It’s troubling to see the press for the most part underplay the seriousness of the implosion of Hunter Biden’s plea deal on tax evasion and gun possession charges. Yes, as Glenn Greenwald stressed in his System Update show last night, the two sides will probably find a way to cobble something together that the judge, here Maryellen Noreika, will be hard pressed not to accept. But the much bigger issue as Greenwald also stressed is that it is close to unheard of for a judge to reject a plea agreement. And as too many commentators have glossed over, this one was so irregular procedurally as to have the judge force the prosecution to admit it was unprecedented, and according to Noreika, potentially unconstitutional.
This development follows another incident in the Hunter case this week that is also so irregular that it may get the defense legal team sanctioned. Noreika filed an order demanding that Biden law firm Latham & Watkins explain in a hearing the action, alleged by one of Noreika’s clerks, that a Latham & Watkins staffer contacted the court and misrepresented themselves as instead from the law firm that had filed an amicus motion on behalf of House Ways and Means Committee Chairman Jason Smith. That brief asking the court to consider the information from IRS whistleblowers that showed that Biden the junior had gotten kid glove treatment. The Latham & Watkins staffer purportedly sought the removal of the filing from the docket.
We’ll return to the amicus motion later, but it is important to note that the media on a widespread basis has misleadingly referred to it as a “document” and not a bona fide filing. Worse some commentators have insinuated that it was improper for a Congressman to have made such a move. In fact, this document was a preliminary step to filing an amicus brief. while it may not be common on a search engine to find there is ample precedent for Congresscritters filing amicus briefs.
Yours truly is not an expert on procedure, but this amicus motion was filed just days before the Biden settlement hearing, and if the judge entertained the motion and allowed an amicus brief to be filed and considered by the judge, the hearing would have to have been pushed back. So claims that this move was to “block” the plea agreement are an overreach, although it would be accurate to say it was a gambit to delay and influence the deal.
Back to the plea deal. The 50,000 version is that the attempt to have a Schrodinger’s scheme collapsed. Team Biden not surprisingly wanted the agreement to draw a line under all potential actions against Hunter, including his failing to register as a foreign agent.
This is the a compact statement of the legal issues in play and why the judge rebelled. I have yet to find anything remotely like this in mainstream coverage:
Based on conversations with people who were in the courtroom today, and my experience as a former federal prosecutor, I think I know the full story of what happened with the Hunter Biden plea agreement blow-up this morning.
Bear with me, because this is a little complicated:…
— Will Scharf (@willscharf) July 26, 2023
Contrast that, which makes clear how the prosecution and defense were conspiring to railroad the judge, with this bland and misleading recap from Vox, which attempt to paint Noreida as the bad guy (starting with “curveball”):
The first curveball came when Judge Maryellen Noreika surfaced a disagreement between the prosecution and defense over whether the plea deal would rule out charges against Hunter for acting as an unregistered foreign agent. When prosecutors said it would not, Hunter’s attorney Chris Clark then said the agreement was “null and void,” per the New York Times.
After a court recess, the two sides worked out a deal, in which prosecutors would rule out further tax, gun, and drug charges against Hunter for the period of 2014 through 2019, per CNN. The deal was back on!
But, Judge Noreika said, not so fast. She said she had “concerns about” the agreement, said it was “unusual,” and that she felt like she was being asked to “rubber stamp” it. So, she said, she would not accept it just yet. She wanted more clarity on what immunity would be offered to Hunter. The hearing adjourned without a final decision on the plea as she awaits more information. (For now, Hunter entered a plea of “not guilty” as a sort of placeholder, while attorneys for both sides work to prepare that information for the judge.)
By contrast, the Wall Street Journal includes remarks by the judge about how irregular the deal was, to the degree it could put her in an untenable position. Admittedly those statements are far down in a lengthy article but at least they are there:
Hunter Biden pleaded not guilty to tax charges on Wednesday, in a stunning reversal after a judge said she wasn’t yet prepared to accept a deal he had reached with prosecutors to plead guilty….
U.S. District Judge Maryellen Noreika said she needed more information before deciding whether to sign off on it.
“These agreements are not straightforward and they contain atypical provisions,” she said, adding: “I’m not in a position where I can decide to accept or reject a plea agreement and I need to defer it.”…
Part of the turmoil began on Wednesday when prosecutor Leo Wise insisted that the investigation into Hunter Biden’s activities remained ongoing and said in response to a question from the judge that he could face additional foreign-lobbying charges.
