An attorney for Hunter Biden has come out swinging against Justice Department prosecutors who he blames for the collapse of a plea deal that resulted in his client’s case taking yet another bizarre turn.
Biden was set to plead guilty to tax charges and settle a gun charge during a July 26 hearing in Delaware but the judge in the case questioned the parameters of the deal and whether Biden fully understood what he was agreeing to.
Abbe Lowell, Biden’s attorney in the case, said Sunday that federal prosecutors “changed their decision on the fly” during the hearing – when such plea agreements are typically ironed out by both sides before appearing before a judge. Instead, the hearing took numerous twists and turns for nearly two hours until Biden ultimately pleaded not guilty in order to give both sides time to have another chance at coming up with a deal.
Lowell gave a trifecta of reasons for why the plea agreement ultimately wasn’t approved.
“And so the possibilities are only, one, they wrote something and weren’t clear what they meant. Two, they knew what they meant, and misstated it to counsel. Or third, they changed their view as they were standing in court in Delaware,” Lowell said on CBS’ “Face the Nation.
In a court brief dated Sunday, he doubled-down on those comments, maintaining that federal prosecutors opted to “renege on the previously agreed-upon Plea Agreement” and argued the diversion program to avoid jail time agreed to previously reached should remain in place.
The Justice Department did not respond to requests for comment.
On Sunday, Lowell said he did not expect his client to face any additional charges, including possible violations of the Foreign Agents Registration Act, which he said “had to” be part of federal prosecutor’s five-year investigation. He noted that only tax charges and a diverted gun charge had resulted.
The tax charges stem from Biden’s foreign and domestic business dealings in which he failed to pay taxes on his earnings.
The collapse of such a high-profile plea deal involving the president’s son – being prosecuted by a Justice Department under his father’s own administration – has legal watchers scratching their heads over how attorneys on both sides could have entered a court room without coming to clear terms on the agreement that required a final seal of approval from the judge.
“It seems from the hearing transcript that there was not a meeting of the minds about what the deal was,” said Carissa Byrne Hessick, a law professor at the University of North Carolina and author of “Punishment Without Trial,” a book about plea bargains.
The failed deal is the latest twist in an investigation that began during the Trump administration when the Justice Department began investigating Biden in 2018 on potential violations of tax and money laundering laws. After the Biden administration took over, U.S. Attorney General Merrick Garland, who was appointed by President Biden, said he would keep in place the Trump-appointed U.S. attorney in Delaware overseeing Hunter Biden’s case.
Prosecutors reached a plea deal with Biden in June, under which the president’s son would have pleaded guilty to two tax offenses and entered a pretrial diversion program on a gun charge, allowing him to avoid a formal charge under specific conditions.
At a hearing in Delaware last month where the deal was set to be formalized, U.S. District Judge Maryellen Noreika asked pointed questions about the complex agreement – in particular, questions regarding the scope of Biden’s immunity from any potential future charges.
Without revealing details, prosecutors indicated that the president’s son remains under active investigation, according to the Associated Press.
The deal crumbled in real time.
“When (Noreika) asked additional questions about this…she got very different answers from defense and prosecution,” Hessick said. “At that point, the judge would be wrong to accept the plea agreement because the judge has a constitutional obligation under Supreme Court case law to make sure that a defendant’s waiver of his or her right to a jury trial…is knowing, voluntary and intelligent.
“It can’t be knowing if there is a lack of clarity about what the agreement is,” she said.
After the hearing, Noreika directed both parties to submit in writing their responses to her concerns, but on Friday, the Justice Department asked her to set those briefing deadlines aside. Prosecutors said plea deal negotiations with Biden’s team were at an “impasse.”
Garland also on Friday appointed U.S. Attorney David Weiss, who was leading the investigation, as a special counsel, who have more powers than U.S. attorneys.
Thea Johnson, a law professor at Rutgers University who specializes in plea bargaining, said it’s typical for plea deals to mark the end of criminal investigations and that misunderstandings over such agreements are “unusual.”
“The defendant is saying, ‘I agree to plead guilty and to give everybody the certainty to end the case, and in exchange, the certainty I want is to know that the case is over – that the investigation is over,’” Johnson said. “So, it is quite unusual that there is a disagreement over the nature of the immunity deal.”
“Certainly, it would make the typical defendant less likely to plead guilty if they thought that they were facing future criminal liability and they weren’t sure what the nature of that liability would look like,” she added.
Still, it’s possible that DOJ prosecutors did go back on their deal – a move that’s entirely legal, Hessick said.
She compared plea bargaining to buying a car from an independent seller, reaching a deal on price, and then the buyer putting more terms on the deal resulting in the seller charging more.
“Colloquially, would you say that I reneged on a deal like that? Yeah,” Hessick said. “But from a legal standpoint, we didn’t have a contract.”
The stakes are much higher in criminal plea negotiations, Johnson said, using the same analogy.
“Unlike a typical negotiation – where if we can’t come to a resolution over the price of a car you don’t buy the car – in a criminal case, if you can’t come to a resolution then you go to trial,” Johnson said.
Though prosecutors have indicated that a trial in Biden’s case is imminent, whether the parties will reach a deal before then is still yet to be seen.
“It’s certainly possible that it goes to trial,” Hessick said. “But in an awful lot of cases, somebody blinks just before the trial starts.”