Hunter Biden, the president’s son, seemingly faces no legal consequences for a possible deception during a background check while buying a gun.
It’s not clear whether the younger Biden broke the letter of federal gun law, although several legal experts and commentators say the question warrants an investigation.
Biden bought a .38-caliber revolver in Delaware on Oct. 12, 2018, according to an account by Politico published last month.
Politico reported: “Hunter responded ‘no’ to a question on the transaction record that asks, ‘Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?’”
On Monday, 22 House Republicans—led by Rep. Bob Good of Virginia—asked President Joe Biden’s nominee to run the Bureau of Alcohol, Tobacco, Firearms and Explosives to investigate Hunter Biden if he is confirmed by the Senate.
TheBlaze first reported the younger Biden’s handgun purchase in October.
Making a false statement on a federal criminal background check, known as ATF Form 4473, is a violation of federal law under Section 922(a)(6) of the U.S. criminal code. It also could violate Section 922(g)(3), which prohibits a drug user from possessing a firearm with ammunition.
Hunter Biden’s battle with substance abuse is widely known and key to his new memoir, in which he writes about using cocaine, crack, and alcohol through 2018. But Biden, 51, has not been the subject of a drug charge since being charged with cocaine possession when he was 18.
Federal law defines an unlawful user as “any person who is a current user of a controlled substance,” and adds that such use “is not limited to the use of drugs on a particular day, or within a matter of days or weeks before.” Instead, the law says, the unlawful use of drugs occurred “recently enough to indicate that the individual is actively engaged in such conduct.”
“There can be wide latitude to define a current user,” Jake Charles, executive director of the Center for Firearms Law at Duke University, told The Daily Signal. “For purposes of the law, you don’t have to have had a conviction or charges.”
Charles commented only on federal law, and stressed that he didn’t know the facts of the Hunter Biden situation and only had read vague news reports.
On multiple occasions, The Daily Signal contacted two lawyers identified in past news reports as representing Biden: Chris Clark of the firm Latham and Watkins and George R. Mesires of the firm Faegre Drinker. Neither lawyer responded to phone and email inquiries.
Earlier this month, Fox News host Tucker Carlson pointed to Hunter’s 2018 gun purchase in the context that the president’s ATF nominee has said he wants to prosecute more Americans for lying on background-check forms.
National Review’s Charles C.W. Cooke wrote: “It seems almost certain that Hunter Biden lied.”
Cooke, noting that the president is calling for stricter gun regulations, said that “if he wants to show that he’s not trying to create a confusing thicket of rules that will end up being enforced capriciously—he should be in favor of investigating and, if necessary, prosecuting his son and his friends.”
Here are three key questions about what happened:
1. What Does the Law Say?
National Review columnist Andrew McCarthy, a former federal prosecutor, argued last month that “many false statements that result in indictments involve situations markedly less serious than lying to conceal a disqualification from firearms possession—especially under circumstances where, due to the lie, the disqualified person succeeded in obtaining a gun.”
The website of the Bureau of Alcohol, Tobacco, Firearms and Explosives notes that federal law (18 U.S.C. Section 922(g)) makes it unlawful for someone to receive or possess firearms or ammunition if he or she is an “unlawful user of or addicted to any controlled substance.”
The term “unlawful user of or addicted to any controlled substance” is defined in the Code of Federal Regulations, under 27 C.F.R. § 478.11, which states:
A person who uses a controlled substance and has lost the power of self-control with reference to the use of controlled substance; and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician. Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. A person may be an unlawful current user of a controlled substance even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm.
The National Rifle Association, in a March 29 post, said it “does not allege that Hunter engaged in any criminal conduct,” but cited several federal laws that might be applicable.
“Whether or not he and his family’s admissions, or other evidence, concerning drug use could give rise to an inference that Hunter was an ‘unlawful user of or addicted to any controlled substance’ during the time period he acquired and possessed the firearm would be a matter for federal prosecutors to investigate,” the NRA post said, adding sarcastically: “We’re sure [Attorney General] Merrick Garland will be right on it.”
The NRA post also said: “Theoretically, Hunter could have been in a period of sobriety during the timeframe he purchased and possessed the revolver.”
Again, Hunter Biden has not been arrested and charged with substance abuse, which is among situations listed as an “inference” in the federal code:
An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year.
Importantly, Duke University’s Charles said, factors for drawing an “inference” of drug use under federal law include—but are not limited to—a conviction, arrests, or a recent failed drug test.
When the younger Biden purchased the handgun, it had been more than five years since he failed his last known drug test in the Navy, which led to his administrative discharge.
