Why Hunter Biden is No Joe Citizen

News of Hunter Biden’s expected deal with federal prosecutors on tax and gun charges played out predictably on the partisan split screen of American politics.

Democrats praised President Joe Biden’s 53-year old son for “taking responsibility for his actions.” Republicans argued the expected agreement is a “slap on the wrist” that will likely allow Hunter Biden to avoid jail time. 

But a host of recent federal audits, reports and other documents regarding the firearms and tax charges Hunter Biden faces indicate something different: The vast majority of people who engage in the tax and gun lawbreaking that Hunter Biden is accused of are never even prosecuted. 

US President Joe Biden and first lady Jill Biden hug Hunter Biden after being sworn in as US president during his inauguration on the West Front of the US Capitol on January 20, 2021 in Washington, DC.

“To me, as an experienced federal criminal law practitioner, the resolution of the case looks not inappropriate if perhaps a bit much ado about very little,” said Patrick Cotter, a former federal prosecutor and veteran white collar attorney. “The reality is that for a non-public figure it is possible, if not likely, that the entire matter might have been resolved without criminal charges.”

It’s not due to lenience or tolerance for lawbreakers, federal agency leaders have said, that these prosecutions are rare. Rather, it’s because the federal government lacks the resources to bring cases against the thousands of people who appear to violate these laws each year.

Tax charges

Biden has agreed to plead guilty to two counts of willful failure to pay federal income tax, in violation of Section 7203 of the Internal Revenue Code, according to a letter from federal prosecutors filed Tuesday in a Delaware federal court. The prosecution is led by David Weiss, the U.S. attorney for the district of Delaware appointed by former President Donald Trump in 2018. U.S. District Court Judge Maryellen Noreika, a Trump appointee, on Wednesday scheduled a July 26 initial hearing where she will preside over the case. 

Hunter Biden allegedly received taxable income in excess of $1,500,000 annually in 2017 and 2018 and, despite owing more than $100,000 in federal income taxes each year, “he did not pay the income tax due for either year,” according to a statement Tuesday by Weiss’ office.

Among high-income earners, Hunter Biden is far from alone. 

Between 2014 and 2016, nearly 900,000 high-income earners failed to file and pay taxes totaling $45.7 billion, according to a 2020 report by the Treasury Inspector General for Tax Administration, the federal government’s internal tax watchdog agency. The report defined high-income to include Americans earning $100,000 or more annually.

The IRS failed to properly investigate more than 40 percent of the 879,415 instances in which high-income Americans did not pay their taxes from 2014 to 2016, the watchdog agency found. 

Even when tax officials do probe these cases, it is exceedingly rare for the IRS to refer them to the Justice Department and for the federal prosecutors to bring cases.

During a 2021 hearing, Senate Finance Committee Chairman Ron Wyden sought an explanation from then-IRS Commissioner Charles Rettig about why “tens of thousands of high-flyers got away with shirking their duty” to pay taxes and why so few violators were prosecuted.

“When we asked about the legal consequences, your office replied in a May 25th letter that the IRS asked the Department of Justice to charge 200 taxpayers for failing to file a return between 2014 and 2020,” Wyden, D-Ore., told Rettig. “Everybody else appears to have just gotten away with not paying the taxes that they owed.”

Rettig replied that he shared the senator’s concerns.

“The reference that you are referring to is under 7203, which is a misdemeanor for a failure to file an income tax return,” Rettig said, naming the statute that Hunter Biden is now expected to admit to violating.

“The system is not designed to effectively address misdemeanors,” Rettig explained. “We have limited resources in our Criminal Investigation function. Decisions have to be made based on resources.”

It is the Justice Department’s decision whether to indict misdemeanor tax cases, Rettig added, and “if they bring those cases, in the majority of those cases, the individual does not receive a period of incarceration.”

Firearms charge

Biden is expected to enter a pretrial diversion with respect to the firearms offense – possessing a firearm “knowing he was an unlawful user of and addicted to a controlled substance.”

Specifically, the charge relates to Hunter Biden’s possession in October 2018 of a Colt Cobra 38SPL revolver. 

In order to purchase the gun, prospective buyers fill out a “Form 4473” in order to undergo a background check, which asks questions including whether the buyer is a felon or is addicted to controlled substances. 

Hunter Biden’s legal troubles related to the gun reportedly stem from his false statement in the course of making the gun purchase. Asked about Hunter Biden’s legal troubles, Joe Biden addressed his son’s apparent false statement while purchasing the gun in a 2022 interview with CNN.

“Turns out that when he made application, to purchase a gun…you get asked the question, ‘Are you on drugs? You use drugs?’ He said, "No,’” Joe Biden told CNN.

However, it is relatively rare for false statements on the firearms background check forms to result in criminal prosecutions.

State and federal law enforcement agencies “collectively investigate and prosecute a small percentage of individuals who falsify information on a firearms form,” the Government Accountability Office found in a 2018 report. 

That GAO report analyzed 112,000 cases in which firearm purchases were denied due to failed background checks in 2017. About 13,000 of those denials were referred to field divisions for investigations, but those referrals only resulted in 12 criminal cases brought by federal prosecutors by mid-2018.

Lying on the forms is so ubiquitous that the strategy is commonly referred to as “lie and try.” 

Attorney General Jeff Sessions in 2017 requested a report on the widespread failure to prosecute false statements on the background check forms following the mass shooting in Sutherland Springs, Texas. The shooter who killed 26 people, including an unborn child at a church, was found to have lied about his disqualifying criminal history on a Form 4473 in order to purchase guns.

The findings of the report were stark. “Because the volume of denials each year is enormous, the Department lacks the resources to investigate and prosecute everyone who makes a false statement on the ATF Form 4473,” the report stated. 

Although Hunter Biden’s prosecution on the gun charge is rare, some criticized the Justice Department’s decision to offer the president’s son a deal involving pretrial diversion – a program through which he would avoid a criminal conviction and jail time if he stays out of legal trouble.

“When I was the US Attorney, we never diverted a single gun charge,” former U.S. Attorney for the Northern District of Alabama Jay Town wrote Tuesday on Twitter, saying the Hunter Biden deal “absolutely is not” standard practice.

Other legal experts saw nothing out of the ordinary in Hunter Biden’s deal with prosecutors, other than the fact he is the president’s son.

“The shrill politicization of this investigation and prosecution,” said Randall Samborn, an Illinois attorney and former federal prosecutor, “unfortunately heightens the importance of what otherwise appears to be an appropriate and routine legal resolution.”