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SUBSCRIBER EXCLUSIVE | JULY 29, 2023

Inside the Courtroom Where Hunter Biden's Plea Agreement Fell Apart

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WILMINGTON, Del.—President Joe Biden's son Hunter Biden appeared in a federal courthouse on July 26 and faced a rollercoaster hearing on a plea deal he had made with the Department of Justice (DOJ).

The younger Biden, who was expected to plead guilty, entered a not-guilty plea instead after the presiding judge raised a barrage of concerns about the terms of the plea agreement.

Mr. Biden arrived in court facing three charges: two misdemeanor tax crimes and a felony firearm charge. Attorneys from both sides likely expected a quick hearing: the deal offered by prosecutors seemed straightforward, even if critics felt that Mr. Biden had gotten off easy.

Leo Wise led the delegation of DOJ attorneys. Chris Clark led Mr. Biden's legal team.

However, Judge Maryellen Noreika found the deal to be anything but standard, leading to drama in the courtroom as attorneys from both sides realized they were in for a longer process than expected.

Anticipation for the trial was high. By 7 a.m., more than three hours before the trial was set to begin, the press were already lined up around the corner of the building. U.S. Marshals, local police, and Secret Service agents permeated the crowd around the building. The street in front of the courthouse was shut down, with law enforcement vehicles and "caution" tape dominating the scene.

Security was strict, with stringent precautions in place to ensure that no recording devices—or weapons—were brought into the courtroom. Laptops were banned; bags were x-rayed and searched for hidden recorders; and cell phones were turned off and sealed in locked pouches.

After other reporters and I were admitted to the courthouse, we were brought by posted security agents to a large overflow room prior to our admission to the courtroom.

After going through procedural basics, Judge Noreika turned to more substantive matters, imposing a set of conditions for Mr. Biden's pretrial release: drug testing, employment requirements, and check-in with a probation officer.

Afterward, Judge Noreika began her questioning of what would become the key point of contention during the hearing: the pretrial Diversion Agreement put forward by the DOJ.

Broader Deal Than Presented

When the public first learned of the agreement, it was presented as a deal that would see Mr. Biden avoid charges for his felony misrepresentations on a firearm application.

The actual deal was much broader: prosecutors seemed prepared to wave their right to prosecute any tax, drug, or firearm crime committed by Mr. Biden between 2014 and 2019.

The diversion agreement was one of two documents, along with a memorandum of plea agreement related to the tax charges, presented to the court. It quickly became obvious that the two were interlinked with Mr. Biden's decision to plead guilty.

When Judge Noreika asked whether Mr. Biden was counting on the promises of the diversion agreement to accept the plea deal, Mr. Biden confessed that he was. That raised issues, as it could mean that Mr. Biden later faced a revocation of the diversion agreement after entering a guilty plea that hinged on that deal.

However, Mr. Clark insisted that they considered the deal as already constituting a binding contract between both parties.

Attorneys insisted that the agreement was a "bilateral" one in everyone's interest.

But Judge Noreika still had qualms about the breadth of the deal.

"The agreement not to prosecute includes ... the gun case, but it also includes crimes related to the tax case," she said, comparing it negatively to other such agreements. Mr. Wise confessed that there was no precedent for such a broad deal.

Judge Noreika grew exasperated, scolding attorneys from both sides for trying to foist on her an unprecedented move that she was expected to "rubber stamp" and not give any input on.

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'No Deal'

Chaos ensued when the court found that there was also disagreement about which charges the diversion agreement provided immunity against.

In contract law, there must be a "meeting of the minds," an agreement about the meaning of interpretative clauses by both parties. But questioning cast into doubt whether such a condition existed between the parties.

"To the extent that the agreement not to prosecute is promised, do the parties have some understanding what the scope of that agreement is?"

Mr. Wise responded that there was. But further questioning threw that declaration into doubt.

"Could the government bring a charge under the Foreign Agents Registration Act?" Judge Noreika asked as an example.

"Yes," Mr. Wise said.

"Is there a meeting of the minds on that one?" the judge asked.

"As stated by the government just now, I don't agree with what the government said," Mr. Clark said.

"So I mean, these are contracts," Judge Noreika said. "To be enforceable, there has to be a meeting of the minds. So what do we do now?"

"Then there is no deal," Mr. Wise said.

A murmur of excitement brushed across the courtroom at these words, as some reporters rushed out to transmit the news to their colleagues on the outside. Others scribbled on their notepads frantically, while still others, confused, tried to learn from whispered comments what had just occurred.

"What just happened?" was a common refrain among reporters during an ensuing recess; more knowledgeable members of the audience tried to provide an explanation to peers.

After the recess, the parties appeared to have reached some agreement about the scope of the deal: immunity for Mr. Biden from tax and drug charges committed between 2014 and 2019, and immunity from other charges related to the particular illegal firearm purchase.

But Judge Noreika had additional concerns.

'Not Guilty'

Judge Noreika turned to procedural requirements related to Mr. Biden's decision to plead guilty to the tax crimes, but again found herself questioning the diversion agreement because of its close link to the plea deal.

Thus, before asking Mr. Biden to formally enter a plea on the tax charges, she again raised questions, this time about the constitutionality of the deal due to the role it gave her.

It mandated that she arbitrate any alleged violations of the deal. Mr. Wise again confessed he knew of no precedent to back this arrangement.

Her involvement, the judge said, raised issues around the separation of power between the executive and the judicial branches, as she would thus have a role in the state moving forward with additional charges.

"That seems like it's getting outside of my lane in terms of what I am allowed to do," she said.

The attorneys sought to assuage her concerns about the constitutionality of the deal, arguing that the political nature of the defendant demanded such a neutral arbiter to protect against political interference.

But her concerns about the agreement were too steep, she said.

"I can't let [Mr. Biden] plead to something if he thinks he has protection and he doesn't."

Later, she added, "I am not in a position where I can decide to accept or reject the plea agreement, so I need to defer it."

Due to her unwillingness to accept the diversion agreement, Mr. Biden was forced to enter a "not guilty" plea pending further consideration of the deal.

After the trial ended, Mr. Biden was escorted out first by Secret Service agents, while reporters were again left wondering and discussing what had just happened.

The judge emphasized that the deferral isn't a sign one way or the other of her final ruling, but it throws into doubt the entire fate of the plea agreement.

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