Hunter Biden and the Fog of War
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Ken White’s comments.
The urge to comment on events immediately, as they are happening, before we have the information necessary to evaluate them, is corrosive. It’s also overpowering and pervasive in the era of social media. Nobody wants to wait for tomorrow’s morning paper, or even tonight’s newscast. We want answers and we want them now. Many of us also want to be the ones providing those answers — the first ones providing those answers — for those sweet clicks, comments, likes, and attention. Accuracy and nuance are the casualties.
Today Robert Hunter Biden’s long-anticipated guilty plea on two misdemeanor counts of failure to file a tax return was derailed. You’ve seen the news by now, and if you haven’t, you’ve probably seen the social media reactions, many of which are nonsensical and uninformed.
The truth is, so far, elusive. There were reporters in the courtroom. But, judging from the news stories, and with the greatest respect to those reporters, it seems they didn’t completely understand what was happening. They couldn’t report many verbatim quotes (they should have brought someone who takes shorthand) and federal courts don’t allow broadcast or media recoding of proceedings. So we’re left with a series of impressions by reporters who picked up bits and pieces of what was happening. Many of those reporters are intelligent and sophisticated but it’s not clear they have the experience with federal criminal law to pick up exactly what was going on.
The truth further eludes us because we lack the most important document — the written plea agreement between the U.S. Attorney’s Office. Always read the plea agreement to understand a plea. I argued weeks ago, when news of the plea deal came out, that until we got the plea agreement we could not fully evaluate the many claims that Hunter Biden was getting a “sweetheart deal.” In many federal districts it would be filed as a matter of course before the plea hearing, the government said in an earlier filing that it would be filed, and it still hasn’t been filed, leaving crucial questions unanswered and making it very difficult to interpret today’s events.
Here’s what we know, and what we still need to know.
We know that Hunter Biden showed up in court to enter his guilty plea. A federal guilty plea is an involved process; it’s routine for it to last anywhere from fifteen minutes (very fast) to an hour (slow). It involves a searching inquiry by the judge into whether the defendant understands the terms of the deal, the rights they are giving up, the sentence and sentencing process they are facing, the facts supporting the plea, and the voluntariness of the deal. Today that process went sideways, as it sometimes does.
From press reports, it appears that U.S. District Judge Maryellen Noreika asked questions about the scope of the deal. Specifically, she asked whether the government was agreeing not to prosecute Hunter Biden further just on these tax issues, or on any other issues it was investigating, including the Foreign Agent Registration Act. The government responded that the deal only precluded the government from prosecuting any other tax crimes related to these facts; Hunter Biden’s lawyers said that was wrong and if that was the case there was no deal. The judge told them to go talk and work it out. Apparently they did - and Hunter Biden agreed with the government that he was only protected from further tax prosecution on these facts, not from other prosecutions based on other investigations — but the judge asked the parties to submit briefs clarifying the scope of the non-prosecution promise and to come back, and did not accept the plea.
This is strange, and we can’t interpret the extent of the strangeness because we don’t have the written plea agreement.
Federal plea agreements typically spell out, very explicitly, the government’s non-prosecution promises. A standard agreement will say that the government agrees that this specific U.S. Attorney’s Office will not prosecute the defendant further for the facts and circumstances described in the plea agreement, but that the deal doesn’t cover any other crimes and doesn’t bind any other office or entity. That’s very narrow. It’s also very explicit and not subject to easy misunderstanding.
So for things to go wrong here, one of the following had to happen:
The government didn’t define the scope of its promise of non-prosecution in the agreement. That would be a huge mistake and very unusual.
The government defined the scope of its non-prosecution promise in the plea agreement but the scope was vague or badly drafted. That’s unusual and also a mistake. They are normally extremely careful with this language. The fact that the judge saw fit to inquire about the scope of the deal makes this possibility plausible — if the plea agreement was as clear on this point as it should be, and the judge read it, the judge wouldn’t have to ask that question.
Hunter Biden’s lawyers didn’t read the plea agreement carefully or didn’t understand the non-prosecution promise. Hunter Biden has experienced attorneys and that would be a huge and embarrassing blunder.
