Part II of Hunter Was Too Clever by Half: Judge Noreika
(Part I and Part II and Part III)
In Part I of this Substack, I tookHunter Biden’s story up to the Plea Bargain and Diversion Agreement. The idea was to quietly slip by a confusing contract between Hunter Biden and the United States government that would get him out of two of his tax crimes with probation and no fines, give him immunity for all his other tax crimes, and give him immunity for any other crimes— e.g., bribery and operating as an unregistered foreign agent— connected with his income-producing activities from 2014 to 2019.
Fortunately for justice, though unfortunately for Justice, Judge Maryellen Noreika of the Delaware federal court was honest and alert. She was wary, knowing that Hunter’s lawyers and the Justice Dept. might attempt to deceive her. Also, she had help. The day before the plea hearing, two amicus briefs were submitted, by the Heritage Foundation and by Congressman Jason Smith, who also submitted over 700 pages of documents, including the transcripts from the evidence given by IRS agents Shapley and Ziegler.
Congressman Jason Smith’s submission gave rise to a minor scandal. Hunter Biden’s lawyer wanted to seal the documents, even though they were already on public record after being revealed in hearings at the House of Representatives. Till he could get together a motion to seal, he wanted to see if the court clerk could informally take down the documents for a day or so. Court clerks sometimes do things like that, and it’s tolerated in many courts because the clerk can make life easier for everyone without bothering the judge or the other parties when time is short. Custom differs from court to court. So Hunter Biden’s law firm’s paralegal phoned up the court clerk and asked if the documents could be taken down temporarily while they were reviewed for confidential information. At this point, though, accounts differ. Hunter’s paralegal says she clearly identified herself as coming from the law firm representing Hunter. The court clerk says the paralegal pretended she was from Theodore Kritilla’s law firm, the firm representing Congressman Jason Smith which had submitted the documents in question. Mr. Kritilla found out and blew up, since he had made no such request, and hadn’t heard anything from Biden’s law firm (which should have called him up first). The judge believed her clerk and issued an emergency order to Biden’s lawyers to show up at 9 pm and explain why they shouldn’t be put in jail for contempt of court.
My guess as to what happened is that the paralegal did identify her law firm correctly, but the clerk got confused, since it would normally be the submitter of documents who phoned to see if they could be revised a little because there some problem with them. The judge naturally believed her own clerk’s recollection, and also knew that any lawyer representing Hunter Biden would have to be watched for trickery and dishonesty. What happened that night has not been made public, but apparently the judge was satisfied that the paralegal was not attempting impersonation.
The judge was all the more ready to be on the lookout for trickery during the plea hearing, though. She did not want Judge Noreika to be the subject of mockery and contempt for letting Hunter Biden twist her around his finger. Even though Judge Noreika did not get the Plea Bargain and the Diversion Agreement until the start of the hearing, she saw the oddities in them and knew what questions to ask. Indeed, just knowing to ask questions was enough to derail the train.
First, Judge Noreika ascertained that this was not a take-it-or-leave-it plea bargain, which she could reject, but a normal one, where she would have to accept the defendant’s guilty plea if she were assured he understood it, but where she would have full discretion to disregard the prosecutor’s recommended sentence. The Plea Bargain was simple enough. The recommendation of probation and no fine may have seemed odd, but that would be explained later in the prosecutor’s pre-sentencing report, and in any case she could impose a longer sentence after the sentencing hearing was held in a few weeks.
