This is Bloomberg Law with June Brusso from Bloomberg Radio.
Hunter Biden is now the first child of a sitting president to be convicted of a crime. Special Counsel David Weiss, who brought the federal case against the president's son for lying on a form to get a gun, defended his prosecution, saying the case was not about prosecuting addiction.
This case was about the illegal choice's defendant made while in the throes of addiction, his choice to lie on a government form when he bought a gun, and the choice to then possess that gun.
But several of the jurors who found Biden guilty of all three felony charges said they thought the case should never have been brought to trial.
A waste of text fer scholars. I think they should have victus.
Find joining me is former Manhattan prosecutor Duncan Levin of leven In Associates. Doug and the Special Council said the prosecution was about the rule of law, but it's not a law that many people in similar circumstances are prosecuted for.
It's very hard to escape the politics of this case. The case that shouldn't have gone to trial. In the first place, this was supposed to be resolved on a
pleaded two misdemeanor tax charges. He's facing unrelated tax charges that are coming up for trial in September in California, basically related to a million four in foreign business income, and he's facing three felony counts there and six other misdemeanor counts, and they're, you know, pretty serious charges, their evasion of an assessment and filing false returns and not paying his taxes. And so this was all supposed to be wrapped up with a plea deal that was going
to resolve in absolutely no jail time. And the gun charges which just went to trial and that he was just convicted on, was supposed to be resolved with pre trial diversions, so no real penalty other than having no firearms and staying drug free for two years. When that plea deal fell apart, it went to trial. And this is a trial that really shouldn't have been. It fell apart, I think in some part because of politics, maybe in
large part because the politics. The judge, who is a Trump appointee, Judge Norieika, basically felt the choosing put in a position where she was going to have to decide whether hunter Biden was in compliance with the diversion agreement, because the parties didn't really want DOJ to be the party in charge of whether to revoke his compliance or not, given the fact that Donald Trump couldn't win the presidency, and hunter Biden did not want Justice Department under a
President Trump in his next term if he won to be in charge of deciding whether he was compliant with the pre trial diversions. And so they tried to put this on the judge and said, well, you should be the one to decide, and Jude Norieka said, well, I'm not going to decide that. So that's why the plea deal fell apart. But the plea also fell apart in large measure because of politics. The congressional Republicans were saying it was a sweetheart deal and calling for the judge
to deny it. And I think that it may have been window dressing that it fell apart because Judge Norrieka didn't want to be in charge of deciding whether hunter Biden was in compliance. It may have really fallen apart
because of political pressure. But I think this was a comment that was heard by a lot of the jurors who were interviewed after the trial, they said that they felt that the case was strong, that the evidence was compelling, but they felt that this was the case that was really unnecessary for the government to bring.
That.
All being said, I think that if you're going to put in a case like this, the witnesses that they called were necessary witnesses. They were, at the core of it, trying to prove that he was a user where addicted to controlled substance at the time that he filled out this form to buy the gun, and they had to call witnesses who were going to testify to that.
And what about bringing through are you felony charges all connected with lying on the gun form in a case where there was no crime committed with a gun.
The politics of this case are unmistakable because the charges themselves are ones that are rarely, if ever brought. Lying to a gun dealer is brought, probably fewer than three hundred times a year, and that's out of twenty five to thirty million background checks that are conducted around the nation every single year. The false claims on a federal firearms application is a form called the ETF four four
seven three. I have never heard of a case being brought as a standalone case for lying on a federal firearms application never standalone. It's usually brought in connection with another more serious crime, maybe somebody illegally using a gun or a felon in possession. This is a gun that was never used, it was never loaded, and Hunter Biden possessed it for eleven days, just to put it in perspective, and he possessed it from October twelfth to October twenty third,
twenty eighteen. It was possessed for an incredibly short period of time. And the other sort of I think mitigating factor here is that this was a gun that Hunter Biden possessed for eleven days and was actually thrown into a dumpster by his then girlfriend who was also his sister in law, Hailey Bidens. And when he came to find out that it was thrown into the dumpster, he took steps to alert the authority to it who found it, and it was started as a case because they found
the gun in the dumpster. This was a case that really should never have gone to trial and got completely derailed because of the politics, to a point where the jurors were forced to sit through this extremely emotional testimony that really, I think at the end of the day, served nobody and resulted in a guilty verdict that you know, maybe scored the protcutors some points and maybe had some political points, but really was utterly away of everybody's time.