If I could read the plea agreement I could tell you which of these scenarios happened. But they haven’t filed the agreement and haven’t made it public, so we’re left to speculate.The judge’s refusal to accept the deal for now was appropriate. If there’s no meeting of the minds — if the parties don’t agree on the terms of the deal — the judge shouldn’t accept the plea. Also, once uncertainty has been expressed on the record, it’s not that strange for the judge to say “go put it in writing and come back” rather than accepting their statement “ok we straightened it out now.” Federal judges are notoriously careful about the guilty plea colloquy. I would probably do the same about such a high-profile case — if there was any hint that a party thought the written plea agreement was ambiguous, I would want it fixed.
What this does not seem to suggest, at least based on the information we have, is that the judge has accepted GOP arguments that Hunter Biden is getting a sweetheart deal, or that she’s part of a GOP conspiracy, or that she’s ultimately going to tank the deal.
We may have to wait until the parties file the clarification requested by the judge. One would hope they’d file the plea agreement — amended or not — by then. That will answer questions about this hiccup (and, I think, make it easier to evaluate the “sweetheart deal” arguments).
For now, the only thing I am confident in saying is that somebody done fucked up. But I’m not sure who.
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we lack the most important document — the written plea agreement between the U.S. Attorney’s Office
This is a matter of public record. Why has it not been revealed?
it still hasn’t been filed, leaving crucial questions unanswered and making it very difficult to interpret today’s events.
Why? This should be SOP for any case like this. What makes this case different?
From White's article, I gather that the government was trying to get a plea deal that involved future prosecutions.
The government? Wasn't that his lawyers' job? But, I digress.
The judge said, "No way, Jose."
What this does not seem to suggest, at least based on the information we have, is that the judge has accepted GOP arguments that Hunter Biden is getting a sweetheart deal, or that she’s part of a GOP conspiracy, or that she’s ultimately going to tank the deal.
But she's a TRUMP APPOINTEE! (REE!!!!), just like Weiss.
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So far the most detailed reporting of what happened in the courtroom last night is from the grey lady.
Judge Maryellen Noreika kicked off Wednesday’s hearing on Hunter Biden’s proposed plea deal with the Justice Department by telling lawyers that they did not need to keep “popping” up and down every time she asked them a question.
That was not a reflection of informality. It was a signal that she was about to subject them to three-plus hours of relentless interrogation over elements of an agreement she described, variously, as “not standard, not what I normally see,” possibly “unconstitutional,” without legal precedent and potentially “not worth the paper it is printed on.”
Judge Noreika stunned the participants with her scouring skepticism, which led her to refuse to green-light the deal until she received “more information” from both parties. An exhausted Mr. Biden trudged out of Federal District Court in Wilmington, Del., looking a bit stunned, as his lawyers puzzled over what to do next.
“You all are saying, ‘Just rubber stamp the agreement,’” said the judge. “I’m not in a position to accept or reject it. I need to defer.”
Judge Noreika quickly zeroed in on a central component of the deal, a paragraph offering Hunter Biden broad immunity from prosecution, in perpetuity, for a range of matters scrutinized by the Justice Department during its five-year investigation. The judge, appointed by former President Donald J. Trump in 2017, questioned why prosecutors had written it in a way that gave her no legal authority to reject it.Then, in 10 minutes of incisive questioning, she exposed serious differences between the two sides on what, exactly, that paragraph meant.
Chris Clark, Mr. Biden’s lead lawyer, said it indemnified his client not merely for the tax and gun offenses uncovered during the inquiry, which was led by David C. Weiss, the U.S. attorney in Delaware, but for other possible offenses stemming from his lucrative consulting deals with companies in Ukraine, China and Romania.
Prosecutors had a far narrower definition. They saw Mr. Biden’s immunity as limited to offenses uncovered during their probe of his tax returns dating back to 2014, and his illegal purchase of a firearm in 2018, when he was a heavy drug user, they said.
When the judge asked Leo Weiss, a lead prosecutor in the case, if the investigation was still going on, he answered: “yes.”
When she asked him, hypothetically, if the deal would preclude an investigation into possible violation of laws regulating foreign lobbying by Mr. Biden connected with his consulting and legal work, he replied: “no.”Mr. Biden then told the judge he could not agree to any deal that did not offer him broad immunity, and Mr. Clark popped up angrily to declare the deal was now “null and void.”