The problem came with the Diversion Agreement. She wondered why it was being presented to her at all, since it did not need approval from a judge. She wondered why the infamous paragraph 15, which I quoted in Part I, referred not just to its own statement of facts but to Exhibit I of the Plea Agreement, which otherwise was an entirely separate document, an independent contract, on an entirely different subject. She asked if this was ever done before. She noticed that the gun possession document gave Hunter broad immunity to tax and perhaps many other criminal charges. She asked Hunter if he would have signed the Plea Bargain if it were the case that the Diversion Agreement was invalid, and he said no. She noted that lack of clarity in what crimes Hunter was being given immunity for. As an example, she asked whether the Justice Department understood the Diversion Agreement to be giving Hunter immunity from prosecution under FARA, the law that says agents lobbying for foreign governmens must be registered. The Justice Department lawyer said no— and immediately Hunter’s lawyer disagreed, saying it was Hunter’s understanding that the answer was yes. The judge said that if the language of the Diversion Agreement was so ambiguous that even the parties couldn’t agree about what they were agreeing to, but Hunter said it was vital to his acceptance of the Plea Bargain, that was problematic for her acceptance of the guilty plea. The lawyers went off to confer, and came back saying that it was okay if Justice didn’t agree that the document didn’t stop FARA prosecution.1
But then a separate problem arose. The Diversion Agreement contained another peculiar provision. It said that if the Justice Department thought Hunter had violated the agreement during its 2 years of duration— for example, by buying a gun, or drinking whisk— then Justice would have to come before Judge Noreika and show by preponderance of evidence that Hunter had indeed violated it. Only then could they commence a prosecution in whatever other court was appropriate.
Judge Noreika asked if this procedure had ever appeared in a U.S. court before. The prosecutors said no, but it wasn’t that different, they said, from supervised release, which is under control of a court. It was, though. As they said, in an alternative argument, this was more like having a judge decide on a matter of fact in a contract. Except under contract law, you can’t choose which court to try disputes in; that is up to the court and the law of procedure.
The judge was most concerned about the issue of separation of powers. Judges cannot block prosecutions. They can rule that a defendant is innocent, and control the way cases are presented, but it is the prosecutor’s decision, acting as an agent of the Attorney General, acting as an agent of the President, acting as an agent of the United States, to bring charges or to drop charges. This special procedure seemed to be having the judge be able to prevent the prosecutor from bringing charges against Hunter Biden even if he violated the Diversion Agreement. So she wanted clarification as to whether these concerns were valid.
Judge Noreika had to try to think this through in real time, since they hadn’t provided her with the documents in advance, hoping she would just let everything through. She spotted a legitimate issue in separation of powers, but that’s not the real problem. As Hunter’s lawyers said, the judge would just be deciding a question of fact in a contract, not controlling prosecution. The real problem was what I mentioned earlier, that when two parties write a contrract, they can’t require a particular court they pick to hear their dispute. That is a question of jurisdiction, and of the power of the court. At any rate, the hearing ended with an instruction from Judge Noreika to Justice and Hunter to brief her on the legality of the Diversion Agreement in the next two weeks and to make sure they both agreed on what crimes exactly Hunter was being given immunity from prosecution for.
The next few days had a swirl of activity as Hunter’s lawyers tried to seal the documents submitted by the amici and the amici replied that the documents were all in the public realm already so sealing them would be pointless. But then, August 11 (a Friday), two big events occurred.
The first event was that the Justice Department filed a motion to “Dismiss Criminal Tax Information Without Prejudice So that Tax Charges Can Be Brought In A District Where Venue Lies”. Justice said that they and Hunter could not agree on a plea bargain and were giving up. Since the tax crimes did not occur in Delaware, and the defendant could withdraw his waiver of choice of venue, Justice said that they wanted to withdraw the “Information”, the charges, and bring it somewhere else. Justice said,
Even if the Defendant did not immediately move to dismiss for lack of venue, at trial, he could assert that the Government had not met its burden of proving venue by a preponderance of the evidence. See United States v. Perez, 280 F.3d 318, 334–35 (3d Cir. 2002). That complete defense being built into the case would render any trial in this District a farce. The Court should therefore grant the motion to dismiss, permitting the Government to bring charges in a district where the Defendant can be properly tried.
Also, since the Plea Bargain was dead, Justice asked Judge Noreika to withdraw the order to brief her on the validity of the Diversion Agreement. Justice said,
Following additional negotiations after the hearing held on July 26, 2023, the parties are at an impasse and are not in agreement on either a plea agreement or a diversion agreement. Therefore, the Government believes the Court’s briefing order should be vacated. The United States requested the Defendant’s position on August 9, 2023, and asked for it by August 11, 2023. The Defendant responded and requested an extension of time until August 14, 2023, to provide his position, which the Government declined. As of the time of this filing, the Defendant has not yet provided his position.