The three jurors who spoke and said that they had no choice but to find him guilty, but they question whether the criminal case should.
Ever have been brought.
One said the case seem like a waste of taxpayer dollars. Aren't those the jurors that the defense was targeting to nullify to know, to say this case isn't worth it, We're not going to find him guilty.
The jury obviously took the case very seriously, and it sounds like politics really did not play a role in it, and they didn't nullify, and the defense is clearly not allowed to argue jury nullification to them. Remember, this is a defendant who is well known to everybody in Delaware, particularly the jurors walked through the lobby of the courthouse every day to get to the trial, and the defendant's father's photograph is hanging in the lobby. This is somebody
who is well known. The Biden name is well known. The First Lady of the United States is sitting in attention at the trial. And they took their job seriously. They didn't nullify. They looked at the evidence and they convicted. The case itself was strong, and the defense really just that at the time he filled out this ATS form at the gun dealership, he was not at the moment
he filled the form out addicted to drugs. But there was evidence that you know, right before and right after he was, you know, texting with a drug dealer, and that he was clearly addicted to drugs. You know, this is a case that was a waste of taxpayer dollars. On the other hand, the government was kind of forced into going a trial on it when the plea deal fell apart. So everybody's right here. It's the case that was strong. The jury did a very thorough job and
obviously took the evidence very seriously. They didn't nullify because the case it self was worthy of a conviction. It's a case where, you know, jurors looking at it without a political lens and without looking through the lens of nullification, would convict because it was a strong case. There are a lot of cases that you could question the motives
behind prosecutors bringing them in the first place. This case, I questioned the motives of the special prosecutor bringing the charges, frankly, because these charges are never brought as a standalone case without something more serious. So I do question whether the
case was brought because it was Hunter Biden. But at the end of the day, it's unlikely to result in any jail time, and I think the more serious charges that he's facing are in September, with these tax crimes, which we're supposed to be disposed of without any jail time, and now he actually has some significant exposure to an incarceratory sentence in September if he's convicted on those charges.
Well, I was surprised.
The special counsel made a statement afterwards, and he said.
This case wasn't about addiction.
It was about the illegal choices the defendant made while in the quote throes of addiction, which sounds contradictory to me. But how unusual that he has another case pending and he decided to make a public statement.
I think it's problematic any time a prosecutor or someone in law enforcement speaks out of court, and this was one where I think his words were poorly chosen and frankly wrong. I mean, this is a case that is very sad, and it's a sad case about addiction. You know, people who are addicted to all sorts of things, and it doesn't mean they shouldn't be held criminally responsible. And it's a legally correct verdict. It's not that it's wrong.
The verdict itself was based on evidence. It's legally correct. But this case is a human tragedy and to say that it's anything other than that is just flat out wrong.
Is there anything the defense could have done to change the verdict? I mean, should Hunter Biden, despite the problems, have taken the stand.
