The Justice Department was willing to give away the store, and Team Hunter refused to take it.
The Justice Department was willing to give away the store, and Team Hunter refused to take it.
I n a column Tuesday explaining how prosecutor David Weiss had given Hunter Biden his Second Amendment defense by dawdling for five years, I observed that the case had been a “clinic in bad lawyering.” That description is not confined to the prosecution. Paradoxically, as the Biden Justice Department has labored to get the defendant, the president’s son, out of jeopardy, the defense team has snatched defeat from the jaws of victory, convincing prosecutors that they had no alternative but to indict him, which they have on gun charges and are very likely to on tax charges.
The Biden defense’s Midas touch was on display again this week as Hunter and his lawyers gratuitously put his father’s Justice Department and a federal magistrate judge in the awkward position of having to, respectively, object to and deny his request to be arraigned remotely (by video conference). From the perspective of the court, the arrogance of this application had to be deeply offensive.
Every federal defendant is required to show up in person for arraignment. It is not just that defendants have a right to be present for all important stages of a criminal case; judges prudentially require them to be present. Allowing defendants to absent themselves causes problems: Even if he has waived the right to be present at this or that court session, a defendant who is eventually convicted (as the vast majority are) invariably claims on appeal that his rights were violated by proceedings held in his absence. An arraignment is a critical stage in the case, even if a pro forma one, because the defendant must enter a plea. The law calls for that to happen in court, in person.
Yes, video conferencing was permitted for pleas during the Covid pandemic. The public-health emergency closed the courts for all but the most unavoidable business, so many extraordinary precautions were put in place (even the Supreme Court conducted oral arguments remotely). But the pandemic has been over for some time now, and courts have long been back to regular operations.
How regular? Well, as Team Hunter well knows, the Biden Justice Department and the courts recently required a former president of the United States to fly hundreds of miles, not once but twice, to be present in court for arraignments, despite all the security headaches those exercises entailed for court security personnel, law-enforcement agencies, and the Secret Service. Former president Trump also had to appear in person for arraignment in state court in Manhattan; and although he was allowed under Georgia law to be arraigned remotely, that was only after he was required to present himself at a corrections facility to be processed (where he took that now-infamous mug-shot photo).
The security issues attendant to court attendance by a sitting president’s son are real, but clearly not as serious as those attendant to Trump’s — and Trump was required to show up nevertheless. Furthermore, Hunter has spent much of the past few years living in the Biden family’s Delaware homes and the White House. It was comparatively convenient for him to come to the Delaware courthouse. More significantly, while he is presumed innocent (despite his failed diversion agreement), Hunter is charged with firearms offenses and has a history of serious drug abuse — including brandishing a firearm while apparently under the influence. He is therefore a defendant who will be subject to careful monitoring by the court’s pretrial-services agency, and the court has a heightened interest in ensuring that he shows up for court proceedings and demonstrates that he is of sound mind.
Hunter is a Yale-educated attorney. His lawyers are highly experienced criminal-defense attorneys. It is impossible that they would not know what I’ve laid out above. This stuff is basic. For his own sake, as someone who (a) is very likely to have a criminal sentence imposed on him at some point in the not-too-distant future and (b) would be asking not to be imprisoned, Hunter Biden should take every opportunity to show up, be engaged, and exhibit humility. Fight the case, of course, but do it the right way.
This is not the right way.
That this case is not over and done with, under an arrangement reasonably close to the sweetheart deal the Biden Justice Department tried to give him, is the fault of Hunter and his defense team — then led by the obnoxiously aggressive Christopher Clark. (It appears that Abbe Lowell took over when the plea bargain imploded, with Clark stepping aside on the rationale that he may be a witness against the government).
Weiss offered Hunter (a) misdemeanor pleas for failing to pay his taxes in 2018 and 2019 (for tax years 2017 and 2018, respectively), and (b) a diversion agreement on a gun-possession felony that did not require a judge’s approval (though, as written, it did have to be endorsed by the court’s Probation Office). The deal fell apart because Weiss lacked the integrity to admit, when pressed, that the Biden Justice Department fully intended by this scam to give Hunter immunity from any future prosecution arising out of the Biden family influence-peddling business and other potential gun charges. (As I’ve noted, there were two guns, not one, and the diversion agreement did not include the felony charges arising from Hunter’s lying about his drug abuse during the purchase of a revolver — those are now Counts One and Two in the indictment against him, with the possession charge as Count Three.)
In their understandable huff over Weiss’s duplicity, Hunter and (especially) his lawyers lost their composure. They were too entranced by the idea of the cost-free disposition that they’d been promised — indeed, that Weiss had been willing to give them, without filing any charges, until IRS whistleblower agents exposed the prosecutorial malfeasance. When emotions are raw, lawyers are supposed to maintain an even keel and explain how much the client has to lose if, in his rage or disappointment, he fails to accept an unbelievably good deal because it is no longer the perfect deal he was hoping for. Instead, as things went south in Judge Maryellen Noreika’s courtroom, Clark stomped about and growled that prosecutors could “rip it up” (i.e., the plea and diversion agreements).
