Why a judge refused to rubber

A funny thing happened in the courtroom of U.S. District Court Judge Maryellen Noreika last week. Hunter Biden’s lawyers and the Department of Justice tried to pull a fast one on her, but she refused to play her designated part, declining to “rubber stamp” an intentionally opaque plea agreement.

Plea agreements are generally straightforward. The terms are, with perhaps minor modifications, standard and set forth the complete agreement between the government and the defendant: what rights the defendant will waive, the charges to which he will plead guilty, any charges that the government will forgo in return for the defendant’s guilty plea, what the potential sentence will be, and what recommendations (if any) the government will make at the time of sentencing.

After the judge has established the defendant is competent to enter the plea and is knowingly and voluntarily doing so and has established that there is a factual predicate for the plea, the judge, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(A), makes a determination about whether accepting the plea agreement serves the interests of justice. If she concludes that it does, she accepts the plea and sets a future date for sentencing.

Of course, if the judge concludes that the agreement is not in the interests of justice because, oh, let’s speculate, the government conducted a shoddy investigation and the deal is excessively lenient—which would certainly accord with the views of the two whistleblower IRS agents who were assigned to the case, Gary Shapley and Joseph Ziegler—then the judge can refuse to accept the plea.

But this plea agreement was anything but straightforward. Here, the government actually entered into two agreements with Biden, one which would normally require judicial approval and one which wouldn’t, and the parties hid material terms that should have been included in the one requiring judicial approval by putting them into the one that didn’t.

Confused? Let me unpack this.

The first agreement—the one which would normally require judicial approval—was Biden’s agreement to plead guilty to two misdemeanor charges of tax evasion in return for the government’s agreement to recommend a sentence of probation, which the judge would be free to accept or reject.

The plea agreement set forth all the rights that Biden would be waiving and included, as Exhibit 1, a recitation of the factual predicate for the plea, which included a synopsis of the millions of dollars that he was paid over the course of several years with various foreign entities, including ones connected with the Chinese government.

There was, however, nary a word about any agreement by the government not to prosecute Biden for any additional crimes in that plea agreement. Because on the face of it, this was just a plea agreement in return for a nonbinding sentencing recommendation, the plea would fall under Federal Rule of Criminal Procedure 11(c)(1)(B), which does not give the judge the ability to reject the plea as not being in the interests of justice.

Ah, but here’s the rub. The government was promising not to prosecute Biden for additional crimes; it is just that this promise was set forth in a separate agreement over which, again, under normal circumstances, a judge would have no say.

The second agreement, also between the government and Biden, was a diversion agreement, which would permit him to agree to a recommended two-year term of probation subject to certain standard conditions in return for an agreement by the government not to prosecute him for a separate gun charge—the facts of which were detailed in Attachment A to the agreement. Under the terms of that agreement, if Biden were to complete probation successfully, the government would agree to drop the charge.

Although it is unusual for the government to enter into a diversion agreement with a defendant on a felony gun charge (in this case, the government is charging that Biden lied about his drug use when he purchased a firearm), such deals do not involve a judge. And it is the government, working in cooperation with the probation office, that gets to decide whether the defendant has abided by the terms of the agreement or has breached them, thereby subjecting himself to prosecution on the original charge and possibly other crimes known to the government.

But like the plea agreement, the diversion agreement was also unusual in at least two major respects.

First, rather than having the government as the sole arbiter of Biden’s compliance with the agreement’s terms, this agreement required, in paragraph 14, that if the government ever came to believe that Biden had materially breached the agreement, it would first have to ask Noreika to make a “final determination” by “a preponderance of the evidence” that he had done so before seeking to bring charges against him.

Second, the agreement said in paragraph 15 that if Biden complied with the terms of the agreement, the government would not prosecute him “for any federal crimes encompassed by the attached Statement of Facts (Attachment A) and the Statement of Facts attached as Exhibit 1 to the Memorandum of Plea Agreement filed this same day” (my emphasis added).

