Known Knowns, Uknown Unknowns, and Hunter Biden Plea Deal

Writing on SubStack Ken White talks “Hunter Biden And The Fog Of War” and what happened to that plea deal of his.

Read the whole thing here, but here are the sticky bits:

Here’s what we know, and what we still need to know.

We know that Hunter Biden showed up in court to enter his guilty plea. A federal guilty plea is an involved process; it’s routine for it to last anywhere from fifteen minutes (very fast) to an hour (slow). It involves a searching inquiry by the judge into whether the defendant understands the terms of the deal, the rights they are giving up, the sentence and sentencing process they are facing, the facts supporting the plea, and the voluntariness of the deal. Today that process went sideways, as it sometimes does.

From press reports, it appears that U.S. District Judge Maryellen Noreika asked questions about the scope of the deal. Specifically, she asked whether the government was agreeing not to prosecute Hunter Biden further just on these tax issues, or on any other issues it was investigating, including the Foreign Agent Registration Act. The government responded that the deal only precluded the government from prosecuting any other tax crimes related to these facts; Hunter Biden’s lawyers said that was wrong and if that was the case there was no deal. The judge told them to go talk and work it out. Apparently they did – and Hunter Biden agreed with the government that he was only protected from further tax prosecution on these facts, not from other prosecutions based on other investigations — but the judge asked the parties to submit briefs clarifying the scope of the non-prosecution promise and to come back, and did not accept the plea.

This is strange, and we can’t interpret the extent of the strangeness because we don’t have the written plea agreement.

Federal plea agreements typically spell out, very explicitly, the government’s non-prosecution promises. A standard agreement will say that the government agrees that this specific U.S. Attorney’s Office will not prosecute the defendant further for the facts and circumstances described in the plea agreement, but that the deal doesn’t cover any other crimes and doesn’t bind any other office or entity. That’s very narrow. It’s also very explicit and not subject to easy misunderstanding.

So for things to go wrong here, one of the following had to happen:

The government didn’t define the scope of its promise of non-prosecution in the agreement. That would be a huge mistake and very unusual.

The government defined the scope of its non-prosecution promise in the plea agreement but the scope was vague or badly drafted. That’s unusual and also a mistake. They are normally extremely careful with this language. The fact that the judge saw fit to inquire about the scope of the deal makes this possibility plausible — if the plea agreement was as clear on this point as it should be, and the judge read it, the judge wouldn’t have to ask that question.

Hunter Biden’s lawyers didn’t read the plea agreement carefully or didn’t understand the non-prosecution promise. Hunter Biden has experienced attorneys and that would be a huge and embarrassing blunder.

If I could read the plea agreement I could tell you which of these scenarios happened. But they haven’t filed the agreement and haven’t made it public, so we’re left to speculate.

The judge’s refusal to accept the deal for now was appropriate. If there’s no meeting of the minds — if the parties don’t agree on the terms of the deal — the judge shouldn’t accept the plea. Also, once uncertainty has been expressed on the record, it’s not that strange for the judge to say “go put it in writing and come back” rather than accepting their statement “ok we straightened it out now.” Federal judges are notoriously careful about the guilty plea colloquy. I would probably do the same about such a high-profile case — if there was any hint that a party thought the written plea agreement was ambiguous, I would want it fixed.

What this does not seem to suggest, at least based on the information we have, is that the judge has accepted GOP arguments that Hunter Biden is getting a sweetheart deal, or that she’s part of a GOP conspiracy, or that she’s ultimately going to tank the deal.