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Jury selection for Hunter Biden’s first federal criminal trial began Monday in Delaware. The Biden son is facing trial on three charges: two counts of false statements and one count of unlawful firearm possession, all related to a Colt Cobra 38SPL revolver he allegedly purchased and possessed in Delaware in October 2018. Biden faces up to 25 years imprisonment if convicted of these offenses. 

The case the prosecution intends to prove is relatively straightforward. Biden has struggled with addiction to various narcotics for years and was even discharged from the U.S. Navy Reserve after failing a mandatory drug test in June 2013. In his 2021 book, Beautiful Things, he openly discussed the fact that during the period that is relevant in this case, “[a]ll my energy revolved around smoking drugs and making arrangements to buy drugs — feeding the beast.” Then, amid this addiction, Hunter Biden purchased a handgun.

Every gun owner will be familiar with ATF Form 4473, a document that asks all prospective firearms purchasers a series of questions to ensure they are legally authorized to own a firearm before completing a sale. One of these questions asks whether the purchaser is “an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”

The prosecution will attempt to prove that Biden answered “no” to this question on his Form 4473 when the truthful answer should have been “yes,” and he therefore obtained a gun that he was not legally authorized to possess. In other words, Hunter Biden is not being prosecuted for being an addict; he is being prosecuted for lying about his addiction to unlawfully obtain a firearm and then possessing that firearm as an unlawful user of illegal drugs.

For years, it appeared as if Hunter Biden would avoid accountability for his conduct entirely. After significant public pressure, however, a plea agreement was reached between Biden and the government that would allow him to plead guilty to two misdemeanor tax offenses — despite allegedly failing to pay over $1.4 million in taxes by understating his income and inflating his expenses, offenses that themselves carry a maximum of 17 years in prison — and avoid responsibility almost entirely for his gun offenses by entering into a deferred prosecution agreement. Such agreements are almost entirely unheard of for firearms offenses.

To make the deal even sweeter for Biden, the agreement did not even require him to cooperate with the government, which is often a requirement with plea agreements, particularly in cases where extreme leniency is being offered.

But then something happened in the spring of 2023 that threw a wrench into the deal being worked out between Biden and the government and changed the landscape. Two IRS whistleblowers came forward alleging political interference in their investigation of Hunter Biden’s taxes by officials in the Department of Justice who repeatedly limited the scope of the investigation. A New York Times investigation revealed that the U.S. attorney’s posture on whether to require Hunter Biden to plead guilty to misdemeanor tax offenses as a condition of any deal changed shortly after the IRS whistleblowers came forward.

Then Biden’s team demanded that the plea deal include immunity for “any other federal crimes” he may have committed, even beyond the gun and tax-related matters that were the subject of this investigation. Because this broad immunity request went farther than the prosecution was willing to go, the plea deal fell apart and was ultimately rejected by the federal judge.

The case has also raised interesting questions about the scope of the Second Amendment after Hunter Biden’s lawyers argued that the federal law under which he was charged infringes upon his constitutional right to own a firearm. Relying on the U.S. Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen, Biden’s attorneys argued that the charges should be dismissed because there is no “historical tradition” in the United States of prohibiting users of illicit substances from obtaining firearms simply upon the basis of their addiction (as opposed to a prior criminal conviction for drug charges, for example).

Federal courts are divided on the constitutionality of this law, and while the argument was not successful in preventing Biden’s case from moving forward to trial, it could still be relevant in an appeal. If Biden’s argument succeeds, that would effectively expand Second Amendment rights to a class of people whose right to own a firearm is not currently protected under federal law.

Hunter Biden’s legal troubles will not end with the conclusion of his Delaware trial. His indictment for failure to pay taxes from 2016 through 2019 is pending. And a congressional investigation into Hunter Biden’s foreign business deals and lobbying is also ongoing. Of course, his legal troubles may all go away after the November election, when, if reelected, President Biden would have the ability to pardon him, likely without serious political ramifications. 

Steve Roberts and Jonathan Fahey are partners at Holtzman Vogel, and Andrew Pardue is a Holtzman Vogel associate.