Hunter Biden plea: Four key questions before ‘sweetheart’ deal court hearing
Kaelan Deese
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President Joe Biden’s son Hunter Biden will appear in a Delaware federal court Wednesday to formally agree to the plea deal his counsel negotiated last month with prosecutors that could conclude a nearly five-year investigation.
Hunter Biden, in June, agreed to plead guilty to two misdemeanor tax charges and enter into a pretrial diversion program that will allow him to bypass prosecution on a separate felony gun charge. However, the plea deal process may have gotten much more muddy after a Tuesday afternoon clash between the attorneys for the younger Biden and a top House Republican seeking to introduce IRS whistleblower testimony to the court docket.
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On Tuesday evening, U.S. District Judge Maryellen Noreika released an unexpected order under seal and obtained by the Washington Examiner that indicated there was allegedly improper conduct by a member of Hunter Biden’s legal counsel to remove an amicus brief filed by House Ways and Means Committee Chairman Jason Smith (R-MO) earlier that day.
“It appears that the caller misrepresented her identity and who she worked for in an attempt to improperly convince the Clerk’s Office to remove the amicus materials from the docket,” Noreika wrote, before ordering Biden’s legal team to explain why she should not issue formal sanctions “for misrepresentations to the Court.”
The clerk’s office informed the judge that an employee from the legal firm representing Biden had called the clerk and falsely claimed to work with the committee’s top lawyer, Theodore Kittila.
The order identified the caller as Jessica Bengels, the director of litigation services at the New York-based law firm Latham & Watkins. Lawyers from the firm representing the younger Biden said in court filings Tuesday night that Bengels never misrepresented herself.
“The matter under consideration appears to stem from an unfortunate and unintentional miscommunication between a staff member at our firm and employees of the Court. We have no idea how the misunderstanding occurred, but our understanding is there was no misrepresentation,” Latham partner Matthew Salerno wrote, underscoring that Bengels was not part of the team assigned to the first son’s case. She even submitted a formal declaration denying she misrepresented herself, according to multiple outlets.
Noreika, an appointee of former President Donald Trump whose confirmation was supported by the state’s two Democratic senators, will preside over the 10 a.m. EDT hearing and may either reject or accept the terms of the deal.
Republicans reacted fiercely after the agreement was announced last month, calling it a “sweetheart deal.” The terms of the deal spurred GOP criticism of a “two-tiered system” of justice.
IRS whistleblowers Gary Shapley and Joseph Ziegler, who are career tax investigators, accused ranking Justice Department officials of mishandling and slow-walking the investigation into Hunter Biden, an argument that has been rejected by Trump-appointed U.S. Attorney David Weiss, who led the investigation.
But GOP lawmakers have said Weiss has made shifting statements as to his authority in the investigation, prompting them to consider whether Attorney General Merrick Garland should be impeached over his handling of the matter. Republican investigators are continuing to press for more information from Weiss, who has said he will testify before Congress this fall.
The younger Biden’s counsel contends that the plea agreement marked a conclusion to all of their client’s outstanding legal woes.
“I know Hunter believes it is important to take responsibility for these mistakes he made during a period of turmoil and addiction in his life,” Christopher Clark, an attorney for Hunter Biden, said in a statement last month. “He looks forward to continuing his recovery and moving forward.”
Here are four things to watch ahead of the hearing in the U.S. District Court for the District of Delaware:
Will the judge accept the plea agreement?
Although Noreika is given broad authority to delay certification of the agreement if she chooses to review more information related to the so-called preferential treatment Hunter Biden received, legal experts say that judges hardly ever stray from the terms agreed by the prosecutors and the defense.
Michael Benza, a professor and expert in criminal law at Case Western Reserve University, told the Washington Examiner the reality of the criminal justice system is that judges “almost always” accept plea agreements.
“This is not an unusual resolution of this type of a case, nor is the outcome of the case, the recommendations regarding sentencing, and probation and diversion,” Benza added.
While Noreika is expected to sign off on the plea agreement, the younger Biden will likely have to return to court to be sentenced. Noreika will likely establish a date for that sentencing hearing on Wednesday.
Weiss’s office agreed to recommend a sentence of probation as part of the agreement, though Noreika will make the ultimate decision. The younger Biden faces a maximum sentence of 12 months in prison and a fine of $25,000 on each tax violation count.
Hunter Biden’s pretrial diversion on the gun offense requires him to remain drug-free and agree to never own a firearm again. If he doesn’t follow the guidelines, he could face up to 10 years in jail on top of fines.
Will Hunter Biden attorneys be sanctioned after late-night docket drama?
In her Tuesday evening order, Noreika gave Biden’s attorneys until 9 p.m. to “show cause as to why sanctions should not be considered for misrepresentations to the Court,” ordering the filing to remain sealed until the close of business Wednesday.
Biden’s attorney responded to Kittila’s filing on behalf of the committee, writing that “as far as I am aware the clerk took the filing down on their own accord,” according to the New York Post.
“Your attempts to publicly file my client’s personal financial information with no protection ls [sic] are improper, illegal and in violation of applicable rules … We will seek all appropriate sanctions in response to your actions.”
Kittila responded that Clark should “probably take a step back” from his statements, adding that the “clerk’s office advised that it was represented to her that the request was being made by my firm. We will be advising Judge Noreika of this improper conduct.”
Clark said that he stood by his statement and that he hoped Kittila possessed an affidavit from the clerk in support of his statements.
Will IRS testimony be considered?
Smith’s Tuesday afternoon amicus brief asked the judge to “consider” recent claims from IRS whistleblowers that the investigation into Joe Biden’s son was affected by political interference.
“The Defendant appears to have benefited from political interference which calls into question the propriety of the investigation of the U.S. Attorney’s Office,” Smith’s attorney wrote in a court filing, which went on to say, “it is critical that the Court consider the Whistleblower Materials before determining whether to accept the Plea Agreement.”
Outside conservative groups are calling on Noreika to pump the brakes too. The Heritage Foundation’s Oversight Project filed an amicus brief on Tuesday asking the judge to reject the plea deal in light of the group’s aggressive pursuit of the documents.
“Because of the substantial record and conflict on the issue of the very independence of the Department’s conduct of this case, Amici urge this Court to defer consideration of the plea agreement until more information is known,” Oversight Project Director Mike Howell wrote.
Howell’s team has separately appealed a federal district court ruling that denied a request for about 2,500 documents that include communications from Weiss’s office relating to “special counsel status,” and all communications Weiss’s office may have had with other U.S. attorneys’ offices “with venue to bring charges against Hunter Biden.”
Will it be case closed?
Following the plea deal, House Republicans could see an opportunity to gain access to more information regarding Weiss’s yearslong investigation, as the DOJ presumably will no longer have the pretext of an ongoing investigation to cite when denying document and witness testimony requests.
And House Oversight Committee Chairman James Comer (R-KY) has signaled House Republicans’ intent to amp up their investigation into what they say ties the president and his son to foreign business ventures. Congress could issue criminal referrals for new crimes to the Justice Department, such as for violations of the Mann Act.
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White House press secretary Karine Jean-Pierre denied any involvement by Joe Biden, stating the president “was never in business with his son.”
Meanwhile, Judiciary Committee Chairman Jim Jordan (R-OH) is seeking testimony from Weiss and nearly a dozen other lower-level DOJ officials to discuss concerns that Hunter Biden received special treatment in the investigation.