As Republicans see it, the Justice Department is coming down hard on former President Donald Trump for political reasons, while it is going easy on Hunter Biden because he is the president’s son. Although there are plausible grounds for both assessments, they glide over the question of what justice would look like in these cases.
Trump left the White House with thousands of presidential records, including hundreds that were marked as classified, and resisted efforts to recover them. Under the Presidential Records Act, he claims, he had “the absolute right to do whatever I want with them.”
That is not what the statute, which Congress passed in response to Richard Nixon’s similar assertion of complete discretion, actually says. But the law itself does not prescribe any criminal penalties.
The superseding indictment unveiled last week instead charges Trump with 32 counts of willfully retaining “national defense information,” each tied to a specific document and punishable by up to 10 years in prison. Proving those charges may be difficult, because it requires persuading a jury, based on classified information the government is loath to disclose, that Trump had “reason to believe” the records “could be used to the injury of the United States or to the advantage of any foreign nation.”
By contrast, the five obstruction charges in the indictment, each punishable by up to 20 years in prison, do not hinge on the nature of the documents. The indictment plausibly alleges that Trump deliberately concealed those records, in the process flouting one federal subpoena and attempting to evade another.
Anything like the maximum penalties for those charges, some of which are seemingly redundant, would be clearly excessive. But that does not mean there should be no criminal consequences at all for what looks like willful and repeated defiance of the law.
In Hunter Biden’s case, the original plan was that he would plead guilty to two misdemeanor tax offenses, while prosecutors would recommend probation. Under a separate agreement, Biden would have avoided prosecution for illegally buying a gun by completing a two-year pretrial diversion program.
The latter agreement, which the lawyers on both sides said was not subject to U.S. District Judge Maryellen Noreika’s approval, would have charged her, rather than the Justice Department, with deciding whether Biden had complied with its terms. It also included an ambiguous promise that Biden would not be prosecuted for certain crimes.
Noreika understandably objected to those provisions, which seemed designed to protect Biden from the possibility that his father will lose reelection next year. That highly unusual arrangement reinforced the impression that Biden was receiving preferential treatment.
Some Republicans also wondered why Biden was charged with willful failure to pay his income taxes, a misdemeanor, rather than tax evasion, a felony. But that decision could be explained by the lack of any sophisticated tax dodging scheme, the fact that Biden eventually did pay his overdue taxes, and the difficulty of proving the criminal intent required for an evasion charge, especially in light of the well-known drug problems he was experiencing at the time.
Biden’s previous crack habit, along with his status as a nonviolent offender with no prior criminal record, probably also figured in the decision to approve pretrial diversion on the gun charge. Yet paradoxically, it was the justification for filing that charge in the first place.
Receipt or possession of a firearm by an “unlawful user” of a controlled substance is a felony that was punishable by up to 10 years in prison at the time of Biden’s gun purchase. Violating that arbitrary, constitutionally dubious prohibition (which also applies to cannabis consumers, even if they live in states that have legalized marijuana) should not be any sort of crime, let alone one that can put you behind bars for years.
In both of these cases, the legally authorized charges and penalties are not reliable indicators of what justice requires. It’s a distinction that members of both parties should keep in mind.
Jacob Sullum is a senior editor at Reason magazine.
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