By WILMINGTON, Del. — A federal judge on Wednesday delayed accepting a guilty plea from President Biden’s son Hunter, saying the terms of the deal may not be constitutional but could be salvaged in the coming weeks if prosecutors and defense lawyers can show her it is on solid legal footing.
The deal that had been struck in June began to unravel near the start of the three-hour hearing, which the White House and allies of the Biden family had hoped would help close a painful chapter in Hunter Biden’s life that has cast a pall over the First Family.
U.S. District Judge Maryellen Noreika asked questions that revealed the extent of a long-standing dispute between federal prosecutors and Biden’s lawyers over whether the agreement — in which he would plead guilty to two tax misdemeanors and probably avoid jail time — would protect him from the possibility of additional criminal charges. She later questioned the structure of the deal itself, saying lawyers had crafted a two-step plea deal in which some key features may not be reviewable or enforceable by the court.
The complications marked another twist in a case that has been dogged by questions about possible political bias, prosecutorial delay, and debate over whether Hunter Biden was being treated too harshly or too gently because of who his father is. The judge’s skepticism also thrust Biden back into the spotlight, renewing questions over what investigations may be ongoing and how that might affect his father ahead of a presidential reelection campaign, and reanimated congressional Republicans, who have spent months focusing on the Biden family in what have often been fruitless pursuits.
Prosecutors had proposed that Hunter Biden plead guilty to the tax charges in a fairly standard agreement that requires the judge’s approval. Separately, they crafted a “diversion agreement” with Biden’s attorneys in which the president’s son would admit to wrongdoing in a gun case and agree to certain conditions, including not purchasing a firearm and not using drugs, to avoid actually being charged with unlawful possession of a firearm.
That type of agreement is not typically approved by a judge. But this diversion agreement referenced the proposed plea, and prosecutors submitted it to Noreika, creating a bifurcated deal in which the assurances Biden wanted — that he will not be pursued for other tax or foreign lobbying charges — were not part of the tax case, but part of the gun diversion agreement, lawyers said in court.
A provision of the gun diversion agreement said that if Biden, a recovering addict, failed to remain drug-free and meet other conditions for the next two years, Noreika would determine whether he had broken the terms of the deal and tell prosecutors they could revive the gun charge against him.
Biden’s attorney argued the case had been politicized and hinted that such language could protect him if a biased prosecutor unfairly accused Biden of breaching the agreement at some point. The judge said she understood that reasoning but added that if the agreement is unconstitutional, prosecutors could just try to void it and charge Biden anyway.
Noreika also questioned whether she could lawfully make the kind of determination spelled out in the documents, given that she is not a party to the diversion agreement and that judges generally are not responsible for pursuing criminal charges.
“I have concerns about the constitutionality of this provision, so I have concerns about the constitutionality of this agreement,” she said in court.
The judge also asked prosecutors if there was any precedent for a provision constructed this way. No, the prosecutor replied.
At one point, appearing exasperated, she said the lawyers seemed to expect her to simply “rubber-stamp” the agreement they had struck.
She told the two sides to work on the issue, a process that could take weeks.
In the meantime, as the unresolved situation means the criminal charges laid out in the proposed plea deal are still active against Biden, he entered a not guilty plea — for now.
The disagreement over immunity that surfaced at the start of the hearing had been publicly known since the deal was struck: Biden’s attorney said it would resolve the investigation of his client, and David Weiss, the U.S. attorney in Delaware, said the probe was ongoing.
In court, Biden said he was prepared to plead guilty. But then Noreika asked whether he would still do so if it was possible additional charges might be filed against him in the future.
Biden answered no.
Prosecutors again described the federal investigation around Biden as ongoing but, when pressed by the judge, would not reveal any details.
“As far as I’m concerned, the plea agreement is null and void,” Biden lawyer Chris Clark told the judge at one point.
A quick side discussion between the prosecutors and defense lawyers didn’t help.
“I don’t know what you’re trying to accomplish by blowing this up,” Clark told prosecutors. One of those prosecutors, Leo Wise, pointed to papers related to the case and said he was bound by the terms in them.
Clark shot back: “Then we misunderstood; we’re ripping it up.”