The Justice Department, having seen its attempt to quietly get rid of Hunter’s criminal liability in Delaware thwarted, wanted to try again somewhere else, perhaps in the District of Columbia, perhaps in Los Angeles (the Central District of California). Or, it might just give up and let the statute of limitations run out, as it had done with Hunter crimes tax evasion in the earlier years.
It didn’t look good running away from Judge Noreika, though, so the Justice Department needed to cover up that news with more dramatic news. Attorney-General Merrick Garland called a surprise press conference and announced he was appointing David Weiss as Special Counsel to investigate Hunter Biden. Since it was totally outrageous to appoint the attorney who’d been obstructing the Hunter Biden tax case for so many years as a special counsel, and since it implicated the Attorney-General with the crime of lying to Congress, this was big news and by driving the Republicans wild, took their eyes off of what was happening in Delaware, the more substantive news.
The appointment also had some substance to it. True, Weiss had been the prosecutor in charge of the Hunter Biden investigation for years already, so he would just continue to do whatever he was doing with it except that now he was given authority to file charges in D.C. or California, lack of which authority he’d used as an excuse to miss the statute of limitations in 2022. The main change, though, was that now it would be difficult for a new President to fire Weiss in January 2025 after the 2024 election. A new President could fire Weiss as U.S. Attorney for Delaware as a matter of routine; it was surprising that Joe Biden had kept Weiss as U.S. Attorney, since Weiss had been U.S. Attorney under Trump.2 The Special Counsel rules suggest that the President needs a cause to fire a Special Counsel, and it would look bad to fire him just because he wasn’t doing anything.3 Thus, making Weiss a Special Counsel would protect the Bidens against prosecution even if Trump or DeSantis won the 2024 election.
The most recent development, though, is a rift between Justice and Hunter Biden’s lawyers. I described how the Justice Department wanted to vacate the Information filed in Delaware, saying the venue was wrong. A few hours before I am writing this on Sunday night, August 13, Hunter Biden’s lawyers filed their response. They said that they agreed that the Information should be withdrawn and the Plea Bargain was dead. That’s all they really needed to say, but they added quite a bit more. They said that the Justice Department had done most of the planning and drafting of the Plea Bargain and Diversion Agreement, and that contrary to what the Justice Department said, the Diversion Agreement was still valid, and contrary to what Hunter’s lawyer had conceded at the Hearing, the scope of immunity would be extremely broad, not just restricted to gun and tax crimes. They said the written terms would govern, not oral modifications by Hunter’s lawyers at the Hearing, and they said they had evidence that the Justice Department was reneging on the scope:
The Defendant’s understanding of the scope of immunity agreed to by the United States was and is based on the express written terms of the Diversion Agreement. His understanding of the scope of immunity agreed to by the United States is also corroborated by prosecutors’ contemporaneous written and oral communications during the plea negotiations.
This was foreshadowed by an interview given by Abbe Lowell (whom I would guess is Hunter’s smartest and most expensive lawyer) on Sunday morning on Face the Nation:
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.
Those are fighting words. Abbe Lowell is not someone you should believe when he says something and he’s not under oath, but he’s accusing Weiss and the Justice Department of being either stupid, dishonest, or cowardly.
(Part I and Part II and Part III)
Footnotes
I should look back at the transcript, because the exact language matters. My perception is that Justice and Hunter decided that they could leave the language as it was, ambiguous, and Hunter could later, when prosecuted for FARA violation, say that ambiguous language should be interpreted in favor of the defendant by “the rule of leniency”, even if the Justice Dept. had said back in 2023 that it interpreted the language differently.
Democrats make a big deal of Weiss being appointed U.S. Attorney by Trump, a Republican. As a matter of custom, though, the President defers to a state’s Senators in nominating U.S. Attorneys (and if he didn’t, the Senate wouldn’t confirm his choice). Delaware had two Democratic Senators in 2017, so the U.S. Attorney for Delaware was chosen by Democrats. Joe Biden could think of nobody he’d like better than Weiss as U.S. Attorney for his home state, a crucial job for someone as vulnerable to federal charges as Joe.
The constitutionality of a requirement that the President (via the Attorney-General) only fire a Special Counsel for cause is dubious. The President, after all, is in charge of the executive branch. If he fired a Special Counsel and the Special Counsel sued, I think a court would not command the new President to hire him back.