Part III of "Hunter Was Too Clever by Half": After the Special Counsel Appointment
(Part I and Part II and Part III)
Part I of this Substack went over the events in Hunter Biden’s prosecution up to the day of the plea hearing. Part II went over what happened that day up through the day of the appointment of Weiss as Special Counsel and on to the following Sunday, when Biden’s lawyers said that the Diversion Agreement was still valid and gave him immunity for tax crimes and other crimes. I am on vacation today, Monday, so I won’t try to write this up neatly now. Instead, I will put a number of observations. I will rewrite and add to this later. August 15: Reply of the US on the question of the validity of the Diversion Agreement. Extremely interesting. Did a new Justice Dept. lawyer take over the case, even though the signatures are the same as last week?
Fraud on the Court
The June 20, 2023 gun crime “Defendant Information Sheet” and the tax crime “Defendant Information Sheet” both list New Castle, Delaware, as the “County of Offense”. The August 2023 filing to dismiss the information by the Justice Dept. says it should be dismissed because the venue of the crime is not Delaware. Was the initial filing fraud on the court, or the new filing?
The Informations were filed in Delaware District Court in June 2023. Why? The defendant, Hunter Biden, waived any objections he might have. Nonetheless, was this legal, or was it unlawful venue shopping?
Margot Cleveland has written in The Federalist arguing that the Statement of Facts in the Plea Agreement, Exhibit 1, contains false statements. Is this fraud on the court by Hunter Biden and the Justice Department? Should the Court hold a hearing to determine that?
The Plea Bargain and Diversion Agreement in combination look like an attempt to fool the Court. Is such an attempt contempt of court?
The Validity of the Diversion Agreement
The Diversion Agreement would have invalidated the Plea Bargain even if the Court had accepted it. The Diversion Agreement says the Justice Dept. agrees not to prosecute Hunter Biden for anything encompassed by the Statement of Facts, Exhibit 1, of the Plea Bargain. But that includes the two misdemeanors of the Plea Bargain. They derive from exactly that Statement of Facts. Hence, Hunter Biden could have moved to end the tax prosecution completely even after pleading guilty.
In effect, the Diversion Agreement is a pardon for any tax crimes Hunter Biden may have committed, tacked onto a true diversion agreement on the subject of gun crimes. Only the President has pardon power. Isn’t this illegal delegation of executive power?
Hunter’s counsel, Abbe Lowell, says the Diversion Agreement is valid even if the Plea Agreement is not. His position on Face the Nation on Sunday was thus that no tax charges are possible:
“On July 26, what was very clear is that the prosecution presented the diversion agreement, which they signed, which we signed, and as an agreement of which they have described it as being a standalone, independent bilateral agreement with two signatures on it. That agreement is different than the plea. The plea has not fallen, the plea did not go forward. The diversion agreement is already filed in court and it has the signatures necessary for it to be binding.”
On August 15, Hunter lawyer Christopher Clark moved to withdraw from the case because he might have to be a witness in the dispute over the Diversion Agreement’s meaning because of his involvement in the negotiations that led up to it.
In the Clinton Administration, there was a dispute over whether an immunity agreement was valid or not in connection with the Monica Lewinsky Affair.
Friday, Justice said the Diversion Agreement was invalid. Sunday, Hunter said it was valid. It certainly was signed by Justice Dept lawyers and paragraph 19 says it didn’t depend for its validity on the Plea Bargain being a valid contract, even though it referenced statements in the Plea Bargain:
Did the Justice attorney who signed the Diversion Agreement have the authority to sign it, though? It was not Mr. Weiss himself.
If the Diversion Agreement was signed by an agent of the United States acting in breach of his duty, as an agent or as a fiduciary, is it valid? For example, suppose the Justice Department is corrupt and is acting for the benefit of Joe Biden, not the United States? Suppose bribes have been made in the form of promised promotions, or threats, in the form of threatened demotions?
In fact, I wonder whether the President can make any contract with a family member for any reason. Doesn’t that breach his fiduciary duty? Wouldn’t it violate the “duty of loyalty”? Or does he not owe fiduciary duty to the United States? If he were a corporate president, or president of a law firm, he wouldn’t be able to make contracts with relatives except with special approval from the board of directors. Can the President award a defense contract to his brother?
As I recall, some government agency did rent rooms at a Trump-owned hotel. Did that violate Trump’s fiduciary duty? Yes, I think. But it was a trivial violation. The remedy would be to undo the agreement, which would mean for the hotel to refund the money and the government to pay the hotel the value of the room occupancy. Those were, I bet, approximately the same. If the government got a special deal, the government would lose by the undoing. If the hotel was charging a special, corrupt, rate, though, the hotel would lose.
