The Chicanery of the Hunter Biden Plea Bargain
By ANDREW C. MCCARTHY
August 19, 2023 6:30 AM
‘Special counsel’ David Weiss has done everything in his power to make the DOJ’s investigation of Biden family corruption disappear.
Sham special counsel David Weiss could not have more royally screwed up the Hunter Biden case. But of course, if that was the plan, it’s not really a screwup, right?
Back in Judge Maryellen Noreika’s Delaware courtroom this week, we found the prosecutor still flailing in the miasma of his imploded schemes. At issue was the corrupt “diversion agreement” that Weiss, on behalf of the president’s Justice Department, executed with the president’s son: the pact whereby Weiss gifted Hunter not merely a complete pass on a gun felony punishable by up to ten years’ imprisonment, but a total immunity bath — no prosecution for bribery, money laundering, tax evasion, failing to register as a foreign agent, or any other crimes arising out of the Biden family business of peddling Joe Biden’s political influence to operatives of corrupt and anti-American regimes.
Having been humiliated by Judge Noreika’s exposure of Biden Justice Department corruption, Weiss is now posing as a tough guy who insists the diversion is null and void because Hunter did not fulfill a separate plea agreement that called for him to plead guilty to two misdemeanor tax charges — not content with eschewing easily provable tax felonies, tough guy Weiss also promised to push for a no-jail sentence.
This would be quite hilarious if it weren’t so infuriating.
As it happens, the public will be spared from the worst of Weiss’s machinations, at least in the short term. But that is no thanks to Weiss. He’d like you to think he’s a born-again prosecutorial dynamo after last week’s charade, in which Merrick Garland pretended to name him a special counsel. In reality, Weiss remains a high-ranking Biden Justice Department official who is ineligible to be a special counsel — at least by regulation as opposed to Garland’s hocus-pocus. A special counsel is an attorney brought in from outside the government, while Weiss is the Delaware U.S. attorney. A special counsel is brought in because the Justice Department has a conflict of interest, and Weiss is a high-ranking Justice Department official. A special counsel would have indicted the case by now, and Weiss has not. Nothing has changed.
No, Hunter will be denied his “stay out of jail free forever” card because of the actions of the court, not the prosecutor. Essentially, since the executive branch won’t follow Justice Department guidelines when dealing with the president’s son, we have to rely on the judiciary to do it. First, Judge Noreika derailed the plea agreement by asking a few simple questions about its blatant irregularities. And now the court’s probation office has refused to approve the diversion agreement that runs afoul of Justice Department policy against diversion for gun crimes.
We’ll get to the Probation Department’s intervention in due course. First though, with all the delusional chatter about how Weiss’s special-counsel appointment is a boon for the Biden “investigation,” we must explore in detail the depth of his skullduggery.
Weiss Has Been Disappearing the Biden Case for Five Years
You can’t blame Hunter Biden’s lawyers for these antics. Their job is to get the best deal possible for their client. Weiss and the Biden Justice Department, by contrast, are duty bound to enforce the criminal law with appropriate vigor, consistent with DOJ guidelines that would have called for felony charges and a felony plea to the most serious, readily provable offense.
In our adversarial system, this is how prosecutors vindicate the public’s interests in the rule of law and equal treatment. Weiss and the Biden DOJ, to the contrary, acted as Hunter’s second set of defense lawyers. Predictably, given the Justice Department’s impossible conflict of interest in this case, Weiss sought to serve and protect the president. On the surface, that meant insulating Hunter from real prosecution. The main objective, however, was to steer the “ongoing investigation” away from Hunter’s dear old dad. To label the DOJ’s Joe Biden whitewash “the Hunter Biden plea deal” is like calling a green-new-boondoggle “the Inflation Reduction Act.”
To reiterate, Weiss has never indicted the case because he’s intentionally disappearing the case. The failure to file formal charges lets the statute of limitations run. This Garland/Weiss gambit has already achieved much of its purpose. The most damaging evidence implicating Joe Biden is the sale of his political influence during his years as Obama administration vice president. Thanks to Weiss’s “don’t indict” game plan, the statute of limitations (six years for tax crimes, five years for all other crimes) has rendered time-barred any and all criminal offenses committed from 2014 through 2017. The IRS and FBI agents who were actually trying to make the case believe the scheme petered out in 2019, when Joe’s 2020 presidential bid forced the family business to go dark. Pretty soon, then, there will be nothing left to charge: Even if Weiss finally manages to choreograph a face-saving filing of trivial charges against Hunter, the clock will still run out on Joe’s criminal exposure. Mission accomplished.
