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Sons of anarchy — Hunter Biden, Spare and the law of unintended consequences

Claudia Pizzocri
By Claudia Pizzocri
1 Sep 2024
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As happened with Hunter Biden and Prince Harry, immigrants to South Africa also frequently underestimate the legal implications of completing official forms and questionnaires, which are binding legal documents.

Indiscreet memoirs doused with (self) incriminating flair have unexpectedly linked Hunter Biden, son of sitting US President Joe Biden, and Prince Harry, son of King Charles III.

Hunter Biden’s Beautiful Things: A Memoir, was published in 2021, followed in 2023 by Prince Harry’s (Duke of Sussex) book Spare. Both authors have made the publishing choice of narrating their own audio books, reasserting ownership over their stories through their voices.

Writing a memoir is a powerful tool for reflection and introspection, an inward journey of self-discovery towards the re-positioning of Self in the world. Published memoirs often carry messages and roadmaps of an author’s expedition and voice craving to be heard, bearing testimony of a viewpoint. Factual historical accuracy does not always apply to a memoir.

While the titles of their works reflect antithetical journeys and destinations, one of redemption and appreciation, the other of recrimination and severance, the divergences become few and far between when looking at the parallel risks and the legal consequences of their drug use admissions and, more importantly, previous omissions.

In different ways, both Hunter and Harry have lived lives of privilege in the shadow of larger powers, struck by immense tragedies, personal loss and internal struggles. Both have defied expectations and systematic rules (anarchy), and both have admitted having experimented with drugs.  

In Spare, Harry reveals indulging in recreational use “to feel something different”, while Hunter acknowledges and owns the details of how his initial escapism mutated into full-blown addiction and an agonising recovery. “Pain is our universal condition”, as Hunter wrote, and Harry feels.

Hunter (Omission Number 1):


On 11 June 2024 a federal jury in Delaware (US) found Hunter guilty on three federal felony gun charges, confirming that he violated laws meant to prevent drug addicts from owning firearms.

Justice Department Federal prosecutor Derek Hines played a court clip after clip of Hunter’s reading from the audiobook of his memoir, his voice echoing in court, describing in raw detail his struggle with drug addiction. His own voice turned into evidence against him as proof of his addiction, coinciding with the time of the purchase of the gun in 2018.  

The charges followed by this guilty verdict mean that Hunter could face up to 25 years in prison, and a fine up to $750,000 at sentencing. However, according to experts, considering that Hunter — who is the first son of a sitting US president to be convicted of crime — is also a first-time offender and that the charge relating to having lied about his drug use on a federal form to buy a gun is not typically the basis for a stand-alone prosecution, it is likely that he might face a much shorter sentence, or even probation instead of prison.

The Spare (Omission Number 2):


The publication of Harry’s Spare sparked global curiosity and endless foreseeable controversies about Harry’s unapologetic divulging of private (royal) conversations and moments, and about his military indiscretions (for some equivalent to military-code violations).  

Perhaps the most unanticipated reaction to Harry’s memoir was that of The Heritage Foundation, a conservative think tank in the US that has since engaged in a legal battle against the Department of Homeland Security (DHS) for the release of Harry’s visa application records.

In suing the DHS, The Heritage Foundation claims to be seeking clarity on whether proper protocols were followed in granting Harry entry into the US as it contends that his illegal drug use admissions raise serious questions about his eligibility for a visa under US immigration laws.

In the US, visa applicants are required to make a disclosure about any history of drug use, which can impact their application. This is not the case in South Africa, where criminal records (convictions) are assessed against the various grounds of prohibition and where applicable towards a test of “good and sound character”.  

In the US, admission of drug and illegal substance use can lead to visa applications being rejected, although immigration officers can weigh various factors in their final decision. Lying on an application can result in penalties including deportation.  

This is a detail that Donald Trump has quickly latched onto, recently stating that “if [Harry] lied they'll have to take appropriate action”.

The Heritage Foundation’s foreign policy analyst Nile Gardiner, former aide to the late British Prime Minister Margaret Thatcher, stated: “Let’s see …. What he [Harry] put on his immigration application because, if it doesn’t [match], that’s perjury, that’s a criminal offence. Everyone should be held to account before the law here. No one should be treated any differently.”

It must be noted that as the records have yet to be released (which may never occur), it remains possible that Harry could have been admitted in the US on an A-1 visa, which imposes lower security and background check thresholds. An A-1 visa holder is inadmissible only on the grounds of terrorism and national security [US Immigration and Nationality Act §212(a)(3)(A), (3)(B), and (3)(C)].

While — outside of a political and partisan discourse — it can be disputed that using Harry’s “celebrity” status (another cause célèbre) in this instance may turn out to have been out-of-proportion propaganda and “much ado about nothing”, scapegoating still serves the purpose of hitting headlines and drawing public attention on a wider global discourse surrounding border protection, national security and lack of due process.

Epidemic anarchy


These same concerns about due process have recently hit close to home, when South Africa made international headlines regarding the admission of 95 Libyan militants under misrepresentation and breach of due process. Failure that was subsequently confirmed by Home Affairs Minister Leon Schreiber and Director-General Livhuwani Makhode, reporting to the portfolio Committee on Home Affairs sitting in Parliament on 20 August 2024.

Anarchy has ruled at Home Affairs for years and the ramifications and consequences of this complacent mismanagement are still to be uncovered in full. Schreiber’s department has set out to be “in the business of delivering dignity” and restoring the rule of the law. This noble mission statement should find full support by all stakeholders.

As Schreiber correctly acknowledged, “instead of viewing these as isolated events, we need to regard these matters as case studies that illustrate a far deeper crisis at the very heart of our state”.

Anarchy cannot prevail in a capable state. Accountability and truth should prevail. Negligent misrepresentation by way of an omission may occur in the form of a non-disclosure where there is a legal duty to disclose — this is a two-way street.

As for Hunter and Harry, it also frequently happens within the South African immigration landscape that applicants underestimate the legal value and purpose of completing government-issued forms and questionnaires, which equate to formal declarations that have legal implications and obligations.  

Committing anarchy


Superficiality in dealing with these processes encompasses an anarchic mentality and approach against governing principles and authority. Although few people are prepared to call themselves anarchists, all who subscribe to this cavalier attitude are in their own way committed to anarchy. Few understand that misrepresentation, even by omission, constitutes an offence.

In terms of section 49(14) of the South African Immigration Act [“Offences”]: “Any person who for the purpose of entering or remaining in, or departing from, or of facilitating or assisting the entrance into, residence in or departure from the Republic, whether in contravention of this Act or not, commits any fraudulent act or makes any false representation by conduct, statement or otherwise, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding eight years.”

Hunter’s guilty verdict in its harsh uniqueness is something to be learnt from.

As Professor Sidney Hook wrote: “One cannot assess the obligation to obey a law without at the same time assessing the consequences of not obeying it… There is no escaping the ethics of consequences.” DM

 

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