary of his older son’s death. The problem is that Ms. Biden is also expected to be a key witness against Hunter Biden — and President Biden’s visit raised allegations of witness tampering from the president’s critics. A White House spokesman said the president did not discuss the trial during the visit.

Of course, the trial itself will be embarrassing and painful for Hunter Biden and his family. On top of highlighting his past romantic involvement with his brother’s widow, the prosecution is expected to introduce evidence, including pictures, text messages, and his own statement that he was smoking crack cocaine “every 15 minutes, seven days a week,” despite affirming on a federal form that he was not using any illegal drugs when he purchased the gun.

Isgur brings up Biden's money troubles as well, along with his intent to argue that the federal statute he's accused of violating is an unconstitutional infringement of his Second Amendment rights. U.S. District Judge Maryellen Noreika and the Third Circuit Court of Appeals have both said Biden can raise that argument on appeal, but not during the trial itself. 

This is a politically tricky, but a legally reasonable argument. After all, the Court of Appeals for the Fifth Circuit already held that the law was invalid as applied to admitted marijuana users. But cocaine is different from marijuana, and then there’s the awkwardness of the president’s son trying to convince the Supreme Court to invalidate part of the most widely used gun control law in the country while his dad campaigns on passing stricter gun control laws.

Yeah, that's definitely going to be awkward if it comes to pass, but the truth is that Biden's DOJ really is taking an untenable position when it comes to the right to keep and bear arms. Attorney General Merrick Garland maintains that the right only applies to "law-abiding citizens"; a position that, taken to its logical conclusion, means anyone guilty of even a minor traffic infraction could be stripped of their Second Amendment rights. 

I can certainly understand why Isgur wants Hunter to fall on his sword lest the DOJ's war on gun ownership becomes a major story pitting the president's son against his AG, but before Biden can take a deal one has to be on the table. For the moment, there's been no indication that prosecutor David Weiss has made an offer; and certainly not one that would spare Hunter any time behind bars. If Weiss does offer Biden a deal that takes away the threat of prison, he and his attorney Abbe Lowell would be stupid not to take it, but the evidence against Hunter is so strong that Weiss may not feel the need to resolve the charges with a plea agreement unless his case falls apart during testimony.