Hunter Biden Plea Deal Collapse: Dirty, Desperate Dealings in Delaware

It’s troubling to see the press for the most part underplay the seriousness of the implosion of Hunter Biden’s plea deal on tax evasion and gun possession charges. Yes, as Glenn Greenwald stressed in his System Update show last night, the two sides will probably find a way to cobble something together that the judge, here Maryellen Noreika, will be hard pressed not to accept. But the much bigger issue as Greenwald also stressed is that it is close to unheard of for a judge to reject a plea agreement. And as too many commentators have glossed over, this one was so irregular procedurally as to have the judge force the prosecution to admit it was unprecedented, and according to Noreika, potentially unconstitutional.

This development follows another incident in the Hunter case this week that is also so irregular that it may get the defense legal team sanctioned. Noreika filed an order demanding that Biden law firm Latham & Watkins explain in a hearing the action, alleged by one of Noreika’s clerks, that a Latham & Watkins staffer contacted the court and misrepresented themselves as instead from the law firm that had filed an amicus motion on behalf of House Ways and Means Committee Chairman Jason Smith. That brief asking the court to consider the information from IRS whistleblowers that showed that Biden the junior had gotten kid glove treatment. The Latham & Watkins staffer purportedly sought the removal of the filing from the docket.

We’ll return to the amicus motion later, but it is important to note that the media on a widespread basis has misleadingly referred to it as a “document” and not a bona fide filing. Worse some commentators have insinuated that it was improper for a Congressman to have made such a move. In fact, this document was a preliminary step to filing an amicus brief. while it may not be common on a search engine to find there is ample precedent for Congresscritters filing amicus briefs.

Yours truly is not an expert on procedure, but this amicus motion was filed just days before the Biden settlement hearing, and if the judge entertained the motion and allowed an amicus brief to be filed and considered by the judge, the hearing would have to have been pushed back. So claims that this move was to “block” the plea agreement are an overreach, although it would be accurate to say it was a gambit to delay and influence the deal.

Back to the plea deal. The 50,000 version is that the attempt to have a Schrodinger’s scheme collapsed. Team Biden not surprisingly wanted the agreement to draw a line under all potential actions against Hunter, including his failing to register as a foreign agent.

This is the a compact statement of the legal issues in play and why the judge rebelled. I have yet to find anything remotely like this in mainstream coverage:

Contrast that, which makes clear how the prosecution and defense were conspiring to railroad the judge, with this bland and misleading recap from Vox, which attempt to paint Noreida as the bad guy (starting with “curveball”):

The first curveball came when Judge Maryellen Noreika surfaced a disagreement between the prosecution and defense over whether the plea deal would rule out charges against Hunter for acting as an unregistered foreign agent. When prosecutors said it would not, Hunter’s attorney Chris Clark then said the agreement was “null and void,” per the New York Times.

After a court recess, the two sides worked out a deal, in which prosecutors would rule out further tax, gun, and drug charges against Hunter for the period of 2014 through 2019, per CNN. The deal was back on!

But, Judge Noreika said, not so fast. She said she had “concerns about” the agreement, said it was “unusual,” and that she felt like she was being asked to “rubber stamp” it. So, she said, she would not accept it just yet. She wanted more clarity on what immunity would be offered to Hunter. The hearing adjourned without a final decision on the plea as she awaits more information. (For now, Hunter entered a plea of “not guilty” as a sort of placeholder, while attorneys for both sides work to prepare that information for the judge.)

By contrast, the Wall Street Journal includes remarks by the judge about how irregular the deal was, to the degree it could put her in an untenable position. Admittedly those statements are far down in a lengthy article but at least they are there:

Hunter Biden pleaded not guilty to tax charges on Wednesday, in a stunning reversal after a judge said she wasn’t yet prepared to accept a deal he had reached with prosecutors to plead guilty….

U.S. District Judge Maryellen Noreika said she needed more information before deciding whether to sign off on it.

“These agreements are not straightforward and they contain atypical provisions,” she said, adding: “I’m not in a position where I can decide to accept or reject a plea agreement and I need to defer it.”…

Part of the turmoil began on Wednesday when prosecutor Leo Wise insisted that the investigation into Hunter Biden’s activities remained ongoing and said in response to a question from the judge that he could face additional foreign-lobbying charges.

In response, Hunter Biden’s lawyer, Chris Clark, said he disagreed with that interpretation and believed the agreement foreclosed the possibility of additional charges, adding later: “As far as I’m concerned, the plea agreement is null and void.”