So Judge j Rieka really, I thought, went out of her way to hobble the defense, and I would describe part of it to politics, and given the posture of the case, fact that she scuttled the plea deal. There were two instances where the defense tried to get very evidence into the trial. One of which is that this
ATS four four seven three form was altered. It was altered by the gun dealer at some point after the fact, and that is because it is a requirement when the gun dealer has this form filled out that they get identifications that has the purchaser's address on it. At the time that they got the form in the first place, they got Hunter Biden's passport, which did not have his address on it, and later at a point they filled out the form again to say that they'd gotten his
driver's life. The judge barred the defense from introducing evidence of the altered form and said that it was a quote unquote conspiracy theory and unsupported rhetoric. I find that hard to believe and just a ruling that really has no merit, because this is a case all about who filled out the form and when they filled out the form. The fact that the form was altered, for the fact is very key evidence, and frankly, I think is some grounds for appeal that that was not allowed to be
introduced at trial. The other thing is that the defense tried to call a Columbia psychiatrist named doctor l Eiun to testify at trial about hunter Biden's state of mind
at the time that he filled out the form. There is a knowledge requirement here, and the defense was trying to show to the jury that at the time he filled out the form he did not believe himself to be an addict, and I think there's some support to that in the evidence, because Hunter Biden had just finished an eleven day rehab program and also was living with
a sober companion. And I think that anyone who's been through addiction or understands addiction knows that you take it one day at a time, and so somebody who is sober for even one day or two days or eleven days may not consider themselves to be an addict. And it's something that I think the defense should have been allowed to argue and was precluded from arguing, and that
really gutted the defense case in many ways. So they were really left with this very narrow argument that at the time of filling out the form he was not addicted to drugs, because there's no evidence he was doing drugs that day. So I think the judgment really out of her way to recap the defense, and so they do have some appeals here that they can pursue as to whether Hunter Biden should have testified. The conventional wisdom is that it is never a good idea for a
defendant to testify. In this particular case, it was difficult for him because of these pending tax charges. The judge had again made a ruling that the prosecutors would be allowed to cross examine him on these tax charges, which would have exposed him to incredibly grave legal danger in
this trial that he had coming up. So there was really no choice but to make the strategic decision not to testify even if he could have testified convincingly about these charges that would have put him at grave legal risk with his upcoming trial in September coming.
Up next on the Bloomberg Law Show, I'll continue this conversation with Duncan Levin talk more about the possible appellate issues and the next trial for Hunter Biden.
This is Bloomberg.
Now that Hunter Biden has been convicted of three felony gun charges, he faces sentencing and another trial in California on tax charges in September. I've been talking to former Manhattan prosecutor Duncan Levin of Leven and Associates. I want to go over some of the other appellate issues they may be able to raise. They may use some of the same arguments they made prior to trial to try to get the case dismissed.
They argued the gun law.
Was unconstitutional following a ruling by the US Supreme Court in twenty twenty two, the New York case that expanded gun rights, and the Fifth Circuit has struck down the law barring users of illegal drugs from possessing firearms, ruling it was unconstitutional. So could that be a good appellate argument?
I think this is a great suppellent argument, and we can all expect to see it. Frankly, it may at some point win. At the point that it wins, however, he will have already been branded a sellon and done time if he does time or served out a sentence, because this is unlikely to wind his way through the course anytime soon. But if you look at the statute itself, which is nine twenty two G. Three, it basically makes it unlawful to possess a gun if you are a
user or addicted to any controlled substance. And the terms are ill defined. And you know, anyone who's gone through addiction and is understanding of the challenges facing addicts knows that this is something that is a day by day struggle. And the term addict is one that is very loaded, and the term user is one that's very loaded. And it's unclear whether it means that you have to be a user at the time you're filling out the form,
or what that even means. If somebody does crack or some controlled substance and two days later goes to fill out this application, are they a user? Are they an addict? The terms are ill defined, They're very vague, and I think as a result of it, the statute is really subject to being struck down as unconstitutional.
They also argued that the plea deal that he struck last year remains in effect even though prosecutors rescinded it.
A plea deal is not a plea deal until it is approved by all the parties and approved by the judge, And in this case, the judge refused to approve it. And just because the parties agree on it, it's all still subject to approval by the United States District Court. And in this case, Judge Noria got struck it down. And so just because it was a signed plea agreement between the parties, it is not so ordered, as they say,
until the judge orders it. So I don't think that argument is likely to carry any weight, even though it was something that was agreed upon by the Department of Justice, and by Hunter Biden with his attorneys. Now, I do think that that is going to play into sentencing, because it's hard to believe that when the Department of Justice feels it is appropriate for a defendant to get pre trial diversion and no jail time, for them to turn
around and issue some kind of trial penalty. This is a trial that Hunter Biden did not want, he did not ask for, It was poisted upon him, and so I don't think there should be any trial penalty. And as a result of the Department of Justice agreeing that this case should be subject to pre trial diversion, I would find it shocking if they now turned around and asked for any kind of jail time on this Really, do.
You really think that this Special Council, with all the political pressures, won't ask.
For jail time.
I think it's going to be shocking if he does ask for jail time, given the fact that they have also already basically offered him no jail time. This is a trial that he did not ask for, he did not want, it was poisted upon him, and I think if the Special Council turns around and asks for jail time now, his politics will be showing.