Speaking of the federal firearms law in general, Charles said that someone who failed a drug test years earlier would not likely fall under the category of those prohibited from purchasing a gun.
Generally, a potential 2018 offense for lying on a gun form or possessing both a gun and drugs would not be too far back to investigate, Charles said.
“It depends on the prosecutor, what witnesses saw, and the evidence,” he said.
Another part of the law (18 U.S.C. § 922(a)(6)) says it is illegal “knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification” intended to deceive a gun seller.
In other words, someone has to be aware that he or she isn’t telling the truth, and a substance abuser often is the last to acknowledge a problem.
Also, 18 U.S.C. § 924(a)(1)(A) applies to anyone who “knowingly makes any false statement or representation” on a background-check form.
The Supreme Court gave some definition to “knowingly” in a 2019 ruling when by a 7-2 ruling it overturned a conviction in Rehaif v. United States. In that case, an illegal immigrant misrepresented his legal status on a background-check form in buying a firearm.
The majority of the high court determined that when a person is charged with having a gun despite a legally prohibited status, prosecutors must prove the accused knew he or she was prohibited from buying the gun.
2. How Does Hunter Biden’s Drug Use Line Up With His Gun Purchase?
Hunter Biden’s handgun purchase in October 2018 involved other unusual elements.
For example, his brother Beau Biden’s widow, Hallie, took Hunter’s gun and put it in a trash can near a Janssen’s Market grocery store and the Secret Service then got involved, Politico reported.
The two were having an affair at the time, when Joe Biden’s surviving son wasn’t eligible for Secret Service protection.
Politico quoted a White House spokesperson as saying, “President Biden did not have any knowledge of, or involvement in, the Secret Service’s alleged role in this incident, and neither he nor any family member was a protectee at that time.”
However, the New York Post reported that Hunter sent text messages about three months later, one that was sent Jan. 29, 2019, said of Hallie:
She stole the gun out of my trunk lock box and threw it in a garbage can full to the top at Jansens [sic]. Then told me it was my problem to deal with.
Then when the police[,] the FBI [and] the secret service came on the scene she said she took it from me because she was scared I would harm myself due to my drug and alcohol problem and our volatile relationship and that she was afraid for the kids.
Really not joking the cop kept me convinced that Hallie was implying she was scared of me.
The newspaper also referred to a Dec. 6, 2018, message that said: “Took from lock box of truck and put it IN PAPER BAG AND Threw it in trash can at local high end grocer. For no reason.”
Sens. Charles Grassley, R-Iowa, and Ron Johnson, R-Wis., referred to the text messages when requesting information from the Secret Service.
Biden’s purchase of the handgun in October 2018 came five years after the Navy discharged him in 2013 for testing positive for cocaine. The president’s son writes about his drug addiction in his new memoir, saying it extended through 2018.
McCarthy, the former prosecutor, also referred to Section 922(g)(6) of the Federal Code, which forbids someone who has “been discharged from the armed forces under dishonorable conditions” from possessing a firearm. Although the issue has been raised about the younger Biden, it wouldn’t likely apply, McCarthy wrote in the March 27 piece in National Review.
“Consistent with the special treatment to which he is accustomed, the son of the then-vice president of the United States was permitted to be separated from the Navy administratively, rather than be dishonorably discharged,” McCarthy wrote. Different branches of the armed forces assign different meanings to the phrase “administratively discharged.”
In 2017, police in Arizona found a crack pipe in Biden’s rental car after it was damaged in an accident, ABC News reported. Someone also reportedly aimed a gun at him while he was trying to purchase cocaine in Los Angeles in 2016, when his father was still vice president.
The younger Biden’s drug use was cited in his 2017 divorce file by ex-wife Kathleen Biden, who claimed that he “created financial concerns for the family by spending extravagantly on his own interests (including drugs, alcohol, prostitutes, strip clubs, and gifts for women with whom he has sexual relations), while leaving the family with no funds to pay legitimate bills.”
USA Today reported that his memoir “Beautiful Things” refers to his struggles with drugs in spring 2018 and fall 2018, when his family tried to intervene.
Hunter Biden writes about using his “superpower—finding crack anytime, anywhere” while in Los Angeles in 2018; he recounts learning how to cook drugs, writing: “I never slept. There was no clock. Day bled into night and night into day.”
In 2019, the New York Post reported that in late 2018, Biden “was suspected of smoking crack inside a strip club” in Washington. Biden’s lawyer, Mesires, didn’t reply to the Post’s requests for comment.
3. Is This Law Enforced in Other Cases?
The Justice Department pursued at least two prosecutions for lying on a federal background-check form prior to Hunter Biden’s gun purchase, according to Justice Department press releases.
