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An expected deal for Hunter Biden, son of President Joe Biden, to plead guilty to two federal tax misdemeanors was torpedoed by a federal judge Wednesday over concerns about the “broad” immunity afforded by prosecutors in the deal, as well as its “unique” structure.
After an hours-long hearing that included multiple dramatic court recesses, Hunter Biden pleaded not guilty to the federal charges after Judge Maryellen Noreika deferred his attempts to plead guilty in a deal that she at times described as potentially “unconstitutional” and lacking “legal precedent.”
In doing so, she ordered both defense attorneys, as well as federal prosecutors, to submit more paperwork justifying the legal legitimacy of both the plea deal, as well as a separate agreement for prosecutors to dismiss a weapons felony.
She also ordered the parties to clarify language that could grant Hunter Biden immunity for potential future prosecution related to his foreign investment and consulting work that has seen him rake in millions of dollars over the past decade.
In June, federal prosecutors charged the president’s son with two misdemeanor crimes for willfully avoiding to pay tax on more than $1.5 million in income in 2017 and 2018.
In court Wednesday, prosecutors said Hunter Biden took in $2.4 million in income in 2017 and $2.1 million in 2018 through Ukrainian energy firm Burisma, a Chinese-development firm, as well as domestic business interests and legal services.
Leo Wise, an assistant U.S. attorney, said an accountant prepared Biden’s taxes both of those years, but his corporate and personal taxes were not paid. During this period, Hunter Biden made large cash withdrawals and covered other expenses like payments on a Porsche, Wise said.
Dressed in a blue suit and flanked by attorneys, the president’s son told the court a third party paid the back taxes along with interest and fees pursuant to a personal loan he has not begun to repay.
Hunter Biden, 53, also faces a weapons charge for falsely stating he was not addicted to any illicit substance on a required federal form he filled out to purchase a gun in Delaware in 2018. Before the hearing, he shook hands with David Weiss, the U.S. Attorney for Delaware, who has spent the past five years leading the criminal investigation into his finances.
Both prosecutors and defense attorneys entered Wednesday’s hearing in the federal courthouse on King Street in accord. The expectation was that Hunter Biden would plead guilty to the two misdemeanor tax crimes and prosecutors would recommend to the judge a sentence of probation for the charges that carry a maximum of one-year imprisonment each.
And then, a separate agreement would see Biden agree to a two-year plan with similar terms as a probation sentence in return for prosecutors dismissing the gun charge, a rarely-charged felony that carries a maximum of ten-years in prison. That diversion plan for the gun charge included a provision that gave Hunter Biden immunity for crimes related to both the gun central to the charge, but also his finances that were central to the tax charge.
Noreika expressed concerns about portions of both the tax charge plea agreement, the weapons charge diversion plan and how the two separate agreements interact with each other. She repeatedly complained that both parties wanted her “rubber stamp” on the agreements and subjected them to hours of questions about both documents.
5 takeaways:Hunter Biden’s plea deal falls apart after judge targets agreement:
A package deal?
The hearing started to derail when Noreika began asking Hunter Biden questions as part of a mostly standardized conversation to ensure the defendant is knowingly and willfully accepting the plea agreement. She asked if Hunter Biden was relying upon promises from federal authorities in accepting the plea agreement.
He replied that he was relying upon promises made in the weapons charge diversion agreement. He told the judge he would not be pleading guilty to the tax charges were it not for the existence of the diversion agreement and that if that diversion agreement were invalid, he would not be pleading guilty to the tax charges.
Noreika then centered on the immunity language contained within the diversion agreement and Hunter Biden acknowledged he was replying to those promises as well. This prompted the judge to ask prosecutors if the plea deal was a “package deal” with the diversion agreement.
Wise, assistant U.S. attorney, said the plea agreement “stands alone.”
“He is saying they are,” Noreika said to Wise of the “package deal” question.
This prompted the hearing to grind to a halt with Noreika telling the parties to confer among themselves over this contradiction. She left the bench and the attorneys began to discuss. At one point, Wise pointed to a paper on the prosecution’s desk telling Biden’s primary attorney, Christopher Clark, “We can’t get around this.”