Since Weiss’s aim was to sabotage the case, that’s what the agreements attendant to Hunter’s plea bargain were structured to achieve.
Weiss’s strategy required keeping the plea agreement (tax misdemeanors) completely separate from the diversion agreement (gun felony). One wonders how, hearing Weiss pine in court on Tuesday that the diversion agreement is voided by the failure of the plea agreement — as if the two agreements were interdependent —Judge Noreika avoided falling off the bench in spasms of laughter.
Hiding the Ball from the Court
A diversion agreement is like any other written contract: It is signed by the parties, with each giving something of value as consideration, mutually locking in the other party’s commitment. Here, the Biden Justice Department agreed to defer and eventually dismiss the gun charge, while Hunter agreed, among other things, to waive indictment and abide by the two years’ probation term. That’s a contract.
And here’s the significant part: Because Weiss wanted the diversion agreement to be separate from the plea agreement and stand on its own, the diversion agreement does not mention the plea agreement. That’s now a problem for Weiss because of a so-called completeness clause that he included in the diversion agreement (p. 8, para. 19) but disingenuously omitted from the plea agreement:
This agreement sets forth all of the terms of the Agreement between the United States and Biden. It constitutes the complete and final agreement between the United States and Biden in this matter. There are no other agreements, written or otherwise, modifying the terms, conditions, or obligations of this Agreement. No future modifications of or additions to this Agreement, in whole or in part, shall be valid unless they are set forth in writing and signed by the United States, Biden, and Biden’s counsel. [Emphasis added.]
How can Weiss now say with a straight face that the validity of the diversion agreement is dependent upon the successful completion of the plea agreement? The Justice Department expressly and unambiguously stated that there were no other written or oral agreements that modified the terms of the diversion agreement. The studiously unmentioned plea agreement thus has no effect on the diversion agreement.
Now, why did Weiss stick the completeness provision in the diversion agreement but not the plea agreement? Because he was hiding the ball from the court.
The Justice Department always puts a completeness clause in plea agreements. Defendants often have buyer’s remorse about plea deals, especially if the sentence subsequently imposed by the judge ends up being more harsh than anticipated. Many thus come back to court insisting that they would never have pled guilty were it not for some side deal that somehow went unmentioned in the plea agreement. Courts reject these claims out of hand because of the completeness clause. That’s why the Justice Department insists on including it.
Except, of course, in the case of the president’s son. For Hunter, Weiss cooked up something vaguely resembling a completeness clause, clearly hoping the judge would skim it inattentively, if at all. But the clause (Plea Agreement, p.6, para. 13) is dodgy. This becomes clear when it is compared to the standard, ironclad completeness clause in the diversion agreement (excerpted above). Noreika noticed. It was a tipoff that Weiss was trying to pull a fast one.
The most important provision in any plea agreement — other than the precise description of the offenses to which the defendant is agreeing to plead guilty — is the immunity clause. That’s where the government lays out, with what is supposed to be clarity, the crimes and potential crimes for which it is promising the defendant will not be prosecuted. But in the Hunter plea agreement, there is no immunity provision.
Why? Because Weiss was trying to hide it from the judge, hoping she’d be a rubber stamp.
Here, we come to another big difference between a plea agreement and a diversion agreement: The judge has to approve the plea agreement — federal law so mandates. After all, the plea agreement is the basis on which the judge will find the defendant guilty and impose a sentence. By contrast, the judge does not sign off on a diversion agreement. Diversion is just a matter of prosecutorial discretion: The Justice Department agrees not to prosecute on a charge if the defendant fulfills certain conditions, so there is no plea, no conviction, and no sentence.
Thankfully, there is a catch when the diversion agreement contemplates probationary conditions. We’ll come to that in due course.
Obfuscating Hunter’s Immunity Bath
The breadth of immunity Weiss was trying to give Hunter was outrageous. Any sentient judge would have questioned it. So Weiss tried to hide it in two ways.
First, he tucked it into the diversion agreement that he hoped the judge wouldn’t peruse, while omitting it from the plea agreement that the judge would have to look at (though, Weiss hoped, not too closely). But because he was omitting the all-important immunity clause from the plea agreement, Weiss had no choice but to omit the completeness clause, too. The only reason Hunter agreed to plead guilty, even to two trivial misdemeanors, was the sweeping immunity grant. If the plea agreement had included the standard completeness clause but left out the immunity grant, Hunter and his lawyers would never have signed it.
