Federal prosecutors in Delaware raised the eyebrows of conservative critics by declining to charge first son Hunter Biden with felony tax evasion, letting him instead take a plea bargain for misdemeanors that will likely result in no jail time.
Following a five-year investigation, Delaware US Attorney David Weiss’ office agreed to the sweetheart deal for the 53-year-old — guilty pleas to two counts of failing to pay taxes on millions of dollars in income from foreign countries and a pretrial diversionary program for a felony count of lying about his drug use when he bought a gun in the fall of 2018.
If Hunter had been charged with felony tax evasion, he would have faced up to five years behind bars — though the federal sentencing guidelines recommend 12 to 18 months for the amount of money involved, former federal prosecutor David Weinstein told The Post Wednesday.
According to Weiss’ office, Hunter faces up to a year in jail on each misdemeanor tax count, but prosecutors are expected to ask a judge to sign off on probation, experts say.
Former prosecutors say they aren’t surprised by the choice to allow Hunter to admit not paying at least $100,000 in income taxes on at least $1.5 million in earnings in both 2017 and 2018 rather than charge the more serious crime.
Jennifer Rodgers, an adjunct professor at Columbia Law School, told The Post the feds would have weighed the severity of his crimes and a number of other factors in making the choice — which she says was “reasonable” and “in line with” other cases.
In Hunter’s case, Rodgers said that prosecutors wouldn’t have considered his alleged crimes particularly egregious because of the dollar amount he allegedly failed to pay in taxes and because he didn’t carry out an elaborate evasion scheme.
“This is not a tiny amount, but also not a massive amount, not millions of dollars evaded,” Rodgers said.
And Hunter simply failed to pay the money to tax authorities “rather than setting up companies, moving money off-shore, [and] hiding assets in some sophisticated way,” which supports the lesser charges, Rodgers said.
And a “huge” factor that the Department of Justice would have looked “very favorably” upon is the fact that Hunter already paid back the money and penalties he owed in taxes last year, as part of his bid to avoid criminal charges.
Rodgers added that a “serious concern” for prosecutors in weighing what charges to bring was the fact that Hunter Biden was an admitted drug addict at the time — making it difficult to prove that he intended to duck his obligation to the government.
“Can you prove that he knowingly, willingly and deliberately did all of these things or in that circumstance is it safer to avoid trial by pleading it to a misdemeanor?” Rodgers said. “I know that that was under discussion, that that was a serious concern for some of the investigators on the case and perhaps for the prosecutors as well.”
Cornell Law Professor Robert Hockett agreed that prosecutors likely found Hunter’s case “worthy of plea bargaining” and of misdemeanor charges because of his substance abuse issues.
“The fact that he was apparently addicted to cocaine, maybe even crack cocaine, during that time I think has a number of consequences,” Hockett said. “One, is that it’s harder to find criminal intent … if he was [committing crimes] under the influence.”
Former federal prosecutor Maureen Ruane told The Post she also wasn’t surprised by prosecutors offering the misdemeanor plea deal.
In general, she said, tax evasion charges “are very infrequently sought” because of the difficulty of showing intent. She said that a plea deal “avoids the risks” of going to trial and the “resources and time and energy” required to follow a case through appeals.
“There often comes a point in virtually any case where the government decides that it’s willing to accept a compromise on the charges that it might have otherwise filed, in exchange for the certainly of a conviction,” Ruane explained.
Gary Shapley, a whistleblower at the Internal Revenue Service, told CBS News last month that he was assigned to Hunter’s case in the beginning of 2020 and that soon saw that normal protocols weren’t followed and decisions by the agency “seemed to always benefit” Hunter.
After speaking out, Shapley said he was marginalized and eventually taken off of the investigation.
Republicans decried the plea bargain, with Sen. Chuck Grassley (R-Iowa) saying the deal “cannot be the final word give the significant body of evidence that the FBI and the Justice Department have at their disposal.”
James Comer (R-Ky.) — the chairman of the House Oversight Committee, which has been probing Hunter and his dad Joe over claims they received $10 million in bribes — said the charges and “sweetheart plea deal have no impact” on the panel’s investigation.