It became quite clear to Noreika that the government was agreeing not to prosecute Biden for additional crimes as a condition of his guilty plea to the two (dramatically reduced) tax charges and that, unlike all other normal diversion agreements, she was being called upon to play a critical gatekeeper role—should the government conclude that Biden had breached the terms of his probation—in deciding whether the government could file additional charges against him. Moreover, it was clear as mud what potential offenses were covered by paragraph 15 of the diversion agreement. None of this sat well with her, and for good reason.

Noreika told the parties that she had no intention of being “a rubber stamp” to this arrangement, and she clearly meant it. Once she started inquiring, things unraveled quickly.

The first thing she established was that the government’s promises contained in the diversion agreement were indeed material to Biden’s decision to plead guilty to the two tax charges, even though those promises were not contained in the plea agreement itself.

The second thing she established is that the parties did not, in fact, agree on the scope of the immunity that he was being offered—a shocking thing given how long the parties had been dealing with each other to try to hammer out this sweetheart deal.

While the government’s attorney stated that the investigation against Biden for possible violations of the Foreign Agents Registration Act (more commonly referred to by the acronym FARA) was ongoing and that he could be prosecuted for such violations, Biden’s attorney made it crystal clear that he believed that any potential FARA charges related to the extensive connections Biden had and payments he received from foreign entities outlined in Exhibit 1 to the plea agreement would be covered by the immunity agreement.

After the judge called an extended break, the two sides returned to her courtroom and appeared to agree that the government could charge Biden with FARA violations. Color me extremely skeptical that the current set of prosecutors would pursue such charges.

Noreika was, however, still troubled by the potential role she was supposed to play in determining whether Biden had breached the terms of his probation, potentially subjecting him to prosecution on the gun charge and other offenses.

While the government acknowledged that this feature of the diversion agreement was unique and unprecedented, the parties suggested that it was necessary because a future Justice Department under a Republican president might decide, for political reasons, to allege that Biden had breached the terms of his agreement in order to file additional charges against him.

Given the sweetheart deal that the court was being asked to swallow as well as the whistleblowers’ allegations that higher-ups at the Justice Department interfered with the investigation in order to protect Biden and his father, this assertion is pretty galling.

Nonetheless, once more, Noreika was having none of it. She expressed concern that she was being cast in the role of essentially deciding whether additional charges could be brought against Biden and opined that putting a federal judge in that role may violate separation of powers principles of the Constitution. She asked the parties if Biden would still enter into the plea agreement if this particular provision was stricken from the agreement. Everyone knew what the answer to that question would be.

So where does that leave us? For the moment, the plea deal is on hold, and the parties have been asked to brief the constitutional question that Noreika raised. Of course, the parties may reach a new agreement and try again to sweep this all under the rug. But we’ll see.

In the meantime, more disturbing allegations involving the Bidens are forthcoming. President Joe Biden has now switched his story. Having previously said that Hunter Biden never received any money from Chinese government-affiliated entities (which he clearly did, as set forth in the Statement of Facts attached to his plea agreement) and that he knew nothing about Hunter Biden’s business dealings and never discussed business with him, President Biden is now saying that he was never in business with his son. Perhaps the president thought that we would never notice this sleight of hand, but this is a significant shift.

Moreover, doubt has been cast on even this new, scrubbed version of the president’s narrative by, among other things, material found on Hunter Biden’s laptop; past statements by Hunter Biden’s business partners Tony Bobulinski and Gal Luft; and new testimony from Devon Archer, another of Hunter Biden’s former business partners; all of which suggests that President Biden, aka the “big guy,” was deeply involved in Hunter Biden’s business ventures and handsomely remunerated for his efforts.

As they used to say on “The X-Files,” “The truth is out there!” Let’s hope it is uncovered.

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This article originally appeared in the Daily Signal and is reprinted with kind permission from the Heritage Foundation.