After the break, Hunter Biden’s legal team said the agreement covered his liability related to tax offenses from 2014 through 2019, and covered drug and gun crimes. The judge asked Hunter Biden if he had been promised any other protections to entice him to plead guilty, and he said, “No, your honor.”

Then the judge pressed both sides on provisions included in both prongs of the agreement, including why the tax deal was brought under a statute that removes the court’s ability to vet it, while the gun deal includes a requirement that the court decide whether Hunter Biden has breached the deal. Judge Noreika said that could inappropriately put her in the position of making a decision normally left for prosecutors.

“I have concerns about the constitutionality of this provision, so I have concerns about the constitutionality of this agreement,” she said.

The judge gave the two sides 30 days to clarify her role and provide additional information. At that point, Hunter Biden could plead guilty and formalize the agreements he had negotiated.

The Washington Post newsletter does a pretty good job, without going into the fine points Will Scarf provided. From Amber Phillips’ Five Minute Fix via e-mail:

The plea deal initially did not protect Hunter Biden from prosecution for other potential charges in connection with a long-running government investigation of his business dealings. When the federal judge asked him whether he would plead guilty knowing he could still face additional charges, he said no. Prosecutors in the courtroom maintained this was part of the agreement all along. “Then we misunderstood. We’re ripping it up,” Biden lawyer Chris Clark snapped at them, The Washington Post reports. The two sides then quickly reworked the deal to include immunity for certain tax, drug and gun charges between 2014 to 2019, essentially the main time period covered by the investigation.

The judge then raised constitutional questions. She noted that the immunity provisions were tucked into the agreement involving the gun charge, which she does not actually have to approve. That’s because diversion agreements are forged between prosecutors and defense attorneys. Plea agreements, on the other hand, must be approved by a judge. But the diversion agreement includes language saying the judge could revive the gun charge if Hunter Biden violated the terms of the agreement. The judge said she did not think she has the power to do so.

Let’s turn to the matter of the amicus brief (see the order at the end of the post). From Politico:

The judge who will review Hunter Biden’s plea deal on Wednesday accused a member of Biden’s legal team of misrepresenting herself in a phone call to the court — a bizarre episode that prompted the judge to threaten sanctions even as Biden’s lawyers insisted it was all a misunderstanding.

In a brief order Tuesday afternoon, U.S. District Court Judge Maryellen Noreika wrote that an employee at Latham & Watkins, a law firm representing the president’s son, had called the court clerk’s office and falsely claimed to work for a Republican lawyer in the hopes of persuading the clerk to remove documents that apparently contained Biden’s personal tax information.

Latham denied any misconduct, saying the firm’s employee identified herself as a Latham staffer and called from a law firm phone that typically displays “LATHAM” on the caller ID. The firm said there must have been an “unfortunate and unintentional miscommunication” between the employee and court staff….

On the eve of that hearing, a dispute arose over Smith’s amicus filing, which was signed and submitted to the court by Theodore Kittila, the managing partner of the Wilmington law firm Halloran Farkas + Kittila.

Shortly after Kittila filed the brief, the clerk’s office informed the judge that a Latham employee, Jessica Bengels, had called the clerk and falsely claimed to work with Kittila. During the call, Bengels asked that Smith’s filing be removed from the public docket due to sensitive information in it, the judge wrote in her order.

“It appears that the caller misrepresented her identity and who she worked for in an attempt to improperly convince the Clerk’s Office to remove the amicus materials from the docket,” Noreika wrote, before ordering Biden’s legal team to explain why Noreika should not issue formal sanctions “for misrepresentations to the Court.

Perhaps I am unduly paranoid, but the Latham & Watkins story seems difficult to swallow. Hopefully lawyers would weigh in, but the substantive beef was the documents needed to be removed because they supposedly contained sensitive information like Social Security numbers. As an aside, Representative Jason Smith claims the information was already public.

However, I do not believe anyone other than the filer would have the legal standing to demand the entire motion be removed from the docket, which appears to have been the request here. The most I believe an outside party could have asked for is redaction of certain information, or perhaps sealing of certain pages. I also question whether that sort of request could be made by a third party verbally, as oppose to via a written document of some sort. In the order below, Judge Noreika says no redaction/sealing request was made in writing, strengthening the idea that Latham & Watkins behaved inappropriately.

In other words, if the judge has the outlines of what the Latham & Watkins clerk asked for right, this sounds very irregular even before getting the question of misrepresentation.

Regardless, pass the popcorn! Hunter continues to be quite the spectacle.

From CourtListener:

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  1. Undo unto thyself

    U.S.A. – the leader of the de-developing countries.
    I wonder what kind of feedback U.S. embassy staff around the world get regarding the de-development of the country.

