Department of Justice (DOJ) prosecutors buried the agency’s deal not to prosecute Hunter Biden for non-tax crimes in Biden’s diversion agreement, rather than his guilty plea, prior to Wednesday’s court hearing during which the arrangement fell apart.
Judge Maryellen Noreika objected to the terms of Hunter Biden’s diversion agreement at his arraignment Wednesday because it appeared to give Hunter Biden immunity from prosecution for crimes related to his two misdemeanor tax charges, according to a transcript of Biden’s court appearance. (RELATED: Judge Tells Hunter Biden To Get A Job And Lay Off Drugs TO Stay Out Of Jail)
Based on conversations with people who were in the courtroom today, and my experience as a former federal prosecutor, I think I know the full story of what happened with the Hunter Biden plea agreement blow-up this morning.
Bear with me, because this is a little complicated:…
— Will Scharf (@willscharf) July 26, 2023
“The United States agrees not to criminally prosecute Biden, outside of the terms of this Agreement, for any federal crimes encompassed by the attached Statement of Facts (Attachment A) and the Statement of Facts attached as Exhibit 1 to the Memorandum of Plea Agreement filed this same day,” the diversion agreement reads.
Judge Noreika asked Hunter Biden, his lawyer Chris Clark and DOJ prosecutor Leo Wise about the terms of the diversion agreement and its connection to Biden’s guilty plea, which lays out the payments Biden received from Chinese, Ukrainian and Romanian business interests.
“We’re not making an exception. I want to know, has anyone made you any promises that are not contained in the written Memorandum of Plea Agreement?” she asked Biden.
“Yes, there are promises from the government in the Diversion Agreement, your Honor,” Clark said.
“And sir, are you relying on the promises made in the Diversion Agreement in connection with your agreement to plead guilty?” she followed up.
“Yes, Your Honor,” Biden said. (RELATED: Burisma Lobbyists Recommended By Hunter Biden Didn’t Disclose Over $400,000 In Payments, Testimony Shows)
— James Lynch (@jameslynch32) July 25, 2023
“And if the Diversion Agreement were not valid or unenforceable for any reason, would you enter into the Memorandum of Plea Agreement?” she pressed Biden.
“No, Your Honor,” Biden responded.
“Paragraph 15 of the Diversion Agreement states the United States agrees not to criminally prosecute Biden outside of the terms of this agreement for any federal crimes encompassed by the attached statement of facts, Attachment A to the Diversion Agreement, and the statement of facts attached as Exhibit 1 to the Memorandum of Plea Agreement filed this same day,” Noreika clarified.
“And just so we’re clear, I think you already answered this, sir, but are you relying on that promise in connection with your agreement to accept the Memorandum of Plea Agreement and plead guilty?” she asked Biden.
“Yes, your honor,” Biden replied.
“If that provision were not valid or not enforceable, would you accept the Memorandum of Plea Agreement?”
“No, your honor,” Biden repeated.
“If you had no immunity from the government, perhaps even a different prosecutor and the government could bring a felony tax evasion charge or drug charges against you, would you still enter the plea agreement and plead guilty to these tax charges?” Noreika wondered.
“No, your Honor,” Biden said.
Noreika continued to press Biden and Clark on the diversion agreement’s immunity provision and how it connects to Biden entering his guilty plea.
“But he would not agree, just so I understand, sir, you would not agree to that plea agreement if you didn’t get some immunity from other charges, is that right?” she questioned Clark.
“Speaking for my client, that’s correct, your Honor,” Clark asserted.
Noreika turned her attention to Wise to get more information about the diversion agreement’s promises to Hunter Biden.
“So let me first ask, do you have any precedent for agreeing not to prosecute crimes that have nothing to do with the case or the charges being diverted?” Noreika asked Wise.
“I’m not aware of any, your Honor,” Wise conceded.
“So have you ever seen — I think I just asked you this, but have you ever seen a Diversion Agreement where the agreement not to prosecute is so broad that it encompasses crimes in a different case?” Noreika continued.
“And I would say, Your Honor, I don’t think it is broad in the sense that,” Wise said as Noreika cut him off.
She asked Wise about whether Biden could still be charged under the Foreign Agents Registration Act (FARA) if the diversion agreement was finalized.
“All right. So there are references to foreign companies, for example, in the facts section. Could the government bring a charge under the Foreign Agents Registration Act?” the judge said.
“Yes,” Wise stated.
“I need you to answer my question if you can. Is there a meeting of the minds on that one?” Noreika proceeded to ask Clark.
“As stated by the government just now, I don’t agree with what the government said,” he snapped back.
“So I mean, these are contracts. To be enforceable, there has to be a meeting of the minds. So what do we do now?” Noreika said to Wise.
“Then there is no deal,” Wise said. (RELATED: America First Legal Sues Merrick Garland, DOJ For Allegedly Failing To Require Hunter Biden To Register As Foreign Agent)
Biden was expected to plead guilty Wednesday to two tax misdemeanors and a felony gun possession charge. He ended up pleading not guilty after the disagreement between the DOJ and his legal team.
U.S. Attorney David Weiss said the Biden investigation is still ongoing shortly after Biden’s charges were announced in June. Weiss is expected to testify before Congress after lawmakers return from summer recess.
The House Oversight, Judiciary and Ways & Means Committees are investigating accusations from two IRS whistleblowers that federal prosecutors slow-walked the Biden investigation and failed to charge him despite overwhelming evidence.
IRS whistleblower Joseph Ziegler testified to House Oversight that Biden and his associates took $17 million from foreign business interests. Gary Shapley, the other IRS whistleblower, revealed a threatening text Hunter Biden allegedly sent to a Chinese business associate with Joe Biden in the room.
The FBI is also investigating bribery allegations involving Ukrainian oligarch Mykola Zlochevsky, Joe Biden and Hunter Biden, based on information provided by a confidential source. Hunter Biden’s longtime business associate Devon Archer is expected to testify to House Oversight that Joe Biden participated in multiple business meetings with Hunter.
Biden’s lawyers did not immediately respond to a request for comment.