Here, the agreement is that the government give Hunter Biden immunity for his tax crimes 2014-2019 and perhaps for other crimes too, and Hunter agrees not to drink or own a gun for two years. Undoing it would mean the government paying Hunter for his abstinence (which he says he is doing anyway) and lack of a gun, but being able to charge Hunter, perhaps with the statute of limitations being tolled for the two-year or longer period.
The Diversion Agreement has problems as an enforceable contract. The provision that Judge Noreika adjudicate breaches is unenforceable. Is that enough to make the entire contract unenforceable by either party, Justice or Hunter? This is a question of severability.
Paragraph 16 says that the agreement would be publicly filed in the Delaware District Court. But that is not a valid place to file it. Another severability question.
It is interesting to think about the question generally of how much one Administration can bind the next using plea bargains. It can bind it using contracts and using pardons, but can it bind it not to enforce the laws? This is not just a problem peculiar to plea bargains— consider a promise by the United States to permit a paper mill to pollute a river in exchange for ten million dollars to hire park rangers.
The 5th Circuit has just decided a case involving Mississippi’s common law policy of not letting local governments bind their successors. I haven’t read it yet.
The Validity of the Special Counsel Appointment
Mr. Weiss has been appointed special counsel while a government employee, contrary to regulations, just as John Durham was appointed by Barr in the Trump Administration while a government employee. Nobody has standing to sue, but this may be relevant if Weiss tries to prosecute anyone. More important-- since AG Garland can always ratify anything Weiss tries to do-- is that a new Administration in 2025 could say that Weiss is not a valid special counsel and fire him just like any Biden Administration holdover.
The Statute of Limitations
The statute of limitations will expire on some of the tax crimes soon, and on other activities of Hunter Biden. It is “tolled” (stopped) by certain government actions. If the government brings an indictment, I think that tolls it— the government can continue to prosecute. The government has not indicted Hunter Biden for anything. What it did was bring “Informations” for two tax misdemeanors and the gun felony. misdemeanors do not require indictment— an Information is enough by Rule 58. Federal Rule of Criminal Procedure 58 says “The trial of a misdemeanor may proceed on an indictment, information, or complaint.” I think this means those tax crimes now tolled as misdemeanors, but maybe not, since the Justice Dept. is trying to withdraw them from the Delaware federal court (without prejudice, so they can refile elsewhere). Are the same actions tolled as felonies or not?
Joe Biden’s Crimes
It is quite clear that Hunter Biden had a business in which people paid him to meet President Joe Biden. It is also clear that Hunter paid money to Joe. This is a partnership. Both Hunter and Joe did work, and they shared the revenue. Joe did not get money as a gift; it was his share. This would be confirmed if Hunter did not pay gift tax on the money he transferred to Joe.
In that case, though, the money Joe received is taxable income to Joe, not to Hunter. Did Joe report this on his income tax? I think those are public— do they include Schedule C Business Income? It does not matter if Hunter paid taxes on this income— that does not release Joe from tax liability, though it means Hunter might be owed a refund.
This might be treated reasonably as just a civil tax offense, since it is hard to understand— not like failing to file or deducting prostitutes as business expenses. But maybe it should be a criminal matter, since Joe had ample means and opportunity to get professional tax advice, and since he is a lawyer and his son is a lawyer.
Miscellaneous
Hunter Biden’s counsel Abbe Lowell on Face the Nation on Sunday said
“I can assure you that five years concluded that the only two charges that made sense were two misdemeanors for failing to file like millions of Americans do, and a diverted gun charge for the 11 days that Hunter possessed a gun. Everything else had been thoroughly looked at.”
I find this very humorous.
Hunter Biden’s counsel Abbe Lowell on Face the Nation on Sunday said
“Remember, it were the prosecutors who came forward and asked if there was a resolution possible. They're in charge of figuring out the form, the document, and the language. They did that. And so the possibilities are only, one, they wrote something and weren't clear what they meant. Two, they knew what they meant, and misstated it to counsel. Or third, they changed their view as they were standing in court in Delaware.”
This and the August 15 motion of lawyer Christopher Clark to withdraw because he might have to be a witness about plea negotiations are veiled threats against the Justice Department. My suspicion is that the two parties had agreed to write the Statement unclearly so the Justice Department could pretend it gave Hunter immunity from foreign Agent (FARA) charges by accident, but when Judge Noreika specifically asked about it, the Justice Department couldn’t admit what it was doing. Hunter is now threatening to disclose to the public that Justice had agreed to the trickery.
What about state income taxes? If Hunter didn’t pay his federal income taxes, he is very unlikely to have paid his state income taxes. I don’t know whether these are DC taxes, or California taxes, or both. Immunity to federal tax charges would not give Hunter immunity to state tax charges.