WEBVTT - Will Hunter Biden's Plea Deal Be Saved?

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<v Speaker 1>This is Bloomberg Law with June Brusso from Bloomberg Radio.

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<v Speaker 2>Hunter Biden is a private citizen and this was a

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<v Speaker 2>personal matter for him. As we have said, the President

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<v Speaker 2>the first Lady, they love their son and they support

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<v Speaker 2>him as he continues to rebuild his life.

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<v Speaker 1>But will rebuilding that life include Hunter Biden getting a

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<v Speaker 1>plea deal After his expected deal unraveled in a dramatic

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<v Speaker 1>fashion at a hearing on Wednesday, President Biden's son walked

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<v Speaker 1>into a Delaware courtroom intending to plead guilty to two

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<v Speaker 1>misdemeanor tax crimes and to enter into a diversion agreement

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<v Speaker 1>to avoid prison on a gun charge, but federal Judge

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<v Speaker 1>Mary Ellen Noraika refused to sign off on the terms

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<v Speaker 1>of the deal, expressing concerns about the structure of the

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<v Speaker 1>deal and the scope of immunity, among other things. So

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<v Speaker 1>Hunter Biden left the courtroom not knowing if he would

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<v Speaker 1>have a deal or face a try. Joining me is

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<v Speaker 1>former federal prosecutor Michael Zelden. How unusual is it to

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<v Speaker 1>have a plea deal that's not nailed down before you

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<v Speaker 1>take it to the judge.

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<v Speaker 3>Well, that was the most surprising thing about this case,

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<v Speaker 3>which was that the judge didn't seem to be fully

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<v Speaker 3>invested in what was going on here, and the parties

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<v Speaker 3>themselves also had a disagreement between what the terms of

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<v Speaker 3>the plea meant, and that's unusual.

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<v Speaker 1>So the plea deal initially didn't protect Hunter Biden from

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<v Speaker 1>prosecution for other potential charges in the future. Isn't that

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<v Speaker 1>kind of immunity an essential part of most plea deals.

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<v Speaker 3>Most plea deals are plead to specific counts and this

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<v Speaker 3>investigation goes away. However, there are cases where the prosecutor says,

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<v Speaker 3>we are continuing our investigation. If you want to wrap

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<v Speaker 3>up a portion of it with a plea, will take

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<v Speaker 3>that and then you'll see where the chips lie going

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<v Speaker 3>down the line. More unusual, but it's not without precedent.

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<v Speaker 1>The judge described the plea deal as not standard, not

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<v Speaker 1>what I normally see, and possibly unconstitutional. What made this

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<v Speaker 1>plea deal so complicated and so different.

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<v Speaker 3>Well, there are two things. First, is the parties disagreed

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<v Speaker 3>as to whether or not this wrapped up everything. The

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<v Speaker 3>prosecutor said, no, it's a continuing investigation and there are

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<v Speaker 3>other possible charges. Farah in particular, that's the foreign lobbying prohibitions,

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<v Speaker 3>So there was that. Biden thought this wrapped up the

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<v Speaker 3>Farra stuff. Prosecutor said, no, Judge says, we can't have

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<v Speaker 3>a plea where you disagree on what the parameters of

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<v Speaker 3>it are. Second was the diversion on the gun case.

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<v Speaker 3>What happens in the diversion cases usually prosecutor said, I'll

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<v Speaker 3>let this case be diverted, meaning you won't go to jail,

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<v Speaker 3>and if you do all the terms of the diversion program,

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<v Speaker 3>then the case will just go away. Normally that's a

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<v Speaker 3>contract between the two parties. Prosecutor says, you have to

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<v Speaker 3>do ABCD. Defender says, okay. If ABCD are done, in

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<v Speaker 3>the prosecutor's mind, the case goes away. In this case,

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<v Speaker 3>they said, because you are Hunter Biden, we're going to

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<v Speaker 3>ask the court to decide whether ABCD has been done.

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<v Speaker 3>And she said, WHOA, that's not my role. That's a

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<v Speaker 3>prosecutor's role. I don't decide whether charging decisions are proper

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<v Speaker 3>and whether the terms of a plea are appropriately followed.

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<v Speaker 3>I don't want anything to do with that. And it

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<v Speaker 3>may be unconstitutional as a separation of powers matter to

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<v Speaker 3>have the judiciary performing what is essentially an executive branch function.

