Hunter Biden And The Fog Of War

This post was largely overtaken by Politico’s subsequent publication of the plea and diversion agreements, discussed at the end — see supplement.

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.

Today Robert Hunter Biden’s long-anticipated guilty plea on two misdemeanor counts of failure to file a tax return was derailed. You’ve seen the news by now, and if you haven’t, you’ve probably seen the social media reactions, many of which are nonsensical and uninformed.

The truth is, so far, elusive. There were reporters in the courtroom. But, judging from the news stories, and with the greatest respect to those reporters, it seems they didn’t completely understand what was happening. They couldn’t report many verbatim quotes (they should have brought someone who takes shorthand) and federal courts don’t allow broadcast or media recoding of proceedings. So we’re left with a series of impressions by reporters who picked up bits and pieces of what was happening. Many of those reporters are intelligent and sophisticated but it’s not clear they have the experience with federal criminal law to pick up exactly what was going on.

The truth further eludes us because we lack the most important document — the written plea agreement between the U.S. Attorney’s Office. Always read the plea agreement to understand a plea. I argued weeks ago, when news of the plea deal came out, that until we got the plea agreement we could not fully evaluate the many claims that Hunter Biden was getting a “sweetheart deal.” In many federal districts it would be filed as a matter of course before the plea hearing, the government said in an earlier filing that it would be filed, and it still hasn’t been filed, leaving crucial questions unanswered and making it very difficult to interpret today’s events.

Here’s what we know, and what we still need to know.

We know that Hunter Biden showed up in court to enter his guilty plea. A federal guilty plea is an involved process; it’s routine for it to last anywhere from fifteen minutes (very fast) to an hour (slow). It involves a searching inquiry by the judge into whether the defendant understands the terms of the deal, the rights they are giving up, the sentence and sentencing process they are facing, the facts supporting the plea, and the voluntariness of the deal. Today that process went sideways, as it sometimes does.

From press reports, it appears that U.S. District Judge Maryellen Noreika asked questions about the scope of the deal. Specifically, she asked whether the government was agreeing not to prosecute Hunter Biden further just on these tax issues, or on any other issues it was investigating, including the Foreign Agent Registration Act. The government responded that the deal only precluded the government from prosecuting any other tax crimes related to these facts; Hunter Biden’s lawyers said that was wrong and if that was the case there was no deal. The judge told them to go talk and work it out. Apparently they did - and Hunter Biden agreed with the government that he was only protected from further tax prosecution on these facts, not from other prosecutions based on other investigations — but the judge asked the parties to submit briefs clarifying the scope of the non-prosecution promise and to come back, and did not accept the plea.

This is strange, and we can’t interpret the extent of the strangeness because we don’t have the written plea agreement.

Federal plea agreements typically spell out, very explicitly, the government’s non-prosecution promises. A standard agreement will say that the government agrees that this specific U.S. Attorney’s Office will not prosecute the defendant further for the facts and circumstances described in the plea agreement, but that the deal doesn’t cover any other crimes and doesn’t bind any other office or entity. That’s very narrow. It’s also very explicit and not subject to easy misunderstanding.

So for things to go wrong here, one of the following had to happen:

• The government didn’t define the scope of its promise of non-prosecution in the agreement. That would be a huge mistake and very unusual.

• The government defined the scope of its non-prosecution promise in the plea agreement but the scope was vague or badly drafted. That’s unusual and also a mistake. They are normally extremely careful with this language. The fact that the judge saw fit to inquire about the scope of the deal makes this possibility plausible — if the plea agreement was as clear on this point as it should be, and the judge read it, the judge wouldn’t have to ask that question.

• Hunter Biden’s lawyers didn’t read the plea agreement carefully or didn’t understand the non-prosecution promise. Hunter Biden has experienced attorneys and that would be a huge and embarrassing blunder.

If I could read the plea agreement I could tell you which of these scenarios happened. But they haven’t filed the agreement and haven’t made it public, so we’re left to speculate.

The judge’s refusal to accept the deal for now was appropriate. If there’s no meeting of the minds — if the parties don’t agree on the terms of the deal — the judge shouldn’t accept the plea. Also, once uncertainty has been expressed on the record, it’s not that strange for the judge to say “go put it in writing and come back” rather than accepting their statement “ok we straightened it out now.” Federal judges are notoriously careful about the guilty plea colloquy. I would probably do the same about such a high-profile case — if there was any hint that a party thought the written plea agreement was ambiguous, I would want it fixed.

What this does not seem to suggest, at least based on the information we have, is that the judge has accepted GOP arguments that Hunter Biden is getting a sweetheart deal, or that she’s part of a GOP conspiracy, or that she’s ultimately going to tank the deal.

We may have to wait until the parties file the clarification requested by the judge. One would hope they’d file the plea agreement — amended or not — by then. That will answer questions about this hiccup (and, I think, make it easier to evaluate the “sweetheart deal” arguments).

For now, the only thing I am confident in saying is that somebody done fucked up. But I’m not sure who.

Updated later on July 26, 2023:

We now have the plea agreement and diversion agreement and we now know more. Politico got copies — the plea agreement governing the plea to the misdemeanor tax charges and the separate diversion agreement on the gun charge. Politico has posted them here. Based on reading them I think this is a combination of my second and third possibilities discussed above — the government was sloppy and Biden’s lawyers didn’t read carefully.

