Special Counsel nee United States Attorney David Weiss has advised Judge Maryellen Noreika of the intent to indict Biden for falsely representing on his gun permit application that he was not, at the time, using drugs. He was, of course, as he has readily admitted, but the government had previously deemed his violation sufficiently trivial, and his conduct otherwise unconcerning, as to warrant a two-year diversion program rather than prosecution. And in the meantime, the charge appears unconstitutional under Bruen.
Biden’s lawyer, Abbe Lowell, has taken to the media to argue his client’s cause, both that there was a deal struck which, although not having reached fruition, was signed and sealed as between Biden and the government, and that the impetus for this shift in the government’s action is political, the hue and cry from those calling it a sweetheart deal for a president’s son rather than some damn fine defense lawyering.
Lowell has a good point. A few, actually. First, once the plea agreement was signed by the government and defendant when presented to the court. A plea agreement is a contract between the government and the defendant, even though it’s a contract subject to a condition subsequent, the judge’s acceptance. While the judge can reject it, neither the government nor the defendant can because they entered into a contract.
Second, the gun crime, beyond almost certainly being unconstitutional under Bruen, is one that almost never gets prosecuted except as an adjunct to other, more serious offenses. Usually, it has to do with using the gun in the course of committing a crime, where the false statement under oath in the form is tossed in to juice up the pressure on the defendant to cut a deal.
If you want to argue that Biden should be treated “like anyone else,” itself a false concept given that everyone else has their own factual peculiarities that are reflected in their case, indicting him is just the opposite of your argument. If nobody is prosecuted for this as a stand-alone crime, why should Hunter Biden be treated differently?
The gun charge stems from Hunter Biden’s response of “no” on a federal form he filled out as part of the purchase of a handgun when asked whether he was an “unlawful user” of drugs. At the time, Mr. Biden, who had been addicted to crack cocaine, was struggling to remain sober.
Such federal prosecutions are relatively rare, and seldom pursued as stand-alone charges. Officials at the Bureau of Alcohol, Tobacco, Firearms and Explosives responsible for reviewing Mr. Biden’s file were skeptical of bringing charges against him, especially considering that he had sought treatment and had no prior criminal history, according to another person with knowledge of the situation. (The widow of his brother, Beau, later found the gun and threw it in a dumpster.)
And finally, had these been the underlying facts in anyone else’s case, there would be no pressure to take action. This is petty, and would be petty regardless of whose last name Hunter had. De minimis non curat lex. Diversion was likely what any similarly situated defendant with a decent lawyer would get, making it just as fair an outcome for Biden.
But one thing Abbe Lowell has glossed over is why the plea deal fell apart, and that’s something that needs to be confronted. The contract consisted of two writings, the plea agreement and the diversion agreement, but the reason it fell apart wasn’t because the government reneged on the deal, but because the defense understood the deal to cover any and all potential offenses from birth to the date of the plea. When pressed by the judge to acknowledge that was the government’s understanding of the plea agreement, the government said no, and that its investigation into Biden was ongoing.
In other words, a material term of the agreement was not agreed upon, such that there was no meeting of the minds and no contract.
For Biden’s defense lawyers to agree to a plea that left him exposed to additional charges for past offenses, much of which was set forth in writing in the exhibits to the contracts, would have been insane and incompetent. The point of a plea deal is to be done with the past. Take the hit, pay whatever the price is, and be done. Of course they understood the deal to cover everything, and for the government to suggest otherwise seems disingenuous.
But that wasn’t likely the problem. It’s not that the defense and government didn’t have a complete understanding, a contract, but that the government didn’t want to say it out loud. When the judge asked the question, it put the government in an untenable position. Were they willing to admit, in front of the court and the media, that they just gave Hunter Biden a pass on anything and everything else he might have done during his sordid days? The wink and nod was one thing, but there were reporters in the room and the public was going to learn of its answer. And some cohort of the public was not going to like it one little bit.
If the government’s agreement with Lowell was that the plea deal and diversion were to cover everything, as was almost certainly the case or there would be no point to a plea at all, provided the government wasn’t made to look like crap for having given Biden a free pass, then there was, in fact, a contract, all material terms having been agreed upon, and the only stumbling block was the government didn’t want the public to know what it agreed to. While many will fault David Weiss for reaching this agreement at all, Abbe Lowell isn’t wrong that the deal was cut and the government is now bound, for better or worse, to honor its contract. Maybe it was a bad deal for the government and the public, but if it was a deal, the government should honor it.
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I did not get a law degree from Twitter, or even the NY Post, but I did get some information from those sources, and one thing I learned there was that deal had two funky features: first, that the immunity terms were buried in the diversion agreement not the plea agreement; and second, the judge (not the justice dept) was to decide if the terms of the diversion agreement were honored. These features may nullify the “contract”, I have read. I would think that if flawed contracts cannot be enforced (and Twitter Law grads can answer that–“Legal advice you don’t have to pay for”), then the fact all material terms were agreed upon is of less/no importance.
The judge’s concern about being responsible for determining whether the diversion agreement was honored was an easy fix. It wasn’t the reason for the deal blowing up.
As I understood it, the defense pulled out of the deal in court. Since they were the ones that negated the deal (or contract), the whining now seems like sour grapes. But IANAL, and I didn’t sleep at a Holiday Inn Express last night.
