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How Hunter Biden's plea deal became a huge cluster
The irony is that if anyone is being treated unfairly, it's Hunter.
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On July 26, what was supposed to be a routine plea hearing for Hunter Biden in federal court in Delaware turned into a protracted circus, culminating with Judge Maryellen Noreika rejecting a deal which would have concluded the five-year Justice Department investigation into the president’s son. Republicans, who spent years trying to tie Joe Biden to his son’s sad, grubby dealings, rejoiced.
“Today District Judge Noreika did the right thing by refusing to rubberstamp Hunter Biden’s sweetheart plea deal,” House Oversight Chair Jamie Comer tweeted. “But let’s be clear: Hunter’s sweetheart plea deal belongs in the trash. The DOJ must be held accountable for its Biden family coverup.”
The right-wing narrative is now set in stone: US Attorney David Weiss, appointed by Donald Trump and tapped by Bill Barr to investigate Hunter Biden, tried to give the president’s son a sweetheart deal and got called out by the judge. The Justice Department is in the tank for Hunter Biden. The fix is in.
RELATED FROM PN: The right's shameless Hunter Biden obsession
In fact, the courtroom debacle originated with two government-drafted documents, Frankenstein-ed together to get around the political problem of closing a five-year investigation into the president’s son with nothing to show for it, even as Republicans scream daily about “the Biden crime family.” Weiss tried to bury his investigation’s demise under ambiguous legalese and language which shifted responsibility for policing Biden’s compliance onto the court. This was likely meant to depoliticize the deal, but Judge Maryellen Noreika, a Trump appointee who seemed at best hostile to Biden and his counsel, refused to play along.
In the end, the plea was rejected, Weiss received special counsel powers, and the investigation remains as politicized as ever.
Why Hunter’s plea deal fell apart
The first problematic document was a plea agreement in which Biden pled guilty to two misdemeanor charges for failing to pay his 2017 and 2018 taxes in timely fashion. The second was a diversion agreement in which the government agreed not to prosecute him for lying on a handgun application in 2018, when he denied being a regular drug user despite being in the throes of addiction.
In the regular course of events, the court plays a role in the former type of document, but not the latter, which is functionally a contract between the Justice Department and the defendant. But for the foreseeable future, the DOJ will be controlled either by the defendant’s father, or by his father’s political enemies — none of which is regular. And so the parties punted, inserting a provision making Judge Noreika responsible for assessing Biden’s compliance with the terms of the diversion agreement:
If the United States believes that a knowing material breach of this Agreement has occurred, it may seek a determination by the United States District Judge for the District of Delaware with responsibility for the supervision of this Agreement. Upon notice to Biden, the United States may seek a determination on a preponderance of the evidence presented to such District Judge.
This was clearly done to depoliticize the decision whether to find Biden in breach of a contract which, among other things, requires him to remain sober. As Biden’s lawyer Christopher Clark explained at the hearing, the parties sought a “neutral arbiter to determine the breach” in light of the “tremendous amount of political drag with this Defendant.”
But Judge Noreika protested that this violated separation of powers by forcing her to make a prosecutorial decision which belongs to the executive branch and the Justice Department.
“I have concerns about the constitutionality of this provision,” she said, wondering “whether the Defendant has the protection from prosecution that he thinks he's getting if this agreement turns out to be not worth the paper it's written on.”
Clark and US Attorney Leo Wise argued that the language pertained to breach of the agreement, not a charging decision, and noted that courts routinely adjudicate whether prisoners out on bail have violated the terms of their release. But Judge Noreika remained unconvinced.
Worse still, the parties undermined the plea deal by explicitly linking it to the diversionary agreement. When asked if he’d been promised anything in exchange for his plea, Biden said he had not. But he then agreed under questioning that he would not be taking the plea deal if the diversion agreement did not implicitly end the entire criminal investigation.
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The government employed similar strategic ambiguity. In court, it reserved the right to prosecute Biden for other crimes. But attached to the plea agreement was a statement of facts describing Biden’s work for foreign companies in 2018, including Ukraine’s Burisma and the Chinese energy company at the center of Republican allegations. Read along with this clause in paragraph 14 of the diversion, it appeared to wipe the slate clean for Biden, guaranteeing that he could never be prosecuted for violating the Foreign Agents Registration Act in relation to those companies:
The United States agrees not to criminally prosecute Biden, outside of the terms of this Agreement, for any federal crimes encompassed by the attached Statement of Facts (Attachment A) and the Statement of Facts attached as Exhibit 1 to the Memorandum of Plea Agreement filed this same day.
But when asked by Judge Noreika whether Biden might face future prosecution for violating FARA in 2018, prosecutors said yes, prompting Biden’s lawyers to strenuously object.
In the end, Biden agreed to sign the plea anyway. Both parties then tried to salvage the deal, with Assistant US Attorney Leo Wise assuring the court that the two agreements were distinct and not interdependent:
Your Honor, I believe that this is a bilateral agreement between the parties that the parties view in their best interest. I don't believe that the role of probation would include weighing whether the benefit of the bargain is valid or not from the perspective of the United States or the Defendant.
But to no avail. Judge Noreika refused to accept the plea, sending the parties back to the drawing boards.
Republicans cook up conspiracy theories with no regard for the facts
But even as David Weiss spent the spring and summer trying to land the plane without causing a political firestorm, Republicans were cranking the noise machine up to eleven.
