Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: Hunter Biden is a private citizen and this was a
Speaker 2: personal matter for him. As we have said, the President
Speaker 2: the first Lady, they love their son and they support
Speaker 2: him as he continues to rebuild his life.
Speaker 1: But will rebuilding that life include Hunter Biden getting a
Speaker 1: plea deal After his expected deal unraveled in a dramatic
Speaker 1: fashion at a hearing on Wednesday, President Biden's son walked
Speaker 1: into a Delaware courtroom intending to plead guilty to two
Speaker 1: misdemeanor tax crimes and to enter into a diversion agreement
Speaker 1: to avoid prison on a gun charge, but federal Judge
Speaker 1: Mary Ellen Noraika refused to sign off on the terms
Speaker 1: of the deal, expressing concerns about the structure of the
Speaker 1: deal and the scope of immunity, among other things. So
Speaker 1: Hunter Biden left the courtroom not knowing if he would
Speaker 1: have a deal or face a try. Joining me is
Speaker 1: former federal prosecutor Michael Zelden. How unusual is it to
Speaker 1: have a plea deal that's not nailed down before you
Speaker 1: take it to the judge.
Speaker 3: Well, that was the most surprising thing about this case,
Speaker 3: which was that the judge didn't seem to be fully
Speaker 3: invested in what was going on here, and the parties
Speaker 3: themselves also had a disagreement between what the terms of
Speaker 3: the plea meant, and that's unusual.
Speaker 1: So the plea deal initially didn't protect Hunter Biden from
Speaker 1: prosecution for other potential charges in the future. Isn't that
Speaker 1: kind of immunity an essential part of most plea deals.
Speaker 3: Most plea deals are plead to specific counts and this
Speaker 3: investigation goes away. However, there are cases where the prosecutor says,
Speaker 3: we are continuing our investigation. If you want to wrap
Speaker 3: up a portion of it with a plea, will take
Speaker 3: that and then you'll see where the chips lie going
Speaker 3: down the line. More unusual, but it's not without precedent.
Speaker 1: The judge described the plea deal as not standard, not
Speaker 1: what I normally see, and possibly unconstitutional. What made this
Speaker 1: plea deal so complicated and so different.
Speaker 3: Well, there are two things. First, is the parties disagreed
Speaker 3: as to whether or not this wrapped up everything. The
Speaker 3: prosecutor said, no, it's a continuing investigation and there are
Speaker 3: other possible charges. Farah in particular, that's the foreign lobbying prohibitions,
Speaker 3: So there was that. Biden thought this wrapped up the
Speaker 3: Farra stuff. Prosecutor said, no, Judge says, we can't have
Speaker 3: a plea where you disagree on what the parameters of
Speaker 3: it are. Second was the diversion on the gun case.
Speaker 3: What happens in the diversion cases usually prosecutor said, I'll
Speaker 3: let this case be diverted, meaning you won't go to jail,
Speaker 3: and if you do all the terms of the diversion program,
Speaker 3: then the case will just go away. Normally that's a
Speaker 3: contract between the two parties. Prosecutor says, you have to
Speaker 3: do ABCD. Defender says, okay. If ABCD are done, in
Speaker 3: the prosecutor's mind, the case goes away. In this case,
Speaker 3: they said, because you are Hunter Biden, we're going to
Speaker 3: ask the court to decide whether ABCD has been done.
Speaker 3: And she said, WHOA, that's not my role. That's a
Speaker 3: prosecutor's role. I don't decide whether charging decisions are proper
Speaker 3: and whether the terms of a plea are appropriately followed.
Speaker 3: I don't want anything to do with that. And it
Speaker 3: may be unconstitutional as a separation of powers matter to
Speaker 3: have the judiciary performing what is essentially an executive branch function.
Speaker 3: So she said, get me out of the middle of
Speaker 3: this thing. Come back when you can let me know
Speaker 3: that you have an executive branch constitutionally acceptable plea a deal.
Speaker 1: So was this deal unusual the will? Was it unprecedented
Speaker 1: the way it was structured?
Speaker 3: Well, the diversion part was very unusual because it had
Speaker 3: the judge making decisions that usually just prosecutors make. That's
Speaker 3: the most unusual part of this thing. As to the
Speaker 3: tax charges, he would have pleaded guilty to failure to
Speaker 3: pay taxes in a timely fashion. Not tax fraud, but
Speaker 3: failure to pay. In this case, he made a lot
Speaker 3: of money and he didn't pay on time. He ultimately paid,
Speaker 3: And so the question is, when you have a person
Speaker 3: who hasn't paid on time, do you charge them with
Speaker 3: a felony for that failure to file or do you
Speaker 3: charge them with a misdemeanor. In this case, the prosecutors
Speaker 3: determined that he should be charged with the misdemeanor. There
Speaker 3: are a lot of extenuating circumstances. His drug and alcohol addictions,
Speaker 3: the fact that he repaid the money, that fact that
Speaker 3: he's repentant and the like, and they just decided that
Speaker 3: this was a misdemeanor appropriate charge that happens all the time.
