A Tale of Two Prosecutions

There are good reasons you may feel conflicted over the jury verdicts against Donald Trump and Hunter Biden.

LEFT: Former U.S. President Donald Trump enters a news conference at Trump Tower following the verdict in his hush-money trial at Trump Tower. Photo by Spencer Platt / Staff. RIGHT: Hunter Biden, the son of U.S. President Joe Biden, leaves the J. Caleb Boggs Federal Building on June 06, 2024 in Wilmington, Delaware. Photo by Kevin Dietsch/Getty Images.

It’s truly an extraordinary moment in our nation’s legal and political history: two prosecutions resulting in two guilty verdicts by separate juries, one against an ex-president, and another against a sitting president’s son. 

There are some parallels worth noting. For starters, it’s fair to say that neither of these men would have been tried or convicted had they not been near the power of the White House. In Donald Trump’s case, had he merely paid off a porn star for her silence and had not been running for president, he would not have been prosecuted. In Hunter Biden’s case, it’s likely no one would have cared that he lied on a firearm application were his last name not Biden.

Further, both men stood accused of basic “paperwork” crimes. In Trump’s case, it was the intentional mischaracterization of reimbursements to Michael Cohen as “legal services” to hide a hush money payment made right before the 2016 election. For the younger Biden, he falsely attested that he was not a drug user nor currently addicted to illegal substances on an application for the purchase of a firearm.

And lastly, both were indicted by independent prosecutors and now face sentencing as first-time offenders. Both are now convicted felons with all of the restrictions that come with that status, although our Founders somehow neglected to state that this should include being the President.

But even with these superficial similarities, many are left feeling unsettled, particularly around the Hunter Biden verdict. Why does the prosecution of Donald Trump and the guilty verdict against him feel correct and just, while the prosecution of Hunter Biden and the guilty verdict against him feel wrong and unjust?

To get to the bottom of this vibe and lend it stronger foundation, in today’s piece, I’ll look at four things: the respective statuses of the defendants, the nature of the crimes alleged, the question of selective prosecution, and the acceptance or rejection of the verdicts. My hope is that giving form to these feelings will help clarify the unprecedented moment in which we find ourselves as a country.

The ex-president versus the current president’s son

When candidates declare their intention to seek the presidency, they expect that it will come with a cost. Those seeking the highest office in the nation understand that they will have to endure an extraordinary amount of scrutiny, with their every action, past or present, questioned and potentially weaponized against them. 

Historically, extramarital affairs (and even awkward yawps) were sufficient to derail a candidate’s presidential aspirations. And until Trump, every candidate has freely disclosed years of tax returns and undergone independent medical assessment. Even the possibility of a financial conflict of interest was addressed; Jimmy Carter famously put his peanut farm into a blind trust to avoid even the appearance of impropriety.

As a presidential candidate, Trump’s long record of criminality is certainly fair game. After all, every president is charged with faithfully executing the laws of the land, so if he has committed crimes, voters are entitled to know this. Indeed, it speaks specifically to job fitness, because if he is under investigation or indictment, it might distract him from doing the job well. Or worse, like Prime Minister Benjamin Netanyahu, he might ally himself with extremists and prioritize hanging on to power and staying out of jail above the best interests of the nation.

The question of a president’s family member having committed crimes, however, is a notch or two below this. Hunter Biden is a private citizen and neither holds nor seeks public office. His past life as an addict and philanderer scores political points for the right, not because it hurts Hunter personally or politically, but only because it sullies the reputation of his father Joe Biden. 

Where Hunter Biden erred, and gravely, was trading upon the Biden name to land himself a “consulting” gig with Burisma. He was highly unqualified for the job—just as Trump’s son-in-law Jared Kushner was no experienced or savvy investor, yet somehow landed $2 billion in investment from the Saudis. It may be unpopular to say, but it is understandable, if a bit maddening, that Biden’s political opponents would scrutinize every part of that Burisma deal and somehow try to link Joe Biden to it. But after six years of investigations, they have turned up nothing. Hunter Biden acted on his own in throwing about his family name, and it’s long past time to put talk of the “Biden Crime Family” to bed. Hunter Biden’s actions have nothing to do with Joe Biden, and that’s why it feels wrong to go after him just to get to his father.

In sum, it makes perfect sense that, as a political candidate and public figure in the highest sense of the word, Donald Trump would face scrutiny and prosecution in his home county of Manhattan when he commits business-related crimes there. It makes far less sense that Hunter Biden, a non-candidate and private citizen, would be prosecuted with “gotcha” crimes that, as I’ll discuss below, were charged only because his last name is Biden.