  2. Stephen

    I rewatched the film Spotlight this week, about the Boston Globe’s investigation of the Catholic Church systematically covering up abuse of minors. Much of this procedural debate reminds me of parts of that film and the reality it portrays where documents had even been removed from the record.

    If I understand correctly, there seemed here to be a very broad deal on the table for Junior. Both parties were then using “unusual’ provisions to keep it secret but still be binding. I guess the fear is that a Republican administration after 2024 would otherwise instruct the DoJ to prosecute Junior. Hard to see that the current DoJ will prosecute these charges very actively anyway so I guess that future proofing is the objective,

    Feels more and more like the way that the legal system worked under Henry VIII. Except that the judge (so far at least) seems independent and also minded to follow the law correctly. We can only hope that this continues.

    1. jefemt

      I am trying not to draw yet-unproven logical conclusions, but this seems like it cannot possibly stop at Hunter.
      No Joe, no Hunter. And vice versa?

  3. Lex

    Clearly there are much bigger issues than a wayward son of a politician getting addicted to drugs. Seems like the sort of thing a free press would be paying close attention to and pulling every loose string it could find to inform the American people. After all, democratic dies in darkness.

    1. pjay

      In fairness, they probably lack the personnel to investigate such a story – they are all too busy intensely covering Trump’s serial indictments all over the country.

      1. Jeff

        Indeed. If only they had editors that understood that, pearls clutched, both stories needed to be pursued. It’s clear that pursuing the orange one means continued access for their staff stenographers and pursuing Huntie’s mess means losing access.

        When newsrooms are run by cowards with little incentive to print truth, we’re left with this.

        1. Michael Fiorillo

          Yet, to add farce to the self-dramatization, #McResistance media arouses itself with Woodward-Bernstein fantasies, convinced that pumping spook-sourced disinfotainment is some kind of courageous, transgressive act.

          The moral vanity of their preening is kind of a wonder to behold; they’re wrong, always, and yet the plumage of their sanctimony gets more elaborate.

      2. some guy

        Plus, how much have newsroom staff headcounts all been shrunken down since the days of Watergate?

    2. Dean

      Reporters used to expose corruption and corporate greed. Now, like toothless babies, they suckle at the teat of misinformation and poop it into the diaper called the six-o’clock news.

      Kent Brockman

  4. Brooklin Bridge

    Plea deals, gaaa! Would such scum as HB have a rat’s chance in hell without being the president’s son? How are they going to code into AI this sort of mumbo-jumbo get out of jail almost free card for only certain very wealthy and/or connected individuals? What sort of rhetorical gymnastics will AI have to perform when our system of jurisprudence succumbs to automation to make it even half way credible to the unwashed masses, or, is the insult to justice intentional so as to vigorously rub the thumb of privilege in the eyes of the poor mopes, as in us, who toil daily under the barrage of propaganda that in the US there is truth and justice for all?

    Eat zeros and ones with a side of neural networks, Sucka!

  5. Rip Van Winkle

    All of TPTB in the country may as well be like the James Cagney / Cody Jarrett character at the end of White Heat. I am watching from a distance in Flyover.

  6. Wukchumni

    I loved, loved, loved, the ad hoc Presidential-like convoy of blackened SUV’s that delivered lack of justice to the First Son…

    You can sense the end of the Biden administration is close at hand, Oedipus Wrecks

    1. jefemt

      I have often pondered what fun it would be to walk around in the Sierras hearing your punny outlook on life.
      I wouldn’t make much progress, this doubled-over wheezebag giggling out precious scare smoke-laden O2.

    2. ambrit

      Now I’m waiting for the Strawpoll that breaks the Kamela’s back.
      Unfortunately I got my Mad Libs all confused. It really is that: It is easier for a Kamela to pass through the eye of the electorate than for a Biden to enter a Plea of Transactional Triangulation. [I know it does not make sense. Show me something about today’s politics that does.]
      We have entered the realm of the Dada Empire and Biden is our beloved Ubu Roi.
      Jarry’s play “Ubu Roi” has a lot of relevance to today’s situation.

      1. chuck roast

        Thanks. I knew of Ubu Roi and the opening night riot, but I just thought that it was some kind of Dada thing. Geez, after reading the summary, I would have rioted too.

      2. Jorge

        Trump was much more Ubu Roi than Biden- who is more likely to comically misuse the MurderDrone fleet?

