If the judge wasn’t going to require an unvarnished admission of guilt, I suppose reducing Hunter’s ploy to a punch line is the next best thing.
If the judge wasn’t going to require an unvarnished admission of guilt, I suppose reducing Hunter’s ploy to a punch line is the next best thing.
W hat a long, strange trip it’s been. Yeah, it’s Jerry Garcia’s observation, but I’m betting it is not unknown to Hunter Biden, for whom it applied in spades at federal court in Los Angeles on Thursday. That’s where the president’s son, after a bizarre day — as ever, brought on by himself — pled guilty to all tax charges against him: three felonies and six misdemeanors. The charges stemmed from approximately $1.4 million in taxes that he failed to pay — his “fair share,” you might say — on millions in income he raked in by peddling access to his father’s political influence.
Judge Mark Scarsi has scheduled sentencing for December 16 — though I doubt that will happen, for reasons I’ll come to.
Trial in the tax case was scheduled to begin Thursday with jury selection. But on entering court in the morning, the younger Biden and his lead lawyer, Abbe Lowell, took Judge Scarsi and prosecutors by surprise, proclaiming that Hunter was changing his plea from not guilty to guilty on all charges; but there was a catch: Hunter also intended to maintain his innocence. As we’ll discuss, this is known as an Alford plea, rooted in the Supreme Court’s 1970 decision in North Carolina v. Alford — a case night-and-day different from Hunter’s.
This led to a full day of legal wrangling, not concluded until close to 5 p.m., when Scarsi finally accepted the plea. It was controversial because prosecutors from the office of Biden-Harris special counsel David Weiss objected to an Alford plea. They have an overwhelming case against Hunter; they know that Hunter desperately wished to avoid a five-week trial in the run-up to the 2024 election that would humiliate his father and damage Vice President Kamala Harris’s campaign; and they were ready to go to trial. An enormous amount of public resources has been expended on preparation, witness travel, and — due to the defendant’s notoriety — a robust jury pool and courthouse security. If Hunter wanted to plead guilty to all of the charges in the normal manner of admitting guilt, he needed no one’s permission for that. But an Alford plea is an accommodation, and this 54-year-old child of over-privilege rates no further accommodations.
The question that thus emerged was a murky legal one: Did the judge need the Justice Department’s approval to accept an Alford plea? Judge Scarsi, a Trump appointee, claimed to believe he did not need DOJ approval. I think he is wrong about that — and so, probably, does he, since he certainly hedged his bets, as we’ll see. As I observed in earlier posts (here and here), the situation is odd for all concerned because everyone knows Hunter is going to be pardoned. It made for some corner-cutting.
So . . . let’s talk guilty pleas in federal law.
In the reporting I’ve seen and heard, commentators are referring to an Alford plea as if it were indistinguishable from the better-known plea of nolo contendere. But there is a salient difference. In the nolo situation, the defendant does not admit guilt but does not contest guilt. (In Latin, nolo contendere basically means, “I do not wish to contend,” or “I will not contest.”) In the Alford situation, the defendant pleads guilty but maintains his innocence. It is not a passive nolo; it is an affirmative claim that one is not guilty as charged.
Why is this distinction important?
Guilty pleas are controlled by Rule 11 of the Federal Rules of Criminal Procedure. If you peruse the rule, you’ll notice that it does not refer to Alford pleas at all, only to three other kinds of guilty plea. They are (1) the above-described nolo plea; (2) the “conditional plea,” in which the defendant, rather than waiving the right to appeal (which is the norm), reserves the right to appeal some ruling in the pretrial phase of the case (an appeal that could result in the conviction’s being reversed); and (3) the standard plea agreement, in which the government and defendant concur in writing to the terms (e.g., the counts to which guilt will be admitted, the potential sentence, and the scope of immunity from future prosecution conferred by the government in exchange for the guilty plea).
Why no Alford pleas in Rule 11? Because such pleas are an invention, not of legislative rulemaking, but of case law derived from the aforementioned Alford case.
In Alford, the Supreme Court held that a defendant who was facing the death penalty had a constitutional right to plead guilty to a lesser charge, even if he maintained he was innocent. The Court emphasized that this was a logical calculation: If convicted at trial, the defendant ran the risk of a capital sentence; it made sense for the defendant to plead guilty to a lesser charge, even if he was innocent, to potentially safe his life.
Now, let’s go back to Rule 11. Subsection (a)(2) provides that the court needs the government’s consent to accept a nolo plea.