It was one thing to hope Noreika wouldn’t notice the plea agreement’s omission of an immunity term. But betting that she’d snooze through the lack of the completeness clause that the DOJ habitually puts at the end of every plea agreement was unrealistic — and if Weiss surmised that Noreika, like himself, was a standard Delaware “don’t you dare question the Bidens” type, then he hadn’t taken her measure.
Weiss’s second stratagem was to camouflage the indefensible breadth of the immunity grant: In exchange for a guilty plea to two puny misdemeanor tax charges with no jail time, he intended to shield Hunter from prosecution for all potential felonies from 2014 through 2019. In a plea deal, the government is supposed to state clearly the crimes it is forfeiting the authority to prosecute, but Weiss knew that if he spelled this out, there would be an earthquake on Capitol Hill, outcry from the public, and deep embarrassment for the White House and the Justice Department. So even though he hoped the judge would not make a fuss about his insertion of the immunity term in the diversion agreement, he knew the diversion agreement would have to be public. Ergo, he concocted a device to obfuscate the immunity terms.
That was “Exhibit A” of the diversion agreement. It is a narrative “statement of facts” describing Hunter’s professional pursuits and personal foibles from 2014 to 2019. It is supposed to take the place of a clear description of the immunized crimes; but of course, Hunter was not going to admit to serial felonies. Hence, it worked this way: Hunter and Weiss jointly adopted the four-page statement of facts; then Weiss — in the key paragraph 15 of the diversion agreement — gave Hunter immunity for any charges that might be “encompassed” in that recitation. That is, the Biden Justice Department didn’t come out and directly tell us what potential crimes prosecutors had immunized; it was instead left up to the reader to figure out what potential crimes could be teased out of the statement of facts.
Once they had slammed that past the judge, the plan was for Hunter to give a cloying statement about how relieved he and his family were to have this hiccup behind them — in fact, a podium was even set up right outside the courthouse in anticipation of this denouement. Concurrently, Hunter’s lawyers would crow that the diversion agreement, by its sweeping immunity term that expressly incorporates the statement of facts, ended the Biden case once and for all — might as well forget that molehill those crazy House Republicans are portraying as a mountain of Biden corruption, because the government could no longer prosecute Hunter. Finally, for their part, Weiss and the Biden Justice Department wouldn’t have said anything . . . but they wouldn’t have prosecuted Hunter for anything, either.
This legerdemain went poof because the judge asked about the immunity term in open court. Put prematurely on the spot, Hunter’s lawyers proclaimed that it covered everything — and they were right, that was the intention. Weiss, however, was too humiliated to admit this. Consequently, the Biden Justice Department lied, claiming that there was still an “ongoing investigation” and that Hunter could still be prosecuted — even though, if those things were true, it would have made no sense to give a principal subject a misdemeanor plea with a promise of no jail time in the middle of the “ongoing investigation.” Hunter’s lawyers became indignant, and understandably so. Yes, it’s an outrageous deal . . . but it’s the deal Weiss and the Biden Justice Department promised until they got caught.
There Is No Biden Corruption Investigation at the Biden Justice Department
But that barely scratches the surface of Weiss’s sabotage. The statement of facts that he adopted is Hunter’s version of events. This shows that (a) there is no real Justice Department Biden investigation, and (b) Weiss is trying to kill the case before it engulfs the president.
How do we know this? Because of the information thus far gathered by Senators Chuck Grassley (R., Iowa) and Ron Johnson (R., Wis), as well as House committees led by Oversight chairman James Comer (R., Ky.). The energetic congressional efforts, contrary to the dormant Justice Department “probe,” are undergirded by bank records, Hunter’s laptop, and the testimony of both whistleblower IRS agents and Hunter’s partner Devon Archer. This mosaic shows that Hunter was the front man for a scheme in which foreign actors paid millions of dollars in bribes to purchase access to Joe Biden, and that the Bidens and their confederates tried to hide (a) the sources of those money transfers, (b) the fact that they were raking in millions, and (c) the fact that they were acting as foreign agents. While minor, the tax misdemeanors to which Hunter was trying to plead guilty were consistent with this scheme: The Bidens pretended this money came from legitimate business activity and then hid the proceeds by, among other things, not reporting the income and not paying the taxes due.
