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What to Make of the Hunter Biden Prosecution Debacle

Photo: Shawn Thew/EPA-EFE/Shutterstock

At the moment, no one involved in the Justice Department’s investigation into Hunter Biden could possibly be happy. In June, prosecutors and lawyers for Biden announced that they had reached a plea deal to resolve a long-running criminal investigation that began during the Trump administration under David Weiss, the U.S. Attorney for Delaware who was asked to stay on after the 2020 election to complete his work. Under the deal, Biden would plead guilty to two misdemeanor tax charges, enter a pretrial diversion program to resolve a felony gun charge connected to his prior drug use, and avoid prison time. But as of Friday afternoon, that plea deal is officially in tatters — the latest development in an unwieldy, often befuddling criminal investigation that, from the outside looking in, seems to exist in a permanent state of epistemic fog.


How did we get here?

If you had asked me after the announcement of the plea deal, I would have told you that the DOJ’s investigation into Hunter Biden was effectively over. That is usually what a plea deal means. But then a few weeks ago, the federal judge in Delaware who was supposed to approve the deal asked some pointed questions at a surprisingly contentious plea hearing.

One of those questions concerned the scope of the immunity provision that the parties had agreed upon. An immunity provision — under which the government agrees that it will not further prosecute the defendant for certain conduct as part of the deal — is a common term in plea agreements. Among other reasons, the defendant needs some assurance that he is actually resolving the investigation in whole or in significant part, rather than pleading guilty to certain crimes only to face more down the line based on the same underlying conduct. In this case, the immunity provision specified that Biden would get immunity “for any federal crimes encompassed” by the facts described in the plea documents, which included his alleged failure to pay taxes on income from his consulting business and his unlawful gun possession.

At the plea hearing, the presiding judge asked whether the proposed immunity provision covered other potential criminal conduct tied to Biden’s consulting work, and a prosecutor on Weiss’s team answered in the negative, telling her that the investigation remained “ongoing.” This was apparently news to Biden’s lawyers, who balked. (The press release announcing the deal also said that the investigation was “ongoing,” but I assumed, apparently like Biden’s lawyers, that this was boilerplate language that referred to ongoing investigative work concerning other people who might be charged later.)

The judge directed the parties to submit briefs in response to her questions and gave them an opportunity to revise the plea paperwork, but it appears that she exposed — or perhaps created — a serious rift between the two sides. According to CNN and the New York Times, prosecutors and Biden’s lawyers could not come to an agreement on the scope of immunity that Biden would receive.


So what exactly happened on Friday?

David Weiss’s team told the judge that the “parties are at an impasse and are not in agreement on either a plea agreement or a diversion agreement.” They also informed her that they believe “that the case will not resolve short of a trial.” They asked her to dismiss the pending tax charges and informed her that the Justice Department “is considering what tax charges to bring in another district and may elect to bring the same charges … or different ones.”

Also on Friday, Attorney General Merrick Garland announced that he had appointed Weiss as a special counsel. One obvious reason for this — though not necessarily the only one — is that it allows Weiss to file charges outside of Delaware, including in the Central District of California or in the District of Columbia, where, according to Weiss’s team, the venue would be appropriate for the tax charges. (Hunter Biden had agreed to waive any venue defense in Delaware as part of the plea deal, but without that agreement, the charges cannot be resolved in that district.)


What do these developments mean, practically?

First, a plea deal is apparently off the table, at least for now — though the judge in Delaware still needs to close out the pending proceeding after hearing from Biden’s team. Weiss’s team is also preparing to charge Biden elsewhere and to go to trial on the tax charges.

Second, Weiss is now free to file charges in any jurisdiction as special counsel, subject to limited oversight by Garland. He is not confined to the charges that were proposed as part of the plea deal.

And third, Weiss is required to produce a report once his work is over. That report could provide a vehicle for Weiss to address any lingering questions about the scope and process of his investigation, including questions that have emerged as a result of testimony from two IRS agents who worked on the investigation and have argued that Biden received preferential treatment from the department.


Will Hunter Biden be charged with more crimes than were part of the proposed plea agreement?

This is the big question at the moment and a difficult one to answer for at least two reasons.

First, prosecutors have considerable discretion in fashioning plea agreements, and they will often forgo charges — particularly ones that are harder to prove and that would expose the defendant to more prison time — in the interest of getting a deal done. Now that the deal has apparently been scuttled, every charge is theoretically back on the table for prosecutors. With respect to Biden’s tax case, for instance, prosecutors could try to escalate the misdemeanor charges to felony charges or add different types of felony charges connected to Biden’s overseas consulting work.

The other element of significant uncertainty here stems from Weiss and the Justice Department’s incredibly ham-handed handling of this affair. If the plea deal was in fact intended to conclude the investigation, then we should not expect to see categorically different charges or a significantly larger number of them.

Weiss, however, either appears to have never intended to conclude the investigation — despite leading pretty much everyone to believe that was what was happening — or he has now decided to reconsider the possibility of charging Biden for other offenses. It is otherwise hard to understand why, in the wake of the aborted plea hearing, he could not come to terms with Biden’s lawyers on a more specific or explicit immunity provision than the one that had originally been proposed.


Is Hunter Biden going to face trial?

Actually, there could be a couple trials — one concerning the tax-related charges that Weiss now intends to file in another jurisdiction, and another concerning the felony gun charge that may now be brought in Delaware (where Biden bought the gun).

It is also possible that another plea deal could come together at some point in the future, even after the filing of more charges. One thing that is apparent from the recent plea hearing and subsequent reporting is that there has been a serious breakdown in trust between the lawyers on both sides — a crucial element of any negotiation, including plea deals — but that could change.


How much should you care about any of this?

Not nearly as much as Republicans would like you to.

All year, House Republicans in particular have been trying to create as much public and political controversy around Hunter Biden’s business dealings as possible, in a transparent effort to deflect attention from the fact that the last Republican president — and the party’s leading contender to be its nominee again next year — has been credibly accused of far more serious crimes, like trying to steal the last election.

There is no meaningful equivalence between the accusations that have been lodged against Hunter Biden — who is not running for public office, much less the presidency — and those that are pending against Donald Trump.

However, you should also considerably discount some of the dubious defenses that have emerged among some Democrats on Capitol Hill, who have adopted a conspicuous “move along, nothing to see here” approach to Hunter Biden’s business dealings.

You are, in fact, allowed to care that the president’s very grown son was trading off of his father’s name and government position in order to line his pockets in the private sector. And caring about that does not make you an apologist for Trump or anyone in his family.

What to Make of the Hunter Biden Prosecution Debacle