No more deal: Special counsel is pursuing new indictment against Hunter Biden on felony gun crime

 Special counsel David Weiss filed court paperwork on Wednesday disclosing his plan to indict Hunter Biden on felony gun charges.

What is the background?

As part of a sweetheart plea deal announced in June, Weiss agreed to give the first son pretrial diversion for a felony gun charge. 

The deal meant that if Biden abided by the agreement's terms, he would avoid prosecution for the crime. The deal was highly unusual for a Justice Department that brags about prosecuting to the fullest extent of the law the crime that Weiss alleges Biden committed. But the deal collapsed in July when a federal judge questioned the constitutionality of the agreement.

The diversion agreement included a broad immunity deal and, in the eyes of the judge, made her the arbiter of Biden's compliance, which she believed raised separation of powers concerns.

After Biden left court having pleaded not guilty to tax charges, his attorneys argued the diversion agreement is binding because Biden and prosecutors had signed it. But Weiss' office maintains it is not valid because the U.S. probation officer never approved it, and thus the court never received an executed copy. 

What is happening now?

In a three-page court filing, prosecutor Leo Wise, a veteran U.S. attorney working on Weiss' team, told the court that prosecutors intend to seek an indictment against Biden this month. 

"The Speedy Trial Act requires that the Government obtain the return of an indictment by a grand jury by Friday, September 29, 2023, at the earliest," Wise told the court. "The Government intends to seek the return of an indictment in this case before that date."

The totality of the crimes for which Biden may be indicted is not crystal clear.

Biden allegedly broke at least two federal statutes related to firearms: one for allegedly lying on the federal form used to purchase a handgun in 2018 and another for being the user of a controlled substance in possession of a firearm. Originally, Biden was only accused of breaking the latter law — 18 U.S. Code § 922(g)(3) — not the former, 18 U.S. Code § 922(a)(6). But as precedent demonstrates, the DOJ aggressively prosecutes the crime of making a false statement during the purchase of a firearm.

Abbe Lowell, an attorney for Biden, responded to the court filing by arguing the diversion agreement "remains valid and prevents any additional charges from being filed" against Biden.

Lowell added that Biden has been "abiding by the conditions of release under that agreement for the last several weeks, including regular visits by the probation office."