Mind-boggling.
By the time of the failed guilty plea in late July, Weiss had already caused most of the Hunter case to vanish. In the Biden Justice Department’s determination to shield President Biden, Weiss willfully let the statute of limitations run on all tax years prior to 2017 — i.e., on the years when Joe was vice president. Mind you, the lucrative influence-peddling scheme was wound down after 2018 as the presidential campaign ramped up. Essentially then, only tax years 2017 and 2018 were still prosecutable. On those, in lieu of felonies, Weiss was agreeing to let Hunter off with mere misdemeanors in addition to promising to recommend a no-prison sentence.
The defense was clearly pained by Judge Noreika’s admonition that she would not be bound by that recommendation. That, however, is standard in this type of plea agreement: The judge is not required to follow a government sentencing proposal. In effect, Weiss gave Hunter all the protection it was possible for a prosecutor to give: Even if the judge believed Hunter should have been charged with felonies, Weiss had capped his sentencing exposure by charging only misdemeanors; he was thus looking at a maximum two-year (instead of ten-year) sentence. Moreover, Noreika was simply assuring herself, as federal law requires, that the defendant understood the sentence was up to her, not Weiss; that doesn’t necessarily mean she was going to send Hunter to prison. To the contrary, the Justice Department’s no-prison recommendation, though not binding, would undoubtedly have weighed on her, as would Hunter’s sparse criminal history and the letters seeking leniency that would have poured in — including, no doubt, from the White House.
The sweetheart deal blew up because these due-diligence questions from Noreika exposed that Weiss had not spelled out the immunity term and was unwilling to own up publicly to its intended sweep. But the deal didn’t blow up in one fell swoop. When the first fissures emerged, Noreika gave Team Biden and the Biden Justice Department time to patch things up. At that point, Weiss indicated his willingness to state clearly that Hunter would be immune from future tax, firearm, and drug-related charges (i.e., the charges as to which the White House could claim the president had no involvement).
Team Biden could have grabbed that and been done with it. Instead, Hunter’s lawyers insisted on a clear grant of immunity for potential charges arising out of the millions raked in by selling foreign operatives access to Joe Biden’s political power — in particular, violations of the Foreign Agents Registration Act (FARA), although money-laundering, bribery, and other serious crimes would also theoretically be in play.
Notice, I said theoretically. Biden’s lawyers are supposed to be Beltway Brahmins, matching legal smarts with political savvy. But this sure seems like amateur hour. It could not be more obvious that Weiss has no intention of prosecuting the influence-peddling scheme. The potential crimes arising out of it implicate President Biden, and Weiss has done everything he could to erase any investigatory trail to the president — to the point that (a) to repeat, he allowed the statute of limitations to lapse on tax crimes traceable to Hunter’s cashing in on Joe’s years as vice president (2014-16); and (b) his subordinate instructed agents not to ask witnesses questions bearing on Joe’s involvement.
Because of the way Weiss has steered the “investigation,” the statute of limitations (six years on tax crimes, five on everything else) has already run on most of the 2014–18 influence-peddling. More to the point, even if Biden turns out to be only a one-term president (which I doubt), prosecution of crimes arising out of the influence-peddling scheme would be time-barred by January 20, 2025, when, hypothetically, a new Republican Justice Department could take over.
If we look at this practically, rather than theoretically, the chance that Hunter is actually going to be charged by Weiss for any of the crimes over which he and his lawyers blew up the sweetheart deal is non-existent.
That is particularly true of FARA. As I detailed in Ball of Collusion, in the half-century before special counsel Robert Mueller’s hyper-politicized Russiagate probe, the Justice Department brought FARA charges a grand total of seven times, winning just three convictions. (By the way, in just one of those did the government prove a FARA crime at trial. The other two convictions were guilty pleas. The four other cases resulted in two non-FARA convictions and two outright dismissals.) And even Mueller’s team, despite its fondness for FARA, steered clear of bringing standalone FARA charges; instead, allegations of failure to register were tucked into broad conspiracy-to-defraud-the-government charges, to which prosecutors got Paul Manafort and Rick Gates to plead guilty.
Meantime, the Justice Department’s halting effort to invigorate FARA has failed. Earlier this month, prosecutors finally hung out the white flag on the Mueller probe-related effort to obtain FARA convictions against Bijan Rafiekian (a Trump 2016 transition-team member and former business partner of Trump’s first national-security adviser, Michael Flynn, who was also implicated in, but not prosecuted for, FARA violations). Rulings by the trial court vacating Rafiekian’s conviction and by the appellate court upholding a new trial that the Justice Department did not believe it could win doomed the FARA prosecution (see here and here). In addition, in 2019, a jury swiftly acquitted Greg Craig, the former Obama White House counsel, in another Mueller probe-related FARA case. The Justice Department has, to be fair, managed to squeeze some recent FARA guilty pleas out of two defendants — Imaad Sha Zuberi (in 2021) and former RNC chairman Elliott Broidy (in 2020). For the most part, though, the FARA statute has vexed prosecutors due to both its long history of non-enforcement and its exceptions, which make it tough to apply to defendants who, like Hunter Biden, are lawyers or claim to have been conducting legitimate financial transactions.