Later in the day, the two sides appeared to agree that the deal would provide immunity for certain tax, drug and gun charges between 2014 and 2019.
Wearing a dark suit, Hunter Biden responded, “Yes, your honor,” to questions that ensured he understood the details of what he would be agreeing to and the wrongdoing at the crux of the case. He detailed to the judge his history of drug abuse, saying that he has received inpatient drug and alcohol addiction treatment at least six times since 2003 and that his addiction ruined his business relationships.
The federal investigation of his business dealings was opened in 2018, during the Trump administration, and has been a favorite talking point for Republican critics of the current president and his family. Republican politicians have repeatedly accused Hunter Biden of broad wrongdoing in his overseas business deals and, since his father was elected, predicted that the Biden administration would be reluctant to pursue the case.
Attorney General Merrick Garland has insisted politics would not interfere with the criminal investigation, noting that it was being led by Weiss, a holdover from the Trump administration, and that Weiss had complete discretion over whether to bring charges.
Those assurances have come under intense scrutiny in recent weeks, however, since Republican lawmakers released interview transcripts from two whistleblowers from the Internal Revenue Service who were part of the investigation. They told the House Ways and Means Committee that the Justice Department slowed and stymied the probe, whittling away the most serious evidence of alleged tax crimes. And they alleged that Weiss had told the investigative team his charging options were limited.
Officials said Monday that Weiss, who has pushed back against the whistleblower allegations, is willing to testify to Congress about the investigation in the fall.
Papers filed in court when the plea agreement was reached indicate that Hunter Biden had agreed to plead guilty to two misdemeanor tax charges of failure to pay in 2017 and 2018. A court document says that in both those years, Biden was a resident of D.C., received taxable income of more than $1.5 million and owed more than $100,000 in income tax that he did not pay on time.
Prosecutors planned to recommend a sentence of probation for those counts, according to people familiar with the negotiations who spoke on the condition of anonymity to describe elements of the case that are not yet public. Hunter Biden’s representatives have previously said that he eventually paid the IRS what he owed.
A second court filing is about the charge of illegally possessing a weapon, which involves a handgun Biden purchased at a time when he was abusing drugs. In that case, the letter says, “the defendant has agreed to enter a Pretrial Diversion Agreement with respect to the firearm information.”
Diversion is an option typically applied to nonviolent offenders with substance abuse problems. Hunter Biden has written and spoken openly about being addicted to cocaine during the years in question. People close to him, speaking on the condition of anonymity to be candid about a sensitive issue, said he was looking at the potential conclusion of the criminal case against him through the lens of an addict and was hoping to use the guilty plea to admit to past mistakes, make amends and move on.
But even if the legal turmoil that has surrounded Hunter Biden for years is wrapped up in coming days or weeks, the political battle will continue in the form of congressional investigations, attacks via social media and attempts to shape public opinion as the president seeks reelection in 2024.
The whistleblower testimony brought forth new allegations, including a text message that Hunter Biden allegedly sent on July 30, 2017, that invoked his father — at that time a former vice president — as the younger Biden tried to get a business partner to fulfill some expected promise.
White House press secretary Karine Jean-Pierre, speaking at the start of a White House briefing on Wednesday that began just as proceedings were concluding in Wilmington, attempted to keep a distance from the case.
“Hunter Biden is a private citizen and this was a personal matter for him,” she said. “As we have said, the president, the first lady, they love their son and they support him as he continues to rebuild his life.”
She emphasized that “this case was handled independently, as all of you know, by the Justice Department under the leadership of a prosecutor appointed by the former president, President Trump.”
President Biden, who generally tries to refrain from commenting on his son’s criminal case but has also repeatedly stated that Hunter “did nothing wrong,” had no public events Wednesday and offered no public reaction to the new developments.
The court appearance took place a few miles from where Hunter Biden grew up and went to high school — just blocks from the Joseph R. Biden Jr. Railroad Station, the station from which his father commuted to Washington for decades as a member of Congress.
Barrett and Viser reported from Washington. Ajay Patel and Daniel Steenkamer in Wilmington, Del., contributed to this report.