The nature of the crimes alleged

The right understands that Hunter Biden was charged and found guilty of committing a “paperwork” crime, that is, filling out an application to purchase a gun and claiming he was not an addict or presently using drugs. This is an awkward fact for them, however, as these are the same folks who don’t believe any background checks on gun purchases should be required. In fact, had Hunter Biden purchased his gun at a gun show instead of through a federally registered gun shop, he wouldn’t have had to fill out the application in the first place.

Moreover, millions of American gun owners were addicts or drug users at the time they purchased a firearm, which is why the crime is almost never charged on its own. It is also a “victimless” crime because no one was harmed by its commission. In this case, specifically, Hunter Biden possessed the gun for only 11 days and committed no crimes with it.

The right has been keen to describe Trump’s falsification of business records as a “paperwork” crime as well. Indeed, Trump appeared to suggest that he was being hounded all because someone else wrote “legal services” in the company’s books for payments that were in fact made to a lawyer. But the intentional falsification of business records to hide a paper trail for an illegal payoff is a far more serious and deliberate act than the checking of a box on a firearm purchase form.

Moreover, the falsifying of records, normally only a misdemeanor offense, became a felony precisely because Trump sought to conceal his participation in the larger “catch and kill” conspiracy to illegally keep bad stories from being known by the voting public. In this sense, Trump committed a larger harm upon the entire electorate from which there was no going back. This was no victimless crime.

It makes sense, then, that we feel as though Hunter Biden’s crime isn’t serious enough to warrant up to 21 months in prison, while Trump’s crime helped instigate one of the most consequential electoral frauds in our nation’s history.

The question of selective prosecution

Both of the defendants have an argument to make on appeal: that they were unfairly singled out and prosecuted because of who they are. Trump has made this a daily missive, crying—without any evidence—that this is a Democratic “witch-hunt” and a “persecution” by the Biden Administration. (Biden and the Justice Department of course have played no role in the Manhattan case against Trump.) 

Hunter Biden likely has much to say, too, about how his case went forward under political pressure, especially after the Trump-appointed U.S. Attorney in Delaware, David Weiss, blew up the plea deal the parties had previously agreed to, apparently in response to outcries from Republicans over its “leniency.”

Let’s look at these one by one. Was Trump unfairly singled out for prosecution? The crime of falsification of business records is one of the most commonly charged crimes by the Manhattan DA’s office. This stands to reason, given that New York City is also the financial capital of the world, and adherence to the laws around accounting is policed particularly heavily in that jurisdiction. Just Security did a deep dive into just how often such crimes were charged as felonies in the last decade and a half, and it turns out Trump isn’t in some kind of unique circumstance at all. 

On the other hand, looking at Hunter Biden’s claim of selective prosecution, it is vanishingly rare that a defendant would be charged with three felonies merely for failing to disclose they were a drug user or drug addict at the time of a gun purchase. As Los Angeles Times legal analyst Harry Litman noted, it hasn’t been DoJ policy to charge a defendant for lying on a federal firearms form unless the gun was actually used in a crime or some other extenuating circumstance exists, for example, if the defendant were part of a dangerous, criminal gang.

That raises a question of whether U.S. Attorney Weiss abused his prosecutorial discretion to go after Hunter Biden. That’s a hard case to make, but the procedural history suggests that this may actually have occurred. That’s because the whole case was proceeding normally until politics blew up the plea deal that the parties had reached. 

After five years of investigating Hunter Biden, Weiss was left with very unsexy options for possible charges: a federal gun form violation and tax evasion. The initial plea deal therefore included no jail time for the tax evasion and a diversion agreement on the gun charge if the defendant stayed out of trouble for two years. After all, the gun had not been used in a crime, no large crime or gang membership was involved, and the defendant already had paid back what he owed the government in taxes with interest and penalties. Jail time isn’t usually sought in such cases.

Unfortunately, the plea deal fell apart because it was poorly drafted. The proposed agreement had designated the judge as the final determiner of whether its terms had been satisfied, when by all rights it should have been the government. The judge understandably rejected the agreement and told them to go back and fix it. But the terms of the plea had already been announced, and the right exploded in fury over the “sweetheart deal” for Hunter Biden—which really was just standard stuff. The plea then collapsed under the weight of political pressure, and Weiss later brought official charges.

While this was very unfortunate for Hunter Biden, it is a feature of our system that prosecutors wield wide discretion on what or whether they will charge. That feature isn’t set up well, however, when outside political pressures are at work.

In sum, charging Trump with a crime that other crooks in Manhattan are routinely charged with doesn’t feel unfair or selective in any way. A man in Trump’s position can’t always expect to get away with fudging his financial documents, as both the Attorney General of New York and the Manhattan DA’s office have now proven. At the same time, charging Hunter Biden with a crime that no one is ever charged with doesn’t feel fair and indeed appears to be quite selective. 

