Hunter Biden violated a gun law that his father helped pass

On July 26, Hunter Biden’s plea deal with the U.S. attorney for Delaware collapsed over the question of whether the negotiated settlement over tax evasion and gun registration violations protects him from charges on other matters.

District Judge Maryellen Noreika pushed back on a key element of the so-called “diversion agreement” that permits Hunter to avoid a felony charge for false statements made on a handgun application. Language on page seven of the agreement appears to exempt him from prosecution for matters described separately in Exhibit 1 of the tax fraud guilty plea.

Asked by the judge if there was “any precedent for agreeing not to prosecute crimes that have nothing to do with the case or the charges being diverted,” the assistant U.S. attorney responded, “I am not aware of any, Your Honor.”

One of the ironies of this affair is the origin of the hand gun permitting protocol Hunter Biden admits to violating. It was part of a wave of crime prevention legislation championed by his father as chair of the Senate Judiciary Committee 30 years ago.

First proposed in Congress in 1987, the Brady Handgun Violence Prevention Act was enacted on Nov. 30, 1993 as an amendment to the original federal Gun Control Act of 1968. One of the key Senate sponsors was Judiciary Chair Joe Biden, seen in that era as a tough-on-crime moderate Democrat.

The Brady Bill prescribed a waiting period of five days before a handgun could be sold to an unlicensed individual in states lacking their own existing system of conducting background checks.

In fighting for Brady, Biden declared on the Senate floor “You wait five days to pick up your car when you buy it. You wait a day and a half to get your suit altered, if you buy a new suit. What can be so urgent that you have to walk in, you need that gun today?”

On Nov. 24, 1993, the New York Times noted that policy disagreements over Brady “were compounded by a personality clash between Senators Bob Dole, Republican of Kansas, and Joseph R. Biden Jr., Democrat of Delaware, that is growing into a bitter grudge match.”

The original bill called for the required five-day waiting period to expire by 1998, at which time a digital National Instant Criminal Background Check System (NICS) would be operational. Dole, the Republican minority leader, wanted the waiting period provision to sunset after four years, to appease states’ rights Republicans and the National Rifle Association. Biden insisted on five years.

“Joe just wants to rub our nose in it,” said Dole. “He didn’t have to do that.” It took negotiations between Dole and Majority Leader George Mitchell to break a Republican filibuster and ensure the bill’s passage, but Biden’s five-year sunset term was preserved.

Key to the bill’s establishment of the NICS, administered by the FBI, was the submission by gun buyers of ATF form 4473. The form was established by the 1968 Gun Control Act, but would now be uploaded into the NICS database.

The Brady Bill listed a series of updated disqualifiers to be incorporated into 4473, including the assertion that the buyer “is not an unlawful user of or addicted to any controlled substance as defined in section 102 of the Controlled Substances Act.”

The updated 4473 submitted by Hunter Biden in 2018 asked 14 qualifying questions, including 21 (g): “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”

This is the question to which Hunter Biden falsely answered “No,” despite the form’s boldface text that states “making any false oral or written statement, or exhibiting any false or misrepresented identification with respect to this transaction, is a crime punishable as a felony under Federal law.”

How should Americans react to the exception to prosecution being made for the son of the senator, vice president and president who has advocated so passionately for gun control and handgun background checks, most recently with his signature of the 2022 Bipartisan Safer Communities Act?

On the one hand, prosecution for lying on gun applications is rarely enforced. The Government Accountability Office (GAO) reports that in fiscal year 2017, the Bureau of Alcohol, Tobacco and Firearms referred about 13,000 NICS firearms denials to its field divisions for investigation, including checks of the veracity of form 4473 responses.

As of June 2018, U.S. attorneys had prosecuted exactly 12 of those cases. Justice officials told GAO that “prosecuting denial cases can require significant effort and may offer little value to public safety compared to other cases involving gun violence.”

The Washington Post reports that in Delaware, in fiscal year 2019, “only three Form 4473 cases were referred for prosecution and that the U.S. attorney opted not to bring them.”

By contrast, the U.S. Attorney’s office for Western Oklahoma announced in January its intent “to hold defendants accountable for making false statements in connection with the attempted purchase or purchase of a firearm” and lists a series of prosecutions on its website. But this appears to be an exception compared with the lax 4437 enforcement in other regions.

Right now, the immediate focus on Hunter’s case is whether he will receive any immunity from charges that stem from his foreign business activity. But when it comes to defending the diversion agreement itself, Joe Biden needs to explain why his son’s 4437 violation should be subject to the no-charge regime that has been prevalent in Delaware, rather than the stricter standards introduced in Oklahoma — and to make that case in the face of gun rights advocates who argue that a government that fails to enforce existing gun control laws has no business writing new ones.

Paul C. Atkinson, a former executive at The Wall Street Journal, is a contributing editor of the New York Sun.