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It wasn’t Hunter Biden who pulled out of his plea bargain

Published on 25 Comments on It wasn’t Hunter Biden who pulled out of his plea bargain

I learned something new today from Marcy Wheeler. The conventional wisdom about the Hunter Biden case is that his plea deal fell apart because of a disagreement over the scope of Hunter's immunity from further prosecution. The government thought immunity was narrowly tailored to the specific charges at hand: guns, drugs, and taxes. Hunter's team wanted a broader immunity.

But that's not why things fell apart. This was a point of disagreement, but during the hearing over the plea agreement the judge gave both sides a few minutes to hash things out. Hunter's lawyer then agreed to the narrower immunity:

THE COURT: All right. So the defense agrees that the agreement not to prosecute only includes the time period from 2014 to 2019, it only includes tax charges in that time period, drug charges in that time period, and the particular — the firearms charges that relate to this particular firearm?

MR. CLARK: Yes, Your Honor.

So what happened? It's a little complicated. The deal had two parts: a Plea Agreement and a Diversion Agreement. The immunity provisions were in the Diversion Agreement.

This matters because it allows the Plea Agreement to be a "B agreement." Under a B agreement, the judge has no authority to accept or reject the plea. All she does is sentencing. However, if the immunity provisions were placed within the Plea Agreement—which is normal—then it would be an "A agreement" and the judge would have more authority over it.

The judge in the case implied that this was a bit of slick lawyering. She has no authority over the Diversion Agreement, which is solely a contract between Hunter and the government, and, because the immunity provisions were moved, she has no authority over the Plea Agreement either. So she's just a rubber stamp.

And there's more. The judge has no authority and no input into the Diversion Agreement, but it nonetheless includes a clause that makes her the arbiter of any alleged breaches in the agreement:

THE COURT: I'm concerned that that provision makes me a gatekeeper to criminal charges and puts me in the middle of a decision as to whether to bring a charge. And we already talked about separation of powers and that choice as to whether to bring charges is not — that's the executive branch, not the judicial branch, so is this even constitutional?

Hunter's lawyer explains that the case has become very politicized and they wanted a neutral arbiter. That's why they're asking her to do this. The judge says she understands, but is still concerned that she's effectively exercising a veto over future prosecution, which is supposed to be exclusively up to the Department of Justice.

The two sides discuss alternatives, and then ask the judge to approve everything else while they hash out this one issue. She declines, and sets the whole plea deal aside until she can hear further briefings.

But that never happened. A few days later House Republicans launched an investigation into Hunter's "sweetheart deal" and started a pressure campaign on prosecutor David Weiss to drive a harder bargain—something that Speaker Mike Johnson has bragged about:

The whole plea deal crashed completely in just a few more days. The prosecution team proposed removing the judge as arbiter and killing all immunity, which Hunter's team didn't accept. Prosecutors then threatened to revoke all the agreements, but before they could negotiate further Weiss—now a special counsel—withdrew the agreements and later insisted on felony pleas going forward.

So that's what happened. The judge had some arcane concerns about the deal, but before they could be adjudicated David Weiss pulled out and decided to take the cases to court. The end.

25 thoughts on “It wasn’t Hunter Biden who pulled out of his plea bargain”

  1. Altoid

    And this is why the prosecution has had a rank smell for those who've been following Emptywheel.

    And actually I think Marcy has more questions about the judge's role in ending the possible deals than indicated here. But the basic point is that the many people who are now saying Hunter should have taken a plea deal aren't reckoning with what the prosecution would have agreed to, nor with what the judge would have allowed. Deals like those are made between two parties, and in this case under a judge's review. It wasn't up to Hunter Biden alone.

    1. Special Newb

      He could have simply plead guilty and thrown himself on the courts mercy. As Drum said we all knew it. And now that's happening anyway.

      1. Altoid

        He could have, but the cost would be accepting a felony on his record, for a crime that former federal prosecutors say is virtually never charged on its own but only added on in connection with other crimes. Consensus among the ones I've heard is that career regular prosecutors wouldn't have brought the charges to trial, just because their time and personnel can be better used on serious cases.

        Other people, and I think Marcy Wheeler is among them, think that the "pressure campaign" by republicans in the House is what got Weiss to kill the plea deal and insist on pursuing the charges. I think that's more likely than not and bears looking into, and it taints the entire process and result.

        If I had the money to pay somebody like Lowell, I'm not sure I'd just plead guilty rather than go to trial in circumstances like this. I might get a more lenient sentence, sure, but there's more to it. A felony conviction would close a lot of doors, professionally and personally. So even a small chance of escaping it might be worth taking.

      2. kahner

        i think there's a very reasonable chance he could have gotten a hung jury and not been retried. and if he pleaded guilty i don't think he'd be able to file any appeals, which also have a non-negligible chance of success and will definitely take this past the election, at which point the politics will have changed and some better deal offered by the government or joe could commute any prison sentence. with all those possibilities i def wouldn't leave myself at the mercy of the courts with no guarantees and the chance of a multi-year prison sentence.

      3. Salamander

        "He could have simply pled guilty"

        Yeah, as far too many people with fewer resources have been driven to do over the decades. Then, at best, they find themselves blocked from many opportunities, like scholarships, government assistance, VOTING, ... for the remainder of their lives. And at worst, spend years or decades behind bars when actually innocent.

        Sure, just plead guilty. Mercy of court. Ha.