Fair enough, Let's turn to what happens next.
There's the probation interview, the sentencing memos, and Biden friends and families sending in letter after letterature the judge. Which part of that is most important.
The probation interview is meant to give the judge a sense of who he is as a person that may not emerge from the trial, and the same thing for the sentencing memo. In large measure, it's meant to educate the judge on who a defendant is, who their friends are, to character references and explain any mitigating circumstances. Here, the judge is very familiar with this defendant, and so it may be of less weight to have a probation officer
interviewing him and giving any information to the court. A parallel to be drawn to Donald Trump and his criminal hush money trial in New York, where there was a probation interview recently. These are probation interviews that are highly vetted people, and so it may not sway the judge,
who's likely very familiar. But this judge may see how Biden is an addict, and that is how she sees him and views him, and I think that both the sentencing memo process and the probation interview are meant to give a much more holistic view of some of the good things he's done, the work he's done his family, and educates her on all of the other parts of his personality and being that have not come through so far in any of the brief thing in the trial.
So he technically faces twenty five years. Do you think he'll even be sent to prison.
I think he will not be sent to prison on this case because the case merits no prison. It's a case involving nothing violent. Even though there was a gun. This was a gun that he possessed for eleven days. It was never loaded. The charges are never really brought a standalone cases. He had no other offenses. This is his first criminal offense. The cases are brought fewer than, as I say, three hundred times a year out of
twenty five million background checks. It's a very minor case in terms of the federal sentencing guidelines, and DOJ is really already on record with their recommendation to the judge that he should not go to jail over this. Frankly, over the tax case either, there was no jail requirement involved, and so there's been some outcry from Congressional Republicans that he should see jail time, but DOJ and the parties have already all been agreed that he should not see
jail time in this case. I will find it highly unlikely that prosecutor is going to turn around and all of a sudden recommend it. And the only thing calling for that is the outcry and public political pressure from Congressional Republicans. So that's really the only thing mitigating in favor of any kind of jail term for this case.
So he's going to trial in September in California. The judge said sometime within the next four months. I mean, should this sentencing be held off until the case in California is over? Is there any kind of coordination?
Now? The cases are standalone, they're in different courts, different judges, and I think it's unlikely that he's going to serve any jail time anyway. So the process will probably move along on two different schedules. And this is not the first time there's been a defendent with multiple cases open. Obviously, I'm on't familiar with the fact that Donald Trump has four cases open at this time, and he's being sentenced in the New York case in the next few weeks.
That is not going to be waiting for any of the other cases to wind their way through the court system. So no one knows what's going to happen with the California case. Maybe it's put off for more months, or maybe it actually gets tried on time. But they operate very independently from one another, and I think that you'd likely see him get sentenced on this case either before contemporaneous to that September case.
Thanks so much for sharing your insights with us.
Duncan.
That's former Manhattan prosecutor Duncan Levin. Coming up next on the Bloomberg Lawn Show, we're going to be looking at the controversial case the Supreme Court has yet to decide on. I'm June Grosse and you're listening to Bloomberg. The Supreme Court is moving at a glacial pace. With just a few weeks left in the term, Nearly half of the cases argued remain undecided, and among those are the expected blockbusters on abortion, guns, and presidential immunity, where we may
see ideological splits on the court. Joining me is someone who is watching for those decisions. Bloomberg News Supreme Court reporter Greg Storr, Greg, the justices are going to be handing down these high stakes cases in the midst of so much controversy for the Court. In your time covering the Court, have you ever seen the court embroiled in so many controversies and such turmoil.
Well, let's may set a new standard in terms of the variety of issues that are going on with the Supreme Court. You have issues about justices or perhaps their wives, flying flags that are tied to ideological causes. You have secret tape recordings that people are making at the events. You have calls for recusal, and all that's happening against the backdrop of some very big, ideologically divisive cases, including cases involving Donald Trump.
They're moving very, very slowly. I thought for sure last Thursday one of the big cases we've been waiting for would come out. So we're about two and a half weeks till the end of the term. How many cases are outstanding.