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<v Speaker 3>So she said, get me out of the middle of

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<v Speaker 3>this thing. Come back when you can let me know

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<v Speaker 3>that you have an executive branch constitutionally acceptable plea a deal.

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<v Speaker 1>So was this deal unusual the will? Was it unprecedented

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<v Speaker 1>the way it was structured?

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<v Speaker 3>Well, the diversion part was very unusual because it had

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<v Speaker 3>the judge making decisions that usually just prosecutors make. That's

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<v Speaker 3>the most unusual part of this thing. As to the

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<v Speaker 3>tax charges, he would have pleaded guilty to failure to

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<v Speaker 3>pay taxes in a timely fashion. Not tax fraud, but

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<v Speaker 3>failure to pay. In this case, he made a lot

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<v Speaker 3>of money and he didn't pay on time. He ultimately paid,

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<v Speaker 3>And so the question is, when you have a person

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<v Speaker 3>who hasn't paid on time, do you charge them with

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<v Speaker 3>a felony for that failure to file or do you

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<v Speaker 3>charge them with a misdemeanor. In this case, the prosecutors

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<v Speaker 3>determined that he should be charged with the misdemeanor. There

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<v Speaker 3>are a lot of extenuating circumstances. His drug and alcohol addictions,

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<v Speaker 3>the fact that he repaid the money, that fact that

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<v Speaker 3>he's repentant and the like, and they just decided that

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<v Speaker 3>this was a misdemeanor appropriate charge that happens all the time.

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<v Speaker 3>That's prosecutorial discretion in its most stark definition, and there's

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<v Speaker 3>nothing really unusual about it. The terms of this plea

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<v Speaker 3>were that there was no specific sentence that was agreed

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<v Speaker 3>to by the court and both parties. This was a

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<v Speaker 3>discretionary plea, meaning the court had the power even though

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<v Speaker 3>the prosecutor was recommending probation to sentence Hunter Biden to jail.

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<v Speaker 3>And they all acknowledge that that also is a little

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<v Speaker 3>bit unusual. More often than not, the defendant wants a

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<v Speaker 3>deal where if I'm going to plead guilty, I know

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<v Speaker 3>I'm getting one year or I'm getting probation. These eleven

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<v Speaker 3>B cases as they call them, where the judge is

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<v Speaker 3>not found by the recommendations, are again a little bit

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<v Speaker 3>unusual because defense lawyers want their clients to have certainty.

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<v Speaker 1>Many Republicans have said this was a sweetheart deal. Some

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<v Speaker 1>legal experts have said, no, this in fact was a

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<v Speaker 1>tougher deal than usual. What do you think was it

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<v Speaker 1>a sweetheart deal?

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<v Speaker 3>I don't think so. I think it falls within the

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<v Speaker 3>boundaries of prosecutorial discretion. They have the right to charge

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<v Speaker 3>taxes as misdemeanors or felonies for failure to pay. And

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<v Speaker 3>these what they call lie and buy cases. The gun case,

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<v Speaker 3>will you lie on the form that no, I'm not

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<v Speaker 3>under the influence of alcohol when I bought this gun.

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<v Speaker 3>Those cases, if those weapons are not used in the

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<v Speaker 3>commission of a crime after their purchase, oftentimes those are

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<v Speaker 3>treated as misdemeanors. And so as we just talked about

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<v Speaker 3>a moment ago, this I think was in the four

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<v Speaker 3>corners of what is prositutorial discretion. I don't think it

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<v Speaker 3>was a sweetheart deal, but if they charge them as

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<v Speaker 3>a felony, it wouldn't be out of bounds either.

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<v Speaker 1>The judge gave them time to negotiate, and they came

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<v Speaker 1>back and he agreed to plead guilty to the two

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<v Speaker 1>tax charges in a deal that only included conduct related

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<v Speaker 1>to the tax offenses, drug use and gun possession, and

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<v Speaker 1>they agreed that this wouldn't shield him from other potential charges.

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<v Speaker 1>The judge wasn't satisfied with that, and she said it

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<v Speaker 1>might be unconstitutional, but they said, well, we'll agree, you know,

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<v Speaker 1>not to challenge it as unconstitutional. Could she have let

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<v Speaker 1>the deal go forward, I think so.

