[guest post by JVW]

Yesterday came the news that a plea agreement reached by the defense team for Hunter Biden and the Biden Administration’s Department of Justice (Hey! The name “Biden” appears on both the prosecution and defense sides! Fancy that!) had fallen apart under probing questions by U.S. District Court Judge Maryellen Noreika. As we related yesterday, Judge Noreika asked both sides if accepting the plea agreement before her would foreclose the possibility of Hunter Biden being subject to a future charge for a Foreign Agent Registration Act (FARA) violation during the period covered by the plea, which was 2014-19. When the Justice Department replied “no,” the defense backed out of the deal.

This development naturally raised the question of how the two sides could have reached such disparate interpretations of the agreement, and just what exactly the agreement had said. Some conservative analysts have attempted to string together what the deal might have looked like and how it fell apart. It’s an interesting story, and it does raise important questions as to whether or not the Biden Department of Justice did indeed attempt to give an unusually sweet deal to the President’s son.

At NRO, Andy McCarthy has an intriguing take on what went “wrong” at DOJ:

For now, suffice it to say that the Hunter Biden defense and the Biden Justice Department hid the sweeping immunity term, shielding Hunter from all future prosecution, in a “diversion agreement” related to the gun offense on which Hunter was not pleading guilty and is anticipated not to be prosecuted. (See here, p. 7, para. 15.) The “diversion agreement” is separate from the plea agreement to the misdemeanor tax charges (see here) — i.e., the only charges to which Hunter actually planned to plead guilty. The plea agreement is where one would ordinarily find the all-important immunity term (since the immunity is given by the government in exchange for the guilty plea). Both the diversion agreement and the plea agreement incorporate an outrageous statement of facts (which is appended to the tax plea agreement, linked above). This fictitious presentation, which appears to have been drafted by Hunter’s lawyers, is nevertheless endorsed by the Biden Justice Department, even though it is utterly inconsistent with the prosecutors’ face-saving protestations, under pointed questioning Wednesday by Judge Maryellen Noreika, that they are conducting a continuing investigation in which Hunter is a subject and could be charged.

Mr. McCarthy posits that rather than the Justice Department and defense team playing their traditional roles as adversaries, they appear to both be working on behalf of Team Biden. In what he terms as both a “travesty” and a “sham,” Mr. McCarthy suggests that the reason there has been no indictment — the plea deal was being negotiated without a DOJ indictment on the table — is because outlining all of the alleged crimes committed by Hunter Biden “would be politically devastating for the president, who is implicated in his son’s conduct.” He also lends credence to an idea that I suggested in the comments yesterday, that the whole point of this curious agreement was to give Team Biden reason to dismiss any future allegations against Hunter as being old news which had already been settled by the plea agreement.

Over at The Federalist, Will Scharf takes an educated guess as to how the DOJ and Biden defense team hoped to structure the plea agreement so as to shield it from Judge Noreika’s scrutiny:

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.

If correct, then the DOJ really was going to effectively immunize Hunter Biden from any violations, FARA or otherwise, which took place between 2014-19. And instead of copping to this upfront, they planned to bury these details in legal minutiae, safe from the incurious eyes of any White House reporter. When the time came to adjudicate other crimes committed by the President’s son during that period, his defense team would have credibly claimed immunity based upon the July 2023 plea deal. If Mr. Scharf is correct about this, then we are witnessing a clear case of favoritism given to a notorious member of a well-connected political family. Mr. Scharf hopefully guesses at what is likely to come next:

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.

Where we go from here remains to be seen, but what we are learning about the aborted plan does nothing to bolster the case that the DOJ is capable of handling an investigation and prosecution of the son of the President of the United States. Perhaps an independent special counsel needs to be appointed, not to begin this case from scratch, but to determine — free from DOJ meddling — what sort of charges should be brought and what sort of plea deal, if any, should be considered.

– JVW