The 30 journalists in the gallery then witnessed a remarkable tableau of real-time, public deal-cutting, as the defense and prosecution first separated into two packs, then merged into a circle to hash out a new compromise, as Mr. Weiss, the architect of the imperiled deal, paced back and forth, jaw set and hands jammed into the pockets of his suit.
After an official recess was declared, Mr. Clark agreed to the narrower terms, and declared his previous statements “inartful.”
But Judge Noreika appeared unconvinced. She turned her attention to the fine print of the deal that had been struck on the gun offense, requiring Mr. Biden participate in a two-year diversion program that prohibited him from using drugs or owning a firearm.
She objected strenuously to how a violation of its terms would be handled.Typically, the Justice Department could independently verify such a breach and bring charges. But Mr. Biden’s team, concerned that the department might abuse that authority if former President Donald J. Trump was re-elected, successfully lobbied to give that power to Judge Noreika herself, arguing that she would be a more neutral arbiter.
But Judge Noreika suggested that such an arrangement could be unconstitutional because it might give her prosecutorial powers, which were vested in the executive branch by the Constitution.
“I’m not doing something that gets me outside my lane of my branch of government,” said the judge, who repeatedly complained that both sets of lawyers viewed her as a “rubber stamp” rather than someone working to make the agreement more equitable and durable.
“Go back and work on that,” she added.
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Another take:
Based on conversations with people who were in the courtroom today, and my experience as a former federal prosecutor, I think I know the full story of what happened with the Hunter Biden plea agreement blow-up this morning.
Bear with me, because this is a little complicated:
Typically, if the Government is offering to a defendant that it will 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). An agreement not to prosecute Hunter for FARA violations or other crimes in return for his pleading guilty to the tax misdemeanors, for example, would usually be a (c)(1)(A) plea. This is open, transparent, subject to judicial approval, etc.
In Hunter's case, according to what folks in the courtroom have told me, Hunter's plea was structured under Federal Rule of Criminal Procedure 11(c)(1)(B), which is usually just a plea in return for a joint sentencing recommendation only, and contained no information on its face about other potential charges, and contained no clear agreement by DOJ to forego prosecution of other charges.
Instead, DOJ and Hunter's lawyers effectively hid that part of the agreement in what was publicly described as a pretrial diversion agreement relating to a § 922(g)(3) gun charge against Hunter for being a drug user in possession of a firearm.
That pretrial diversion agreement as written was actually MUCH broader than just the gun charge. If Hunter were to complete probation, the pretrial diversion agreement prevented 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 and elsewhere.
So they put the facts in the plea agreement, but put their non-prosecution agreement in the pretrial diversion agreement, effectively hiding the full scope of what DOJ was offering and Hunter was obtaining through these proceedings. Hunter's upside from this deal was vast immunity from further prosecution if he finished a couple years of probation, and the public wouldn't be any the wiser because none of this was clearly stated on the face of the plea agreement, as would normally be the case.
Judge Noreika smelled a rat. She understood that the lawyers were trying to paint her into a corner and hide the ball. Instead, she backed DOJ and Hunter's lawyers into a corner by pulling all the details out into the open and then indicating that she wasn't going to approve a deal as broad as what she had discovered.
DOJ, attempting to save face and save its case, then stated on the record that the investigation into Hunter was ongoing and that Hunter remained susceptible to prosecution under FARA. Hunter's lawyers exploded. They clearly believed that FARA was covered under the deal, because as written, the pretrial diversion agreement language was broad enough to cover it. They blew up the deal, Hunter pled not guilty, and that's the current state of play.
And so here we are. Hunter's lawyers and DOJ are going to go off and try to pull together a new set of agreements, likely narrower, to satisfy Judge Noreika. Fortunately, I doubt if FARA or any charges related to Hunter's foreign influence peddling will be included, which leaves open the possibility of further investigations leading to further prosecutions.
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"My pronouns are FA/FO." - Mik, 2024
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@Mik said in Hunter Biden and the Fog of War:
This stinks to high heaven.
Also in the Grey Lady:
"As he entered the courtroom, Mr. Biden drew a deep breath and plunged forward to greet the prosecutors who investigated him for five years with handshakes and a smile."
I've been in court a couple of times. Never, ever, have I greeted the other side with "a handshake and a smile."
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"My pronouns are FA/FO." - Mik, 2024