And while the gun charge isn’t usually pressed this way, that does not mean it can’t be.
This should go down in flames. No court approval, no meeting of the minds on key terms. Counsel has to roll out every gun, but some of them won’t fire.
I was reminded of the haiku I saw here a long time ago (I can’t find it now, but it stuck):
Sup Court says you get
Benefit of the bargain
Things change sorry bro
“Federal prosecutions [of lying on a gun background check form ATF Form 4473 Firearms Transaction Record] are relatively rare, and seldom pursued as stand-alone charges.”
Texas Paul Schroder of MeidasTouch claimed the gun charge is only used against traffickers.
Is there a reason why Texas Paul Schroder saying this matters to anyone?
My mailman, Joe Wyznoski, says so too. I thought you might want to know.
It wouldn’t kill you to provide an illuminating comment here either, you know? Just sayin’.
MeidasTouch claims they provide flawless legal analysis. I like to point out their contributors like Texas Paul Schroder are full of crap.
Let’s save that for elsewhere.
I thought 2nd Amendment fetishists would support Biden on this one. Silly me.
You had to reach really far to come up with that one, Jake. I hope you didn’t hurt yourself.
Joe Biden’s hatred for the Second Amendment makes seeing his son charged under the laws his father pushed delightful schadenfreude. Also the most common riposte to calls for new gun control laws is to enforce the 20,000 or so on the books.
“It’s not that the defense and government didn’t have a complete understanding, a contract, but that the government didn’t want to say it out loud.”
There are quite a few things that don’t get said out loud in federal courtrooms. Every time a prosecutor, defense lawyer, and defendant sign a plea agreement binding in only one federal district, there are things that don’t get said out loud.
There is an alternative explanation of what happened on July 26 in Delaware that is slightly more favorable to the government. The parties agreed to the language of Paragraph 15 of the Diversion Agreement but understood that it was vague enough to be open to differing interpretations in the unlikely event that Hunter was later indicted on an additional charge, such as a FARA violation. They agreed to a potential disagreement down the line. If this was the parties’ true understanding of the Diversion Agreement, it was the original defense lawyers, pre-Abbe, who were insufficiently prepared, and insufficiently prepared their client, for the Court’s questions. Leo Wise seemed quite prepared for Judge Noreika’s questions, although she may not have appreciated his answers. There was unquestionably a meeting of the minds that there would not be any future tax felony charges filed against Hunter for conduct that occurred during the relevant time period.
But Paragraph 15, by its terms, prohibits future prosecution “for any federal crimes encompassed by the attached Statement of Facts…and the Statement of Facts attached as Exhibit 1 to the Memorandum of Plea Agreement filed this same day.” Since the Plea Agreement did not get filed on the 26th, because of what transpired in court that day, and because the tax plea deal ultimately blew up and both sides now agree that the tax plea bargain agreement is no longer valid, the government may ultimately argue that the conditions of Paragraph 15 have not been met. This would be hard to square with some of their comments in court on the 26th.
As of yesterday’s filing, the government is arguing that, “U.S. Probation declined to approve the proposed diversion agreement and so an executed copy was never provided to the Court.” But according to yesterday’s defense Status Report, Hunter has been following and will continue to follow the conditions of the Diversion Agreement, “which the U.S. Attorney’s Office agreed and signed and informed the Court on July 20, 2023 that the Probation Office had agreed to and had recommended be put into effect.” But there is nothing filed by the government on the gun case docket sheet for 7-20-23. Presumably this is a typo and the defense meant 7-26-23, which was the date of the plea/diversion hearing debacle. I can find nothing in the transcript of that hearing supporting the defense’s statement. In fact, page 83 of the transcript assumes that the chief of Probation had not yet signed the Diversion Agreement.
But it seems to me that the larger problem here, which you touch upon, is that putting the immunity paragraph in the Diversion Agreement instead of the Plea Agreement was funky as Hell–a Rube Goldberg effort to pull the wool over the Court’s and public’s eyes. And why do that if you have nothing to hide?
Weiss had a stellar reputation. He doesn’t anymore, because of this funky-ass Diversion Agreement and because of all the other funky stuff that has happened in the case–particularly the inconsistent statements of Weiss and Garland and the unrefuted claims of the whistleblowers that Weiss told them he was not the deciding authority in Hunter’s case. When you start doing funky-ass, unusual, hinky things in a high-profile case like this, instead of playing it straight, embarrassing things happen. “Ye shall know them by their fruits.” The fruits of the Hunter Biden deal, whatever the deal was, were rotten.
I considered the “agree to disagree and leave it for another day” interpretation of paragraph 15, which was insufferably vague. But if that was the case, and it came to pass that the govt indicted Biden for something during the period and arguably within the recitation, it would explode all over the govt for not locking it down if that was its intent. The govt was the scrivner, and if didn’t clearly say what the govt “intended” it to say, then it’s the govt’s fault.
What’s this all about anyhow? Do people actually get paid to read and write this gibberish, codswaddle and gobbledygook?
Sol Weisenheimer-breath! Knock yourself out before some proud boy or gal does?!?
If I wrote that, the Admiral of the day would have trashed before he finished reading, trust it!
P.S., We did hit the Reply button, but didn’t take. So sorry, SHG.
You’re no Sol, Bill.
Caesar’s Wife Must Be Above Suspicion