Hunter Biden arrives at Fort Lesley J. McNair in Washington, DC, on July 4, 2023. | Ting Shen/Bloomberg via Getty Images
What happened: incompetence, malfeasance, or politics?
What in the world is going on with the Justice Department’s Hunter Biden investigation?
Political controversy has loomed over this probe at every turn, but the strange twists and turns of the past few months could give anyone whiplash — from whistleblower allegations, to a judge’s holdup of a proposed plea deal, to a falling out between Hunter’s team and prosecutors, to the US attorney leading the case being named special counsel and claiming he now anticipates a trial for Hunter on tax charges.
The gist is clear enough: Prosecutors and Hunter’s team agreed on a deal, and then things fell apart.
The mystery is about why. Why did both sides manage to come to an agreement in the first place — and why does such an agreement suddenly seem to be off the table?
Hunter’s team and particularly his new attorney, Abbe Lowell, have not been shy about proposing explanations. One possibility, Lowell said Sunday on CBS News, was that prosecutors “didn’t like what people were saying about the deal they approved.” That is — they made an offer, and later changed their minds due to criticism from Republicans.
Oddly enough, some of Hunter’s biggest critics from the right basically agree with this, though they put a rather different spin on it. They theorize that prosecutors initially hoped to end the case with a “sweetheart deal” for Hunter, and changed their minds due to, well, criticism from Republicans.
Prosecutors have not offered any explanation for exactly what changed. But from the day the initial deal was announced, there was a clue that they were not on the same page as Hunter’s attorneys, in their insistence that the investigation was “ongoing.” Hunter’s team claimed they thought the deal would end the probe. It is unclear what exactly this continuing investigation is focusing on.
But the issue of how much immunity from prosecution Hunter would be provided was the main sticking point, both in court and afterward. We still don’t have a full accounting of exactly what was promised, but a picture of what happened is starting to emerge.
The deal prosecutors struck with Hunter Biden’s team
Prosecutors under David Weiss, the US attorney for Delaware, began investigating Hunter Biden’s tax and business affairs in the middle of the Trump investigation, and President Joe Biden left Weiss in place when he took office. The investigation appeared particularly active in early 2022, but by the beginning of this year, no charges had yet been filed, and this spring two IRS officials went to Congress with various complaints about how the probe was being handled.
Then, on June 20, prosecutors announced they’d made a deal with Hunter, in which he’d plead guilty to two misdemeanor tax charges, admit to illegally possessing a firearm when he was a drug user, and likely avoid any jail time.
The deal remained out of public view until Judge Maryellen Noreika’s hearing in Delaware on July 26. Both sides had hoped Noreika would accept the deal, but it turned out she had quite a few questions about it.
The deal had an unusual structure, involving both a typical plea agreement (which gets approved by a judge) and a “diversion agreement” (which doesn’t). The government’s promise of immunity for Hunter, which would usually be in the plea agreement, was for unexplained reasons in the diversion agreement instead — seemingly meaning Noreika would have no authority over it.
Noreika thought this was odd. “I am concerned that you’re taking provisions out of a plea agreement that would normally be in there,” she said. Was it crafted this way in the hopes she would “rubber stamp” it, she asked? Some further oddness, she observed, is that the deal then tasked her with reviewing whether that diversionary agreement was breached — but neither side could cite a precedent for a judge having that role.
The main issue, though, was that question of Hunter’s immunity from further prosecution (which, unusually, was laid out in the diversion agreement, not the plea agreement). The key paragraph states:
“The United States agrees not to criminally prosecute Biden, outside of the terms of this Agreement, for any federal crimes encompassed by the attached State of Facts (Attachment A) and the Statement of Facts attached as Exhibit 1 to the Memorandum of Plea Agreement filed this same day.”
That is what’s now being referred to as Hunter’s immunity guarantee. It says that the government would not prosecute him for any federal crimes encompassed by “Exhibit 1” — a detailed recounting of his business affairs, drug use, and tax nonpayment from 2016 to 2019.