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<v Speaker 3>I think she could have said, look, the tax charges

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<v Speaker 3>are non controversial. There a matter of prosecutorial discretion whether

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<v Speaker 3>it's a fellay or a misdemeanor, and I'll accept that.

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<v Speaker 3>It's your decision, prosecutor, which type of charge to bring.

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<v Speaker 3>And they had a little conversation about that. She said,

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<v Speaker 3>is this normal for me to make a charging decision?

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<v Speaker 3>And everybody agreed, no, no, no, judge, you're right. You

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<v Speaker 3>don't make charging decisions.

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<v Speaker 2>We do.

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<v Speaker 3>And she said, fair enough, and this is your charging decision. Yes,

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<v Speaker 3>this is our charging decision. So that could have gone

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<v Speaker 3>through pretty straightforwardly. This taxes on the diversion thing. She said,

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<v Speaker 3>I don't want to be in the middle of this thing.

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<v Speaker 3>I don't want to make it the decisions about whether

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<v Speaker 3>he complied or didn't comply. They said, all right, fine,

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<v Speaker 3>we'll just pretend it's a contract between the two of us,

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<v Speaker 3>and we, the prosecutors, will make all determinations about compliance

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<v Speaker 3>or non compliance. I think they could have left it

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<v Speaker 3>and she could have gone forward, but I don't think

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<v Speaker 3>she liked the language in the plea which had her

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<v Speaker 3>somehow in the middle. So I think she's making them

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<v Speaker 3>come back with a more clearly written plea agreement. I

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<v Speaker 3>think the parameters of it are now clear. There'll be

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<v Speaker 3>two tax misdemeanors, a diversion program. The prosecutors will determine

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<v Speaker 3>whether he's in compliance with the diversion and only the

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<v Speaker 3>prosecutors will make that decision, and then he'll be pleading guilty,

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<v Speaker 3>and then the investigation will be ongoing whether he violated

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<v Speaker 3>the Pharaoh rules, Foreign Registration Act rules, or whether he

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<v Speaker 3>did anything else.

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<v Speaker 1>So, as you mentioned, Michael, during the hearing, the prosecutors

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<v Speaker 1>confirmed that the investigation into Biden was ongoing and that

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<v Speaker 1>he could still be charged with a violation of Pharaoh,

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<v Speaker 1>which is the Foreign Agents Registration Act. How often are

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<v Speaker 1>plea deals made when an investigation is ongoing.

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<v Speaker 3>It's unusual that a plea is made in the middle

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<v Speaker 3>of an ongoing investigation where you are still the subject

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<v Speaker 3>of that ongoing investigation. It could be that you have

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<v Speaker 3>a broad ongoing investigation, say the January sixth investigation, and

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<v Speaker 3>someone could plead guilty to the role they played in

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<v Speaker 3>that broader investigation, ending all of their criminal involvement in

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<v Speaker 3>that broader, ongoing investigation. It's unusual that they'll plead guilty

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<v Speaker 3>and be told still, you know, you could still be

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<v Speaker 3>charged with additional violations of law, because they'll want to say, well,

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<v Speaker 3>then I'll wait to see what all is out there

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<v Speaker 3>for me, because maybe we can get a comprehensive plea

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<v Speaker 3>that encompasses everything. So it's unusual, and I think that's

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<v Speaker 3>why Biden's lawyers said at first when the court said

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<v Speaker 3>does this wrap up everything? They said yes, because that's

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<v Speaker 3>what I think they thought was going on. And the

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<v Speaker 3>prosecutor said no, and then they had to go out

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<v Speaker 3>to the hallway and talk about it. And then the

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<v Speaker 3>defense came back and said, all right, parah is still

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<v Speaker 3>on the table. It's still ongoing. But that is surprising

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<v Speaker 3>to me.

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<v Speaker 1>And apparently they've been discussing that. That's been a bone

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<v Speaker 1>of contention in the negotiations, and so to come into

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<v Speaker 1>court and not have that settled is just mind moggeling.

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<v Speaker 3>The only thing I can say is that you know,

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<v Speaker 3>Hunter Biden is a fragile human being. If you listen

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<v Speaker 3>to him in court and you look at his history.

