8 min read

Why the Hunter Biden plea deal went sideways

Hunter Biden expected his plea deal to be easily approved by a judge on Wednesday. The judge had other ideas.
Why the Hunter Biden plea deal went sideways
Hunter Biden with the president and first lady in 2021. (Defense Department) 

Good morning! It’s Thursday, July 27, 2023. The 2024 elections are 467 days away. If this newsletter was forwarded to you, subscribe here. If you want to contribute to support my work, donate here.

Hunter Biden’s arraignment yesterday was supposed to be simple. According to a deal announced last month with the Justice Department, Biden was set to plead guilty to two misdemeanor charges of failing to pay his taxes, while also entering into a probation program to avoid charges for illegally possessing a handgun while using drugs.

Prosecutors and Biden’s defense attorneys both assumed that U.S. District Court Judge Maryellen Noreika would sign off without a second thought, ending the five-year-long investigation into the First Son’s taxes and gun purchase.

Noreika had other ideas. She spent the three-hour session grilling both sides on the deal, questioning them until the agreement eventually unraveled in her courtroom.

A key point of contention was whether the plea deal protected Biden from other charges down the line. Under Noreika’s questioning, it quickly became clear that the defense and prosecution had very different interpretations of their own agreement.

When asked whether the deal gave Biden immunity from possible charges over violations of foreign lobbying laws, prosecutors said it did not, confirming that investigations into other areas of Biden’s conduct were “ongoing.”

Biden’s lawyer sharply objected, saying he believed the agreement had offered his client broader immunity from future prosecution. The deal was now “null and void,” he said.

Politico later obtained the deal signed by both Biden and U.S. Attorney David Weiss, the Trump appointee who led the investigation. “The United States agrees not to criminally prosecute Biden, outside of the terms of this Agreement, for any federal crimes encompassed by the attached Statement of Facts,” the agreement read. The Statement of Facts does outline some of Biden’s foreign dealings, but in the context of his unpaid taxes, not potentially illegal lobbying, perhaps leading to the differing interpretations.  

Noreika called for a recess, giving the two sides time to negotiate. They later returned with a revised agreement, shielding Biden from any prosecution for tax-and-gun-related conduct between 2014 and 2019 — but not from charges outside of that remit.  

But that didn’t put an end to the judge’s concerns. Noreika, who was appointed by former President Donald Trump in 2017, also questioned the lawyers over the deal to settle his gun charge, known as a pretrial diversion agreement. Under the terms of the deal, also revealed by Politico, Biden would have agreed to refrain from purchasing a firearm or using drugs or alcohol, along with other conditions, for two years.

At the end of the two years, the charge against Biden for illegally purchasing a gun in 2018 — he lied on the background check form and said he wasn’t using drugs, even though he was — would be waived.

Noreika expressed concerns about a provision in the diversion agreement that gave her “responsibility for the supervision” of the deal. Under the agreement, prosecutors would have approached Noreika if they felt in the next two years that Biden had failed to follow the deal; she would then have been empowered to make the “final determination” of whether Biden had breached the agreement.

The judge suggested the unique arrangement — which had been sought by Biden’s lawyers to avoid a potential future Trump Justice Department deciding without merit that their client had broken the agreement — could be unconstitutional, as it made her act something like a prosecutor. “I’m not doing something that gets me outside my lane of my branch of government,” Noreika said.

She ordered the two sides to rework the deal to address her concerns. Biden pleaded not guilty to the charges as a preliminary move; he is expected to amend that plea in the coming weeks once a new agreement is worked out. He reportedly left the courtroom looking frustrated, as an investigation he expected to be finished remained looming.

“I know you wanted to get this done,” Noreika told Biden. “I’m sorry, but I need more information. We need to get this right.”

The proceedings were another twist in a scandal that has become fodder for Republicans and a distraction for his father.

Before the arraignment, Republican lawmakers had attempted the unusual move of urging Noreika to throw out the plea deal in light of recent testimony from IRS whistleblowers who accused the Justice Department of giving Biden preferential treatment.

After the plea deal collapsed, the GOP quickly moved to declare victory, even though the agreement was scuttled for other reasons. “Judge Noreika did the right thing by refusing to rubberstamp Hunter Biden’s sweetheart plea deal,” House Oversight Committee chairman James Comer (R-KY) applauded in a statement.

Comer’s panel is set to continue investigating the younger Biden, ensuring that the controversial First Son — an admitted drug addict who has been involved in foreign business arrangements throughout his father’s public career — remains in the political limelight.

Next week, Hunter Biden’s former business associate Devon Archer is set to sit for closed-door testimony with the Oversight Committee. Archer has claimed that Biden put his father, who was then vice president, on speakerphone during meetings with his overseas business partners. The White House has pointedly stopped short of denying the allegation.

Like other witnesses in the investigation, Archer has a questionable past: he is currently awaiting sentencing for a 2020 fraud conviction. Gal Luft, another key GOP witness, is currently on the lam after being charged with illicit arms trafficking.

Weiss, the U.S. attorney in charge of the DOJ’s Biden investigation, is also expected to testify before Congress. Weiss has denied claims made by the IRS whistleblowers that Justice Department leadership interfered in his probe and refused him special counsel status. The prosecutor says he never sought the status in the first place.

