Patterico's Pontifications

7/27/2023

More on the Curious Plea Agreement for Hunter Biden

Filed under: General — JVW @ 2:36 pm



[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

19 Responses to “More on the Curious Plea Agreement for Hunter Biden”

  1. Seems to be Hunter Biden week around here. It is because he ironically has become the embodiment of the deep-seated corruption of the Washington Establishment, in so many different ways.

    JVW (1ad43e)

  2. Making money by throwing around your father’s name is akin to shooting fish in a barrel.

    It’s nothing to be proud of.

    norcal (6c17a3)

  3. The name “Biden” appears on both the prosecution and defense sides! Fancy that!)

    Only in news or opinion articles, of course. The Department’s formal name is not the “Biden Administration’s Department of Justice”

    Andy McCarthy:

    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.)

    I don’t see that either in paragraph 7 or paragraph 15 and the attachment of facts in attachment A only refers to guns. I don;t see Exhibit I in the PDF.

    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.

    Possibly that was in the original statement of facts, but not the current one?

    But I knew that blanket immunity had to be the goal of the defense lawyers. It was practically self-evident.

    Sammy Finkelman (1d215a)

  4. Odd that Barr elevated Durham to Special Counsel but not Weiss, even though the investigation involves the son of a sitting or soon-to-be-sitting president. Is it too late to appoint a new one now?

    Paul Montagu (d52d7d)

  5. Barr was probably worried about Durham’s independence and he knew an investigation was well under way. He wanted to allow him to finish.

    A special counsel is more appointed when there is possibility of favoritism toward the president or his cabinet, not to entrench possible opposition.

    Sammy Finkelman (1d215a)

  6. Anyone know when the statute of limitations is up for FARA violations? The only thing I can find is 5 years, but the reference was from a case in the 80s, so I can’t tell if that is current or not. However, if it is, then everything regarding Burisma, both the tax issues and the possible FARA violations, would be beyond the statute of limitations and they’d need to hurry up with anything regarding Hunter’s chinese buisness arrangements.

    If any of the Burisma stuff was going to be charged, I don’t understand why it wasn’t charged under Trump. Besides possible conflicts of interested, they were running hard up against the statutes of limitations by the end of the Trump administration. (not-with-standing Shapley’s insistence that he was sure that Biden’s lawyers would’ve agreed to an extension yet again- which I also don’t get. Why would they have extended after both years of the most serious charges would’ve been off the books?)

    Nic (896fdf)

  7. According to a somewhat unreliable informant, Hunter Biden had an informant in the FBI (could have sounded plausible to a Chinese, as well as the Israeli-American source, Dr. Gal Luft, but is not very plausible in reality)

    If he did he got wrong information.

    Hunter according to Luft, told Ye Jianming, the chairman of CEFC. that he’d be arrested in he stayed in the United States, and he went off to China and was arrested there (first maybe house arrest) and disappeared into the Chinese gulag, and he said that Patrick Ho would not be arrested if he came to the United States but he was.

    https://nypost.com/2023/03/22/hunter-biden-used-fbi-mole-to-tip-him-off-to-china-probes-tipster

    Before he left New York, Ye told Ho that the coast was clear for him to come back to the US.

    On Nov. 18, 2017, Ho flew into JFK Airport, where he was arrested by FBI agents on bribery and money laundering charges.

    “Ho was the patsy … the fall guy,” says Henoch.

    Ho was convicted in December 2018, without calling a single witness, served three years in jail, and was deported. Prosecutors placed the spotlight in his case on China’s use of foreign bribery to win contracts for its Belt and Road Initiative.

    Hunter was paid $1 million by CEFC to represent Ho, which entailed contacting his FBI sources on Ho’s behalf and engaging another attorney to do the legal work, according to emails on his laptop.

    CEFC paid a further $4.9 million to Hunter and Jim Biden in monthly installments for 14 months from August 2017, government records show.

    Sammy Finkelman (1d215a)

  8. TOTAL EXONERATION! The judge did not accept Hunter’s guilty plea so that means that he is not guilty of anything.

    nk (6db6dc)

  9. What? Does it have to be on Truth Social?

    nk (6db6dc)

  10. I don’t really care as long as everyone else gets the same consideration. I will say if someone in an adversarial position wanted to include immunity for all acts done in the 2014-2019 timeframe, it would make me wonder what exactly was going on back then. I might tell my investigators that it makes me think we might have missed something bigger

    steveg (ae80dd)

  11. It happens, steveg:

    The Senate unanimously votes to set up a panel to investigate Billy Carter’s business dealings with Libya. The action comes ten days after the Justice Department disclosed that Carter, brother of President Jimmy Carter, had registered as a foreign agent representing the Libya, well after he received $220,000 from that country’s government.

    Not exactly the same, but close.

    DRJ (ba8685)

  12. That amount in 1980 is worth a million today.

    DRJ (ba8685)

  13. TOTAL EXONERATION! The judge did not accept Hunter’s guilty plea so that means that he is not guilty of anything.

    This is why anybody with any sense should hire nk as a defense attorney. Especially if they are guilty as sin. Best in the business.

    JVW (1ad43e)

  14. Sin is seen as a construct that begs for creative deconstruction. Charlie Wilson would admit being a sinner and then enter a plea of naughty when surrounded by temptation

    steveg (ae80dd)

  15. And after this is all done, Hunter will be found naked with two strippers, a crack pipe and a six-pack of Cutty Sark in the middle of the Mall’s Reflecting Pool.

    Kevin M (2d6744)

  16. And after this is all done, Hunter will be found naked with two strippers, a crack pipe and a six-pack of Cutty Sark in the middle of the Mall’s Reflecting Pool.

    Why would anyone want to be cured of that?

    nk (7abb06)

  17. Meanwhile, DOnald Trump was indicted again in the documents case, this time, along with a new co-d=fendent, for erasing or attempting to erase videotape that had been under subpoena that would have shown boxes being moved to hide them from his attorneys and the government. Also, this time they included the Iran war plans analysis as a retained document.

    Sammy Finkelman (49d357)

  18. Thank you for taking your time to locate the various helpful opinions and presenting them here (with your equally helpful thoughts).

    DRJ (ba8685)

  19. Google Huifkar blended scotch. I think it comes in the plastic 5L bottles that you would usually see in cooking oil aisle. While you are there maybe pick up some bulk Trump endorsed pond cleaner. The reflective pool could become the US version of bat soup in the Wuhan wet market

    steveg (574d7a)


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