It depends on how you count them, but it's in the upper twenty. There are a few cases that may come out as one opinion or may come out as two opinion. And that's about half their docket. And you know, of those twenty something cases, you know a good half of them are I would say big news. And you know cases that we have Bloomberg will probably for those who are Bloomberg subscribers, will be putting red headlines out on. So there's gonna be a lot going on in the next couple of weeks.
So let's talk about some of the ones that are outstanding.
A lot of folks right now is on the case involving Trump's bid for presidential immunity, which is delaying the Special Council's case against him for election interference.
That one, maybe we'll see the last day of the term. It's expected to be very controversial.
Yeah, that may well be one that comes out at the very very end. Of course, it was the last case that was argued. They actually added a special argument
day to hear that case. The arguments suggested the court was prepared to say that Donald Trump and other former presidents do have some immunity from criminal charges, and they might well kick this case back to the lower court to look more closely at these allegations, see which ones involve official actions by the president and therefore he has immunity, and which ones involve private actions that might be the subject of an indictment, and you know, barring something highly unexpected,
that will essentially run out the clock until the November election and make it impossible for this case to go to trial before the election.
Greg it seems to me that the Justices just don't care at all about appearing apolitical anymore, because in December, Special Counsel Jack Smith asked them to expedite the case, and then they waited for weeks and they heard it on the last argument day of the term. I mean, do they have any concern for the appearance that they're presenting of being political.
I think the answer to that is that some of them care a lot more than others. That's certainly something that Chief Justice John Roberts has indicated he cares a lot about. But he's just one vote on the court and he doesn't necessarily control what they do. You know, the Trump case was complicated in part because nobody was
actually talking about the impact on this upcoming election. Jack Smith certainly made the case that we need to get this resolved quickly, but nobody was actually asking the Supreme Court to ensure that there could be a tr before the election, so the court certainly could have handled it differently. We may learn a lot more about what was going on behind the scenes when we finally get some opinion
from the Court by the end of the month. You know, my guess is we will see a lot of the same sorts of things from the liberal justices that you just said there that the Court has, you know, sort of engineered a result that's going to be very much politically advantageous to Donald Trump.
And there's also the case involving the obstruction charges that January sixth defendants are facing, and that too could have an impact on the case against Donald Trump. The Court is poised to decide the first two abortion cases since that twenty twenty two opinion overturning Row one is over the most widely used abortion pill, MiFi Pristone.
Yeah, and that case is the one that's gotten more attention a lower court of Federal Pier Court, the very conservative Fith Circuit essentially said MiFi Pristone cannot be dispensed by mail. They set aside some changes that were made under the Obama and then the Biden administrations that had expanded access to MEFI pristone, and in the arguments, the Supreme Court suggested they were likely to reverse that ruling and keep MiFi pristone fully available. We'll see if the
decision ends up working out that way. But this may be a case where the this Circuit took us up a hill and the Supreme Court takes us back down.
Yes, we're going to have to keep track of how many times the Fifth Circuit gets reversed this term. In another abortion case, it didn't get as much publicity, but is really critical the Idaho case.
Yes, this is the case about what can happen in a hospital emergency room in a state with a really strict ban, and so Idaho has a near total ban. The law says the only exception is when the life of the mother is at risk. And the Biden administration is arguing that there is this federal law that requires
hospitals to treat people who come in emergency situations. And the Biden administration is arguing back by abortion rights groups that if somebody needs an abortion in an emergency situation because there's a risk to health, risk to fertility, or some other serious damage to organs, for example, that doctors under this federal law, not only can but must perform the abortion. So the question is whether that federal law
essentially supersedes the Idaho law in that particular context. The arguments suggested the Supreme Court was maybe trying to find a way to issue some sort of narrow ruling that didn't defindily answer that question, but sort of relied on the way the Idaho Solicitor General was characterizing the Idaho law. We'll see what happened in that case. The outcome was not entirely clear.
Then you have the court's first Second Amendment dispute, since the conservative majority, in an opinion by Justice Clarence Thomas, established a tough test for gun restrictions in the New York Gun case back in twenty twenty two. So two gun cases tell us about those, Yeah.
