After Hunter’s Sweetheart Deal Went South, Here’s What’s Next From Biden’s Compromised DOJ

The collapse of Hunter Biden’s sweetheart plea deal left many questions unanswered. Here’s what you need to know to understand what happened, what may come next, and what to watch for.

The Sweetheart Plea Deal

In late July 2023, Hunter Biden appeared before federal Judge Maryellen Noreika planning to plead guilty to two misdemeanor tax counts and to resolve a gun charge with a pretrial diversion agreement. Things did not go according to plan, however, with Noreika — instead of rubber stamping the plea agreement — questioning both the government and Biden’s attorney on the specifics of the deal. 

As the in-court colloquy with Noreika revealed, the language proved confusing — more on that shortly — leaving Hunter Biden to plead not guilty and the hearing to continue later.

In formulating the deal for Hunter Biden, Delaware U.S. Attorney David Weiss separated the charges into two separate criminal dockets and two separate “informations.” An information is a charging document, like an indictment, but while an indictment is issued by a grand jury, a prosecutor states the charges in an information. Generally, federal prosecutors use an information in cases charging misdemeanors or in felony cases where the defendant has waived his constitutional right to a grand jury indictment, typically as part of a plea agreement. 

Gun Charge: Docket 23-CR-00061

The first information issued by the Delaware U.S. attorney’s office charged Hunter Biden with knowingly possessing a firearm while knowing he “was an unlawful user of and addicted to a controlled substance,” in violation of 18 U.S.C § 922(g)(3). Of note: That information did not also charge Hunter with lying on the federal firearm form he signed when purchasing the gun, something Hunter Biden admitted he did when he answered “no” to the question of whether he was “an unlawful user of, or addicted to,” any “controlled substance.”  

To resolve the single gun charge included in the first information, the Delaware U.S. attorney’s office and Hunter Biden struck a deal to use a pretrial division agreement to, in essence, put the charge on hold for 24 months. If Hunter Biden stayed clean and out of trouble and satisfied the other requirements set forth in that agreement during that time period, the government would then dismiss the gun charge; if not, the government could prosecute Hunter “for any federal criminal violation.”

The pretrial diversion agreement included Hunter’s waiver of a right to indictment by a grand jury and also included in paragraph 15 an “agreement not to prosecute,” which has been referred to colloquially as “immunity.” Paragraph 15 stated in part:

The United States agrees not to criminally prosecute Biden, outside 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.

Attachment A’s Statement of Facts discussed Hunter’s drug use and the details concerning the illegal gun purchase, plus how it was tossed in a garbage can behind a grocery store and then later recovered by law enforcement officers.

Exhibit 1 was attached not to the diversion agreement but to a plea agreement concerning the charges brought by the Delaware U.S. attorney’s office against Hunter Biden in a separate information.

Tax Charges: Docket 23-MJ-00274

That second information charged the president’s son with two misdemeanors: willfully failing to pay his 2017 and 2018 taxes in violation of 26 U.S.C. § 7203. 

The plea agreement sought to resolve the two misdemeanor tax charges contained in the second information. The deal struck required Hunter Biden to plead guilty to those two counts, and the Delaware U.S. attorney’s office would recommend a sentence of probation. The deal also required Hunter to waive any objection to “venue,” meaning the location of the proceedings, and to waive indictment by a grand jury. 

The plea agreement for the two misdemeanor tax charges did not include a promise by the government not to prosecute Hunter Biden, but as noted above, the pretrial diversion agreement’s commitment not to charge Hunter Biden expressly referenced Attachment 1 to the plea agreement, with Weiss promising not to charge Hunter for crimes “encompassed” in that Statement of Facts.

The Statement of Facts contained in Attachment 1 detailed Hunter Biden’s extensive “business” dealings, including with Burisma and Chinese-connected companies.

Noreika Calls Foul

This backdrop makes more understandable the questions Noreika posed to the parties during Hunter Biden’s July 26, 2023, hearing. The federal judge began by noting the two agreements were “not standard,” and then explained that she needed to ask Hunter Biden some questions to ensure his plea was “voluntary and knowing.” 