Speaker 3: That's prosecutorial discretion in its most stark definition, and there's
Speaker 3: nothing really unusual about it. The terms of this plea
Speaker 3: were that there was no specific sentence that was agreed
Speaker 3: to by the court and both parties. This was a
Speaker 3: discretionary plea, meaning the court had the power even though
Speaker 3: the prosecutor was recommending probation to sentence Hunter Biden to jail.
Speaker 3: And they all acknowledge that that also is a little
Speaker 3: bit unusual. More often than not, the defendant wants a
Speaker 3: deal where if I'm going to plead guilty, I know
Speaker 3: I'm getting one year or I'm getting probation. These eleven
Speaker 3: B cases as they call them, where the judge is
Speaker 3: not found by the recommendations, are again a little bit
Speaker 3: unusual because defense lawyers want their clients to have certainty.
Speaker 1: Many Republicans have said this was a sweetheart deal. Some
Speaker 1: legal experts have said, no, this in fact was a
Speaker 1: tougher deal than usual. What do you think was it
Speaker 1: a sweetheart deal?
Speaker 3: I don't think so. I think it falls within the
Speaker 3: boundaries of prosecutorial discretion. They have the right to charge
Speaker 3: taxes as misdemeanors or felonies for failure to pay. And
Speaker 3: these what they call lie and buy cases. The gun case,
Speaker 3: will you lie on the form that no, I'm not
Speaker 3: under the influence of alcohol when I bought this gun.
Speaker 3: Those cases, if those weapons are not used in the
Speaker 3: commission of a crime after their purchase, oftentimes those are
Speaker 3: treated as misdemeanors. And so as we just talked about
Speaker 3: a moment ago, this I think was in the four
Speaker 3: corners of what is prositutorial discretion. I don't think it
Speaker 3: was a sweetheart deal, but if they charge them as
Speaker 3: a felony, it wouldn't be out of bounds either.
Speaker 1: The judge gave them time to negotiate, and they came
Speaker 1: back and he agreed to plead guilty to the two
Speaker 1: tax charges in a deal that only included conduct related
Speaker 1: to the tax offenses, drug use and gun possession, and
Speaker 1: they agreed that this wouldn't shield him from other potential charges.
Speaker 1: The judge wasn't satisfied with that, and she said it
Speaker 1: might be unconstitutional, but they said, well, we'll agree, you know,
Speaker 1: not to challenge it as unconstitutional. Could she have let
Speaker 1: the deal go forward, I think so.
Speaker 3: I think she could have said, look, the tax charges
Speaker 3: are non controversial. There a matter of prosecutorial discretion whether
Speaker 3: it's a fellay or a misdemeanor, and I'll accept that.
Speaker 3: It's your decision, prosecutor, which type of charge to bring.
Speaker 3: And they had a little conversation about that. She said,
Speaker 3: is this normal for me to make a charging decision?
Speaker 3: And everybody agreed, no, no, no, judge, you're right. You
Speaker 3: don't make charging decisions.
Speaker 2: We do.
Speaker 3: And she said, fair enough, and this is your charging decision. Yes,
Speaker 3: this is our charging decision. So that could have gone
Speaker 3: through pretty straightforwardly. This taxes on the diversion thing. She said,
Speaker 3: I don't want to be in the middle of this thing.
Speaker 3: I don't want to make it the decisions about whether
Speaker 3: he complied or didn't comply. They said, all right, fine,
Speaker 3: we'll just pretend it's a contract between the two of us,
Speaker 3: and we, the prosecutors, will make all determinations about compliance
Speaker 3: or non compliance. I think they could have left it
Speaker 3: and she could have gone forward, but I don't think
Speaker 3: she liked the language in the plea which had her
Speaker 3: somehow in the middle. So I think she's making them
Speaker 3: come back with a more clearly written plea agreement. I
Speaker 3: think the parameters of it are now clear. There'll be
Speaker 3: two tax misdemeanors, a diversion program. The prosecutors will determine
Speaker 3: whether he's in compliance with the diversion and only the
Speaker 3: prosecutors will make that decision, and then he'll be pleading guilty,
Speaker 3: and then the investigation will be ongoing whether he violated
Speaker 3: the Pharaoh rules, Foreign Registration Act rules, or whether he
Speaker 3: did anything else.
Speaker 1: So, as you mentioned, Michael, during the hearing, the prosecutors
Speaker 1: confirmed that the investigation into Biden was ongoing and that
Speaker 1: he could still be charged with a violation of Pharaoh,
Speaker 1: which is the Foreign Agents Registration Act. How often are
Speaker 1: plea deals made when an investigation is ongoing.
