The judge reviewing the agreement, Maryellen Noreika, called features of it “unusual” and “atypical.” When “I asked if there was any precedent for this,” she noted at one point in the hearing, “I was told no.”
Before the details were published and subject to Noreika’s scrutiny, it was possible to maintain Garland’s line about the Hunter Biden case. Sure, it seemed odd that two tax misdemeanors took five years of investigation to charge, and the reported terms, including a no-jail-time recommendation, seemed favorable to Biden. But he has good lawyers; tax law is esoteric; and the gun charge against him that prosecutors planned to dismiss after two years of good behavior is in constitutional limbo anyway.
Wednesday’s hearing showed that more was afoot in the creation of this deal than standard legal give-and-take. First, we saw that a document separate from the tax plea agreement gave Biden sweeping immunity from future prosecution related to his international business activities. But when the judge asked the federal prosecutor about that provision, the prosecutor walked it back. That led Biden’s own lawyer to erupt that the plea deal was “null and void.”
Most likely, Biden will agree to a narrower grant of immunity in a revised plea agreement, his lawyer signaled. But why did the Justice Department agree to such broad immunity in the first round — until a prosecutor had to defend it publicly?
The resolution of the gun charge also contained an unusual layer of protection for the president’s son. The government promised it wouldn’t prosecute Biden for owning a gun in 2018, a time in which he has admitted to using illegal drugs, provided he meet certain conditions for two years. Normally in such pretrial diversion arrangements, the government can reverse itself and charge defendants if it decides they are not complying with conditions.
But this deal limits the government’s ability to do so. To shield Biden from targeting by a future Republican administration, it requires a judge to also give a green light for charges to be brought. Noreika balked. She wondered if that violated the separation of powers by involving the judiciary in charging decisions that belong to the executive branch. Asked to explain an arrangement that he admitted was without precedent, Biden’s lawyer cited the “tremendous amount of political drag with this defendant.”
That gets to the heart of the matter. No matter what Garland says, politics and public perceptions affect high-profile cases. High-profile cases certainly affect politics. This embarrassing episode will impart new political momentum to Republican congressional inquiries into Hunter Biden’s foreign business dealings. Part of the GOP’s 2024 strategy is to implicate President Biden in his son’s alleged influence-peddling abroad.
That’s not necessarily the main political threat to Democrats from the Hunter Biden saga, though. While he clearly used his family name to extract payments from foreigners, proving that this influenced Joe Biden in any specific official decision would be very difficult. What would proof even look like? So far, the universe of Biden scandals — reports of unverifiable payments, meetings abroad and tantalizing webs of corruption — carries echoes of the Russiagate distraction in Donald Trump’s presidency.
But even if none of the “Biden family business” allegations stick, the collapse of Hunter Biden’s plea deal in open court punctures the Biden administration’s sanctimony about an independent Justice Department. “We have said we wanted to restore the independence of the Department of Justice. That is what you’re seeing,” the White House press secretary said in January, after classified documents were found on Biden properties. (By the way, has anyone heard anything from Robert K. Hur, the special counsel appointed seven months ago to investigate that case?)
Voters might cynically expect a president’s son to get a slap on the wrist. But Garland’s Justice Department is asking a lot. It has made its supposed independence from politics its central pitch. At the same time — in what may be the most fateful decision of the 2024 presidential campaign — it is prosecuting the Biden administration’s leading opponent. The Hunter Biden saga will give Republican politicians a way to attack that prosecution without trying to defend Trump’s indefensible behavior.