Dealing with the verdicts

It was entirely predictable that Trump and his allies would assail the Manhattan verdict as a perversion of the justice system and as a politically motivated persecution. “This is all done by Biden and his people,” Trump falsely claimed in a post-verdict news conference. “This is done by Washington. No one has ever seen anything like this.” He called District Attorney Alvin Bragg “failed,” and blasted Judge Juan Merchan as “conflicted.” 

He posted on Truth Social that the prosecution was a “witch hunt,” and in an email soliciting contributions, he labeled himself a “political prisoner.”

His allies also rushed to his defense and condemned the verdict, the court system, and the prosecution. This, of course, set up a very awkward dichotomy as the right sought just not long after to praise the jury verdict against Hunter Biden. 

CNN put together a side-by-side of Fox Network personalities reacting to the two verdicts, and it is quite telling:

Other members of the right almost seemed unhappy that Hunter Biden wasn’t acquitted. After all, if they were claiming that Joe Biden’s Justice Department, of which Special Counsel Weiss is very much a part, was putting its finger on the scales of justice in favor of his son, the three guilty verdicts upended that narrative entirely.

What’s a MAGA conspiracy theorist to do?

Charlie Kirk, the head of Turning Point USA, tweeted a creative take. 

Hunter Biden guilty. Yawn. The true crimes of the Biden Crime Family remain untouched. This is a fake trial trying to make the Justice system appear ‘balanced.’ Don’t fall for it.

And here’s Goebbels-lite Stephen Miller, adding his predictably awful and entirely unsupportable opinion:

The gun charges are a giant misdirection. An easy op for DOJ to sell to a pliant media that is all too willing to be duped. Don’t be gaslit. This is all about protecting Joe Biden and only Joe Biden.

In other words, if Hunter Biden had been acquitted, it would have to be because the Justice Department is controlled by his father and it threw the case on his behalf. But since Hunter Biden was found guilty, this must be some kind of 3-D chess that Biden, who is supposed to be too old and addled to play such a game, is masterfully conducting to make us believe the Justice Department is fair and impartial.

Damned if they do, damned if they don’t.

The truth of the matter is that the Biden family is devastated by this verdict and what has happened to Hunter Biden, who continues to pay for having been an out-of-control drug addict who happens to bear the Biden name. Unlike Trump’s family, the Bidens (except Joe, for obvious reasons) were regularly in attendance at Hunter’s trial, but even that the right sought to spin as some kind of threat Jill Biden was implicitly making toward the jury.

Yes, Jill Biden, crime boss queen.

Hunter Biden issued a statement shortly after the verdict, saying he was “more grateful today for the love and support I experienced this last week from Melissa, my family, my friends, and my community than I am disappointed by the outcome," referencing his wife Melissa Cohen Biden. "Recovery is possible by the grace of God, and I am blessed to experience that gift one day at a time," he said.

His attorney added, “We are naturally disappointed by today's verdict. We respect the jury process, and as we have done throughout this case, we will continue to vigorously pursue all the legal challenges available to Hunter."

President Biden also offered a statement in support of his son shortly after the verdict. It is worth reading in full, as it stands in sharp contrast to how the ex-president reacted to his own guilty verdict.

As I said last week, I am the President, but I am also a Dad. Jill and I love our son, and we are so proud of the man he is today. So many families who have had loved ones battle addiction understand the feeling of pride seeing someone you love come out the other side and be so strong and resilient in recovery.

As I also said last week, I will accept the outcome of this case and will continue to respect the judicial process as Hunter considers an appeal. Jill and I will always be there for Hunter and the rest of our family with our love and support. Nothing will ever change that.

These statements starkly illustrate why the two verdicts feel so very different even days later. While Trump and his allies attack the court, the prosecutors, the jury, and the verdict, with Trump once again acting without remorse and as if he is above the law, the Bidens have gracefully accepted the outcome, with both solemnity and deep love for a family member who has been put through so much by a system that truly was out to get him.

Biden further has sworn not to use the power of his presidency to pardon his own son, even though he knows the prosecution to be both an abuse of power and political in nature. In other words, he has placed the value of upholding the rule of law and the dignity of his office over the interests of his own family—a sacrifice that we should acknowledge, and one we know that Trump would never have made.

The twin jury verdicts and their aftermath tell us much about where we are as a society, and about which side actually adheres to principles, norms, and the rule of law. A starker contrast could hardly be imagined. And it isn’t surprising, then, that adherents to those values feel both the justice and injustice of the two decisions at deep work. 

The two prosecutions and the juries’ verdicts exist within a system set up to catch bad actors. But as we are learning, that system can be cynically exploited to punish the less culpable who are caught in the political crossfire.

Thanks for reading today’s piece on The Big Picture. If you find our political insights valuable, please consider supporting us by becoming a paid subscriber and forwarding this email to a friend who may also find it beneficial.