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<v Speaker 3>He was last using drugs in twenty and nineteen. He's

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<v Speaker 3>been in and out of treatment programs since two thousand

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<v Speaker 3>and three, twenty years of drug and alcohol addiction. It

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<v Speaker 3>may just have been that he said to his lawyer's look,

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<v Speaker 3>I need to get closure, even if it's not closure

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<v Speaker 3>on one hundred percent of this thing. I just need

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<v Speaker 3>to keep moving forward with my life. I can't have

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<v Speaker 3>this hanging over me. I'll take my chances on the

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<v Speaker 3>Phara thing, but can we please wrap this thing up

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<v Speaker 3>because it's weighing on me. And people who have addiction

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<v Speaker 3>problems that have big things like this that weigh on

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<v Speaker 3>them can be tipping points for them to revert to

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<v Speaker 3>their bad behavior.

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<v Speaker 1>It's a good point. Republican Congressman Jim Jordan credited the

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<v Speaker 1>IRS whistleblowers for the collapse of the plea deal. How

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<v Speaker 1>much did politics play a part in the collapse? Do

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<v Speaker 1>you think?

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<v Speaker 3>I don't think I played any part in it. And

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<v Speaker 3>in fact, the judge said, you know, colloquy with the prosecutor.

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<v Speaker 3>You're doing what you think is best and I'm not

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<v Speaker 3>going to tell you what is or isn't appropriate in

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<v Speaker 3>this case. This is all up to you and it'll

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<v Speaker 3>be based on your review of the evidence. And he said,

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<v Speaker 3>that's right, judge, And so they then in any way

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<v Speaker 3>attribute the whistleblower or the politics of this thing to

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<v Speaker 3>the breakdown of the plea, And in fact, in the

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<v Speaker 3>one hundred and twenty seven pages of the transcript of

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<v Speaker 3>this thing which I've read through, there's no mention of

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<v Speaker 3>whistleblowers or the investigation being a sweetheart investigation or a

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<v Speaker 3>corrupt investigation. None of that stuff came up. So they're

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<v Speaker 3>taking credit for something that they had no right to

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<v Speaker 3>take credit for.

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<v Speaker 1>The judge told both sides to work out how the

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<v Speaker 1>deal was structured and resubmitted when it can pass constitutional muster.

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<v Speaker 1>She gave them thirty days to submit briefs. Does this

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<v Speaker 1>seem like it's something that can be resolved, that this

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<v Speaker 1>plea deal can be resurrected, or will this drag on

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<v Speaker 1>and perhaps end with Hunter Biden going to trial.

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<v Speaker 3>No, I think that this will settle. I think that

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<v Speaker 3>the outline of the plea was sort of made clear

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<v Speaker 3>at the very end when they said, we'll come back

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<v Speaker 3>and we'll give you a cleaner document which will include

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<v Speaker 3>the two misdemeanor tax cases and the one lion by

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<v Speaker 3>a gun case for which he will be diverted, and

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<v Speaker 3>we the prosecutors, will make all the final determinations about

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<v Speaker 3>whether he's complied with the terms of his diversion program.

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<v Speaker 3>And I think that'll be that.

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<v Speaker 1>The fact that he's the president's son and you know,

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<v Speaker 1>all eyes were on this plea deal, do you think

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<v Speaker 1>that made the judge more cautious? Perhaps?

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<v Speaker 3>Oh? Sure, I think that the judge knew. In fact,

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<v Speaker 3>I think the judge acknowledged during the plea that she

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<v Speaker 3>was being particularly careful because everyone is going to read

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<v Speaker 3>this transcript by going a fly Speckett, and she wants

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<v Speaker 3>to make sure that every tea has been crossed and

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<v Speaker 3>every eye has been dotted. And so yes, she was

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<v Speaker 3>particularly careful, and I think she did a great job

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<v Speaker 3>in making sure that everything that needed to be covered

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<v Speaker 3>off was covered off.

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<v Speaker 1>Well, we'll see what happens within thirty days or perhaps sooner.

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<v Speaker 1>Thanks so much, Michael. That's former federal prosecutor Michael Zelden,

0:13:53.000 --> 0:13:55.319
<v Speaker 1>and that's it for this edition of The Bloomberg Law Show.

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<v Speaker 1>Remember you can always get the latest legal news on

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<v Speaker 1>June Grosso and you're listening to Bloomberg