Republicans have been split on whether the Hunter Biden investigation merits an impeachment inquiry into the president. House Speaker Kevin McCarthy suggested in a Fox News interview earlier this week that an impeachment probe could be close, citing new information into Hunter Biden’s foreign business dealings. McCarthy later walked back the comments, saying an impeachment investigation was possible but not imminent.

Using a similar rationale as Democrats during the Trump administration, McCarthy said that an impeachment probe would become necessary if the Biden administration did not fulfill the House’s requests for information. Congressional subpoena powers are generally seen as being strengthed during an impeachment probe. “If we don’t get the information, I will go to impeachment inquiry to make sure we get all the answers,” McCarthy said.

While moderate Republicans expressed uncertainty about an impeachment push, other GOP lawmakers have moved forward with calls for such an investigation to be initiated. House GOP Conference chair Elise Stefanik (R-NY), the No. 3 House Republican, endorsed opening an impeachment inquiry this morning, becoming the highest-ranking lawmaker to do so.

Appropriations update.

The House narrowly advanced the Military Construction-Veterans Affairs spending bill on Wednesday, in a 217-206 vote. Only two Republicans voted “nay.”

Rep. Ralph Norman (R-SC), a member of the House Freedom Caucus, told reporters that the conservative group agreed to advance the measure after House Speaker Kevin McCarthy promised to find new spending cuts before finalizing the 12 appropriations bills.

According to Norman, McCarthy promised that total spending for Fiscal Year 2024 would be brought down to 2022 levels — without using rescissions. As I explained yesterday, rescissions allow lawmakers to claw back unspent funds from last year’s budget, offsetting reductions made this year.

Soon after, though, McCarthy said that no such deal had been struck, not the first time this Congress that the speaker and his right flank have exited negotiations with different accounts of what occurred. “Depends on who you ask,” Norman said later when asked if they had an agreement.

The MilCon-VA bill is expected to face a final vote today. McCarthy had also hoped to vote on another appropriations bill — the Agriculture-Food and Drug Administration package — this week, but it now appears the measure will be put on hold until September.

Twelve moderate Republicans have objected to the agriculture measure because of a provision that would block the FDA from allowing people to receive the abortion pill mifepristone through the mail, which the agency has greenlit since 2021.

Freedom Caucus members, meanwhile, have called for the Ag-FDA bill to further limit the Supplemental Nutrition Assistance Program (SNAP), better known as food stamps. The current package would cut $32 billion in spending for the program compared to last year.

More news to know.

Senate Republicans expressed concern Wednesday after their longtime leader, Mitch McConnell, froze mid-sentence for about 20 seconds during a press conference in an apparent medical episode. McConnell was escorted away from the press conference, before returning and answering questions from reporters. “I’m fine,” he insisted. Click here or above to watch.

  • After the incident, CNN reported that McConnell fell on two previously undisclosed occasions earlier this year, including once this month at Reagan airport. McConnell, who has walked with a slight limp since a childhood brush with polio, has also reportedly been using a wheelchair lately to maneuver crowded areas. McConnell sustained a concussion and cracked a rib in a fall earlier this year, which kept him away from the Senate for six weeks.
  • McConnell later told reporters that President Biden called to check in on him. “I told him I got sandbagged,” the Republican leader joked, referencing the president’s own fall at a commencement ceremony last month.

The U.S. economy beat expectations and grew at a 2.4% annual rate last quarter, the Commerce Department announced this morning. The news is further evidence that the Federal Reserve may be pulling off a “soft landing” as it seeks to combat inflation without launching the U.S. into a recession.  

  • Fed chair Jerome Powell said Wednesday that the central bank no longer expects the country to enter into a recession. Powell also announced a resumption of the Fed’s interest rate hikes, raising rates to a 22-year high.

More headlines

The day ahead.

The Prettyman Federal Courthouse in Washington. (Wikimedia Commons)

At the D.C. courthouse: The grand jury investigating Donald Trump’s efforts to overturn the 2020 election is expected to meet today. Trump received a letter last week from Special Counsel Jack Smith formally confirming he is a target of the investigation, suggesting an indictment could come as early as today.

At the White House: President Biden will announce new actions to protect communities from extreme heat. Later, he will meet with Prime Minister Giorgia Meloni of Italy and deliver remarks at the Truman Civil Rights Symposium, an event at the National Archives marking the 75th anniversary of President Harry Truman’s desegregation of the U.S. military.

  • VP Harris has nothing on her public schedule.

In the Senate: The upper chamber will continue consideration of the National Defense Authorization Act (NDAA), the annual military policy package. The chamber is set to vote today on eight more amendments to the package. A final vote on the bill is also possible.

In the House: The lower chamber will vote on the Military Construction-Veterans Affairs spending package, the first of the 12 appropriations bills to receive a vote in either chamber this year. The House will also vote on two Senate-passed resolutions to overturn Biden administration rules protecting the lesser prairie chicken and the long-eared bat.

  • Keep reading: I wrote about the MilCon-VA bill and the appropriations process yesterday. I covered the lesser prairie chicken resolution in May.

At the committee level: The House Judiciary Committee will vote on whether to hold Meta CEO Mark Zuckerberg in contempt of Congress for failing to comply with a subpoena stemming from a congressional probe into social media content moderation.

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