Hunter Biden’s trial starts today. He is charged with lying on a federal firearms application because he said he was not using drugs when in fact he was in the throes of a serious addiction. He had the gun for two weeks. It was never used in a crime. He is not taking drugs anymore. As this New York Times story notes, this crime is almost never prosecuted for a first-time offender, especially without an underlying, more serious crime. It’s a nothingburger. As even Republican senator Lindsey Graham acknowledged to HuffPost, “I don’t think the average American would have been charged with the gun thing.”
The Hunter Biden trial is the flip side of the Trump trial—both prosecutions are based on weak charges, and both were brought almost entirely because of the defendant’s prominence. Republicans, who have been claiming Trump’s guilty verdict is proof the Biden administration has “weaponized the justice system” to damage his opponent in the upcoming election, are more than happy to see Hunter Biden prosecuted on the flimsiest of charges.
But even putting aside the fact the Trump case was brought by Alvin Bragg, the Manhattan district attorney—who has no connection to the federal Justice Department—weaponization was not a factor. Just like the attorneys prosecuting Hunter Biden, Bragg and his team were prosecuting Trump simply because that’s what they do.
Had the district attorney’s office been trying to find something on Trump? You bet it had. That’s what prosecutors do as well—all the time. They read stories about possible financial fraud, and they start digging. There was a ton of published material about potential wrongdoing by Trump. And once they start digging, they don’t like to stop until they find something or come up with a theory that makes an ugly but seemingly benign action suddenly a crime. For instance, to put Michael Milken away, then–U.S. attorney Rudy Giuliani had to stretch securities laws significantly. (He also threatened to indict Milken’s father.) Bragg did the exact same thing with Trump.
In New York magazine, Elie Honig, a former prosecutor, said that Bragg had “contorted the law” to make his case. Probably true. But he also wrote, “Plenty of prosecutors have won plenty of convictions in cases that shouldn’t have been brought in the first place.” Definitely true. That’s not weaponization; that’s how the system works.
It’s just that most of the time we never learn about the people who have to defend themselves against flimsy charges because a prosecutor wants a scalp. I know a guy going through this in New Jersey right now, where prosecutors are trying to put him in prison because his company’s stock rose momentarily when he tried to obtain some Covid-19 tests to help his hospital customers. (He has been charged with securities fraud.) I spent a year with this guy when I was writing my book The Big Fail. I know he didn’t do anything wrong. The charges are transparently bogus. The first time he was tried, it was a hung jury. But the prosecutors won’t give up—they are determined to get a guilty verdict no matter how much they have to distort the facts. My source is spending millions of dollars to defend himself in a case every bit as flimsy as the one against Donald Trump or Hunter Biden. But because he’s not Hunter Biden or Donald Trump, nobody cares.
I admit politics played a part in both high-profile cases. At first, prosecutors worked out a plea deal with Hunter Biden. But Republicans objected, and after it drew unusual scrutiny from a Trump-appointed judge, the deal fell apart. I suppose the prosecutors could have then dropped the charges. But that’s not what prosecutors do. Their instinct, always, is to prosecute, to collect scalps. They measure success by how many guilty verdicts they garner. Which is the fundamental reason we now have the president’s son on trial—and the possibility that a jury will find him guilty.
The criminal justice system would of course be better if prosecutors cared more about seeking genuine justice than collecting scalps. But it’s not likely to change. Weaponization is not the issue. It’s that prosecutors are going to prosecute. Get used to it.
Joe Nocera is a columnist for The Free Press. Read his piece “The Humiliating Cross-Examination of SBF,” and follow him on X @opinion_joe.
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