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