Top Republican leaders on three House of Representatives panels are probing the Department of Justice (DOJ) for answers about an alleged “sweetheart deal” given to Hunter Biden by the agency.
“Given recent unusual events relating to the Department’s plea and pretrial diversion agreements with Mr. Biden, we write to better understand the Department’s decision to sign off on such apparently atypical agreements,” they wrote.
In 2018, the IRS began an investigation into Mr. Biden, ultimately recommending three felony tax charges, according to IRS investigators and whistleblowers Gary Shapley and Joseph Ziegler.
However, prosecutors instead offered Mr. Biden a deal that Republicans decried as a slap on the wrist. In the version initially presented to the public, Mr. Biden would plead guilty to two misdemeanor tax crimes and would have an unrelated felony firearms charge wiped through a pretrial diversion program.
That deal, despite criticisms, was expected to breeze through a federal court during a July 26 hearing. But it faced pushback from Judge Maryellen Noreika, who found the deal “nonstandard” and noted that it was much broader than other deals of its kind and much broader than the deal first presented to the public.
Rather than wiping away only the firearms charge, the pretrial diversion agreement offered to Mr. Biden by DOJ prosecutors would give President Joe Biden’s son nearly unlimited immunity from other tax, drug, and firearm crimes committed between 2014 and 2019.
Judge Noreika expressed concerns that the “broad” nature of the agreement could limit the government’s options to pursue future cases with new evidence, including potential violations of the Foreign Agent Registration Act by Mr. Biden.
She accused lawyers of trying to have her “rubber stamp” the peculiar deal by twisting federal criminal court rules to cut her out of the process.
Broad Legal Immunity
Republicans raised questions about the section of the pretrial diversion agreement that would give Mr. Biden broad legal immunity for charges unrelated to the firearms charge.“The United States agrees not to criminally prosecute Biden, outside of the terms of this Agreement, for any federal crimes encompassed by the attached Statement of Facts ... and the Statement of Facts attached as Exhibit 1 to the Memorandum of Plea Agreement filed this same day,” the agreement read.
Judge Noreika asked the lead prosecutor, Leo Wise, whether he “had any precedent for agreeing not to prosecute crimes that have nothing to do with the case or the charges being diverted.”
“I’m not aware of any, Your Honor,” Mr. Wise replied.
“[Have] you ever seen a Diversion Agreement where the agreement not to prosecute is so broad that it encompasses crimes in a different case?” she asked.
Judge Arbitrates Breach of Diversion Agreement
Normally, pretrial diversion agreements stipulate that any immunity provided by the agreement can be stripped away if the DOJ determines that a breach of the agreement has occurred.In this case, however, the DOJ is apparently seeking to waive this right, requesting that Judge Noreika instead serve as the arbiter of any allegations of breach.
That means that unless Judge Noreika makes a finding that the pretrial diversion agreement has been breached, “no criminal charges can be pursued [against Mr. Biden] for the gun charge or any other federal charge within the scope of the agreement.”
Judge Noreika took issue with this arrangement.
During the hearing, she asked Mr. Wise whether he had “any authority that any Court has ever accepted that or said that they would do that.”
He said he didn’t.
Under the separation of powers, courts aren’t permitted to bring charges; that is a power left to the executive branch and its subordinate offices. The role of judges and the judicial branch is to carry out the legal process after charges have been brought by executive branch actors.
Thus, Judge Noreika said that the agreement raised constitutional concerns, as it could see her making decisions about whether or not to bring charges.
‘Serious Concerns’
Republicans said that, individually, these provisions raised “serious concerns” about the DOJ’s handling of the investigation into Mr. Biden.“But when considered together, the provisions appear to be even more troubling,” they wrote.
Under normal conditions, the Republican chairmen noted, the immunity provision offered by prosecutors would be included in a standard plea agreement, which is subject to judicial review. However, prosecutors instead sought to include the deal in the separate diversion agreement in an apparent effort to limit the judge’s power to reject it.
The odd placement of this immunity provision in a separate, nonjudicially reviewed diversion agreement, they said, “benefits Mr. Biden.”
Likewise, they wrote that the DOJ “benefitted Mr. Biden by giving up its unilateral ability to bring charges against him if it concludes that he has breached the pretrial diversion agreement.”
“Instead, it has placed upon itself the burden of getting the District Court’s permission to bring charges even though the District Court normally has no role in policing a pretrial diversion agreement in that manner,” they wrote. “So, the District Court is apparently removed from the equation when it helps Mr. Biden and inserted into the equation when it helps Mr. Biden.”
The Republicans raised concerns that the DOJ claims that the investigation into Mr. Biden is “ongoing” are merely meant to shield Mr. Biden from congressional investigation, as the DOJ has broad immunity from complying with congressional requests for information about ongoing investigations.
“In that regard, it was notable that Mr. Biden’s counsel stated at the hearing that it was his understanding that the immunity provision in the pretrial diversion agreement would preclude the Department from bringing charges against Mr. Biden under the Foreign Agents Registration Act,” they wrote, citing a portion of the hearing in which the deal nearly fell apart because of an apparent disagreement about the scope of the diversion agreement.
“[It] is difficult to understand how the parties would not have a meeting of the minds regarding a clause of the agreement as fundamental as the scope of the immunity provision, and it raises questions about what discussions have taken place between the Department and Mr. Biden’s counsel regarding the status of those investigations,” the Republicans wrote.
To that end, they attached a series of questions and requests for documentation to the letter, asking, among other questions, how many cases the DOJ could provide in which a diversion agreement granted immunity from charges other than those being diverted.
The Republicans also asked whether these provisions were suggested by the U.S. attorney’s office or by Mr. Biden’s lawyers.
Finally, they sought a series of documents related to previous cases similar in terms to Mr. Biden’s.
