Republicans Want People Focused On Hunter Biden

(If they look up, they might notice their leader is about to be indicted. Again.)

Today, Hunter Biden will plead guilty to two misdemeanor tax charges in a deal with the government that, if accepted by the court, means he won’t spend time in prison. This hardly seems like news at this point. We learned about the deal and its terms in June when the U.S. Attorney David Weiss, who President Trump appointed for Delaware, and Merrick Garland permitted to stay on to complete this investigation, announced them. The younger Biden will also enter pre-trial diversion for a rarely used federal felony charge that makes it a crime for a habitual drug user to possess a firearm. Those charges will be dismissed if he successfully completes the program without committing new offenses.

Why is the change of plea hearing itself news? Because, of course, Republicans want it to be. Hunter Biden has been charged, and tomorrow he will accept responsibility and plead guilty. But that’s not enough for Republicans, who, one would think, might be quite happy with that story. Instead, they argue, he should have been charged with more crimes (these charges are, based on my 25 years of experience as a federal prosecutor, a gracious plenty compared to people accused of committing similar conduct) and subjected to a longer sentence, and of course, his father, the President, should have also been charged. No matter that the U.S. Attorney has announced he was not hampered in any way in bringing charges—in fact, Attorney General Merrick Garland left the decisions up to him. Republicans don’t care about the facts or the law, they just want to see criminal charges against Joe Biden. Their baseless arguments are reminiscent of the “lock her up” chants that made it clear the goal is not to have a rule of law system that protects rights and metes out justice, it’s to turn prosecutions into yet another political arm of Trump’s MAGA party.

The New York Times explained, “Republicans have been trying to link Hunter Biden’s international business dealings in Ukraine and China to his father, suggesting that as vice president the elder Mr. Biden used his office to help his son and his son’s business partners. But no evidence has surfaced implicating President Biden, who has always maintained that he kept his distance from his son’s business.”

Resign yourself to listening to conservative media rail about the overly generous treatment of Hunter Biden (not true), while ignoring the fact that the head of the Republican party and its frontrunner for the nomination has been twice indicted and is about to be indicted, likely twice more. He is likely to soon face federal charges related to an insurrection he fueled with false claims of election fraud and failed to stop, for hours, as violence took place. Hunter Biden’s plea arrangement has already been signed. Tomorrow is merely a formality.

So, this really isn’t news.

Or at least it wasn’t until House Ways and Means Committee Chairman Jason Smith of Missouri filed a brief Tuesday evening in the case. But wait, you might say. Federal prosecutors bring criminal cases against defendants. There is no third-party involvement. The Chairman of the Ways and Means Committee isn’t a party to this case, he has no right to be heard. And of course, you would be right.

But that didn’t stop Smith from filing a brief in the case before Delaware District Judge Maryellen Noreika. The pleading was sealed after being briefly available online, and accessed by the New York Times. The Times reported that Smith argued Hunter Biden was the beneficiary of “political interference which calls into question the propriety of the investigation” into a broader range of crimes he claims involved money laundering, felony tax evasion and failure to register as a foreign agent. Apparently, Smith, who graduated from law school at Oklahoma City University, has forgotten that charging decisions are left to the discretion of prosecutors. Even the Judge, let alone a member of Congress, cannot intervene to change the decisions prosecutors make about who to charge and what to charge them with. Why? Because in this country, prosecutions aren’t political weapons. And Republicans, it’s quite clear at this point, want them to be—prosecute those you dislike and protect those who are members of your tribe. Virtually nothing could be less American.

We should have every expectation that in court, Judge Noreika, who has excellent credentials, although she, like many federal judges before they are appointed to the bench, lacked criminal experience, will ignore the efforts at political interference in the criminal justice system. A Trump appointee, look for her to accept the guilty plea—or not, and ultimately sentence Hunter Biden based on the facts and the law. Not on Republican political delusion. That’s what federal judges are expected to do, and her track record on the bench suggests she is all business.

The hearing Biden will attend tomorrow is called a “change of plea” hearing, meaning he will change the plea of “not guilty” that he entered when he was arraigned to one of guilty. It will be up to the Judge to decide whether or not to accept the plea. That decision is governed by Federal Rule of Criminal Procedure 11, which sets forth the three core requirements for a guilty plea proceeding. Typically, so long as the prosecution can recite an agreed upon statement of the facts of the case that is sufficient to show they can prove every element of the charges the defendant is pleading to beyond a reasonable doubt, the Judge will accept the change of plea.

