The implosion of the proposed criminal plea agreement between the Justice Department and Hunter Biden left plenty of questions in its wake for legal observers, as well as plenty of room for some old-fashioned political opportunism. Last year, congressional Republicans had urged Attorney General Merrick Garland to provide David Weiss, the U.S. Attorney for Delaware who has overseen the wide-ranging criminal investigation since 2018, “with special counsel authorities and protections” in order to insulate his investigation from political pressure. They finally got what they wanted, but House Speaker Kevin McCarthy, among many other Republicans, nevertheless criticized the appointment and accused Weiss of an effort to “whitewash the Biden family corruption.”
The supposed reason for this about-face is that the now-scuttled plea agreement Weiss and his team offered Biden was a “sweetheart deal” — a claim that Republicans have been making for months even though Weiss was appointed as U.S. Attorney by then-President Donald Trump, is a registered Republican, and was confirmed by voice vote in the Senate while it was controlled by the GOP. New reporting in recent days, however, strongly suggests that Biden has been treated worse — not better — than typical people in his position thanks to the apparent incompetence of Weiss’s team and some successful ref-working by Republicans.
As I noted last week, Biden’s plea deal publicly fell apart after the presiding judge in Delaware questioned the scope of an immunity provision contained in one of the documents submitted to the court as part of the proposed agreement. That provision specified that Biden would get immunity “for any federal crimes encompassed” by the facts described in the proposed plea documents, which concerned Biden’s alleged failure to pay taxes on income from his consulting business and his unlawful possession of a gun as a drug user. The proposed resolution would have required Biden to plead guilty to two misdemeanor tax charges and enter a pretrial diversion program to resolve the gun charge.
When pressed on the scope of immunity by the judge, a prosecutor on Weiss’s team told her that the deal would not preclude charging Biden with other crimes in the future, including violations of the Foreign Agents Registration Act connected to work for his overseas clientele. Biden’s lawyers balked, saying that they would not agree to a deal that did not definitively resolve the long-running inquiry. The judge did not accept the plea, instead sending everyone home to do some more work and answer some of her questions.
The whole thing was odd. Plea hearings sometimes go awry, but it is rare to see them go off the rails as the result of legal questions that both sides could (or should) easily have anticipated.
After the hearing, according to reporting late last week from the Washington Post, prosecutors and lawyers for Biden tried to refashion a deal, but the effort failed as a result of “the federal government’s insistence that any immunity offered be narrow while the FBI keeps investigating Hunter Biden’s work for foreign entities — and by the younger Biden’s equally fervent demand that any agreement he signs should put his legal troubles behind him.”
The confusion on the part of Biden and his lawyers makes more sense in light of additional information provided over the weekend by the New York Times — which reported, most notably, that earlier this year Weiss “appeared willing to forgo any prosecution of Mr. Biden at all, and his office came close to agreeing to end the investigation without requiring a guilty plea on any charges.” (This would have been what prosecutors call a declination — a decision not to file any charges against someone at the conclusion of a criminal investigation — and it happens regularly in the ordinary course of federal prosecutors’ work.)
Republicans no doubt would have thrown a fit in this scenario, but judging by the publicly available facts, this would have been a very defensible resolution to the investigation, particularly given the way comparable cases have been handled by the department. People get off without criminal charges for failing to pay much larger sums of money than Biden owed to tax authorities. The gun charge is similarly dubious, and the notion that there is a chargeable case against Biden under FARA or a related statute — an idea that is basically now taken for granted in conservative media — is also open to serious doubt. In fact, government lawyers in recent years have seen a slew of high-profile, embarrassing court losses amid a supposed crackdown on foreign lobbying in FARA-related cases.
According to the Times, Weiss at one point even “told an associate that he preferred not to bring any charges, even misdemeanors, against Mr. Biden because the average American would not be prosecuted for similar offenses.” (A law enforcement official “forcefully denied” this claim to the paper.)
So what happened? The Times reports that the posture of Weiss’s office changed around the time that two IRS whistleblowers came forward earlier this year publicly claiming that Biden had received preferential treatment. The whistleblowers’ account is far from airtight, but it has drawn extraordinary attention and support from congressional Republicans and conservative media outlets. Amid the publicity, per the Times, Weiss “suddenly demanded that Mr. Biden plead guilty to committing tax offenses.”
A “senior law enforcement official” disputed that political pressure played a role in the shift, but this is very hard to take at face value. As a prosecutor considering a plea agreement, you need to be cognizant of maintaining and maximizing your leverage — like anyone negotiating a settlement — within both legal and ethical bounds. It makes very little sense to suggest to a potential defendant that you are even considering a declination if you do not seriously mean it, because doing so makes clear that you see serious weaknesses in your case — thereby undercutting your own negotiating leverage if (or when) you need it.
A second deeply curious feature of this saga is Weiss’s team’s recent insistence that their investigation was going to meaningfully continue even after the plea deal went through. Again, this makes very little sense as a straightforward matter of prosecutorial practice. A successful plea agreement requires the government to have some leverage — ideally as much as possible under the circumstances — and the main way to get it is by pursuing and compiling the most comprehensive list of chargeable offenses before approaching the defense to propose a deal limited to a smaller number of charges.
Under the circumstances, most competent defense lawyers faced with a proposed deal along the lines of the aborted Biden agreement would have assumed that the investigation was ending. Why else would prosecutors have proposed it, and if you were Biden’s lawyer, why would you agree if you thought the government could simply pocket the plea deal and then later charge him with more crimes related to the same facts? (Indeed, one of Biden’s current lawyers made this point explicitly in an interview on Friday.)
Despite all this, the Times’ and Post’s reports do not entirely exonerate Biden’s lawyers. There appear to have been warning signs along the way to the now-notorious plea hearing — including revisions by Weiss’s team to a draft of the immunity provision and their insistence that Biden’s lawyers not issue a public press release saying that the investigation had ended. In hindsight, these changes should have raised red flags that at least prompted Biden’s lawyers to have a more explicit discussion with Weiss’s team about the exact status of their investigation at the time the deal was announced, but apparently that never happened.
The upshot of all this is that congressional Republicans, despite all of their public hemming and hawing this year and their more recent claims that Biden was getting a “sweetheart deal,” appear to have gotten a good deal of what they wanted out of Weiss and Garland. Weiss’s team is now free to file the same — and possibly more — charges against Biden in another venue. They have said that they intend to go to trial, and if that happens, the proceedings are likely to extend through much of next year unless another deal comes together to resolve the case.
At the same time, the specter of additional charges is likely to hang over Biden throughout the prosecution — which, depending on where and when the next round of charges is eventually filed, could conceivably last through much of his father’s campaign for reelection next year. To top it all off, there will be a wrap-up report that probably will make Biden look even worse. None of this looks much like a “sweetheart deal” of any sort, either in the form of the proposed deal or the actual, much messier reality that has followed.
We do not have to look that far in the past for another time when Republicans used their control of Congress and investigative powers to significantly damage a Democratic presidential contender. In 2015, McCarthy himself accidentally admitted that his party was conducting a congressional investigation over Benghazi to politically damage then–presidential candidate Hillary Clinton. We appear to be in the midst of a replay of that effort, with Weiss’s team now evidently providing an assist.
More of Exhibit A
- Do Liberals Think the Supreme Court Will Save Us From Trump?
- How Much Does Georgia v. Trump Matter?
- What to Make of the Hunter Biden Prosecution Debacle