In response, Hunter Biden’s lawyer, Chris Clark, said he disagreed with that interpretation and believed the agreement foreclosed the possibility of additional charges, adding later: “As far as I’m concerned, the plea agreement is null and void.”
After the break, Hunter Biden’s legal team said the agreement covered his liability related to tax offenses from 2014 through 2019, and covered drug and gun crimes. The judge asked Hunter Biden if he had been promised any other protections to entice him to plead guilty, and he said, “No, your honor.”
Then the judge pressed both sides on provisions included in both prongs of the agreement, including why the tax deal was brought under a statute that removes the court’s ability to vet it, while the gun deal includes a requirement that the court decide whether Hunter Biden has breached the deal. Judge Noreika said that could inappropriately put her in the position of making a decision normally left for prosecutors.
“I have concerns about the constitutionality of this provision, so I have concerns about the constitutionality of this agreement,” she said.
The judge gave the two sides 30 days to clarify her role and provide additional information. At that point, Hunter Biden could plead guilty and formalize the agreements he had negotiated.
The Washington Post newsletter does a pretty good job, without going into the fine points Will Scarf provided. From Amber Phillips’ Five Minute Fix via e-mail:
The plea deal initially did not protect Hunter Biden from prosecution for other potential charges in connection with a long-running government investigation of his business dealings. When the federal judge asked him whether he would plead guilty knowing he could still face additional charges, he said no. Prosecutors in the courtroom maintained this was part of the agreement all along. “Then we misunderstood. We’re ripping it up,” Biden lawyer Chris Clark snapped at them, The Washington Post reports. The two sides then quickly reworked the deal to include immunity for certain tax, drug and gun charges between 2014 to 2019, essentially the main time period covered by the investigation.
The judge then raised constitutional questions. She noted that the immunity provisions were tucked into the agreement involving the gun charge, which she does not actually have to approve. That’s because diversion agreements are forged between prosecutors and defense attorneys. Plea agreements, on the other hand, must be approved by a judge. But the diversion agreement includes language saying the judge could revive the gun charge if Hunter Biden violated the terms of the agreement. The judge said she did not think she has the power to do so.
Let’s turn to the matter of the amicus brief (see the order at the end of the post). From Politico:
The judge who will review Hunter Biden’s plea deal on Wednesday accused a member of Biden’s legal team of misrepresenting herself in a phone call to the court — a bizarre episode that prompted the judge to threaten sanctions even as Biden’s lawyers insisted it was all a misunderstanding.
In a brief order Tuesday afternoon, U.S. District Court Judge Maryellen Noreika wrote that an employee at Latham & Watkins, a law firm representing the president’s son, had called the court clerk’s office and falsely claimed to work for a Republican lawyer in the hopes of persuading the clerk to remove documents that apparently contained Biden’s personal tax information.
Latham denied any misconduct, saying the firm’s employee identified herself as a Latham staffer and called from a law firm phone that typically displays “LATHAM” on the caller ID. The firm said there must have been an “unfortunate and unintentional miscommunication” between the employee and court staff….
On the eve of that hearing, a dispute arose over Smith’s amicus filing, which was signed and submitted to the court by Theodore Kittila, the managing partner of the Wilmington law firm Halloran Farkas + Kittila.
Shortly after Kittila filed the brief, the clerk’s office informed the judge that a Latham employee, Jessica Bengels, had called the clerk and falsely claimed to work with Kittila. During the call, Bengels asked that Smith’s filing be removed from the public docket due to sensitive information in it, the judge wrote in her order.
“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 Noreika should not issue formal sanctions “for misrepresentations to the Court.
Perhaps I am unduly paranoid, but the Latham & Watkins story seems difficult to swallow. Hopefully lawyers would weigh in, but the substantive beef was the documents needed to be removed because they supposedly contained sensitive information like Social Security numbers. As an aside, Representative Jason Smith claims the information was already public.
However, I do not believe anyone other than the filer would have the legal standing to demand the entire motion be removed from the docket, which appears to have been the request here. The most I believe an outside party could have asked for is redaction of certain information, or perhaps sealing of certain pages. I also question whether that sort of request could be made by a third party verbally, as oppose to via a written document of some sort. In the order below, Judge Noreika says no redaction/sealing request was made in writing, strengthening the idea that Latham & Watkins behaved inappropriately.
In other words, if the judge has the outlines of what the Latham & Watkins clerk asked for right, this sounds very irregular even before getting the question of misrepresentation.
Regardless, pass the popcorn! Hunter continues to be quite the spectacle.
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From CourtListener:
