On July 26, President Biden’s son, Hunter Biden, had been expected to plead guilty to two charges of failure to pay taxes under the terms of a much-discussed plea deal with the government. The case marks the first time the Department of Justice has charged the child of a sitting president, and President Biden’s opponents had characterized the deal as unusually lenient and politically motivated. When U.S. District Judge Maryellen Noreika raised questions about the terms and scope of the agreement, and refused to approve the deal, pundits and politicians wasted no time debating the significance of the surprise development. On July 31, House Republicans launched an inquiry into the deal.

Here, Stanford Law School’s Robert Weisberg, the Edwin E. Huddleson, Jr. Professor of Law and faculty co-director of the Stanford Criminal Justice Center, breaks down the structure of the deal, including what was unusual about the arrangement and why Judge Noreika had solid reasons for questioning it.

Can you describe the structure of the plea agreement and why the judge had concerns?

Much of the attention has been focused on the relationship between the main deal—a guilty plea to tax charges, subject to a judicially-imposed sentence—and the side agreement about the charge that he lied in his federal gun application by saying that he was not a habitual drug user. The latter is called a diversion agreement and is actually a species of pretrial probation. This means that the defendant agrees to certain terms of behavior, in this case, not to use drugs or alcohol and not to possess or seek to acquire a firearm. And if, at the end of a specified period (two years in this case), the defendant has fully complied with these terms then the charge will be dropped. So, Hunter Biden wouldn’t be tried on that charge and wouldn’t have to plead to it. 

It’s unusual for such an agreement to be presented in connection with a regular plea agreement, but it is not inherently legally suspect. The problem here is that the judge honestly did not fully understand the relationship between the two agreements, and the situation was not helped when the lawyers tried to almost distract the judge from paying any attention to the diversion agreement. 

Of course a defendant can plead guilty to some charge, and then, in an entirely separate investigation of an entirely unrelated crime, there can be a separate arrangement. If so, the judge in the plea case need not be concerned with or be informed about the other matter. But here, they were explicitly linked, and it was obvious that the generosity the government offered in the diversion agreement was part of the contractual consideration for the plea agreement. A judge is always free to accept or reject a plea deal, and so before she accepts it, she needs to understand exactly what the mutual consideration is, and alas, a major ambiguity in this deal—more specifically in the diversion agreement—left the judge feeling very ill-informed.

The judge also expressed concerns about the scope of immunity provided by the deal, and it did appear that the parties did not seem to share the same understanding of the scope, is that right?

The key provision of the diversion agreement was the immunity part. What was its scope? The broad reading espoused by the defendant was that the immunity extended to possible charges  arising from the government’s investigating Hunter Biden, or at least those arising from the acts narrated in the long attachment to the main plea deal, which covered in exhaustive detail the alleged financial shenanigans by Hunter Biden that led to the tax charge deal. These might even connect to the much-discussed possible violation of the Foreign Agents Registration Act. But right then, in the hearing, the government said no, the immunity only goes to other possible criminal liability arising from his drug use and gun acquisition.

The judge was right to feel flummoxed that the parties were at odds on this. It’s true that late in this very long, intense hearing the defense ultimately acceded to the government’s narrow reading. But it was quite proper for the judge at that point to say, in effect: Well, I don’t feel comfortable ratifying this deal now when agreement on this very crucial feature has come about in this ad hoc and impulsive way. So I’ll keep an open mind about this, and I hope you reach a deal, but you’re going have to come back to me after you’ve really thought it out and presented it to me comprehensively and explicitly.

Was there anything else that was unusual about the deal?

Normally when you have any kind of probation, and if, in the view of the prosecutor, the defendant has violated any of the stated conditions, the prosecutor can then activate the prosecution of charge (or in a post-conviction probation it would activate the suspended jail or prison sentence). If the defendant contests the allegation that he violated conditions of probation, he normally has a limited due process right to  an administrative hearing on that. But the very unusual provision in this agreement was that if the government found prima facie evidence of a violation, it would then go to this very judge and ask her to decide whether it was a violation and, if so, to thus reactivate the charge. 

The judge said she had never heard of such an arrangement, and the parties did nothing to reassure her that there was any precedent. And she then said, in effect: You’re kind of implicating me then in a decision about whether you should go ahead and prosecute. And I feel uncomfortable doing that because that’s a prosecutorial or executive branch decision not a judicial decision.

One could have read this unusual provision somewhat differently from the way the judge did, but again, it was quite plausible for her to say there’s just something odd about all this.

What happens next?

So the parties will go back, and presumably come up with a plea deal that she can live with. Of course everyone is asking why this mess happened. The Republicans in Congress have a cynical explanation. They think there was collusion between the DOJ and the Biden family to get through a deal that many might view as suspiciously lenient and hope the judge wouldn’t engage in much scrutiny. A more objective explanation would be that this was just terribly careless and sloppy lawyering, a botch job for which attorneys on both sides bear responsibility.

Robert Weisberg, JD ’79, works primarily in the field of criminal justice, writing and teaching in the areas of criminal law, criminal procedure, white collar crime, and sentencing policy. He also founded and now serves as faculty co-director of the Stanford Criminal Justice Center (SCJC), which promotes and coordinates research and public policy programs on criminal law and the criminal justice system, including institutional examination of the police and correctional systems. He served as a law clerk to Chief Judge J. Skelly Wright of the U.S. Court of Appeals for the District of Columbia Circuit and Justice Potter Stewart of the U.S. Supreme Court. After joining the Stanford law faculty, he served as a consulting attorney for the NAACP Legal Defense Fund and the California Appellate Project on death penalty cases, and he continues to consult on criminal appeals in the state and federal courts. Professor Weisberg is a three-time winner of the law school’s John Bingham Hurlbut Award for Excellence in Teaching.