“We will rip it up then,” Clark replied.
When Noreika eventually returned, Clark said they had clarified the situation and the judge asked Hunter Biden the same questions as before. This time, the president’s son said he was not relying on any promises made by the diversion agreement in accepting his plea.
‘Broad’ immunity
Noreika then turned her attention to what she described as the “unique” and “broad” nature of the immunity granted by the diversion agreement and how it covered issues related to both the weapons charge and the tax issues addressed by the plea agreement.
She asked Wise, the prosecutor, if he had ever seen an immunity agreement so broad that it encompassed crimes from a different case and whether he could cite prior case law to bolster such an offer. He replied, “No.”
Upon questioning from Noreika, Wise said the investigation into Hunter Biden was still underway and that the immunity agreement would not, hypothetically, preclude bringing charges against him based on him representing foreign governments.
Clark, Biden’s defense attorney, stood up and said he disagreed.
“Then there is no deal,” Wise replied.
Noreika told the men to take 10 minutes to discuss the disagreement. She then returned and Clark clarified that the defense agreed the immunity would apply to potential tax and drug crimes from 2014 to 2019, as well as the gun central to the weapons charge.
‘Out of my lane’
The judge noted her concern that Hunter Biden wasn’t knowingly accepting the plea because the boundaries of the immunity granted were so unclear and that the diversion agreement that guarantees the immunity may not “be worth the paper it is written on.”
She complained that while she had no authority to approve or reject the diversion agreement, its terms mandated that she would have to determine whether it had been violated or federal authorities could not hypothetically raise future criminal prosecutions against Hunter Biden.
She said she feared she would be “getting out of her lane” and into the constitutional authority given to prosecutors to bring criminal charges.
Clark, the defense attorney, noted the politics surrounding Hunter Biden, raising the concern that future federal prosecutors under a Republican administration may abuse their authority while a judge could evaluate in neutral fashion whether a breach had occurred.
The entire package, Noreika said, “threw me into the diversion agreement” and “took me out of the plea agreement” in a way that concerned her.
Several times, the judge asked whether prosecutors or defense attorneys had any precedent or authority to support certain provisions of the diversion agreement and most times, they answered “no.”
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After hours of questioning, she asked both sides to submit briefs on why the plea deal’s form was appropriate and why the obligations given to her by the diversion agreement were appropriate within legal precedent. She set a deadline of 30 days for those briefs.
“I would like to understand why it is appropriate and why I would not be out of my lane,” she told the parties.
After that, Hunter Biden pleaded not guilty as the charges remain pending.
“I know you want to get this over with and I am sorry,” Norieka told Biden. “But I want to be careful.”
Last-minute Republican intervention:
While her rationale for deferring Hunter Biden’s plea was separate, Noreika briefly addressed the last-minute court filings on behalf of Congressional Republicans and a conservative thinktank that sought to derail the plea agreement.
A lawyer for U.S. Rep. Jason Smith, a Missouri Republican, on Tuesday attempted to interject the IRS investigators’ testimony into the judge’s consideration on the plea agreement. The brief, filed by local attorney Ted Kittila on behalf of the congressman, argues that Hunter Biden benefited from “from political interference which calls into question the propriety of the investigation of the U.S. Attorney’s Office. ”
Julianne Murray, chair of the Delaware Republican Party, was in the courtroom Wednesday. She filed a separate brief on behalf of the conservative thinktank Heritage Foundation, which claims that it offers “information that has not, and likely will not, be presented to the Court by either the government or the defendant.”
“I have not had time to review those submissions,” the judge said, noting it consisted of 900 pages.
The last minute intervention in the case also led to one of the more bizarre subplots within the case in which one of Hunter Biden’s legal team was accused of impersonating a staffer for the attorney representing the congressman in order to have certain documents pulled from the public docket.
That issue simmered into an order issued by Noreika the night before the hearing demanding an explanation as to why sanctions shouldn’t be ordered. Attorneys representing Hunter Biden characterized the issue as a miscommunication. It was not addressed in court Wednesday.
Contact Xerxes Wilson at (302) 324-2787 or xwilson@delawareonline.com.
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