Noreika proceeded first to assess Hunter Biden’s competence and then asked the parties the type of plea being presented and her role. Both the government and the defendant’s attorney maintained that the plea agreement was under Federal Rules of Criminal Procedure Rule 11(c)(1)(B), as opposed to the other subsections governing plea agreements. The lawyers further maintained that under Rule 11(c)(1)(B), the court’s sole role was to ensure Hunter’s competency and that his plea was knowing and voluntary. The court could not reject the plea agreement under Rule 11(c)(1)(B), as it could under Rule 11(c)(1)(A), the attorneys explained. 

Upon further questioning from Noreika, the prosecution acknowledged that had the plea agreement been covered by Rule 11(c)(1)(A), the court could have rejected the plea agreement because it was not in the public interest — for instance, because it failed to adequately represent the seriousness of the offense. But because the government and Hunter’s attorney had structured the deal as a Rule 11(c)(1)(B) plea agreement, the court lacked the discretion to reject it.

Following those clarifications, Assistant U.S. Attorney Leo Wise walked through the terms of the plea agreement for the tax case and the attached Statement of Facts, which detailed Hunter’s “business” dealings. 

The court then returned to Hunter Biden. “Has anyone made you any promises that are not contained in the written agreement?” the court asked him. 

His attorney, Chris Clark interjected, “With the exception of the Diversion Agreement.” 

Judge Noreika made clear she was “not making any exception,” and wanted “to know, has anyone made you any promises that are not contained in the written Memorandum of Plea Agreement?” Clark again spoke for his client, saying, “Yes, there are promises from the government in the Diversion Agreement, Your Honor.”

The court questioned Hunter directly then, asking if he was “relying on the promises made in the Diversion Agreement in connection with [his] agreement to plead guilty?” 

“Yes,” Hunter replied, followed by a “no” when asked if he would enter into the Memorandum of Plea Agreement on the tax counts “if the Diversion Agreement were not valid or unenforceable for any reason…”

Noreika then turned to the diversion agreement, quoted paragraph 15’s promise not to prosecute, and asked Hunter if he was “relying on that promise in connection with [his] agreement to accept the Memorandum of Plea Agreement and plead guilty?”

“Yes, Your Honor,” Hunter confirmed and then again said “no,” he would not accept the Memorandum of Plea Agreement if paragraph 15 “were not valid or not enforceable…”

However, after a brief recess for the parties to confer, Hunter Biden returned and told the court the contrary: that he would plead guilty to the two misdemeanor tax charges even if the pretrial diversion agreement were not valid. 

Changing course, Noreika pushed the parties on paragraph 15’s non-prosecution promise. After noting that the promise not to prosecute reached far beyond the gun charges for which the diversion agreement was entered, the court asked whether there was “any precedent for agreeing not to prosecute crimes that have nothing to do with the case or the charges being diverted.”

Wise acknowledged there was none. Wise further told the court he did not believe the probation office had a role in weighing whether the agreement was valid and that instead it was a “bilateral agreement” between the parties. 

Big-Time Disagreement

The court then quizzed the parties on their understanding of the promise not to prosecute to determine if there were a “meeting of the minds” — something required for a contract to exist. The government maintained that it could still charge Hunter Biden with violating the Foreign Agents Registration Act, while Hunter’s attorney disagreed. At that point, both the government and Hunter’s attorney indicated there was no deal. 

Wink, Wink, Nod, Nod

After a second brief recess, however, the parties changed course again and told the court they had agreed that the promise not to prosecute contained in the diversion agreement was limited to three categories of crimes. Specifically, Hunter’s attorney expressly confirmed for the court “that the agreement not to prosecute only includes the time period from 2014 to 2019, it only includes tax charges in that time period, drug charges in that time period, and the particular — the firearms charges that relate to this particular firearm.” 

Later, in reviewing the other terms of the diversion agreement, the Delaware U.S. attorney’s office noted paragraph 15 had been orally modified by defense counsel during the hearing, and the government’s position was that the modification was binding. When asked by the court if he had any corrections to make to the prosecution’s summary of the diversion agreement terms, Hunter’s lawyer responded “no.” 