      1. Altoid

        Yes, that's what I recall. This same special prosecutor turned around and indicted Smirnov earlier this year for lying to the FBI. But the lies were useful enough for the House committee, giving it ammunition to pressure Weiss in the Hunter case. So what's the biggie if it was Russian disinfo that just happened to be what the committee wanted to hear from somebody?

    3. jijovig651

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    1. Austin

      Ok. Are you willing to quadruple the judicial system’s budget then? Or allow defendants to wait for decades before their cases can be brought before a judge? Cause something like three quarters or more of cases are plea bargained nowadays to avoid trial. Trials aren’t free and are time consuming for government employees to pursue.

  3. Justin

    I'm all in favor of repealing the second amendment and seizing all privately owned firearms. And shooting those who resist! I'd like to see more gun crime punished this way. 25 years in prison? Heck yeah. But liberals are supposed to be generous with forgiveness and be tolerant of misbehavior.

    I'm sorry that Joe Biden has an unhinged idiot son. I imagine that if he had known Hunter would be such a focus for punishment, he wouldn't have run for president in 2016. It's fair to say that Hunter is being punished for both his stupidity and his old man's politics.

    But I despise gun people with every fiber of my being so to hell with Hunter.

    Plus - how stupid is he to leave his laptop for some crank to sell for the dirt. My god this man is stupid.

    1. Justin

      As for Hunter's alleged "addiction" here's a story about just how pernicious these so called addicts have become everywhere. Again, I'm supposed to be forgiving and tolerant, but I'm just not into it anymore.

      https://www.theguardian.com/global-development/ng-interactive/2024/jun/12/were-seeing-firearms-arson-attacks-on-homes-the-families-in-the-eye-of-irelands-cocaine-storm

      Hunter, like the people in that article, are a source of so much terrible suffering. What a horrible person.

      1. Jim Carey

        The first step of the 12-step program begins when the addict abandons their "I'm right and anyone who disagrees with me is wrong" attitude. Good thing that doesn't apply to you, Justin.

  4. Creigh Gordon

    I never read Marcy Wheeler but I always figured that pressure from Republicans to find some kind of payback for Trump's prosecutions was behind all this.

    1. Art Eclectic

      Absolutely. But that's what you get when you line behind a candidate with all kinds of skeletons and known dirty deals in his closets. They got Clinton, couldn't find anything on Obama, nothing on Biden outside of his son. Yet their candidate is a felon. But whatever it takes to get the power back, sorta like the Mafia - you gotta protect the family.

  5. smallteams

    It's very unusual for the judge to be an arbiter in this case, but there was a very good reason the parties asked her to do this: the possibility that Trump would win the election and that the Trump DOJ would reneg on the entire deal. The parties asked the judge to be a neutral arbiter to prevent Trump from being a vindictive jerk and trash the agreement.

    Without those protections, any immunity deal was worthless.

    Add to that the fact that David Weiss caved to political pressure and you have the unfiortunate mess we find ourselves in; Hunter prosecuted for a crime almost no one is prosecuted for, and Hunter proscecuted for tax crimes when he's already paid back what he owes.

    1. Jim Carey

      Yes, it's unfair from an individual and family perspective, but the Bidens are willing to serve the nation's interest at their family's expense. IMHO, that makes them, Hunter included, heroes.

        1. Jim Carey

          My suggestion to the Daily Beast is to write a story about the speech he made talking about how much his behavior is driven by his disgust for his sister. Why was he so disgusted? Because she was taking advantage of the system.

          "Hypocrite" is a Greek word. It means "stage actor." Specifically, a hypocrite is an immoral person pretending to be a moral person.

  6. Convert52

    >"A year ago, Hunter Biden was offered a sweetheart deal that would have allowed him to bypass the justice system on these charges."

    Yeah, that's not what a plea deal does. It's an admission of guilt, not an avoidance of the justice system. They avoid wasting resources on defendants who accept their guilt. Of course, Johnson knows all this...

  7. jte21

    So basically, what a Republican prosecutor and Republican politicians did to Hunter Biden is *precisely* the kind of political witchhunt they accuse Biden and Garland (and sundry state prosecutors) of carrying out against Trump, but, unlike what Kevin has presented here, with zero actual evidence.

    Quelle surprise. Every accusation is always a confession with these people. Always.

    2. iamr4man

      >>Every accusation is always a confession with these people. Always.<<

      It’s kind of breathtaking how often that’s true, isn’t it? It’s kind of how I came up with my own conspiracy theory regarding the 2016 election. According to the Mueller Report the Russians got in to the Florida election computers. Both Rubio and DeSantis admitted this was true and that they were in a position to muck with them, but “they didn’t”. As I recollect it everyone thought Florida was close and Clinton was campaigning hard there. But Trump stopped campaigning in Florida and went to Wisconsin, Michigan and Pennsylvania. This was, at the time, considered a stroke of genius and a big factor in Clinton’s defeat. It was chalked up to smart polling.
      But when Trump lost in 2020 what did he claim was the reason? “Someone got into the computers.” So, perhaps, he thinks others have done to him what he did?
      Here’s the NYT article on the Russian breach of Florida’s computers:
      https://www.nytimes.com/2019/04/18/us/florida-russia-2016-election-hacking.html

  8. MrAl

    Wow, I did not know this. Really changes things. Of course the "lie" that it was Hunter that blew up the deal- will never go away.

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