When buying a Cobra .380-caliber semiautomatic handgun at Flash Pawn in Memphis, for example, Everette Alexander said on the form that he wasn’t a convicted felon, although he was convicted 12 years earlier of possessing marijuana with intent to sell. In June 2019, a judge sentenced Alexander to 10 months in federal prison followed by two years supervised release for lying on the form in December 2017.
In August 2018, two months before Biden purchased his handgun, then-U.S. Attorney D. Michael Dunavant of the Western District of Tennessee heralded the importance of prosecutions for lying during a background check.
“A valuable tool in this prevention effort is the ATF Background Check Form 4473, which must be completed before a federally licensed firearms dealer sells or transfers a firearm,” Dunavant said upon Alexander’s indictment.
“Criminals and other prohibited persons who attempt to thwart the background check process by lying on the required forms threaten to undermine this important crime prevention tool, and such conduct cannot be tolerated,” he said.
Juan Sauceda went to a Walmart in Brownsville, Texas, in September 2018 to buy a 12-gauge pump shotgun and attested that he never was convicted of a felony—despite convictions on two counts of assault and battery with a deadly weapon in 2013, according to the Justice Department.
Sauceda’s offense, which brought him a sentence of 18 months in prison, occurred a month before the younger Biden bought his gun in Delaware.
That said, prosecutions for lying on a background-check form in a gun purchase have been rare, according to a Government Accountability Office report. In 2017, the report said, only 12 of more than 12,000 Americans found to have lied on the form were charged and 99% of them got only a warning.
McCarthy, the former prosecutor, wrote in another column published March 29 that cases of lying on background checks should be prosecuted more frequently:
Often, what is concealed is a prior conviction. The authorities discover it in reviewing the background check, and the purchase never goes through. Those cases ought to be prosecuted more often, but it’s not true that charges are never filed. Even if it were true, this is not that situation. Biden got the gun and, predictably, lost it. That’s a case that ought to be charged 10 times out of 10.
In November 2019, almost two years into Donald Trump’s presidency, the Justice Department announced “Project Guardian” to crack down on anyone who would “lie and try”—meaning attempt to buy a gun after making one or more false statements on a background-check form—or “lie and buy”—successfully purchase a firearm after giving false answers.
President Biden recently nominated David Chipman to run the Bureau of Alcohol, Tobacco, Firearms and Explosives. Chipman is a veteran ATF agent who in 2020 called for increasing arrests of those who lie on a background-check form in a gun purchase.
“While at ATF, I conducted studies involving people who failed background checks to determine how many later committed crimes with a gun—many did,” Chipman said last year in a Reddit question-and-answer session. “This is a perfect opportunity to arrest people before committing crimes rather than responding after the fact.”
The conviction rate might not be particularly high for lying during a background check, but a perusal of the Justice Department’s website shows federal prosecutors heralding each such case in recent years as highly important.
Other prosecuted cases include:
- Last October, a Wisconsin man was convicted of lying on a form by saying he was not subject to a restraining order, when in fact he was subject to a domestic protection order in Minnesota, according to a Justice Department announcement.
- In September, a Washington state woman pleaded guilty to several felonies related to purchasing firearms for others, including making false statements. This prosecution was part of Project Guardian, and the Justice Department called the case an example of “‘lie and buy’ firearms trafficking schemes.”
- In August, a Virginia man with seven previous felony convictions pleaded guilty to falsely claiming that he never had a single one. The man also had outstanding warrants on charges of abduction, larceny, assault and battery, and withholding a credit card belonging to another individual. The gun dealer recognized the man and notified police, who arrested him before he could proceed with the purchase.
- In February 2020, a federal jury convicted a Nevada man of making false statements during a background check. The jury found that he lied about his address over the course of buying 35 guns in 2017 and 2018. He got two years in prison.
- In December 2019, a judge sentenced a Texas man to 46 months in prison after he bought four firearms, claiming that he had no felony convictions. The man actually had been convicted in Puerto Rico on charges of theft by means of violence, robbery, carrying a firearm without a license, and possession of a controlled substance.
- A Louisiana man pleaded guilty in July 2019 to making a false statement when trying to buy a Smith & Wesson semiautomatic pistol by answering no on a question about any pending felony charges. The man actually was facing charges of home invasion, simple battery, domestic abuse battery, simple assault, intimidating witnesses, and simple burglary.
- In March 2019, a federal jury convicted a Tennessee man for making a false statement on ATF Form 4473 by saying he was not a convicted felon, when he actually was convicted of felony burglary in 2008 in Mississippi.
As a separate matter, about 600 federal prosecutions occur each year for possession of both drugs and guns, Duke University’s Charles said.
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