On Being Wrong

Sometimes when you’re wrong, you’re really wrong. That happened to me when I wrote these words ahead of Hunter Biden’s Wednesday guilty plea hearing, “Tomorrow is merely a formality.”

The hearing turned out to be anything but a formality. It was more of a debacle, although I suspect that ultimately, the issues that emerged today will get resolved and a guilty plea will go forward. During the hearing, the plea deal between the United States and Hunter Biden was on again and off again, like a ping pong ball being batted back and forth. By the end of the hearing, it was off, at least for now. Hunter Biden’s plea remained one of “not guilty.” The Judge gave the parties 30 days to try and work it out.

When a plea deal breaks down in court, it is almost always because a defendant doesn’t want to have to acknowledge, in front of friends and family, the crime or crimes they committed. It can be hard for a defendant to acknowledge that they did what they’re accused of, knowing they were or intending to break the law. There can be details they’ve tried to keep hidden. But prosecutors have to provide the court with a statement of the conduct a defendant engaged in—the evidence the prosecution would use to establish guilt beyond a reasonable doubt. Most often it is read out loud in court. The Judge then asks the defendant whether the government can prove what it says it can prove. And every once in a while, but not often, a defendant will balk.

At that point, the judge usually orders a brief recess so the defense lawyer can have a talk with their client. Then, the plea goes ahead. When you’ve gotten that far, both sides see the value in the agreement, and the defendant understands what they must do if they want the benefit of the deal their lawyer has struck for them. Typically, court resumes and the plea goes forward.

But that’s not what Hunter Biden’s situation is about. There seem to be two rather confusing issues that led to the derailment of the agreement. Part of the public confusion stems from the fact that the government didn’t file its agreement with Biden ahead of the hearing, and the transcript of the proceedings, all 127 pages of it, only became available late today. You know where this is headed—yet again I’m going to make the argument that we should have cameras in federal courts so the public has access and there is less confusion about legal proceedings. The lack of transparency made the difficult legal issues the Judge raised difficult to fully understand.

The first of the two issues that emerged today seems to come down to a basic difference in the understanding of what benefits the agreement gives Hunter Biden—what the scope of the immunity he was receiving from future prosecution is. Hunter Biden’s team seemed to believe once he pled guilty, there would be no further prosecution coming out of the Delaware U.S. Attorney’s investigation. The government’s view seemed to be that its investigation was ongoing, and it wouldn’t make that commitment.

That’s unusual. There’s little incentive for a defendant to plead to “some” charges knowing an investigation is ongoing and others could be coming. Typically, you’d wait to the end and look at all of the potential charges together before conducting plea negotiations. Plea agreements often give a defendant immunity for further prosecutions stemming from conduct the government is investigating, the stuff it knows is going on. So if a defendant is being investigated for participating in a drug conspiracy, the government would agree that once he pled guilty, there’d be no future charges stemming from that conduct. But if the government learned later he committed a murder, he could still be prosecuted for that. That’s the normal expectation with a plea agreement. Here, the government seems to have contemplated that Biden would plead to some aspects of their investigation, but that there could be more charges stemming from that investigation in the future. That wasn’t the deal Biden appears to have believed he was getting.

There’s something unusual going on here, and we don’t know precisely what it is yet. There have been allegations, as yet unproven publically, about Biden’s foreign business dealings and that there is criminality involved there. Republicans in Congress certainly seem to think that’s the case. There is the suggestion that he was work working on behalf of a foreign government and needed to register under the FARA (Foreign Agents Registration Act) statute. A failure to do so is a crime, but before charging it, for instance, as DOJ did with Mike Flynn, the government usually tells the target they need to register. There’s no suggestion in the public record that took place with Hunter Biden. But the government seemed to hold out the prospect there could be a prosecution against Biden on those charges.

The Judge, who handled herself as we suggested last night, fairly, intelligently, and with a commitment to getting it right, made a key point. A plea agreement is a contract. And if there’s no meeting on the minds between the parties, there’s no agreement. So the Judge declined to approve the deal, until the parties could get back together and reach agreement. It seems likely they’ll do that and find a way to work this out before they are due back in court.

That leaves the second issue, which is related and involves the interplay between the plea agreement on the tax issues and the pre-trial diversion agreement on the gun charge—a drug user in possession of a firearm. If Biden fulfills the terms of that agreement, whose terms include seeking employment and avoiding drug and alcohol use for two years, the charges against him are dismissed and it’s as though they were never filed. They won’t be a part of his permanent record, although given his notoriety, they will obviously continue to follow him regardless of the outcome.

It was the Judge who balked here, expressing concern that the role assigned to her went beyond her constitutional role. Under the Constitution, decisions about whom to indict and on what charges are reserved to the executive branch and put into the hands of the Justice Department. Judges don’t make those decisions. The Judge was concerned that, because the agreement gave her the authority to oversee decisions about when a breach of the agreement occurred and charges could be brought to trial, that the parties were forcing her out of her constitutional lane.

After the back and forth, which included pointing out that this sort of arrangement was unprecedented—the government conceded it had no precedent that approved this type of approach. None of this is ordinary.

This second issue will also require further work by the parties before the Judge will sign off on it. The plea agreement seems to entangle the tax and gun cases, despite the fact that they were filed using separate charging documents and assigned two different case numbers. The Judge isn’t going to accept the plea until she’s satisfied that her role comports with the Constitution’s specific assignment of powers to her branch of government.

So why were such unusual provisions used in such a high profile case? Why is this happening? Or, in the words of the Judge, “Why can’t you do that in the normal way?”

Why? Hunter Biden, who seems to have become Donald Trump’s favorite whipping boy, faces ongoing risks of further prosecutions if Trump returns to office. Trump is focused on revenge and retribution, and Hunter Biden seems to be at the center of his focus. Trump has made it clear he won’t make the same “mistakes” if he’s re-elected that he did the first go round—permitting the Justice Department to conduct prosecutions free of interference from the Oval Office. Given Trump’s public pronouncements about the “Biden crime family,” there are good reasons for concern if you’re Hunter Biden or his lawyers. So inserting a provision requiring sign off from the court as a guarantee against vindictive future prosecutions, makes sense. It may not make Constitutional sense, but with Trump’s willingness to pervert the criminal justice system into a tool of politics, not justice, it’s clear that Hunter Biden needs some guarantee he won’t be scapegoated by the next administration if Trump wins. The Judge seemed to acknowledge that.

At the end of the hearing she took the third way out, one of the options we considered last night. She didn’t accept or reject the plea. She said she needed more information before she could make that decision, so she deferred it. Now it’s back in the hands of the parties to convince the court that they have an agreement that is valid and that everyone understands and agrees to.

Lots of hullabaloo over charges that aren’t likely to have been brought against someone whose last name wasn’t Biden.

We’re in this together,

Joyce