So one of them is the Second Amendment case. The other one is a statutory case. The Second Amendment case is whether this federal law that says if you are subject to a domestic violence restraining order you can't have a gun, whether that is a violation of the Second Amendment.
And the arguments last year very much suggested the Court was not willing to go that far, even though it has really expanded Second Amendment rights in recent years, and even though the Fifth Circuit, again the very conservative appeals court, said that the federal law was unconstitutional, the Supreme Court seemed to be suggesting that if there's a case where there's somebody who's very likely dangerous, that is a situation where the government does have a right to disarm them.
The second case is about the federal ban on machine guns and whether that can be used to ban so called bump stocks, which are devices that gain from notoriety after a lot of notoriety after the very deadly shooting in Las Vegas. A bump stock essentially converts a semi automatic rifle into something that fires as rapidly as a machine gun. And so the question is whether the Bureau of Alcohol, Tobacco, and Firearms can classify rifles equipped with
bump stocks as machine guns and therefore ban them. That one your arguments were a little tougher to call. I wouldn't be shocked either way on that one.
Then we have several cases involving federal regulations and the conservative war on the so called administrative state, and these fly under the radar for most of the public because frankly, they're not that interesting when you hear about them, But as you write, sweeping legal changes might come the most sweeping from this group of federal regulation cases.
Do you want to talk about them as a.
Group, Sure, and I'll try to make them somewhat interesting because they really matter a lot for things like environmental regulation, securities regulations, consumer protection, and the like. The biggest one of these is a case, actually two cases that are challenging something called the Chevron doctrine. Now don't fall asleep listeners,
very important doctrine. It basically says, hey, if there's a statute, timers passes a statute and it's not totally clear whether you know it, lets an agency do a certain thing. If an agency comes up with a reasonable interpretation of that statute and says, yeah, we're able to do this certain thing, courts will defer to the agency and say, okay, we'll go with that interpretation. And conservatives have been pushing in the last decade or two to overturn this doctrine.
It's from a nineteen eighty four case involving Chevron, and the Supreme Court in the conservative majority seems very very interested in doing that, and if they do overturn it, it will open up a host of questions about existing regulations, ones that have been on the books for quite a while, and questions about whether it's like a fast changing field
like AI and climate change and things like that. It could put new constraints on what agencies are able to do when they take kind of an old statute and try to apply it to a new circumstance.
Greg you spoke to Professor Josh Blackman, who teaches constitutional law at South Texas College of Law, and he said that he thought this term may be a mixed bag for conservative causes.
He did, and he was talking about some of those Fifth Circuit cases that we talked about earlier. So, you know, the myth Apristone case that may well end up being a put it in quote liberal outcome where they reverse the Fifth Circuit and don't restrict the abortion pill. There was another case the Court already decided that really could have undercut the Consumer Financial Protection Bureau involving how it gets its funding, and the Supreme Court in that case
sided with the CFPB ruled against the Fifth Circuit. There the same thing with the gun case, the domestic violence case and they will be ruling against the conservative Fifth Circuit. So there are enough cases in the mix there that it's pretty clear that conservatives are not going to win all of them, and they may not even win a
majority of them. But that's in part because the lower courts have been pushing the law in some cases so far to the right that even this conservative Supreme Court every now and then steps in and says, no, that's too far.
Hello, Fifth Circuit, we're talking about you.
So I always question why the most controversial cases over the hot button social issues come in the very last days of the term, despite whether they're heard early in the term or late in the term. But perhaps something startling that Justice Sonya Soto Mayor said gives us a hint about what's going on at the court.
Yeah, she mentioned at an appearance a week or two ago that sometimes after opinions come out, she goes back into her chambers and closes the door and cries, and then she say kind of as an aside, and there will be more of those. Wasn't clear she was talking necessarily about this term, but it would be a shock that has to do with this term. This conservative majority has done an awful lot in a very short period of time, and undoubtedly we'll do a significant amount more
in the next few weeks. And for the rest of Justice Soto Maria's time on the Supreme Court, it must be.
So difficult to be one of the three liberals when the numbers are just overwhelmingly against you. Thanks so much, Greg. That's Bloomberg New Supreme Court reporter Greg Store And that's it for this edition of the Bloomberg Law Podcast.
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I'm June Grosso and this is Bloomberg