Hunter Biden was charged Thursday with three felonies related to lying on a 2018 application to purchase a gun. But it’s hard not to conclude that his true offense is that he is the son of a president whom Republicans are determined to vilify and defeat.

The charges rest largely on Biden’s false claim that he was not using illegal drugs when he applied to purchase the firearm. In fact, he was then in the depths of cocaine addiction that set off a series of trials that Republicans continue to use against his father.

The Justice Department had previously negotiated a settlement agreement with Biden that included a weapons charge after some five years of investigation by David Weiss, Trump’s U.S. attorney for Delaware, that President Biden was allowed to remain in office in a departure from standard procedure. Hunter Biden agreed to plead guilty to two tax violations and participate in a preliminary investigation, with the gun crime charge dropped if he stays on the straight and narrow for two years. Such agreements are a fairly common way to get rid of less serious charges.

The plea deal unraveled for unusual reasons that had nothing to do with Biden. The parties imprudently included provisions that gave a judge legitimate doubts about whether she would be called to participate in a stipulation that Biden would not be prosecuted on other charges, fulfilling an executive order that conflicted with the separation of powers. The agreement was therefore taken off the table to allow renegotiations.

But that opened up a storm of protest on Capitol Hill from Donald Trump’s allies, who railed against the so-called sweetheart deal. However, as I explained at the time, the broad outlines of the agreement amounted to a sensitive resolution of a case that the Justice Department could very well have lost at trial.

It has since become even clearer that all the resentment over the deal was directed at the president himself, who is being spoiled for impeachment by extremists in Congress, egged on by Trump. The Republicans have nothing of substance to accuse Biden of, so they are doing their best to link him to his son’s sins with unfounded suspicions. Such is the dissatisfaction between Trump and his supporters over this case that the FBI has created a special task force to deal with the unprecedented number of threats against agents and prosecutors working on the Hunter Biden case.

The clearest sign that something really stinks here is that the charges Weiss has filed are rarely prosecuted for their own sake. The department brings such charges against defendants who use illegally obtained firearms to commit other crimes. And in one or two cases, prosecutors appear to have used such charges against suspects they knew to be particularly dangerous. But this charge of an isolated lie by a relatively innocent firearms applicant appears to be without precedent.

So why was Weiss able to file charges that normally wouldn’t be filed?

If Weiss were a regular prosecutor, his decisions would be subject to an oversight structure that would enforce Justice Department policies and equal treatment of similarly situated individuals. But amid the political outrage, the U.S. attorney petitioned Atty. Gen. Merrick Garland for special counsel status, regardless of the fact that special counsel must come from outside the department. Garland’s hand was effectively forced under the circumstances and Weiss got what he asked for, along with a large degree of independence from normal procedures.

Antonin Scalia, most conservatives

beautifully ideal

from a Supreme Court judge warned us about this.

The independent counsel operating in an area where there is so little law and so much discretion is deliberately cut off from the unifying influence of the Justice Department, and from the perspective that multiple responsibilities provide, the late justice wrote. How frightening it must be to have your own independent counsel and staff appointed who have nothing to do but investigate you until the investigation is no longer worthwhile.

Although Scalia’s constitutional argument failed to hold water, the political concerns he raised led Congress to repeal the Independent Counsel Act. This was replaced by the special council structure through Department of Justice regulations, which were intended to be more consistent with standard policy. But peculiar political events have left Weiss in much the same isolated position as the independent counsels of old, with the same toxic consequences.

As for Hunter Biden, he still has some legal cards to play. His aggressive and able counsel, Abbe Lowell, will no doubt argue that the charges amount to an unlawful vindictive prosecution. And recent appeals court rulings suggesting that even felons retain their Second Amendment rights could cast a constitutional shadow on at least one of the gun charges.

But given that these arguments are relatively far-fetched for Biden, it is likely that he will have to go to trial on charges that are rarely brought in the middle of a presidential battle between his father and Trump. That will give radical Republicans in Congress the talking point they need to muddy the waters on Trump’s many criminal charges. Weiss gave them exactly what they wanted.

Harry Litman is the host of the

Talking Feds Podcast

.

@harrylitman