Sentencing does not follow immediately after the change of plea. It’s usually set for some months in the future to give the Probation Office time to write a pre-sentence report, which provides the Judge with guidance in calculating the sentencing guidelines and arriving at a sentence. But the ultimate choice of sentence is left to the discretion of the Judge. Judge Noreika will advise Hunter Biden during his hearing tomorrow that if she accepts his plea of guilty, he will not be able to withdraw it, and when she sentences him, she is not bound by his agreement with the government. She can issue a sentence that is higher or lower than the government’s recommendation, the recommendation that Biden and the government agree should be made in the case. While Judges often comply, or at least come in close to that recommendation, it is not unheard of for them to decide the defendant should receive a much lower or even a higher sentence and rule accordingly.

That means that Biden, like every other defendant, will enter a plea with a recommendation from the government that he hopes the Judge will honor, but he will know she doesn’t have to do so.

The Federal Rules of Criminal Procedure (FRCP) govern the procedures in federal criminal cases. They were adopted by the Supreme Court in 1944 and have undergone periodic revisions to reflect changes in how the courts operate. Rule 11 covers the requirements for plea agreements, including a lengthy list of items and rights the Judge must advise a defendant of during the hearing. Before the Judge accepts a plea of guilty, she must address the defendant personally in open court, inform him of his rights, and ascertain that he understands them. Those rights include the following:

·       the right to plead not guilty and to persist in that plea, without any obligation to plead guilty;

·       the right to a jury trial;

·       the right to be represented by counsel-and if necessary, have the court appoint counsel for every other stage of the proceeding;

·       the right at trial to confront and cross-examine adverse witnesses, to be protected from compelled self-incrimination, to testify and present evidence, and to compel the attendance of witnesses;

·       the defendant’s waiver of these rights if the court accepts a guilty plea of guilty or nolo contendere;

·       the nature of each charge to which the defendant is pleading;

·       the maximum possible statutory penalty, including imprisonment, fine, and term of supervised release.

The Judge also has to satisfy herself, before accepting a guilty plea, that it’s voluntary (and not the result of force, threats or promises other than the plea agreement) and that there is a sufficient factual basis for it.

Courts don’t participate in plea negotiations, which are conducted entirely between the prosecution and the defense. The rules permit prosecutors to avoid bringing additional charges or to move to dismiss existing ones as part of the terms of the plea agreement. The parties can agree to a specific sentence or sentencing range they will recommend, as is the case with Hunter Biden. And they must disclose all of the terms of any agreement to the court. At that point, it is up to the judge to accept or reject the agreement, or in rare cases, to defer her decision until she is able to review the presentence report.

But none of this is up to members of Congress, or to political opponents of a defendant’s father. Tomorrow, if the hearing goes as expected, Hunter Biden will acknowledge his guilt and take responsibility for his criminal conduct, in sharp contrast to how the former president has conducted himself. Biden has already begun to make amends, getting treatment for his addiction and paying back taxes he owed. No one should be judged for the rest of their life by the worst decisions they’ve ever made—one of the focuses of our criminal justice system is rehabilitation, which stands alongside accountability as a worthy goal. No one in Hunter Biden’s family will be proud of or happy about the conduct that brought him to this moment. But he is doing what we expect of defendants in our criminal justice system. He is attempting to move forward as a law-abiding citizen; a laudable goal, that requires a certain sense of humility and responsibility for what one has done. Ultimately, the real story here is the lesson of Hunter’s Biden’s efforts to make right what he did wrong. We live in a time where there are others who could, but almost certainly won’t, benefit from it. Tomorrow, Hunter Biden will stand before a judge and take responsibility for what he did.

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I hope that as we continue on “indictment watch” for the first charges connecting the former president to the insurrection, you’ll consider sharing Civil Discourse with friends and family. While prosecutors will argue their case to a trial jury, as citizens, we can all help educate the “jury of public opinion.” Getting the facts out, particularly with the absence of cameras in federal courts, will be essential. I hope our community here can play a role in helping people access accurate information about the legal proceedings, and legal procedure.

We’re in this together,

Joyce