That proposition seems clear to me, but I need to digress for a moment in order to present a divergent view that is plausible but, I think, ultimately wrong. I have heard some read Rule 11(a)(2) to say that the need for government consent to a nolo plea is required only when a right to appeal is being reserved. In part, I disagree because the rule makes clear that a nolo plea is different from a conditional plea (“With the consent of the court and the government, a defendant may enter a conditional plea of guilty or nolo contendere”) (emphasis added). The condition in a conditional plea is the reservation of a right to appeal; that’s not a nolo plea, which is a plea in which guilt is not contested. I’m unfamiliar with nolo pleas in which a right to appeal is reserved — it would make no sense to me for a prosecutor to agree to such a thing. But assuming there is such a thing, it would make no sense to me that government consent would be required for a guilty plea in a case that an appellate court is going to review, but not for one in a case that would not be subjected to appellate review. Ergo, I believe the correct reading of Rule 11 is that no plea of nolo contendere may be accepted by a judge without Justice Department approval.
Now, if the prosecutor’s consent is required for a nolo plea, it should a fortiori be required for an Alford plea. The Alford defendant is not merely declining to contest guilt; the Alford defendant is claiming innocence. That is a more controversial position. It is easy to see that such a plea could result in the scandal of branding an innocent person guilty. Such a potentially pernicious outcome should not be permitted without the government’s consent — again, especially when the government’s consent is required by Rule 11 for the less controversial nolo plea.
The Supreme Court has never ruled on whether the government’s consent is required for an Alford plea. There are lower-court cases that cut both ways. To repeat, I believe the logic of Rule 11 calls for government consent.
Moreover, since much about sentencing is left to the judge’s discretion, a judge should avoid taking a guilty plea over the government’s objection, especially when that objection is well-founded. Here, the evidence against Hunter was daunting, the government was prepared to prove that he is guilty, and he had to know he was guilty. In addition, unlike the defendant in Alford, Hunter was not rationally seeking to avoid a death sentence. He just didn’t want to admit what he had done.
Finally, Judge Scarsi had a unique public responsibility here. Everyone knows, despite President Biden’s disavowals, that Hunter is going to be pardoned by his father. He is not going to be held accountable. He will not do the prison time a similarly situated guilty defendant would do. He will not even have the formal taint of criminal convictions; a pardon will, as a matter of law, wipe his slate clean on the firearms and tax offenses, and he will get a pardon only because he happens to be the president’s son — again, preferential treatment over what other guilty defendants would get.
The only accountability there could ever be in Hunter Biden’s case would be to require that, to plead guilty and end the criminal proceedings, he had to get up in public court like every other defendant and admit that he is pleading guilty because he is guilty.
Judge Scarsi knows all this. Consequently, he came up with a procedure that he thinks satisfies those concerns. It’s sufficiently distinct from an Alford plea, at least in Scarsi’s mind, that he has referred to it, instead, as an “open plea.” As it played out, according to reports, Scarsi had the prosecutors read aloud the entire 56-page indictment. He then put exacting questions to Hunter, under oath, in which Hunter conceded that the government could prove its extensive accusations beyond a reasonable doubt. Manifestly, no rational person could contend, simultaneously, that the government could prove guilt to all these many allegations but that he is nevertheless innocent.
That is, Scarsi was content to let Hunter maintain a ludicrous posture of innocence while destroying every shred of credibility that posture might have. I don’t agree with this approach; I would have been inclined to call Hunter’s bluff, start the trial, and be confident that he’d cave and plead with a full admission of guilt. But it’s not my black robe. If Scarsi wasn’t going to require an unvarnished admission of guilt, I suppose reducing the claim of innocence to a punch line is the next best thing.
Now about sentencing. I don’t believe Scarsi’s scheduled December 16 sentencing will happen because Hunter is already scheduled to be sentenced on November 13 for the gun charges of which he was convicted by a federal jury in Delaware earlier this year. His denials notwithstanding, I believe President Biden will pardon his son before there are any formal judgments of conviction against him. (In federal law, a judgment of conviction is not final until the judge enters it on the court record after imposing sentence.) If I’m right, the pardon will happen in the week after Election Day (November 5) and before the November 13 gun-case sentencing.
The pardon is going to be profoundly embarrassing for the president, so he will do it only once, covering all charges (and any potential charges). It should be embarrassing: Hunter Biden’s prosecution arose from the abuse of Joe Biden’s political power, and it will end with the abuse of Joe Biden’s political power.