A plea agreement between the president’s son and the president’s Justice Department was never going to serve the public interest.
A plea agreement between the president’s son and the president’s Justice Department was never going to serve the public interest.
‘D oes this mean he goes to trial now?”
This was one of the questions I was naturally asked while doing some legal analysis of the Delaware Demolition in which Hunter Biden’s sweetheart plea deal went up in smoke on Wednesday.
My reply: “Go to trial . . . on what?”
That should be a dumb question to which the usual answer is, “The indictment, of course.” But see, here’s the thing: President Biden’s Justice Department has never filed an indictment against President Biden’s son. Why? Well, for the same reason the sweetheart deal blew up. The fatal flaw of the agreement written by Biden prosecutors is that it failed to describe in detail the criminal charges for which Hunter Biden was receiving immunity.
The immunity term is always key. It is the reason defendants plead a case out rather than rolling the dice on a trial. It spells out what the government is still at liberty to investigate and prosecute.
I will have more to say about the immunity term separately. 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.
It could not be more obvious that, if the government were truly conducting a continuing investigation, prosecutors would never in a million years give one of the main subjects of that investigation a plea to minor tax charges — with the promise of a recommendation of no imprisonment — in the middle of that investigation.
This corrupt episode happened because this case is not a legitimate case — it’s a sham. In legitimate prosecutions, the defendant and the Justice Department are adversaries, with defense lawyers looking out for the defendant’s interest and the prosecutors vindicating the public interest in seeing that lawbreakers are held to account. The Hunter Biden case, to the contrary, is a travesty, in which the defense and the prosecution are on the same side.
That is why the prosecutors have never filed an indictment that lays out the case against Hunter in exacting, painful detail — the way the Justice Department typically does. To do that would be politically devastating for the president, who is implicated in his son’s conduct. Plus, if prosecutors fully describe the serious charges that appear to be supported by evidence already known, it would become politically impossible to settle the case on two trivial tax misdemeanors with no jail time, in addition to disappearing a gun felony carrying a potential ten-year prison sentence.
That is why the plea agreement could not be a normal plea agreement. The point of an agreement is to outline in detail the full extent of the immunity the defendant is getting in exchange for his plea. Because the Hunter Biden defense and the Biden Justice Department are on the same side, the collective objective was to give Hunter as much immunity as possible, with as little said as possible about why he needs it.
A good analogy? Think of public-sector trade unions “negotiating” with elected Democrats in America’s big blue cities. There is no adversarial relationship. To the contrary, the more money and benefits the Democrats give the unions, the more donations and electoral support the unions give the Democrats. Consequently, as a matter of the public interest, such agreements are ruinous.
Same thing here, as a matter of justice. A plea agreement between Hunter Biden and the Biden Justice Department was never going to serve the public interest. It was going to serve the interests of Hunter Biden and the Joe Biden administration.
Here’s the problem: A plea agreement is a meeting of the minds, like any other contract. As a result, if the parties do not concur on the major terms, there is no agreement.
So here was the Biden Justice Department’s two-part plan (or, at least, two-part hope):
First, write a set of highly unusual, slippery agreements that would (a) allow Hunter to claim immunity not only for two tax misdemeanors but for any criminal charges arising out of the Biden family business, while (b) allowing the Justice Department to insist, if subsequently asked, that there was still an ongoing investigation — about which, of course, it could not comment, much less provide nosy congressional committees with information.
Second, get the judge to rubber-stamp the plea agreement without asking questions.
That second part is not as ambitious as it sounds. In most cases, plea agreements are very detailed and explain the parties’ understandings exquisitely. As a result, judges are habituated not to ask probing questions. Not because they’re lazy (they’re not), but because normal plea agreements are clear and on the up-and-up. If a court tries unnecessarily to clarify what is already clear, it can unintentionally create confusion, muddying what should be a straightforward written record of the proceedings.
But here, Judge Noreika could not in good conscience do that. The agreement was unusually elliptical, and contained at least one constitutionally objectionable term that required an advisory opinion from the court before the Justice Department could take future enforcement action against the president’s son.
That was a big tell. In all federal criminal prosecutions, the Justice Department is the party that writes plea agreements. To ensure that Americans receive equal justice under the law, the government makes the terms of these agreements standard. If a defendant asks for a tweak here or there, prosecutors decline. Obviously, if the government were to start making those kinds of accommodations, then connected people who could afford the best lawyers would get better deals than other defendants.
The agreement the Biden Justice Department gave Hunter Biden was a special agreement. It bears the stamp of Hunter’s lawyers. It didn’t look normal because there was nothing normal about it. It was cooked up by confederates, not hammered out by adversaries.
That was patently surprising to Judge Noreika. That’s why she asked what exactly was being agreed to — i.e., what immunity Hunter was getting for his plea to two minor tax charges. And at that point, the jig was up.
Pressed on the matter, Hunter’s lawyers had to say the immunity was sweeping. Politically, the Biden Justice Department could not agree with that, even though it’s exactly what they’d hoped to provide. After all, Garland, Weiss, and Co. have been telling Congress that they can’t answer any questions about, or provide documents related to, the Hunter case because there’s supposedly a continuing investigation.
Let’s put aside what I’ve noted above — namely, that it doesn’t make the slightest bit of sense for the Justice Department to give a suspect a plea deal to trivial charges when the investigation into his serious misconduct is still ongoing. It would make even less sense — it would be politically catastrophic — for the Biden Justice Department to say, “Well, yeah, there’s a continuing investigation into Hunter’s business dealings, but we’re nevertheless promising not to prosecute him at the end of it.”
To avoid political humiliation, the Biden Justice Department’s public position had to be that the immunity was narrow and that Hunter could still be prosecuted for other crimes. That was unacceptable to Hunter’s defense team, so the deal collapsed.
But collapsed into . . . what? Remember, there is no indictment.
Attorney General Garland declined to do his duty, which, in view of the insuperable conflict of interest, was to appoint a scrupulous special counsel who would investigate with independence and integrity. As a result, after years of a probe in which the statute of limitations has already expired on some of the most significant charges, there is no indictment.
An indictment stops the clock. If there were an indictment, the statute of limitations would not lapse. But there is no indictment because the Biden Justice Department is happy to see the statute of limitations on Hunter Biden’s offenses lapse.
So what’s the next step for the Biden Justice Department?
It’s to file an indictment . . . against Donald Trump!