And then, as ever, there is “special” counsel David Weiss. The speculation that Hunter Biden may be charged under FARA is understandable given how it weirdly factored into the collapse of the plea deal. But there has been surprisingly little attention paid to one of Weiss’s most critical but furtive decisions in the case.
Last year, Weiss dropped the FARA investigation of Blue Star Strategies. That would be the Clinton-allied Democratic lobbying firm that Hunter recruited to lobby for Burisma and its chief, Mykola Zlochevsky. That would be the same Zlochevsky who lavishly paid Hunter to sit on the energy company’s board, who told an FBI informant he had paid Hunter and Joe Biden a combined $10 million in bribes, and whom Hunter put on the phone with his dad, then-vice president Joe Biden, in late 2015 — while Zlochevsky was a fugitive living in exile in Dubai and was pressuring Hunter to use his political connections to pressure the Ukrainian government to drop its Burisma investigation. That was just days before Vice President Biden started pressuring the Ukrainian government to fire the prosecutor who was investigating Burisma.
Weiss quietly aborted the Blue Star Strategies probe in exchange for the lobbying firm’s being quietly permitted to file a post hoc FARA registration detailing its Burisma exertions — an implicit admission that the law called for registering with the Justice Department at the time of those exertions.
Obviously, if Weiss had any intention of proceeding with FARA charges against Hunter Biden, he would not have opted against charging the lobbyist that Hunter had brought in to do Burisma’s bidding. And at this point, of course, the statute of limitations on 2015–16 FARA violations has expired in any event.
There is no way David Weiss is going to charge Hunter Biden with criminal offenses that implicate Joe Biden. Remember, Weiss wouldn’t even mention any such potential charges in the immunity provision that he tried to hide from Judge Noreika by inserting it into the diversion agreement (which did not require judicial approval) rather than the plea agreement where it belonged. And, given the determination of Weiss and Attorney General Merrick Garland to protect President Biden with the 2024 campaign already underway, there is no way that the Biden Justice Department is going to charge that the president’s son has been an agent of corrupt Ukrainians, Chinese apparatchiks, a Russian oligarch, or who knows who else.
Does it give Hunter and his lawyers some agita that Weiss refused to spell this reality out in court documents? Sure . . . but that doesn’t make it any less patent a reality. And to repeat: By the time Biden’s first term as president is over, even if it turns out to be his only term, the statute of limitations will have eviscerated even the theoretical possibility of charging Hunter Biden — or anyone else — with crimes arising out of the Biden influence-peddling scheme.
Despite all that, Hunter and his legal team blew up the plea deal. Had he simply agreed to the modified terms Weiss offered in Judge Noreika’s courtroom, Hunter could have pled guilty to two minor tax infractions and would have been facing a minimal term of incarceration at worst. If the tax plea had been entered, the Probation Office — with enough nudging from Weiss — would almost certainly have approved the diversion agreement on the gun charge (and even if it hadn’t, Weiss could have renegotiated the diversion agreement to cut the Probation Office out of the loop . . . or just dropped the gun charge). Would that outcome have been as ironclad as Hunter wanted? No, but it would have been a better outcome than he had any reasonable hope to achieve, and far better than would have been available to any American not named Biden.
Instead, Hunter Biden has now been indicted on three felony gun charges (adding up to 25 years of potential imprisonment), and there is enormous pressure on Weiss — especially after House Republicans raked Garland over the coals at this week’s oversight hearing — to indict Hunter on evasion felonies for the 2017 and 2018 tax years (which would add up to at least ten years’ potential imprisonment).
Is Hunter going to be sent to prison for 35 years? Of course not. But unlike defendants charged with misdemeanors who plead out with a government recommendation of no incarceration, defendants who get convicted of felonies typically get prison terms that are not insubstantial. If he is convicted on gun and tax charges, Hunter’s sentencing guidelines are probably going to be in the low multi-year range. Although the guidelines are not binding on the sentencing judge, the judges in Hunter’s cases would grasp that they were being watched closely and would be in for vehement criticism if the president’s son were given blatantly favorable treatment.
It won’t come to that. President Biden is not going to let his son be convicted and imprisoned, any more than any of us would if we were possessed of the Constitution’s pardon power and could spare one of our children that fate. But why is this even an issue? Well, because, with the Biden Justice Department willing to give away the store, Hunter Biden and his lawyers couldn’t bring themselves to take it.