Charles C. W. Cooke had a post this week that said everything that ought to be said about why it would be fitting to prosecute Hunter Biden’s apparent making of a false statement on the required firearms application form. I want to add a few points about prosecutorial discretion, the potential of an additional gun crime, and our two-tiered justice system.
The Politico story Charlie cites stresses that prosecutions arising out of false statements on Form 4473 are rare. As Charlie rightly observes, that in itself is a problem (a point Kevin D. Williamson also made a few days ago). Still, it is worth widening the lens beyond the narrow false-statements provision in the gun laws because the government actually prosecutes false statements all the time.
There is a general false-statements statute (Section 1001 of the penal code) which can be applied any time someone makes a false statement, including a material omission, to some branch, department, or agency of the federal government. Then there are false statements charges that apply to particular subject-matter areas, such as firearms or taxes. Hence, we have Section 922(a)(6), which, as Charlie explained, applies to false statements made in connection with the acquisition or attempted acquisition of a firearm.
The fact that these narrowly tailored false-statements statutes are invoked more rarely should not be taken to mean that false-statements prosecutions are infrequent. They are not. And a good 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 (and then was lax in safeguarding it).
In the Mueller investigation, for instance, Michael Flynn was prosecuted for misdescribing a conversation, indicative of no misconduct, of which the FBI had a recording and therefore no need to question him. George Papadopoulos and Alex van der Zwaan were prosecuted for false statements about the dates of meetings, and in neither situation was an investigation impeded — much less were the prevaricators, thereby, able to acquire dangerous weapons.
Moreover, it would be misleading for Biden apologists to claim that the rarity of prosecution means the Justice Department regards false statements on the firearms form to be a trifling matter. To be sure, there should be more prosecutions. But when there are prosecutions, the Justice Department trumpets them. Check out, for example this 2018 press release, entitled, “Convicted Felon Indicted for Making False Statements on a Federal Background Check while Attempting to Purchase a Firearm.” In that case, the government charged both the general false-statements offense and the more specific false-statements offense related to firearms. The statement issued by the U.S. attorney for Western Tennessee, who brought the case, is worth quoting:
Prosecutions of violent crimes must be paired with proactive prevention efforts to keep guns out of the hands of criminals and other prohibited persons. 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. 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. . . . Let this serve as a warning: This office will vigorously prosecute any prohibited persons who attempt to illegally obtain a firearm in these “lie-and-try” cases.
Big talk . . . but will the Justice Department back it up when the matter involves a Democrat with unparalleled connections and no shortage of press sympathy? A Democrat who did not merely “lie-and-try” but, it appears, lied and . . . got the gun.
On that last point, there is a second potential felony gun offense at issue. Section 922(g)(3) of the penal law makes it a crime, also punishable by ten years’ imprisonment, for a person who is an unlawful user of narcotics to receive or possess a firearm or ammunition. (Note: Politico reports that Hunter Biden told police he used the gun in question for target practice.) Hunter, of course, has notorious drug-abuse issues. Narcotics use has factored into a number of his escapades, and the Daily Mail reported that recreational drug use appeared to be depicted in video images stored on his laptop computers (the ones the press wouldn’t cover in the weeks before Election Day).
Hunter Biden was also kicked out of the U.S. Navy in 2014 for cocaine use. 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.
That’s worth noting because another provision in the federal gun laws, Section 922(g)(6), makes it a ten-year felony for a person to possess a firearm if he “has been discharged from the armed forces under dishonorable conditions.” Technically, Hunter’s administrative separation probably spares him that status. Nevertheless, for a prosecutor responsible for exercising discretion regarding whether Hunter Biden should be charged with making a false statement, it would weigh heavily that a) he actually got a gun due to the false statement, b) the gun was temporarily lost because of the negligent way in which it was kept, and c) his mere receipt and possession of the gun (indeed, of even the ammunition, apart from the gun) was likely a separate felony offense under at least one other provision of the gun laws.
Finally, even if it were true that false-statements charges were rare, our response, under the Mueller standards that Democrats cheered during the Trump years, ought to be: So what?
As I related in Ball of Collusion, in the half-century prior to Donald Trump’s election, the Justice Department prosecuted violations of the Foreign Agents Registration Act (FARA) just seven times, winning only three convictions (one at trial and two by guilty plea; of the other four, two cases were dismissed and two were disposed of on non-FARA charges). The fact that such prosecutions were rare made no difference to the Obama/Biden Justice Department, the FBI, or the Mueller probe. For criminal-enforcement purposes, FARA became the backbone of the Trump-Russia investigation, even though not a single person connected to the probe — including Paul Manafort, who was convicted of conspiring to violate FARA in connection with his Ukraine work — was ever alleged to be a foreign agent of Russia.
The basis for a criminal investigation of Hunter Biden, aspects of which I discussed in last weekend’s column, was already considerable before the sudden emergence of the apparent false statement on the firearms form. Though the latter is serious in its own right, we should not allow it to overshadow the former. Attorney General Merrick Garland vowed that there would be a single standard of justice, applied to all Americans, with politics kept out of prosecutorial decision-making. The day for testing the sincerity of that commitment is fast approaching.