In May, House Republicans held hearings with a pair of supposed whistleblowers from the IRS who worked on the Biden investigation and claimed to have been discouraged from pursuing promising leads in the case. As journalist Marcy Wheeler lays out in multiple posts, a close examination of this testimony suggests that prosecutors have a strong incentive not to indict Biden, lest they be forced to disclose that the investigation was tainted from the start thanks to improper influence from Trump and his lackeys as well as reliance on emails from Biden’s infamous “laptop,” which is actually an image of a hard drive that shows signs of hacking and inauthentic files.
In June, the GOP trotted out Gal Luft, a third supposed whistleblower, who claimed to have a WhatsApp message showing that Hunter had taken bribes from a Chinese energy company. The problem is that Luft is currently under indictment for trafficking weapons and Iranian oil — which rather dents his credibility. Also, according to Biden’s lawyer Abbe Lowell, Luft’s supposed smoking gun message is quite obviously fake. NBC reports:
Lowell writes that the screenshots of the message as tweeted by [House Ways and Means Chair Jason] Smith, “both include a photo of Mr. Biden not from 2017 but from the White House Easter Egg roll in April 2022 (long after the purported message was sent); both images portray the message in a blue bubble, when WhatsApp messages are in green; one image super-imposed the Chinese flag for the contact ID, when surely that was not how a text or contact was kept; and one purports to be a screenshot with the '. . .' of someone composing a text (as in Apple’s iMessage) when that does not happen on WhatsApp.”
After failing to deliver on promises to prove that President Biden took bribes through his son, Republicans are now seizing on the controversy over the diversionary agreement as proof that the DOJ gave Biden a sweetheart deal.
But to explain this allegation is to refute it. The Justice Department is in the tank for Biden, so it made sure that a Trump-appointed judge — and not the Justice Department — would be in charge of determining whether he violated the agreement and had to go to jail. It makes about as much sense as Hillary Clinton colluding with Russia to defeat herself.
Nevertheless, the House Judiciary, Oversight, and Ways and Means Committees fired off a letter to Attorney General Garland demanding that he divulge every detail of the plea negotiations to Congress, as well as let them in on details of the continuing investigation.
Caving to pressure from MAGAs never turns out well
And amid all of this noise, the Justice Department has now taken the plea deal off the table, moving to dismiss the case “since there is no longer a plea agreement or diversion agreement for the Court to consider.” Under the terms of the moribund plea, Biden agreed to plead guilty in Delaware to crimes occurring outside the jurisdiction. But the government now claims that it plans to charge Biden for the tax crimes in either DC or California. Simultaneously, Weiss asked for and got AG Garland to appoint him special counsel, which empowers him to bring charges in any jurisdiction.
Republicans have been clamoring since 2020 for Weiss to be given just such authority. But now that he has it, they’re still not happy.
This action by Biden’s DOJ cannot be used to obstruct congressional investigations or whitewash the Biden family corruption,” Speaker Kevin McCarthy tweeted, echoing the general consensus of his caucus. “If Weiss negotiated the sweetheart deal that couldn’t get approved, how can he be trusted as a Special Counsel?”
For his part, Biden accuses prosecutors of reneging on the plea agreement, but nonetheless insists that the diversionary agreement is a separate document to which the government remains bound.
[T]he Defendant intends to abide by the terms of the Diversion Agreement that was executed at the July 26 hearing by the Defendant, his counsel, and the United States, and concurs with the statements the Government made during the July 26 hearing, and which the Government then acknowledged in its filings agreeing to the public disclosure of the Plea and Diversion Agreements — that the parties have a valid and binding bilateral Diversion Agreement.
As Biden’s lawyer Lowell pointed out on CBS, it simply beggars belief that Biden would have agreed to a deal which didn’t resolve all his legal issues:
So if you were in court or read about what happened on July the 26th, you have to ask yourself, as you just asked me, "why?" And there are only a few possibilities. Remember, it were the prosecutors who came forward and asked if there was a resolution possible. They're in charge of figuring out the form, the document, and the language. They did that. And so the possibilities are only, one, they wrote something and weren't clear what they meant. Two, they knew what they meant, and misstated it to counsel. Or third, they changed their view as they were standing in court in Delaware. So to answer that question, I'll ask you a question. And everybody else who's paying attention, what group of experienced defense lawyers would allow their client to plead guilty to a misdemeanor on a Monday, keeping in mind that they knew that there could be a felony charge on a Wednesday? That wouldn't happen.
In short, it’s a clusterfuck. And subsequent reporting strongly suggests that it got, umm, clustered because Weiss caved to political pressure from the same congressional Republicans who are now denouncing him as a Democrat squish.
The New York Times reports that Weiss had resolved by the end of 2022 not to charge Biden because “the average American would not be prosecuted for similar offenses.” But thanks to political pressure, he wanted something to show for his five year investigation.
First he demanded that Biden give up his right to own a gun. Then the price went up to include a diversionary agreement laying out all the unflattering conduct investigated. After the IRS whistleblower testimony, Weiss demanded that Biden plead guilty to the tax charges. Desperate to put an end to the ordeal, Biden agreed to all of it. But when asked to admit in open court that the deal included immunity from future prosecution for the 2018 FARA violations, Wise refused to do it. And now Weiss has gotten himself appointed special counsel, motivated at least in part “by a requirement to produce a report that would allow him to answer critics,” according to the NYT.
The whole thing is a mess, thanks to Weiss and his team, who wanted to be done with this whole shitstorm, and instead turned it into a shit tsunami. It remains to be seen whether they now try to charge Hunter Biden with the tax and FARA charges they already spent five years investigating and concluded were garbage.
It’s an impressive feat of bad faith lawyering, not to mention bad politics. Well played, Mr. Special Counsel.
That’s it for today
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