Speaker 3: It's unusual that a plea is made in the middle
Speaker 3: of an ongoing investigation where you are still the subject
Speaker 3: of that ongoing investigation. It could be that you have
Speaker 3: a broad ongoing investigation, say the January sixth investigation, and
Speaker 3: someone could plead guilty to the role they played in
Speaker 3: that broader investigation, ending all of their criminal involvement in
Speaker 3: that broader, ongoing investigation. It's unusual that they'll plead guilty
Speaker 3: and be told still, you know, you could still be
Speaker 3: charged with additional violations of law, because they'll want to say, well,
Speaker 3: then I'll wait to see what all is out there
Speaker 3: for me, because maybe we can get a comprehensive plea
Speaker 3: that encompasses everything. So it's unusual, and I think that's
Speaker 3: why Biden's lawyers said at first when the court said
Speaker 3: does this wrap up everything? They said yes, because that's
Speaker 3: what I think they thought was going on. And the
Speaker 3: prosecutor said no, and then they had to go out
Speaker 3: to the hallway and talk about it. And then the
Speaker 3: defense came back and said, all right, parah is still
Speaker 3: on the table. It's still ongoing. But that is surprising
Speaker 3: to me.
Speaker 1: And apparently they've been discussing that. That's been a bone
Speaker 1: of contention in the negotiations, and so to come into
Speaker 1: court and not have that settled is just mind moggeling.
Speaker 3: The only thing I can say is that you know,
Speaker 3: Hunter Biden is a fragile human being. If you listen
Speaker 3: to him in court and you look at his history.
Speaker 3: He was last using drugs in twenty and nineteen. He's
Speaker 3: been in and out of treatment programs since two thousand
Speaker 3: and three, twenty years of drug and alcohol addiction. It
Speaker 3: may just have been that he said to his lawyer's look,
Speaker 3: I need to get closure, even if it's not closure
Speaker 3: on one hundred percent of this thing. I just need
Speaker 3: to keep moving forward with my life. I can't have
Speaker 3: this hanging over me. I'll take my chances on the
Speaker 3: Phara thing, but can we please wrap this thing up
Speaker 3: because it's weighing on me. And people who have addiction
Speaker 3: problems that have big things like this that weigh on
Speaker 3: them can be tipping points for them to revert to
Speaker 3: their bad behavior.
Speaker 1: It's a good point. Republican Congressman Jim Jordan credited the
Speaker 1: IRS whistleblowers for the collapse of the plea deal. How
Speaker 1: much did politics play a part in the collapse? Do
Speaker 1: you think?
Speaker 3: I don't think I played any part in it. And
Speaker 3: in fact, the judge said, you know, colloquy with the prosecutor.
Speaker 3: You're doing what you think is best and I'm not
Speaker 3: going to tell you what is or isn't appropriate in
Speaker 3: this case. This is all up to you and it'll
Speaker 3: be based on your review of the evidence. And he said,
Speaker 3: that's right, judge, And so they then in any way
Speaker 3: attribute the whistleblower or the politics of this thing to
Speaker 3: the breakdown of the plea, And in fact, in the
Speaker 3: one hundred and twenty seven pages of the transcript of
Speaker 3: this thing which I've read through, there's no mention of
Speaker 3: whistleblowers or the investigation being a sweetheart investigation or a
Speaker 3: corrupt investigation. None of that stuff came up. So they're
Speaker 3: taking credit for something that they had no right to
Speaker 3: take credit for.
Speaker 1: The judge told both sides to work out how the
Speaker 1: deal was structured and resubmitted when it can pass constitutional muster.
Speaker 1: She gave them thirty days to submit briefs. Does this
Speaker 1: seem like it's something that can be resolved, that this
Speaker 1: plea deal can be resurrected, or will this drag on
Speaker 1: and perhaps end with Hunter Biden going to trial.
Speaker 3: No, I think that this will settle. I think that
Speaker 3: the outline of the plea was sort of made clear
Speaker 3: at the very end when they said, we'll come back
Speaker 3: and we'll give you a cleaner document which will include
Speaker 3: the two misdemeanor tax cases and the one lion by
Speaker 3: a gun case for which he will be diverted, and
Speaker 3: we the prosecutors, will make all the final determinations about
Speaker 3: whether he's complied with the terms of his diversion program.
Speaker 3: And I think that'll be that.
Speaker 1: The fact that he's the president's son and you know,
Speaker 1: all eyes were on this plea deal, do you think
Speaker 1: that made the judge more cautious? Perhaps?
Speaker 3: Oh? Sure, I think that the judge knew. In fact,
Speaker 3: I think the judge acknowledged during the plea that she
Speaker 3: was being particularly careful because everyone is going to read
Speaker 3: this transcript by going a fly Speckett, and she wants
Speaker 3: to make sure that every tea has been crossed and
Speaker 3: every eye has been dotted. And so yes, she was
Speaker 3: particularly careful, and I think she did a great job
Speaker 3: in making sure that everything that needed to be covered
Speaker 3: off was covered off.
Speaker 1: Well, we'll see what happens within thirty days or perhaps sooner.
Speaker 1: Thanks so much, Michael. That's former federal prosecutor Michael Zelden,
Speaker 1: and that's it for this edition of The Bloomberg Law Show.
Speaker 1: Remember you can always get the latest legal news on
Speaker 1: our Bloomberg Law podcast and find them on Apple Podcasts,
Speaker 1: Spotify and at www dot Bloomberg dot com, Slash podcast
Speaker 1: Slash Law, and remember to tune into the Bloomberg Law
Speaker 1: Show every weeknight at ten pm Wall Street Time. I'm
Speaker 1: June Grosso and you're listening to Bloomberg