Hunter Biden may be seeking jury nullification rather than vindication

There was an interesting development this week in the Hunter Biden gun trial: the fact that there will indeed be a Hunter Biden gun trial.

That development is surprising only because there do not appear to be any facts in dispute in this case. And the primary witness against Hunter Biden will be Hunter Biden himself.

The sole issue in this case is whether Biden filed a false gun form (ATF Form 4473) in which, as a condition for his purchase of a .38-caliber Colt Cobra revolver from the StarQuest Shooters and Survival Supply in Wilmington, Del., he stated that he was not a user of drugs.

Biden's counsel, Abbe Lowell, previously suggested that his client may have had a window of sobriety when he signed the form, but then returned to his addiction afterward. But then Hunter himself blew that theory away with his public comments and books. Lowell then suggested in court that someone else may have checked the box on the form.

In the interim, Lowell has brought a litany of challenges. At one point, he claimed that the government must fulfill a prior dead plea agreement. At another, he adopted an argument of the National Rifle Association challenging the underlying statute.

The defense also failed this week to call a last-minute witness who would testify that Hunter may not have known that he was an addict. The defense was accused of essentially hiding the ball with the expert's expected testimony so Judge Maryellen Noreika barred the appearance of the Columbia professor.

Yet, again, Hunter Biden himself would have destroyed the defense. The form asks if Hunter was a user of drugs, not just an addict: “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”

Hunter wrote how he was a user of a wide array of drugs for years. It is hard to imagine he thought himself as clean as a clergyman in Wilmington in 2018.

So why wouldn't Hunter just plead guilty? Even without his earlier plea deal, a guilty plea could significantly reinforce a request to avoid jail time in the case. It would also avoid an embarrassing trial for himself and his father during a presidential election.

While Hunter could always throw in the towel before the start of testimony, there is currently no discernible strategy beyond hoping that a pending case in the Supreme Court might undermine the indictment.

There may also be another possible strategy in play: jury nullification.

Unlike Donald Trump in Manhattan, Delaware is Biden country. The chance that he will get strong supporters of his father on the jury is an almost statistical certainty. In 2020, Joe Biden received roughly 60 percent of the vote over Donald Trump in the state. Having first lady Jill Biden, who is extremely popular, at the trial will only reinforce the connection.

In addition to a favorable jury pool, Biden may be hoping that testimony on his travails with drugs will prompt one or more jurors to ignore the law and vote to acquit. Notably, virtually all of the selected jurors have said that they know of someone who has struggled with drugs.

Indeed, Judge Noreika already appears to suspect such a strategy. Noreika rejected the effort of the defense to introduce an altered version of the federal firearms form created by the gun store employees. They argue that the alternation showed a political bias on the part of the prosecutors. The court found the document "irrelevant" and chastised the defense team for pursuing “conspiratorial” theories and an effort to confuse or mislead the jury. 

She noted that the use of the altered form would be “unduly prejudicial and invites (jury) nullification.”

Jury nullification arguments have long been banned or discouraged in courtrooms. Nevertheless, jury nullification has its advocates. For example, Georgetown Law Professor Paul Butler has called for Black jurors to refuse to convict Black defendants of drug crimes. Butler has said that "my goal is the subversion of the present criminal justice system."

Hunter Biden is obviously not the primary concern of Professor Butler in the impact of drug prosecutions on the Black community. However, he has also argued that "jury nullification is just part of an arsenal of tools to end the failed “war on drugs.”

Biden's case has all of the characteristics of a nullification defense. Even if he cannot secure acquittal, the combination of political and social elements at play in Delaware could produce a hung jury. 

Trying a Biden in Delaware is a challenge for any prosecutor, even without the potential sympathies for a reformed drug addict. With the first lady sitting behind him, the family ties will be on full display. There is an understandable desire to show emotional support for Hunter, but prosecutors cannot be thrilled by the potential effect on jurors in the pro-Biden state. 

Wilmington is President Biden's hometown, where he still maintains a family residence. In Wilmington itself in 2020, Biden received 26,698 votes to Trump's 3,580.

The hope is that, as President Biden once said, “Delaware is about getting everyone in the room, no matter how tough the problem, no matter how big the disagreement, and staying in the room until we figure it out." Everyone is in the courtroom and the hope is that at least some of these jurors will "figure it out" in their favor.

Perhaps Hunter put it best: "The single best thing is, family comes first. Over everything. I can't think of anything that has been more pervasive and played a larger part in my life than that simple lesson." 

The defense may be hoping that, for some jurors, "family [will] come first ... over everything," particularly over the evidence.

Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.