Wednesday’s hearing for Hunter Biden was already poised to be a historic event, as the son of a sitting US president appeared in court to plead guilty to federal tax crimes, bringing a controversial investigation to a near close.
But the three-plus hour hearing saw the original plea agreement nearly fall apart and leaves the son of President Joe Biden in limbo for the moment – and will only further brighten the spotlight on the issue as congressional Republicans pursue their own investigations into Hunter Biden’s actions.
Hunter Biden failed to pay between $1.1 million and $1.5 million in federal taxes before the legal deadlines and was set to plead guilty to two tax misdemeanors with prosecutors agreeing to recommend a sentence of probation. The deal was also meant to resolve a federal firearms offense.
Hunter Biden, appearing in court wearing a dark suit and sporting slicked back hair, appeared agitated and worried as the plea deal began to unravel. The judge eventually declared that she wasn’t ready to accept the plea deal, and the president’s son then entered a not guilty plea.
Here’s what happened Wednesday and what happens next:
Hearing goes sideways over foreign lobbying questions
The proceedings kicked off in routine fashion.
Hunter Biden was placed under oath and told US District Judge Maryellen Noreika – an appointee of President Donald Trump who was supported by Senate Democrats – that he wanted to plead guilty. Noreika began asking him a series of procedural questions that are asked at basically every federal plea hearing.
But as things dragged on, and Noreika quizzed the lawyers from both sides about the particulars of the tax deal, she sussed out a disagreement between the parties on a critical question: Did the deal protect Hunter from possibly facing additional charges for illegal foreign lobbying, known as FARA (The Foreign Agents Registration Act)? The Justice Department said no, but Hunter Biden’s team thought yes.
Without a “meeting of the minds,” as Noreika put it, there could be no deal.
It appeared at that moment that the plea agreement was on the brink of collapse. But Chris Clark, Hunter Biden’s lawyer, asked for a short recess to consult with the prosecutors. After a break, he announced that he was accepting the Justice Department’s position that his client was still at risk of possible FARA charges, with an investigation still underway.
Judge questions constitutionality of gun deal
Things then appeared to be back on track and Noreika pressed forward with addressing the separate gun deal.
She said she has “concerns about the constitutionality” of the gun deal because it might violate separation of powers principles.
The felony charge revolves around a gun Hunter Biden bought in 2018 – which was an illegal purchase because he knew he was an illegal drug user at the time, according to court filings. The judge said Wednesday that the deal to resolve the gun charge was “not straightforward” and contains “atypical provisions.”
Noreika expressed frustration that the two sides structured the tax and gun plea deals in a way where she would need to approve the gun deal, but had no powers to approve or reject the tax agreement.
The diversion agreement – which isn’t often submitted to a judge – has a provision that says if there is a dispute over whether Hunter Biden breached the terms of the deal, it would go to the judge for fact-finding. Noreika questioned why it would “plop” her in the middle of a deal she didn’t have a say in, and potentially block the Justice Department from bringing charges, a function of the executive branch.
Biden’s attorney said given the politicization of the case, they wanted a neutral arbiter like Noreika to handle any potential disputes. The judge said she couldn’t decide on the fly if that was a legally workable plan.
“I cannot accept the plea agreement today,” Noreika said.
What happens next?
The judge asked both parties to file additional legal briefs defending the constitutionality of the plea deal that addresses the firearms charges.
The parties have 30 days to file these briefs, according to the court docket.
What happens after that isn’t clear at this time. Noreika could schedule another hearing, for oral arguments, to further flesh out the complex constitutional questions at hand. She could issue a written ruling accepting their explanations and agreeing to move forward with the guilty plea.
How she wants to move forward will be up to her.
Will DOJ’s probation recommendation hold?
Noreika also has the ultimate decision on what sentence Hunter Biden will receive if a plea deal is accepted or he is tried and convicted.
While prosecutors have said they recommend probation, the judge on Wednesday made clear it was an open question.
“I can’t predict for you today whether that is an appropriate sentence or not,” Noreika said.
Republicans hope to capitalize on confusion
The unraveling of the agreement in court further opens the door for Republicans who were already asking questions about the investigation.
GOP lawmakers were sharply critical of the Justice Department’s deal and jumped on the new developments in hopes it would bolster their probe into the president.
“At least there is some scrutiny going on,” Texas Rep. Chip Roy told CNN in reaction to the Hunter Biden plea deal being refined. “The plea deal, as we saw, as it started, was garbage. We have people that are in jail right now for far less.”
It also adds a new layer of intrigue around the potential trip to Capitol Hill by Delaware’s Trump-appointed US Attorney David Weiss, who is overseeing the 5-year-old Hunter Biden investigation.
GOP Rep. Jim Jordan of Ohio credited IRS whistleblowers critical of the investigation for the collapse of a plea deal, although the issue did not come up during a hearing.
Weiss has told Jordan, the chairman of the House Judiciary Committee, he would testify publicly before the committee in the coming weeks to answer questions about the ongoing criminal probe, though Wednesday’s developments could delay things.