President Joe Biden’s “full and unconditional pardon” he issued for his son Hunter Biden on Sunday evening covers a lot of ground: for offenses Hunter “has committed or may have committed or taken part in during the period from January 1, 2014 through December 1, 2024” including the cases he has in Delaware (for which he was convicted on June 11) and in California (to which he pleaded on Sept. 5).
The accompanying statement the president issued made it clear that he believes Hunter Biden was “selectively and unfairly” prosecuted simply because he is his son. Joe Biden wrote, in part: “I also believe raw politics has infected this process and it led to a miscarriage of justice.”
On the date of Biden’s plea hearing, the federal judge in Delaware questioned the scope of the immunity provision in the agreement.
I, too, believe that Hunter Biden’s criminal cases were the direct result of a political campaign by Donald Trump and his fanatical supporters in an attempt to attack Joe Biden.
As a prosecutor, you get to exercise what we call “prosecutorial discretion,” meaning you can exercise your professional judgment to decide what cases to prosecute, and, within reason and the bounds of applicable laws and procedure, you get to decide how to resolve those cases. If you are a lower-level prosecutor, your prosecutorial discretion can be limited: It can depend on the directives and priorities set by the lead prosecutor for your office, etc. But, in Hunter Biden’s investigations, special counsel David Weiss cannot say that he was prevented from exercising his prosecutorial discretion because he was the head prosecutor on those cases.
The tortured history of the cases speaks volumes about why these cases were politically motivated and unprecedented in their prosecution:
Hunter Biden was investigated for five years by the Justice Department. After those five years of investigations, the Trump-appointed U.S. attorney in Delaware, David Weiss, agreed with Biden’s lawyers to a nonprosecution agreement. Weiss then backpedaled and ended up insisting that Biden instead plead guilty to two tax misdemeanors (for failure to file) and that he enter into pretrial diversion for one gun charge. Biden agreed in June 2023 to these new terms and the two sides submitted his written diversion agreement to the court.
One very important part of Hunter Biden’s deal was a mutually agreed upon immunity provision. On the date of Biden’s plea hearing, the federal judge in Delaware questioned the scope of the immunity provision in the agreement. But she never killed the deal; she asked the parties for clarification of the immunity.
At this time, Trump and his team went after Weiss full bore. Weiss was publicly attacked and criticized. At one point, Trump posted on social media: “Weiss is a COWARD, a smaller version of Bill Barr, who never had the courage to do what everyone knows should have been done.” Instead of clarifying the deal that he himself had negotiated and already approved and despite there not being any new evidence to merit any changes, Weiss reneged on the agreement and insisted that Hunter accept new terms. He also got Attorney General Merrick Garland to grant him special counsel status.
Hunter Biden’s lawyers have argued that Weiss’ appointment as special counsel was problematic, as he was unlawfully appointed. Special counsel is supposed to be appointed from outside of the U.S. government and, obviously, Weiss was, and remains, the U.S. attorney for the District of Delaware. He should not have been allowed to serve as special counsel in Hunter Biden’s cases. When Hunter Biden moved to dismiss his cases on this basis, his motion was denied.
Nevertheless, Weiss, in a surprising about-face, then indicted Hunter Biden on three felony gun counts in Delaware and nine tax counts in California. It’s worth exposing the legal hypocrisy in these charges to underscore just how unprecedented these prosecutions were: Once Weiss caved to the political pressure by Trump and his Republican supporters including members of Congress, Weiss failed to honor the original plea agreement and instead filed nine counts. Hunter Biden possessed a firearm for a total of 11 days. At no point during those 11 days was the firearm loaded or used, and, without his knowledge, a third party took the gun from him and disposed of it in a garbage can. Prior to Weiss’ indicting Biden, prosecutors did not believe the evidence even supported a prosecution. And his substance abuse problem at the time merited, at the most, a diversion program. In fact, Biden’s lawyers have argued that in the history of this district in Delaware, no individual has ever been charged under the same facts as Hunter Biden has. There were zero aggravating circumstances that would have justified the DOJ pursuing any gun charge against Hunter Biden. As Hunter’s lawyers noted: “Since 2023, the only defendant charged with these [gun] offenses in the District of Delaware has been Hunter Biden. In that time, no other case has been charged in Delaware under these statutes.” Biden was also charged with nine tax counts in California, despite having fully paid his past-due taxes, including interest and penalties in 2021, more than two years before any criminal charges were filed. To move on from the multiple years of investigations and harassment, Biden initially agreed, with Weiss’ full acceptance, to plead to just two misdemeanors for failure to file his tax returns/to pay his taxes for 2017 and 2018. But, once Weiss caved to the political pressure by Trump and his Republican supporters including members of Congress, Weiss failed to honor the original plea agreement and instead filed nine counts (including three felonies). But perhaps the most obvious evidence that Hunter Biden was a selective criminal prosecution is that other individuals were able to resolve their cases with administrative or civil penalties or judgments. They weren’t prosecuted. But, then again, their last name wasn’t “Biden.”
Katie S. Phang
Katie S. Phang is the host of "The Katie Phang Show," which airs Saturdays at 12 p.m. ET on MSNBC. She is a legal contributor for NBC News and MSNBC based in Miami. She leverages her significant trial attorney experience to provide analysis and commentary on the latest legal issues. 
