Editor's note: Andrei Spector is a former New York federal prosecutor. He is a litigation partner at the international law firm Brian Cave Leighton Paisner. The views expressed in this commentary are his own. Read more opinions on CNN.
CNN —
Hunter Biden won't be back in the spotlight next week, as the House Oversight Committee expected. The call for public testimony from Speaker James Comer comes after Congressional Republicans took a private deposition at the Capitol in February as part of the impeachment inquiry against Hunter's father, President Joe Biden. I declined the invitation.
Brian Cave Leighton Paisner
Andrei Spector
Hunter Biden's refusal to participate in the committee's “circus act,” in the words of his lawyer, comes after former FBI intelligence officer Alexander Smirnov was indicted on charges of lying about the Biden family's overseas dealings. This was after he told investigators he was providing information about Biden to the FBI. Family provided by Russian intelligence officials. If you've been a federal prosecutor long enough, you've probably lied to a confidential informant at some point. That's why we never base our accusations solely on their words. You corroborate them thoroughly and develop independent sources of evidence.
Mr. Smirnov had been touted as the linchpin in the Republican impeachment case, but the death of this key source has observers questioning whether there is anything left for the Republican attack. But the problem with the Hunter Biden investigation is not that it may rely on the word of compromised informants. We do not know how much, if any, of the prosecution's evidence came from Smirnov. And to their credit, prosecutors had no hesitation in arresting him. Mr. Smirnov has pleaded not guilty.
While the questions about Mr. Smirnov are important to resolve, they raise broader concerns about how prosecutors have treated Hunter Biden, particularly in the most important federal case related to taxes. He was indicted in December on a nine-count indictment consisting of three felonies and six misdemeanors for allegedly failing to pay and file taxes, evading taxes and filing false tax returns. According to the government, he could face up to 17 years in prison, but the indictment correctly acknowledges that his substantive exposure was not that serious. He pleaded not guilty.
The problems with this case were evident long before the latest developments. (Indeed, on the surface, this tax indictment does not appear to be tainted by information provided by Smirnov, and a private deposition last month revealed that Hunter Biden, not the pending charges against him, ), but it would focus on the unwarranted resources and attention Hunter received from prosecutors.
Although tax prosecutions may be legally sound and constitutional, they are still grossly unfair. The investigation into the president's son, like the investigation into former President Donald Trump, is so politicized and polarized that most people can't seem to see the gray or nuance. For most people, it's a binary choice. Witch hunt or crime of the century, righteous prosecution or political hit job, right or wrong.
The truth is, if Hunter Biden had had a different father, he probably wouldn't have been indicted at all, and certainly not with the excesses of a sensational 56-page tax indictment. That doesn't mean he didn't commit crimes. That means he's likely being treated differently simply because of his last name.
From our experience working with the Department of Justice Tax Division to prosecute tax violations, we know that the IRS typically only imposes monetary penalties for late payments for first-time offenders. In rare cases, ambitious prosecutors may open a criminal investigation if the conduct is particularly egregious or involves many individuals' tax returns (such as in the case of fraudulent tax preparers). In many cases, those investigations are resolved through non-prosecution agreements, deferred prosecution agreements (a promise not to prosecute if a person commits the act), or misdemeanor allegations of the kind Mr. Hunter and the government agreed to last year before the deal. right. It fell apart.
However, this case was not treated that way. And in that sense, at least when it comes to criminal cases in New York, Hunter Biden has something in common with an unlikely figure: Trump.
Yes, if the allegations are true, it appears that much of Hunter Biden's recent life has been filled with debauchery and crime. Yes, at least some of these crimes will be prosecuted. And yes, if there is evidence that his father was involved in any of these crimes, a deep and extensive investigation would be worthwhile. But that's not the case in this case.
Like the firearms charges against Hunter Biden, this tax indictment troubles many former federal white-collar prosecutors like me. Tax charges are not prosecutors' favorites, unlike the more attractive wire fraud and money laundering charges.
In addition to the bureaucratic hurdles to clear, even the standard investigative steps require consulting the Department of Justice's Tax Division, tax crimes generally require a high level of knowledge and intent by the perpetrator. , and this is the most difficult element for whites to prove. Collar crime. For example, it is not sufficient that the defendant simply failed to file a tax return or intentionally failed to file a tax return. Prosecutors must prove beyond a reasonable doubt that the failure was “deliberate.” If Hunter Biden fights this case through trial, the jury will find that he knowingly and voluntarily violated his tax obligations, and that his failure arose from a misunderstanding of the law (however unreasonable). It would be necessary to certify that this is not the case.
In most cases, the pay for prosecutors is also not worth it. Sentence potential is one of the factors prosecutors must consider when determining whether there is a “substantial federal interest” in filing charges. However, to say the least, tax crimes themselves do not carry heavy penalties. In 2022 (the latest year for which data is available), in the district where Hunter Biden was indicted, more defendants facing tax charges avoided prison than defendants who went to prison. This is a remarkable statistic, but it's in line with the rest of the country. . For the few defendants sentenced to prison, the median sentence was only three months.
The indictment itself is also quite strange. First, both felonies and misdemeanors are filed. Having prosecuted and defended dozens of federal criminal cases, I know this is unusual. Federal prosecutors rarely prosecute misdemeanors. U.S. law has enough felonies to choose from, and federal prosecutors (unlike state prosecutors) are supposed to be more selective and focus on the most meritorious cases. Misdemeanors are useful when trying to resolve problematic federal cases that have been charged as felonies, or less serious federal cases. That is, an interim conference for defendants who should not go to jail and should not get a free pass. It's not entirely unheard of to charge a misdemeanor and mix it with a felony in the same indictment, but it feels like filing a charge on paper in hopes that someone will follow through with the charge.
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Second, the indictment is filled with unnecessary details about Hunter Biden's life. Does it matter that he spent money on adult entertainment “instead of paying taxes”? After all, money not used to pay taxes is usually used for other purposes, scandal or not. Even if you have cash under your pillow, that doesn't make it a crime to fail to pay your taxes. So, is this indictment as “plain” and “concise” as federal regulations require, or is it intended to cause a stir? Much of it is likely to be denounced as “surplus” (unnecessary and prejudicial claims).
The indictment also followed a prior plea agreement with the government, primarily because Hunter Biden's previous attorneys and assistant U.S. attorneys did not agree on the terms of the plea agreement prior to his appearance in court. It is. These issues are often resolved by going to another court, rather than a major new indictment.
Hunter Biden has been treated differently than most other people, with the possible exception of Trump — at least in New York, where the former president has been indicted on a novel and shaky legal theory that seems exclusive to Trump. There is. That doesn't mean Trump or Hunter Biden are innocent. In fact, the former has more serious cases to deal with. But unequal treatment of citizens, no matter how unethical and despicable they are, is just as immoral.