      3. britzklieg

        Jarry! As a college freshman trying to choose between theatre and music I ran lights for a (distinguished faculty directed) production of Ubu Roi. Gob-smacked – what a great play. I don’t know why I ended up in music other than I had a very natural singing voice and so, did not have as much work to do in that discipline, whereas my exposure to such an avant-garde and highly stylized theatre revealed a bizarreness that “just eluded comprehension” (Helen Vendler on poetry) and even scared me a little. Singing Schubert song settings of Goethe was something I could easily wrap my head around.

        Now, retired and a has-been, I am almost certain I made the wrong choice… although curiously I made my mark in the “classical” world singing a lot of contemporary, avant-garde serialized/dodecaphonic music which – lets face it – no one can really wrap their head (ears?) around, lol. Very challenging technically and satisfying to accomplish but almost always unlistenable, lol.

    3. Michael Fiorillo

      We should start an NC office pool: when does Uncle Joe get the thumbs down from the people who matter, and who gets the nod to replace him.

      I wouldn’t try to predict a date, but between Ukraine, age/enfeeblement, Hunter, et. al., it’s hard to see Joe making it across any finish line we could imagine. Jill and the Family will for obvious reasons strenuously demur, but there’s no defeating entropy.

      And, speaking of entropy, who are the Ds going to put up to replace him?

      1. some guy

        Kamalabama Harris, that’s who.

        Why Kamalabama? For the same reason they made her VP to begin with. She made her bones as Attorney General of California by proving she could immunise and impunify Financial Crime Lords when it counted. When the chips were down for Steve Mnuchin, she was a Stand Up Gal.

        The FIRE sectorLords want her to be President for when they trigger the next Greatest Financial Crash Ever. She will be their sword and their shield. They are counting on it.

        So . . . President Kamalabama Harris.

  7. Watt4Bob

    “Bob, you have to remember, a politician is a person who would try to steal a red hot stove with their bare hands.”

    It’s at least entertaining to watch our masters fall all over themselves in an effort to avoid actually bringing each other to justice.

    Dims supposedly can’t figure out how to present a case against Trump, and the Republicans would have us believe they can’t figure out how to do anything about the Bidens lawless behavior.

    What continues to astound is the MSM’s complicity in trying to sweep all this obviously criminal behavior under the rug.

    You would think they might be embarrassed.

  8. Carolinian

    If the press treatment of Trump reminds one of how much they hated Nixon then the Bidens are more like the second coming of Spiro Agnew who took bags of cash and represented a more old fashioned style of political corruption. It’s all so blatant that it’s hardly surprising that the media are desperate not to turn over this particular rock. After all many of them may be working for the CIA anyway as speculated by this latest Patrick Lawrence column looking back to the 70s

    Certainly the Sulzberger family were up to their eyeballs in spook world. But Lawrence suggests that the CIA/press connection never really ended. This is a bit paranoid perhaps but how to explain the MSM lockstep on foreign policy and so much else. It is a puzzlement.

  9. The Rev Kev

    Quite the dilemma for Biden. The clock is ticking down for next year’s Presidential campaigns so he wants Hunter’s problems to all go away. No, they have to go away. He could cut Hunter loose to sink or swim but there is a problem. I heard that Hunter has had about 200 business dealings so you have to wonder how many of them involved a 10% cut for the Big Guy. It wasn’t just Burisma in the Ukraine after all. And didn’t Hunter fly with his dad to China aboard Air Force One a coupla years ago to do more business when Biden was Veep? If he cuts Hunter loose, Hunter could eventually turn State’s witness after negotiating immunity. I’m sure that the Justice Department will be going all out to make this go away so expect more shenanigans. If there was a trial and FBI agents marched into court to arrest this judge on unrelated ‘corruption’ charges, it would not surprise me in the least.

    1. Wukchumni

      It isn’t all bad news, in his time in court Hunter put the finishing touches on a doodle expected to fetch in the low 6 figures.

      1. The Rev Kev

        For a brief second, I read that to say that Hunter put the finishing touches on his doodle.

          1. ambrit

            Like father, like son? “Creepy” Joe is a ‘hands on’ sort of chief executive.[Just ask any very young girl who is tossed within “Creepy” Joe’s reach by power hungry parents.]

  10. MT_Wild

    Nothing more than a wild-assed guess, but if they can’t get Hunter a sweet-heart deal, isn’t the other option to delay trials and/or sentencing until after the 2024 election? Then Joe pardons Hunter and business proceeds as usual. I don’t think Joe would even step aside afterwards.

    Can they stretch the process out that long?

  11. TimH

    The urge to comment on events immediately, as they are happening, before we have the information necessary to evaluate them, is corrosive. It’s also overpowering and pervasive in the era of social media. Nobody wants to wait for tomorrow’s morning paper, or even tonight’s newscast. We want answers and we want them now. Many of us also want to be the ones providing those answers — the first ones providing those answers — for those sweet clicks, comments, likes, and attention. Accuracy and nuance are the casualties.

