If you watch CNN on a regular basis, you've probably come across former prosecutor Elie Honig's talking head on your TV screen. As one of the networks legal experts, Honig has opined on a number of high-profile trials, but I confess that I'm not usually tuned in to CNN unless I know that Stephen Gutowski is going to be making an appearance, so I know next-to-nothing about Honig's expertise or how good of an analyst he is.  

Still, I was surprised to see the former federal prosecutor claim that in all his years working in the U.S. Attorney's Office in New York, he never once heard about Title 18, Section 922(g)(3), which bars unlawful users of drugs from posssessing or purchasing firearms. 

But in all honesty, I had never heard of this law throughout my 14 years as a prosecutor until the Hunter Biden case dropped last year. 

Federal law criminalizes possession of firearms by certain classes of “prohibited persons.” The most commonly charged of these categories, by far, applies to convicted felons. We churned out these cases in our first-year unit at the SDNY. Typically, an NYPD officer grabbed somebody on a drug rip or traffic stop, found a gun, ran the rap sheet, and saw that the guy had a prior conviction. Draft it up, “felon-in-possession,” Section 922(g)(1), done and done. (These cases often proved to be trickier than you might expect, especially if the cop found the gun near but not quite on the person — on the sidewalk nearby or in the center console of a car, for example. We’d lose a lot of these at trial.)

After convicted felons, the list of prohibited categories gets narrower and, in some instances, fuzzier: fugitives from justice; anybody who “has been adjudicated as a mental defective” (I’m quoting the statutory language here); any “alien who is illegally or unlawfully in the United States”; anyone who has been dishonorably discharged from the military; and — our category of focus here — any person “who is an unlawful user of or addicted to any controlled substance.” It’s also a crime to lie on federal firearms forms, as Biden seemingly did when he claimed he was not an addict.

Not once in fourteen years did Honig ever run across a case where charges were brought against someone busted with a gun in a drug rip who wasn't a convicted felon, and instead was charged as an unlawful user of drugs in possession of a firearm. I find that hard to believe, but if he says he never heard of the statute until Hunter Biden was charged I'll take his word for it... though it does undercut his expertise as a legal eagle, in my opinion. 

Honig's main point is that Biden shouldn't have been charged with violating the statute to begin with. Not only is the law rarely enforced (at least in Honig's experience), he says the fact that the alleged crime happened five years ago should have made it of dubious interest to prosecutor David Weiss. 

By mechanical application of facts to law, Biden appears, quite plainly, to be guilty. There’s no question he was addicted to drugs back in 2018 during the relevant time frame. He’s written as much in his book, and there’s plentiful corroborative evidence of the same, including contemporaneous texts about his addiction and testimony from several of Biden’s romantic exes. Same goes for his possession of a firearm. It’s all but admitted, accepted as fact.

... Prosecutors do not, and should not, mechanically charge every case that meets the statutory definition of a crime. We’re not automatons. Rather, we need to ask a series of prudential questions. Is this case worth our valuable but limited time and resources? Do we need to bring these charges to protect the public? Is there some broader deterrent message or policy goal we need to promote here? When it comes to a gun that was never used and wound up in a garbage can five years ago, where the defendant has no prior criminal history and poses no present threat to public safety, and where the charge would invoke a semi-obscure crime, we can reasonably answer “no” on all of those.

What Honig leaves out, of course, is the high-profile nature of Hunter Biden's alleged offense. It was big news when the story of Biden's gun purchase and Hallie Biden's attempt to dispose of it in a garbage dumpster broke in 2021, and there were lots of questions about whether Biden had received special treatment at the time. POLITICO reported that several Secret Service agents inserted themselves into the investigation (something the agency has denied), and the Bidens managed to keep the incident out of the media for years afterward.

At the same time, guys like Patrick Darnell Daniels were being sentenced to years in federal prison for possessing guns while using marijuana. If Honig doesn't think that Biden should have been charged, what does he think about Daniels being prosecuted for the same crime, or the two defendants in Iowa who were sentenced for violating Section 922(g)(3) just last week? I'm no fan of the statute itself and I'd shed no tears if the Supreme Court ultimately finds it unconstitutional, but if average citizens are being prosecuted for violating the statute, Hunter Biden shouldn't get a pass.