Federal Judge Turns Tables on Hunter Biden’s Plea Deal

Hunter Biden arrived in a Delaware‍ federal court on Wednesday morning‍ expecting that, in a few short hours, he would ‍walk out ⁣a ‌free man with‌ full immunity from prosecution for an ⁤exceedingly wide range of alleged​ criminal ‍conduct, ranging from gun and drug charges to⁤ foreign influence peddling. His expectation was that his deal would be insulated from⁣ challenges from the⁤ presiding judge, or from a prosecutorial change of heart under a​ future administration. His expectation was that his​ legal ordeals were ⁢coming to a close.

Instead, U.S. District Court Judge ‌Maryellen Noreika picked apart his‍ plea deal​ with surgical precision, exposing its legal ‌contradictions, and upbraiding both defense counsel and the Department of Justice for structuring an unprecedented deal that in her view — and mine — was illegal and unconstitutional.

I have reviewed the hearing transcript from Wednesday’s aborted change ⁢of plea hearing,⁤ as well as the agreed-to plea agreement and pretrial ‍diversion⁢ agreement​ that Hunter​ thought were his‌ salvation. ⁤I⁣ have spoken to individuals⁢ who were in ⁣the courtroom and witnessed Judge ⁢Noreika’s upturning of the⁣ apple cart. Based on my experience ‌as a federal prosecutor,‍ and based on⁢ everything that I have seen ⁤and⁣ heard, here is what I believe​ to be the story of Hunter’s blown plea.

An Attempt to Avoid Judicial Oversight

Typically, if the government is‍ offering a ⁢defendant to either drop charges‌ or decline to bring new charges in return for the defendant’s guilty ​plea, the⁣ plea is structured under Federal Rule of⁤ Criminal Procedure ⁣11(c)(1)(A). Pleas under this subsection are subject to judicial approval. So if a judge believes the government’s decision to decline prosecution or dismiss charges in return for a plea to other⁢ charges‍ is unjust, the ​judge can​ reject ⁢the plea agreement.

The deal reached between the DOJ and Hunter seems to ⁣have been that, in return for his pleading⁣ guilty to‌ the two tax misdemeanor⁢ charges that were the ‌subject of his plea, the government would agree not to prosecute Hunter for​ unlawful possession of a firearm, ‍Foreign Agent ⁣Registration Act (FARA) violations, and other crimes related to his⁣ international ⁤business schemes in‌ China and Ukraine with Bohai and Burisma, among others. In any ⁣normal ⁣case, ‌this would have been structured as a ​Rule 11(c)(1)(A) plea, which would have made it subject to judicial approval.

In Hunter’s case, though, ‍the​ parties were apparently worried that Judge Norieka might reject such a ⁢broad grant of ​immunity from ⁤prosecution‌ in return for such minor guilty pleas. As a result, Hunter’s plea was structured under a different provision, Rule 11(c)(1)(B), which‌ is usually just a plea agreement in return ⁢for a nonbinding sentencing recommendation, and which does not provide any⁣ ability of ⁣a court to intervene or reject the plea.

To insulate Hunter’s plea from judicial‌ oversight — and the possibility of‍ judicial rejection — Hunter’s lawyers and the Department of Justice included no mention of the agreement not to ⁢prosecute Hunter​ for further crimes in the plea agreement. Instead, they buried it ⁣in a separate pretrial ​diversion agreement, which they ‍argued the judge was not a⁢ party to⁤ and therefore lacked the power to reject.

Publicly,⁣ this ‌pretrial diversion agreement was described as applying just to the unlawful possession of a firearm charge. This⁤ was a wild mischaracterization of ⁢the agreement. Included in the agreement was a provision that bound the United States to⁢ not ​prosecute Biden “for any federal crimes encompassed by​ . . ​. the Statement‍ of Facts” attached to the Plea Agreement.

The referred-to Statement of Facts includes:⁣ Hunter’s ‍role with and compensation from ⁢Burisma; Hunter’s⁣ role with and​ compensation from Chinese private equity firm Bohai, Harvest, and⁣ Rosemont; Hunter’s holding company ​Owasco; Hunter’s consulting ​firm Rosemont⁢ Seneca; ⁢and many other aspects of ‌Hunter’s controversial web of ⁢business relationships.

In⁣ other words, if Hunter were to complete ‍probation, this pretrial diversion agreement would prevent DOJ ‌from ever bringing charges against Hunter⁢ for any crimes relating to⁢ the offense conduct ​discussed in the plea agreement, which was purposely ⁢written to include his foreign influence peddling‍ operations in China, Ukraine, and ‌elsewhere.

Hunter ​and DOJ put the‌ facts in the plea agreement, but​ put their non-prosecution agreement in the pretrial diversion agreement, effectively hiding the full ‌scope ‌of what DOJ ‍was offering and⁤ Hunter was obtaining ​through these proceedings. Because⁣ this allowed them ‍to, in their view, structure the plea agreement as a Rule 11(c)(1)(B) plea, it insulated the ⁢agreement from judicial oversight.

They went even further,⁣ though. In an‍ apparent effort ‌to⁣ shield Hunter ​from a new ‌administration, which might try to throw out the pretrial diversion agreement by claiming ‍that Hunter had violated his probation terms, ​they included a provision⁤ — ‍which ⁤they admitted was entirely novel, with no⁣ precedent — stating that the government ⁣could not deem Hunter to ⁢have ‌violated the agreement without first proving up‍ violations ⁤in front of the judge. So the agreement they ⁤stated the judge had no role‍ in and therefore no ‍ability to reject, also placed the judge in a position of having to sign ‌off on any future prosecution.

An Unconstitutional Agreement

Judge Noreika smelled a‍ rat. She understood that the lawyers were trying to ⁢paint her into a corner and hide the ball while forcing her to rubber-stamp their absurd bargain. Instead ⁣of ‌being that rubberstamp though, she backed DOJ and Hunter’s ​lawyers⁤ into a corner by pulling all the details out ⁢into the open, explaining the very serious legal and constitutional issues with this unprecedented method of structuring ‍what should have been a ‍simple plea agreement, and demanding that the lawyers explain themselves, ​which they simply couldn’t ⁢to her⁣ satisfaction.

DOJ, ​attempting to‌ save face⁣ and save⁣ its case, stated on the​ record⁢ that the investigation into Hunter was ongoing and that⁢ Hunter remained susceptible to‌ prosecution⁣ under FARA.‌ Hunter’s lawyers exploded. ⁣They clearly⁢ believed that FARA was covered under the ‌deal because as ​written, the pretrial diversion agreement language was broad enough to cover it. When ⁣the parties attempted to ⁢paper ‌over ⁢the ‌many issues raised, Judge ​Noreika was ⁤not satisfied. She demanded extensive​ briefing on the constitutional and legal‍ issues ‍raised during the hearing, ⁤leaving no chance‍ that Hunter will‍ be⁢ able​ to wrap⁣ up ⁣this case with any degree of rapidity.

And so here we are. Hunter’s lawyers ​and DOJ are going to go off and try​ to pull together a new set of agreements, likely narrower ⁣and less novel in its arrangement to satisfy Judge Noreika and move the case. They will have to explain their conduct in a public briefing which may shed some light on the obviously tortured⁣ negotiations that led us‌ to this place. ⁣And, fortunately, the chances of any agreement proceeding with the​ kind of blanket immunity the parties had in mind as they walked into court yesterday are essentially nil at this point.

Hunter may in fact have to face ⁣up ⁤to his crimes one​ day.