Was Hunter Biden’s Plea Deal A Contract?

Special Counsel nee United States Attorney David Weiss has advised Judge Maryellen Noreika of the intent to indict Biden for falsely representing on his gun permit application that he was not, at the time, using drugs. He was, of course, as he has readily admitted, but the government had previously deemed his violation sufficiently trivial, and his conduct otherwise unconcerning, as to warrant a two-year diversion program rather than prosecution. And in the meantime, the charge appears unconstitutional under Bruen.

Biden’s lawyer, Abbe Lowell, has taken to the media to argue his client’s cause, both that there was a deal struck which, although not having reached fruition, was signed and sealed as between Biden and the government, and that the impetus for this shift in the government’s action is political, the hue and cry from those calling it a sweetheart deal for a president’s son rather than some damn fine defense lawyering.

Lowell has a good point. A few, actually. First, once the plea agreement was signed by the government and defendant, as it was when presented to the court. A plea agreement is a contract between the government and the defendant, even though it’s a contract subject to a condition subsequent, the judge’s acceptance. While the judge can reject it, neither the government nor the defendant can because they entered into a contract.

Second, the gun crime, beyond almost certainly being unconstitutional under Bruen, is one that almost never gets prosecuted except as an adjunct to other, more serious offenses. Usually, it has to do with using the gun in the course of committing a crime, where the false statement under oath in the form is tossed in to juice up the pressure on the defendant to cut a deal.

If you want to argue that Biden should be treated “like anyone else,” itself a false concept given that everyone else has their own factual peculiarities that are reflected in their case, indicting him is just the opposite of your argument. If nobody is prosecuted for this as a stand alone crime, why should Hunter Biden be treated differently?

The gun charge stems from Hunter Biden’s response of “no” on a federal form he filled out as part of the purchase of a handgun when asked whether he was an “unlawful user” of drugs. At the time, Mr. Biden, who had been addicted to crack cocaine, was struggling to remain sober.

Such federal prosecutions are relatively rare, and seldom pursued as stand-alone charges. Officials at the Bureau of Alcohol, Tobacco, Firearms and Explosives responsible for reviewing Mr. Biden’s file were skeptical of bringing charges against him, especially considering that he had sought treatment and had no prior criminal history, according to another person with knowledge of the situation. (The widow of his brother, Beau, later found the gun and threw it in a dumpster.)

And finally, had these been the underlying facts in anyone else’s case, there would be no pressure to take action against Biden. This is petty, and would be petty regardless of whose last name Hunter had. De minimis non curat lex. Diversion was likely what any similarly situated defendant with a decent lawyer would get, making it just as fair an outcome for Biden.

But one thing Abbe Lowell has glossed over is why the plea deal fell apart, and that’s something the needs to be confronted. The contract consisted of two writings, the plea agreement and the diversion agreement, but the reason it fell apart wasn’t because the government renegged on the deal, but because the defense understood the deal to cover any and all potential offenses from birth to the date of the plea. When pressed by the judge to acknowledge that was the government’s understanding of the plea agreement, the government said no, and that its investigation into Biden was ongoing.

In other words, a material term of the agreement was not agreed upon, such that there was no meeting of the minds and no contract.

For Biden’s defense lawyers to agree to a plea that left him exposed to additional charges for past offenses, much of which was set forth in writing in the exhibits to the contracts, would have been insane and incompetent. The point of a plea deal is to be done with the past. Take the hit, pay whatever the price is, and be done. Of course they understood the deal to cover everything, and for the government to suggest otherwise seems disingenuous.

But that wasn’t likely the problem. It’s not that the defense and government didn’t have a complete understanding, a contract, but that the government didn’t want to say it out loud. When the judge went to asked the question, it put the government in an untenable position. Were they willing to admit, in front of the court and the media, that they just gave Hunter Biden a pass on anything and everything else he might have done during his sordid days? The wink and nod was one thing, but there were reporters in the room and the public was going to learn of its answer. And some cohort of the public was not going to like it one little bit.

If the government’s agreement with Lowell was that the plea deal and diversion were to cover everything, as was almost certainly the case or there would be no point to a plea at all, provided the government wasn’t made to look like crap for having given Biden a free pass, then there was, in fact, a contract, all material terms having been agreed upon, and the only stumbling block was the government didn’t want the public to know what it agreed to. While many will fault David Weiss for reaching this agreement at all, Abbe Lowell isn’t wrong that the deal was cut and the government is now bound, for better or worse, to honor its contract. Maybe it was a bad deal for the government and the public, but if it was a deal, the government should honor it.