The breakdown of the Hunter Biden plea deal may contain silver linings for both the defendant and for the U.S. Department of Justice.
Federal District Court Judge Maryellen Noreika tanked the deal today, after what was expected to be a straightforward hearing turned into three hours of drama where the plea deal was off, on, and finally postponed altogether.
Judge Noreika initially expressed concern over the scope of the plea agreement, arising out of the DOJ’s insistence that the investigation was still ongoing—despite reaching a plea agreement with Hunter Biden after five years worth of investigation.
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The Biden defense team naturally took the position that the plea bargain should include protection against any other prosecutions. When the DOJ balked, the deal was temporarily off, or as one Biden attorney put it: “null and void.”
It’s understandable that people will wonder how it is possible that, in such a high profile case, the full scope of the agreement was not completely hammered out beforehand. But the reality is there was something to gain for both sides by leaving it vague.
If the judge had accepted the plea as is and then the DOJ (whether under Attorney General Merrick Garland or, perhaps, a future Republican AG) later tried to bring additional charges, then Biden would have had a good argument that the government was barred by the plea agreement from doing so.
Plea bargains are essentially contracts between the prosecution and the defense, and ambiguity in contracts are usually construed against the party who drafted the contract. Subject to argument, of course, that ambiguity would likely be construed against the party with more bargaining power—the DOJ.
So if the plea had gone through, Biden’s team could have reasoned that any ambiguous statements about an “ongoing investigation” presented lesser exposure, given that they could counter later charges under a theory that the government was breaching its plea agreement.
Biden’s team also may have taken into account the likelihood of additional charges—such as violations of the Foreign Agents Registration Act—arising after almost five years worth of investigation producing no charges. And that’s not even taking into account the incredibly picked-over and tainted evidence from the infamous “Hunter Biden laptop,” that appears to have been handled and tampered with by legions of people—making it useless from an evidentiary standpoint.
For the DOJ, there were obvious political optics by being able to say publicly that the Biden investigation remains “ongoing.” They may have hoped that would insulate them from political criticism. But this effort to insulate the DOJ from public criticism seems to be a futile Don Quixote-style quest.
The Garland-led DOJ has put enormous effort into trying to avoid political criticism, which has only brought accusations that the department is being politicized. Thus, leaving the ambiguity of an “open investigation” may have offered the DOJ some political cover.
Judge Noreika, however, eliminated the benefits of ambiguity for either side by demanding clarity in the scope of the agreement.
She also seemed to criticize the phrasing of the pre-trial diversion agreement, because it required any alleged failure by Hunter Biden to comply to be brought before the court to do fact-finding. Although it is not entirely clear yet, Noreika appeared to be uncomfortable with that process, given that diversion is something completely in the control of the prosecution and not normally overseen by the courts. This may account for her referencing a problem with separation of powers.
The bottom line, however, is that both sides are likely working to fashion an agreement that the court will approve.
This agreement will probably be quite specific that Biden is only guaranteed no further prosecution arising from the tax and gun charges, but that the DOJ can bring other kinds of charges. Biden will likely agree to this because the deal still gives him closure on the tax and gun charges, and he would be willing to roll the dice that the DOJ will continue to come up with nada on any other charges—given their lack of progress in close to half a decade worth of investigation.
DOJ will also be happy with such a resolution, because being forced to verify in court that there are other potential investigation leads being run down adds robustness to their public statements about there being an “ongoing investigation.” That robustness will be of service to the DOJ and U.S. Attorney David Weiss (the Trump holdover who led the investigation) when they are called before Republican-led hearings seeking to make continued political hay out of the Biden case.
Having told a federal judge that there is an ongoing investigation—and having had the defendant acknowledge that—will allow the prosecutors to defy any attempts by Republicans to probe into the allegations. That will be a win-win for both the DOJ and Hunter Biden.