First, the plea agreement for the misdemeanors doesn’t have any non-prosecution language. That’s weird, and bad drafting. It means that the deal, the key bargain of the case about which charges he’ll be prosecuted for, isn’t fully contained in that agreement. It doesn’t and can’t stand on its own. That’s completely bizarre to me, because the plea agreement (as opposed to the diversion agreement) is the document governing how Hunter Biden is going to plead guilty to something, and it’s the place where you would expect that term of the agreement to be.

Second, the diversion agreement — that is, the document that describes how if Hunter Biden stays clean for two years the government will dismiss the information charging him with being an addict in possession of a firearm — does have the non-prosecution agreement. Here it is:

So the agreement says that the government won’t prosecute Hunter Biden for any federal crimes “encompassed” by the statements of fact attached to the plea agreement (about the tax crimes) or the diversion agreement (about the gun crime). But what does “encompassed by” mean? I think I know what the government thought it meant — they thought it meant crimes specifically described and called out in the statements of fact. But as Josh Barro, my podcast co-host on Serious Trouble, pointed out, the plea agreement also has some language about how Hunter Biden earned the income he didn’t report. That includes activities that are the subject of GOP accusations of misconduct, and that language refers to actions that might constitute crimes like failure to register as a foreign agent:

So when the diversion agreement says that the government won’t prosecute crimes “encompassed by” that statement of facts, does that mean any crimes of which those activities are a part? It’s not clear. Friends and neighbors, that is shitty drafting. And if you’re Hunter Biden’s lawyer and telling your client that he can’t be prosecuted for crimes related to those income sources because of that language, that’s reckless advice and bad lawyering. It’s a failure by both attorneys. If Judge Noreika spotted that issue, called it out, and asked for an explanation, then good for her — she’s doing her job, which is to make sure the defendant understands the deal they are accepting.

Another oddity: the agreement is between the U.S. Attorney’s Office for the District of Delaware and Hunter Biden. But the non-prosecution language specifies that the “United States” agrees not to prosecute him for other crimes “encompassed” in those factual statements. Is that intended to bind other districts as well? If so I would expect that to be far more explicit — because the District of Delaware doesn’t have the power to bind other districts. In fact, it’s very typical for federal plea agreements to specify, at length, that they don’t bind any other district or federal, state, or local prosecuting authority. If you think this is a pedantic issue, I invite you to remember the controversy over the Jeffrey Epstein plea agreement from Florida, which threatened to derail his New York prosecution until he thoughtfully killed himself.

Let me call out one final odd feature of this deal structure. Again, the promise not to prosecute is kept in the diversion agreement, not the plea agreement. That means that if Hunter Biden breaches the diversion agreement by using drugs or alcohol — a relapse that is frighteningly common with addicts — that means that he can lose the protection of the non-prosecution agreement on everything, not just the gun charge. It means that he could get prosecuted for other tax crimes “encompassed” by the statement of facts on the plea agreement. The diversion agreement calls this out specifically:

This seems exceptionally reckless for Hunter Biden, given the risks of an addict relapsing. Did Hunter Biden understand that if he relapsed he would lose the protection of any non-prosecution promise, and could be prosecuted for more tax crimes from the same time period?

To sum up: this set of agreements is vaguely drafted. The government should have drafted them more carefully (for instance by making the non-prosecution language call out tax crimes specifically). Hunter Biden’s lawyers should have seen this as an issue and clarified it. It’s not clear to me why they structured it with the non-prosecution promise only in the diversion agreement; it makes the whole thing more vague. I blame all the lawyers involved.

We’ll see what the parties say in the supplemental brief they agreed to file with the judge. Presumably now that they’ve been kicked in the ass over the issue they will make it unmistakably explicit.

Second edit: A site that I would characterize as anti-Biden has posted what purports to be a transcript of today’s hearing. I would be surprised such a long transcript would be finished that fast but it’s possible.

Assuming for the moment that it’s real (and it’s too elaborate and detailed for me to think it’s a hoax), it shows a combination of what I said above and other factors: the judge was put off by factors including the odd division of the matter into two separate agreements, the unclear relationship between the plea and diversion agreements, the unclear nature of what happens if she rejects one and accepts the other, the ambiguity of what happens to the plea agreement if the diversion agreement is breached, the ambiguity of what happens if the “addict in possession” law underlying the diversion agreement turns out to be unconstitutional, the fact that Biden’s attorneys and the government’s attorneys did not seem to have a meeting of the minds - at least beyond the hearing — what crimes are covered by the non-prosecution promise, whether the government stuck the non-prosecution promise in a separate agreement to prevent her from rejecting it (which she might have been able to do if it was in the plea agreement for complex statutory reasons), and the fact that the diversion agreement requires the judge to make the determination of whether Biden is in breach and therefore loses the benefit of the non-prosecution promise, which she was not comfortable doing and thought perhaps she shouldn’t do. I think she’s wrong on that last one, but everything else reflects a careful federal judge recognizing that a plea agreement structure is a complete train wreck that the parties did not carefully consider. This is embarrassing.

Also, the transcript seems to show that the parties and the judge all think that the GOP filing attacking the plea is nonsense and the judge doesn’t care about it.