Plea deal

Judge declines to approve Hunter Biden plea deal for now

The judge made clear that she viewed the deal between the president’s son and federal prosecutors as outside the norm.

By BETSY WOODRUFF SWAN and JOSH GERSTEIN

Hunter Biden’s plea deal hit a roadblock during an unexpectedly contentious federal court hearing Wednesday as prosecutors and Biden’s attorneys initially disagreed about the scope of the agreement and the judge then balked at approving the deal. Tensions grew after a prosecutor said the federal investigation into the president’s son is ongoing.

After pressing both sides for details about the plea deal, U.S. District Judge Maryellen Noreika adjourned the hearing so that the two sides could refine and clarify the agreement — under which Biden had planned to plead guilty to two misdemeanor tax offenses and likely avoid punishment on a felony gun charge.

At the end of the tumultuous three-hour hearing, Biden instead wound up pleading not guilty to all three charges, and the judge postponed further proceedings, likely for a month or more.

The proposed deal between Biden and the Justice Department — the outline of which was announced last month — isn’t dead. But prosecutors and Biden’s lawyers will now have to satisfy Noreika’s concerns about technical aspects of the deal and her own role in enforcing a so-called pretrial diversion agreement, under which Biden would avoid prison time on the gun charge if he remains drug-free for two years and doesn’t break any other laws.

If Noreika ultimately approves the deal, Biden will be able to withdraw the not guilty pleas he entered on Wednesday. He would then replace them with guilty pleas on the tax charges, and DOJ would defer prosecution on the gun charge.

The judge made clear that she viewed the proposed deal as outside the norm.

“These agreements are not straightforward, and they contain some atypical provisions,” Noreika said as the hearing reached a close.

Biden faces criminal charges for willfully failing to file or pay his income taxes in 2017 and 2018 and for owning a handgun in 2018 — a time when he has admitted he was regularly using cocaine. Federal law prohibits drug users from possessing firearms.

Biden’s attorneys and federal prosecutors reached the plea deal after a nearly five-year investigation overseen by U.S. Attorney David Weiss, who was appointed by former President Donald Trump.

But early in the hearing, it became clear that Noreika, also a Trump appointee, found the deal concerning, describing some of the provisions as “not standard” and “different from what I normally see.” It consisted of two parts: the plea agreement to resolve the tax charges and the diversion agreement to resolve the gun charge. In the diversion agreement, however, the Justice Department also committed not to bring charges against Biden for actions related to the tax plea deal.

The judge said she couldn’t find another example of a diversion agreement so broad that it shielded the defendant from charges in a different case. Leo Wise, a prosecutor working for Weiss, told the judge he also was unaware of any such precedent.

Beyond the tax issues and gun charge, Biden, 53, has faced a slew of allegations from Republicans that he traded on influence with his father and acted as an unregistered foreign agent, and prosecutors have looked at some of his business dealings. Wise said in court that the Hunter Biden investigation is still underway, and he said the diversion agreement wouldn’t block the Justice Department from hypothetically charging Biden with illegally lobbying for a foreign government.

About an hour into the hearing, the judge pressed the lawyers on whether Biden would accept the tax-related plea deal if the gun-related pretrial diversion agreement fell through. Wise, the prosecutor, said the plea deal stood alone. But Christopher Clark, Biden’s lawyer, said Biden would only accept both agreements together as one package.

When that conflict emerged, the judge left the room so the two legal teams could confer. Attorneys gathered in the space between their tables, and a powerful microphone made bits of their conversation audible to the whole courtroom. It was clear the exchange was tense. “This was all negotiated,” a voice said. “We misunderstood what we’re doing.” “We’re going to rip it up.”

But the two sides eventually resolved the disagreement, and the hearing moved forward.

Later, the judge asked Wise point-blank if there was still an investigation into the first son.

“There is,” Wise replied.

The judge then pressed the prosecutors further on why the immunity provision was in the pretrial diversion agreement — which lawyers said didn’t need her sign-off — instead of in the plea deal itself. If the immunity provision had been in the plea deal, then court rules would have given her more of a role in accepting, rejecting, or deferring that plea, she said.

She also pressed prosecutors on the scope of their agreement to not bring further criminal charges against Hunter Biden. Wise said the agreement meant they wouldn’t charge Biden with more serious crimes related to his 2017 and 2018 taxes, and they wouldn’t charge him for crimes related to the gun mentioned in the diversion agreement.

The judge then asked Wise if the agreement precluded charges against Biden for violating the Foreign Agents Registration Act, which bans Americans from secretly lobbying for foreign governments. Wise said the agreement did not preclude such charges.

But Clark then said he didn’t agree with Wise’s interpretation of the deal’s scope.

“Then there’s no deal,” Wise replied.

“As far as I’m concerned, the plea agreement is null and void,” Clark said.

With that, the plea deal appeared to implode 90 minutes into the hearing. But then Clark asked for a brief recess so the two legal teams could try to salvage it.

The lawyers huddled, and shortly after noon, the deal was back on track. Clark said Biden’s team now agreed with the prosecutors that the scope of the agreement was charges on the gun, tax issues, and drug use.

But later in the hearing, the deal hit another snag when the judge made clear that she had concerns about her role in the unusual agreement.

She expressed discomfort with both the prosecution and defense asserting she had no role in deciding whether to accept the diversion agreement.

Noreika suggested she was being asked to “rubber stamp” the deal.

“We’re not asking the court to rubber stamp anything,” Wise insisted.

“Well, it certainly sounds like it,” Noreika replied.

At the same time, she added, the diversion agreement also required the court’s involvement if Biden violated its terms. Those terms included a two-year ban on using alcohol, and a requirement that he alert the authorities before any international travel. If prosecutors believed Biden violated the agreement, the deal would require them to go to court and ask a judge to make an official finding that he had done so. Only after that step could prosecutors bring charges against him.

The judge said she worried this could make her a “gatekeeper” to criminal charges — possibly violating the Constitution’s separation of powers doctrine.

“You plop me right in there,” she added.

She told the lawyers to brief her on why the plea deal should be categorized under what’s referred to as “subsection B” — a provision of federal judicial rules that covers typical plea deals. And she asked them to look into the possibility that they could create a pretrial diversion agreement that didn’t require the court’s involvement before charging Biden with a crime for any potential violation of the deal.

“I cannot accept the plea agreement today,” she concluded.

Given that the plea agreement was temporarily off the table, she asked the president’s son how he would plead.

“Not guilty, your honor,” said Biden, who is an attorney.

None of Biden’s family members were in the courtroom, but he was accompanied by a group of lawyers, including prominent white collar defender Abbe Lowell. Kevin Morris, a Hollywood lawyer who has reportedly given Hunter significant financial help, sat in the audience with members of his legal team.

Since the plea agreement was announced last month, Republicans have charged that the president’s son got a sweetheart deal. And two IRS whistleblowers who worked on the Biden probe have testified to Congress that they faced roadblocks and interference.

Weiss, the Trump-appointed U.S. attorney who oversaw the probe, has defended the independence of the investigation. President Joe Biden’s Justice Department allowed Weiss to remain as the top federal prosecutor in Delaware to continue overseeing the investigation, and Attorney General Merrick Garland said Weiss had “full authority” to pursue charges of the president’s son with no political interference. Weiss was present for the hearing.

The day before the hearing, the Republican chair of the House Ways and Means Committee filed a motion aimed to draw the judge’s attention to their investigation of the Biden probe. But when a clerk removed the filing from the public docket, a brief fiasco unfurled, including an accusation of impersonation and a threat of sanctions. Lawyers representing Ways and Means were in the audience at the courtroom for the hearing.