Noreika next pushed the parties on another provision of the diversion agreement — one which, as she put it, placed her “smack in the middle” of it. The provision of concern gave the judge the responsibility of determining if Hunter Biden had breached the diversion agreement, making him subject to prosecution. Noreika noted that term raised constitutional concerns, and she questioned whether it rendered the entire diversion agreement invalid.

Court Calls a Timeout

After expressing her concerns with that provision, Hunter Biden’s conflicting statements about whether he wished to plead guilty without the diversion agreement’s promise not to prosecute, and the government’s failure to include the non-prosecution agreement in the plea deal, as is typical, Noreika concluded she needed further briefing before accepting a guilty plea. The court also suggested the parties confer to determine if they could remove that provision, thereby eliminating her concern. And while they were at it, Noreika added, the parties might want to “fix that one paragraph that you have orally modified today,” a reference to paragraph 15’s non-prosecution agreement.

On Second Thought

Some two weeks later, news broke that the plea deal had crumbled when Attorney General Merrick Garland announced he was appointing David Weiss as special counsel and Weiss’s legal team filed a motion asking the court to vacate (or cancel) its order directing the parties to brief various outstanding issues. Those issues were no longer germane, the Delaware U.S. attorney’s office explained because the parties had been unable to reach an agreement. 

The same day, prosecutors filed a motion to dismiss the tax charges against Hunter Biden. They explained that because the plea agreement had collapsed, they would need to charge the president’s son in a different venue, either the middle district of California or the federal district for Washington, D.C.

Hunter Biden’s legal team responded to the motions, agreeing that briefing was no longer needed and that dismissal of the tax charges was appropriate. Biden’s lawyers made clear, however, that they believed the pretrial diversion agreement — including the agreement not to prosecute — remained valid and enforceable. Conversely, U.S. Attorney Weiss argued the pretrial diversion agreement was not valid because the probation office never approved it, as the parties anticipated.

Noreika granted both motions, canceling briefing of the various issues, dismissing the criminal information that charged Hunter Biden with two tax counts, and closing that case. The information charging Hunter Biden with a felony gun charge remains pending, however, and that case is still open.

What Happens Next?

To prosecute Hunter Biden on the tax counts, U.S. Attorney Weiss will now need to obtain indictments against the president’s son in the proper venue based on his residency at the time he filed his tax returns. In naming Weiss a special counsel, Garland authorized the U.S. attorney to initiate prosecutions in any federal jurisdiction, so that is no longer an impediment.

What will be telling is whether Weiss seeks felony tax-evasion charges against Hunter Biden or hands the president’s son an indictment merely repeating the misdemeanor counts.

Weiss’s legal team will also need to indict Hunter for any charges related to his illegal purchase and disposition of the gun. While that count remains pending, the charge was brought via an information based on Hunter’s waiver of his right to a grand jury. That waiver was part of the pretrial diversion agreement, however, which the government maintains is not effective. Accordingly, Weiss will need to obtain an indictment and substitute it for the information. Because venue for any gun counts is still proper in Delaware, however, there was no need for Weiss to dismiss the case.

Again, what charges Weiss seeks will be telling of whether he intends to zealously pursue criminal charges. As Noreika noted, the constitutionality of the count brought against Hunter Biden is questionable, but a false statement charge would not face the same impediment. Under these circumstances, a normal indictment would include both charges to ensure at least one passes constitutional muster. 

Fight over the Pretrial Diversion Agreement

Once Weiss charges Hunter Biden with one or more gun charges by indictment, watch for the president’s son to argue the pretrial diversion agreement precluded any such charge absent Hunter breaching the terms of the agreement — something he has not done, his attorneys will argue. 

Whether the pretrial diversion remains valid will be a question for Noreika, and while there is no guarantee, her questioning in the late-July plea hearing suggests she will find that agreement invalid. If invalid, Hunter Biden will have no protection from prosecution of the gun or tax charges that seem imminent. 

But even if a jury convicts Hunter on multiple tax and gun counts, the president’s son still may be getting off easy given the charges he could have faced had the Delaware U.S. attorney’s office not botched the statute of limitations for the earlier tax years. Likewise, without the protection of the Department of Justice, Hunter Biden and the “Big Guy” might have both faced much more serious charges.

While the sweetheart deal may have collapsed, the justice system is still far from standing tall. 

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Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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