Hunter Biden’s plea agreement, which fell apart under scrutiny by a federal judge on Wednesday, was the product of extensive negotiations between his lawyers and David Weiss, the U.S. attorney for Delaware. Yet the two sides evidently did not anticipate that U.S. District Court Judge Maryellen Noreika would object to provisions that she called “not standard,” “not what I normally see,” and possibly “unconstitutional.” In particular, Noreika zeroed in on two highly unusual aspects of the agreement that seemed designed to shield Biden from the possibility that his father will lose reelection next year.
The original plan, which was announced last month and is now up in the air, consisted of two parts: a plea agreement and a diversion agreement. Under the former, Biden agreed that he would plead guilty to two misdemeanors involving his willful failure to pay income taxes, and prosecutors agreed to recommend a sentence of probation. Under the latter, the Justice Department agreed not to prosecute him for an illegal gun purchase if he successfully completed a two-year pretrial diversion program.
Among other things, the diversion agreement would have required Biden to avoid drugs, stay out of legal trouble, “continue or actively seek employment,” and permanently relinquish his Second Amendment rights. On that last point, the agreement says Biden will not “purchase, possess, or attempt to purchase or possess, or otherwise come into possession of, a firearm…during the Diversion Period or any time thereafter.” It also says Biden consents to “a permanent entry in the National Instant Criminal Background Check System,” meaning he would be blocked if he tried to buy a gun from a federally licensed dealer.
Pretrial diversion is generally reserved for nonviolent offenders. In deciding which defendants qualify, the Justice Department says, a U.S. attorney “may formally or informally prioritize young offenders, those with substance abuse or mental health challenges, veterans, and others.” While Biden’s acknowledged drug problem fits within that description, it was also the reason he was charged with illegally buying a gun in the first place.
Under 18 USC 922(g)(3), it is a felony for an “unlawful user” of a controlled substance to “receive” or “possess” a firearm. Biden, by his own admission, was a crack cocaine user when he bought a Colt Cobra .38 Special from StarQuest Shooters, a Wilmington gun store, in 2018. That crime was punishable by up to 10 years in prison when Biden committed it, and legislation that his father signed last year raised the maximum to 15 years. But under federal sentencing guidelines, the recommended penalty for a defendant like Biden, who has no prior criminal record, would be something like 10 to 16 months.
By participating in a diversion system that favors people with drug problems, Biden could avoid any such penalty. Yet but for his drug habit, there would have been no penalty to avoid: His crack use was the justification for charging him with a felony, and it also appears to be the main justification for sparing him prosecution on that charge. That paradox just scratches the surface of the unjust, illogical, and unconstitutional mess created by arbitrary federal restrictions on gun ownership.
During Wednesday’s hearing, Judge Noreika did not pause to reflect on the senselessness of Biden’s situation vis-à-vis the gun charge. Instead, she focused on two puzzling provisions of the diversion agreement.
“If the United States believes that a knowing material breach of this Agreement
has occurred,” the document says, “it may seek a determination by the United States District Judge for the District of Delaware with responsibility for the supervision of this Agreement.” The Justice Department would ask that judge—i.e., Noreika—to determine, based on a “preponderance of the evidence,” whether Biden had in fact violated the agreement, and Biden would “have the right to present evidence to rebut any such claim.” If Noreika agreed with the Justice Department, prosecutors could decide to pursue the gun charge.
“Typically, the Justice Department could independently verify any breach and bring charges,” The New York Times noted. “But Mr. Biden’s team, concerned that the department might abuse that authority if [Donald] Trump is re-elected, successfully pushed to give that power to Judge Noreika, arguing that she would be a more neutral arbiter.” Noreika thought that provision raised separation-of-powers issues by requiring her to perform a prosecutorial function.
Noreika also questioned language in the diversion agreement that shields Biden from future prosecution for certain crimes. The document says “the United States agrees not to criminally prosecute Biden, outside of the terms of this Agreement, for any federal crimes encompassed” by the statements of facts regarding his tax offenses and his illegal gun purchase.
Noreika thought it was odd to include such a promise in the diversion agreement, which according to both sets of lawyers did not require her approval, rather than the plea agreement, which does. “The judge said she couldn’t find another example of a diversion agreement so broad that it shielded the defendant from charges in a different case,” Politico reports. “Leo Wise, a prosecutor working for Weiss, told the judge he also was unaware of any such precedent.” Noreika objected to the apparent expectation that she would “rubber stamp” that seemingly novel arrangement.
It also became clear that the Justice Department and Biden’s lawyers disagreed about the scope of his immunity. “Wise said the agreement meant they wouldn’t charge Biden with more serious crimes related to his 2017 and 2018 taxes,” according to Politico, “and they wouldn’t charge him for crimes related to the gun mentioned in the diversion agreement.” But Wise said the federal investigation of Biden was ongoing. And when Noreika alluded to allegations that Biden had violated the Foreign Agents Registration Act through activities mentioned in the statement of facts regarding his tax crimes—which refers to income he received as a board member of the Ukrainian energy company Burisma, for example—Wise said the agreement would not preclude prosecution under that statute.
Christopher Clark, Biden’s lawyer, rejected that interpretation. “Then there’s no deal,” Wise replied. Clark concurred: “As far as I’m concerned, the plea agreement is null and void.”
That dramatic breakdown was followed by a recess during which the defense and the prosecution settled on the interpretation favored by the government. “Clark said Biden’s team now agreed with the prosecutors that the scope of the agreement was charges on the gun, tax issues, and drug use,” Politico reports. But that reconciliation did not allay Noreika’s concerns about an overreaching diversion agreement.
The supposedly unreviewable promise regarding future prosecution, like the provision charging Noreika with deciding whether Biden had violated the diversion program’s requirements, was aimed at insulating him from politically driven decisions by the Justice Department under a Republican administration. As the Times notes, the provision provides “some protection against the possibility that Mr. Trump, if re-elected, or another Republican president might seek to reopen the case.”
Republicans, of course, complain that Biden received a “sweetheart deal” that would have allowed him to avoid prison and might also have protected him from prosecution for trading on his father’s influence. “The Justice Department could have readily proved serious tax felonies (involving more than $10 million in income) and a gun offense carrying a potential 10-year sentence,” National Review Contributing Editor Andrew C. McCarthy, a former federal prosecutor, writes in the New York Post. “Both Hunter Biden and the Biden Justice Department wanted an arrangement that would give Hunter the maximum amount of immunity from prosecution for the minimum amount of criminal admissions they thought they could get away with.”
Just as it is hard to imagine that Biden could have earned a fortune for mysterious services if his father had not been vice president, it is hard to imagine that his lenient treatment as a federal defendant had nothing to do with his father’s position as president. At the same time, Democrats are understandably concerned that a Republican administration’s pursuit of Biden might be motivated by considerations other than justice. Both sides assume that the Justice Department’s prosecutorial decisions are influenced by partisan politics, but they want us to believe that problem is peculiar to the other side.
In this context, judges like Noreika play a crucial role. They are under no obligation to approve sweetheart deals, and they can dismiss charges that are not adequately supported by the alleged facts. They also have broad discretion, within statutory limits, to impose penalties they think are commensurate with the offense. Those checks are no guarantee of justice, especially in cases involving conduct (such as Biden’s gun purchase) that should not be treated as a crime at all. But in a system where largely unaccountable prosecutors wield vast power to crush defendants or let them off with a slap on the wrist, any countervailing authority is welcome.
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