Yet Noreika pressed the government on exactly what that meant. For instance, it had been reported that Hunter had been investigated for potentially violating the Foreign Agents Registration Act (FARA). Under this deal, she asked, could Hunter still be charged under FARA?
Prosecutor Leo Wise said yes. Hunter’s lawyer at the time, Chris Clark, then said he did not agree, and that the deal was off.
After a brief recess, the two sides appeared to come to a rapprochement, in which Hunter’s team conceded that only immunity from tax, gun, and drug crimes would be offered (so, not FARA or other possible offenses). But Noreika said she still wasn’t prepared to accept the plea due to its unusual structure. And in the weeks since then, talks between Hunter’s attorneys and the government reportedly foundered due to the same issue: the scope of his immunity.
The mystery around the deal’s collapse
That’s what happened. But why did it happen?
It’s unclear exactly what the DOJ meant to promise Hunter. The language in the deal can be read both ways. Under one interpretation, Hunter was off the hook for “any federal crimes” related to his business activities in those years. Under another, he was only protected for the federal crimes explicitly mentioned (tax, drug, and gun crimes).
Hunter’s lawyers have insisted that they believed he was being offered broad immunity and that they have “contemporaneous written and oral communications” from prosecutors to back that interpretation up. They say they were surprised when, at the hearing, prosecutors said they were actually only offering much more limited protection.
Lowell said on Face the Nation that there were only three explanations for the purported turnabout. Number one is essentially incompetence: Prosecutors didn’t understand the implications of what they were promising. Number two is malfeasance: Prosecutors knew all along they were offering something more limited, but misled Hunter’s attorneys about what they meant. Number three is flip-flopping: Prosecutors initially made the broad promise, but reneged after political backlash from Republicans.
We don’t yet know whether one of these explanations fits best or whether there’s another possibility. (Perhaps the matter was simply left somewhat ambiguous, and both sides intended to take advantage of that ambiguity in further court wrangling later.)
When the details around the initial immunity deal became known, Republicans professed outrage. House GOP investigators are still digging into circumstances around the millions in foreign money Hunter made, particularly from a Chinese energy company and the Ukrainian gas company Burisma — seeking (in vain so far) to tie it to actions Joe Biden took. They insist there could well be more crimes here and argue that granting Hunter such broad immunity would essentially be a cover-up.
Hunter’s team, in contrast, insists that prosecutors have thoroughly scrutinized everything Hunter was up to in those years in the course of their lengthy investigation, and that there’s simply nothing else there.
But what stands out to me, again, is Weiss’s consistent insistence that the Hunter Biden investigation remains “ongoing” — something he’s been clear about since the day the plea deal was announced.
It is unclear what that means. In contrast to early 2022, when witnesses were regularly going before a grand jury in the probe and subpoenas were flying, there have been no publicly reported signs of continuing investigative activity in recent months. Still, the Washington Post reported Thursday that, per their sources, FBI agents are “aggressively pursuing” a broader investigation, but their probe “appears unlikely to result in separate criminal charges” at this point. Theoretically, if there is an ongoing investigation, it would not make sense to promise Hunter broad immunity.
But what if they already gave it to him? Hunter’s team said in a court filing this week that his former lead attorney, Clark, was withdrawing from the case because he expected to be called as a witness about what prosecutors had promised. They also argued that the broad immunity promised to Hunter is actually already in effect — since it was a side agreement between him and DOJ, not subject to court approval. Weiss’s team shot back that this is absolutely not the case, because the US probation office would have had to approve the agreement, and it didn’t.
All of that is being hashed out before Noreika, but it’s unclear whether she’ll rule on it, and she likely won’t have the case much longer. Now-special counsel Weiss is seeking to withdraw the tax charges from her Delaware courtroom so he can refile them elsewhere. The issue here is venue — Hunter lived in Washington, DC, and then California in the tax years in question, and was only charged in Delaware after voluntarily agreeing to waive his venue rights. Now that a plea deal is no longer on the table, his legal team will want to contest the cases elsewhere — just one signal of the newly aggressive strategy his team is taking going forward.