    1. Yves Smith Post author

      Sorry, that is all wet.

      The judge blew up the plea deal and Will Scharf gave the reasons why. It was extremely irregular and the judge noticed. This is not complex. The prosecution and defense wanted this over. The Trump holdover probably feels he has already spent way too much of his life on this and wants a graceful way out, independent of the fact no way no how can he try it under this Administration, with this DoJ sure to be stingy with resources (confirmed by the testimony of the IRS whistleblowers who said the DoJ was stymieing the investigation).

      As Greenwald said, the deal will probably be recut on conventional lines, which means Hunter won’t get the expansive immunity he had hoped for but will have to rely on no one wanting much to go after him any more. Ex Congress, of course.

      1. griffen

        I have yet to ascertain how he / Hunter avoids jail time and excessive penalties on the tax implications, in particular. Was it just a low ball effort to pay forth the taxes owed, or was he in neglect of the taxes due and payable? Filers at a certain level have to pay quarterly estimated, IIRC, and I prefer not getting off point.

        Tax dodgers in the past have had it thrown at them, is the thread I am pulling. Sport heroes like boxing great Joe Louis, a prime sample of such efforts by the IRS.

        1. Jeff

          Presidential pardon and/or more contributions mean unequal justice meted out. See Sam Bank Man Freed.

      2. Tom Stone

        What strikes me is that both the Prosecution and the Defense expected a deal this raw to slide through with no problems.
        An interesting miscalculation…

    2. Sue inSoCal

      Tim H – In the main, I must agree with you. Immediacy is corrosive. There are documentaries made during trials. I will keep my thoughts to myself about this whole matter.

  12. Dean

    Kudos to the judge for temporarily slowing things down and asking a few pointed questions. She probably won’t be on Biden’s short list for a SC nomination though.

  13. David in Friday Harbor

    I worked as a prosecutor for 32 years and I can attest that Yves has explained the nuance of the current state of play correctly.

    I suspect that the lawyers mis-read an earlier ruling by Judge Noreika in the laptop defamation litigation as portending that she was playing along with the signaling from the White House reported in Law360 that she was under consideration for elevation from the District Court to the Circuit court — and that she would rubber-stamp their patently irregular configuration of Hunter’s Get Out of Jail Free card.

    This sort of a-nod-and-a-wink corruption is how these people think that the game is played, but Judge Noreika’s background as a former patent attorney with a Masters in biology suggests that she’s not a “player” in their games. Good for her.

    1. Yves Smith Post author

      Thanks for the sanity check and the possible Circuit Court nomination tidbit. Note how far too many write-ups feature prominently that she was a Trump appointee, and do so in a way that insinuates that she’s a partisan hack.

  14. JustTheFacts

    There should not be a “plea deal”. Evidence should be shown in court, and the case judged on the merit. Corruption, if any, should be brought to light. To quote Obama, sunlight is the best disinfectant.

  15. Dr. John Carpenter

    Thanks Yves for this. I’ve been trying to follow along and something about this seemed interesting but I couldn’t sus out what.

  16. Wukchumni

    Hunter has a very 2nd Amendment’y name and you think that would’ve helped in this era, but no.

  17. JonnyJames

    Is there any institution of power that is not thoroughly corrupt in ‘murka? Congress, SCOTUS, Exec., the two political “parties”, The Fed and the financial system, economic system, the DoJ and the entire US system of jurisprudence?

    Is there even ONE member of Congress who is not somehow corrupt or a sheepdog for their beloved party and therefore an advocate of the status-quo?

    I would say NO to all the above, but then again I have been accused of being a cynic (and an inflexible Stoic)

  18. Tom Stone

    After reading the post at Popehat it appears that there was (At best) serious incompetence by all the lawyers involved, prosecution and defense.
    Was “Brain Fog” caused by Covid part of this?

  19. Jorge

    It was always true that Presidents had embarrassing relatives, except for the last 20 years: Bush kept the twins under control, Obama only had a Sino-African half brother who is 6’9″ and works as a classical pianist in China who maybe said a few weird things but in Chinese, and Trump out-embarrassed any living relative.

    But… this is all a little beyond, say, “Billy Beer”.

    1. cousinAdam

      For a time I had an unopened six-pack of Billy Beer. How it grew wings and got away I’ll never know……

      Thank you Yves for your stellar reporting and analysis. You truly are the “hostess with the mostest”!

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