That is what the evidence shows. But what did Weiss do? He adopted a statement of facts in which Hunter asserts that the foreign income was legitimately earned through his purported work as a high-end lawyer and business consultant (i.e., no way it’s bribery, influence peddling, and foreign-agent work), and that he failed to pay his taxes because he was drug-addled (i.e., no way it’s money laundering and tax evasion).
The statement of facts adopted by Weiss completely undermines the essence of the Biden corruption scheme. If you were a prosecutor who was assigned to the Biden case, and you truly had an “ongoing investigation” into the Biden business activities, there is no way in a million years that you would adopt a defendant’s spin on the “facts” that contradicts the evidence amassed by your investigators. Indeed, there is no way, in the middle of your “ongoing investigation” of serious felonies, that you would gift one of the main subjects of the investigation with a plea deal involving two misdemeanor tax charges — a plea deal in which you promised to seek a no-jail sentence and which you structured so the defendant could credibly claim complete immunity from any crimes uncovered in your “ongoing investigation.”
In the end, Hunter’s lawyers are right and “special counsel” Weiss is wrong: Weiss had every intention of giving away the store. The way Weiss and the Biden Justice Department wrote the plea and diversion agreements, they are wholly independent — the collapse of the plea should have no effect on the validity of the diversion. And the way the diversion agreement is written, Hunter should have complete immunity from prosecution, notwithstanding the lack of even an admission of guilt to the misdemeanor tax charges.
Probation Office Shoots Down Weiss’s Inexplicable Diversion of a Gun Felony
Hunter and his lawyers are trying to convince Judge Noreika that the diversion agreement and the broad immunity it promises are still valid and enforceable. In the end, he is going to lose, but not because Weiss has suddenly grown a backbone. Hunter will lose because, once again, the court rode to the rescue. It wasn’t the judge this time; it was the Delaware federal court’s chief probation officer, Margaret M. Bray.
While the judge need not sign off on a diversion agreement, the probation office must approve it if the agreement includes probationary conditions, as the one between Weiss and Hunter’s lawyers did. This is because the probation office is responsible for monitoring a defendant’s compliance with such conditions. Routinely, the probation office signs off on diversion agreements. Weiss and Hunter’s lawyers must have figured this one would be rubber-stamped as well. But Chief Probation Officer Bray declined.
How come? It is not a subject Weiss wants to dwell on, but we should. There is no explanation on the record. Yet, we know that Justice Department guidelines instruct that a defendant is ineligible for diversion if he is “accused of an offense involving brandishing or use of a firearm or other deadly weapon.” Hunter is known to have obtained a gun in October 2018 by lying on a required government form about his illegal-drug use. There is video from the laptop showing him brandishing a gun a few days later in a depraved and potentially dangerous scene with a prostitute. Not long after that, because of his carelessness, the gun he purchased after lying on the federal form was lost across the street from a school. (It was later recovered.)
As if that weren’t bad enough, I believe the probation office realized Hunter had to have been handling more than one gun on his autumn 2018 drug binge — and it’s not clear all guns have been accounted for. The gun he purchased after lying on the form is a revolver (described in the diversion agreement as a Colt Cobra 38-special revolver); but the gun in the video from a few days later is not a revolver (it appears to be a Glock). Note, moreover, that the diversion agreement called for Hunter to forfeit “all firearms . . . including but not limited to” the revolver. Implicitly, Weiss was acknowledging that there could be multiple guns at issue. Naturally, the Biden Justice Department doesn’t want to broadcast that fact: President Biden is as demagogic as Democrats get in demonizing law-abiding gun-owners and Second Amendment rights; his son’s felony possession of a single gun — that his Justice Department tried to give Hunter a pass on — is humiliating enough.
Judge Noreika exposed the shameful plea agreement, so now the misdemeanor charges have been dismissed. Chief Probation Officer Bray refused to be party to the appalling diversion agreement, so it too is sure to be scrapped. The commentariat is fantasizing that, with Attorney General Garland having now branded him a “special counsel,” David Weiss will turn alpha-prosecutor. I wouldn’t count on that. Weiss remains a top Biden Justice Department official, and he has methodically undermined the Biden case for years. It’s a better bet that he’s now huddling again with counsel for the president’s son, struggling to come up with more plea-bargain cosplay they can try to sell as real law enforcement.
Meanwhile, the statute-of-limitations clock keeps on ticking.
