How a fight over immunity unraveled Hunter Biden’s plea deal

Federal prosecutors and Hunter Biden’s attorneys entered a courtroom late last month hoping a judge would approve the plea deal they’d struck, even though they had already publicly disagreed about a key element: what immunity it offered the former president’s son from potential additional criminal charges.

The deal seemed likely to go through if U.S. District Judge Maryellen Noreika didn't prod them on that question.

Hunter Biden had written a statement about his desire to close a difficult chapter in his life, and was planning to read it to news cameras outside the courthouse after entering his plea, according to people familiar with the matter, who like others interviewed spoke on the condition of anonymity to describe private discussions.

U.S. Attorney David Weiss of Delaware and his team of prosecutors, under fire for months for not making a charging decision in the case, also were eager to finalize the deal, in which Biden was supposed to plead guilty to two tax-related misdemeanors in Delaware, admit to the facts of a gun violation and probably avoid jail time.

But Noreika did ask. And as soon as she raised the issue of immunity, the agreement started to implode.

» READ MORE: Judge puts Hunter Biden plea deal on hold, refusing to ‘rubber stamp’ the agreement without more information

The public unraveling reflected tensions that have always hung over the Biden investigation - a case Republicans have used to attack President Biden's integrity and invoked when Democrats talk about the criminal investigations of former president Donald Trump, the leading contender for the GOP nomination to challenge Joe Biden in 2024.

And in the three weeks since, efforts to negotiate a new deal have also foundered, doomed by the federal government's insistence that any immunity offered be narrow while the FBI keeps investigating Hunter Biden's work for foreign entities - and by the younger Biden's equally fervent demand that any agreement he signs should put his legal troubles behind him.

Last week, Weiss asked Attorney General Merrick Garland to make him a special counsel in the case and prosecutors said in a court filing that they are willing to take the case to trial - a nightmare scenario for Democrats as President Biden campaigns for another term in the White House.

» READ MORE: Attorney general appoints a special counsel in Hunter Biden probe, deepening investigation

The alleged tax crimes are part of a broader Justice Department, FBI and IRS investigation into the younger Biden, the full scope of which has not been publicly disclosed. The probe was opened in 2018, during the administration of Donald Trump, who has speculated without evidence that Hunter Biden took bribes from foreign companies and involved his father in corrupt business dealings.

Republicans conducting their own investigations on Capitol Hill have not presented evidence linking President Biden to any wrongdoing.

Spokespeople for the Justice Department and the FBI declined to comment. A spokesperson for Biden's legal team also declined to comment.

But people familiar with the matter said that when prosecutors came to Biden's team late this spring to start talking about a possible plea, they focused only on the potential charges of failure to pay taxes and illegally possessing a gun, leaving defense lawyers with the impression that other investigatory avenues had come up dry.

Those discussions also reflected a narrowing of the scope of potential charges from when prosecutors and defense attorneys began speaking about the case years ago.

Even after Hunter Biden tentatively agreed to the plea deal, the FBI pushed federal prosecutors behind the scenes to publicly declare that an investigation into the president's son is ongoing, according to people familiar with the matter. For many months, IRS and FBI investigators have been frustrated with Weiss's handling of the case, believing it should have been investigated and prosecuted more aggressively, people familiar with those discussions said.

That broader probe includes examining whether Biden violated the Foreign Agents Registration Act, the people said, speaking on condition of anonymity to describe a sensitive investigation. The act requires that lobbyists and others who work on behalf of foreign entities or governments register with the U.S. government.

The people familiar with the matter said at this point that probe appears unlikely to result in separate criminal charges, though the work is not finished and that view could change. FBI officials are aggressively pursuing the investigation, these people said.

The public pressure on them to do so only increased following the announcement of a plea deal on June 20; two days later, Republican lawmakers released IRS whistleblower testimony accusing the Justice Department of limiting the breadth of the tax probe.

Another five weeks would pass before Biden appeared in court July 26, giving opponents of the deal plenty of time to ratchet up public pressure. Republicans have repeatedly accused Hunter Biden of broad wrongdoing in his overseas business deals and said the Justice Department under President Biden was not aggressively pursuing the case against his son.

"Hunter Biden's sweetheart plea deal and the Justice Department's efforts to obstruct justice only embolden our efforts to follow the facts and deliver answers, transparency, and accountability to the American people," Rep. James Comer (R-Ky.), chairman of the House Oversight Committee, said in a news release on June 22 that accompanied the whistleblower testimony.

Prosecutors have publicly said that any plea deal would only give Hunter Biden immunity from additional tax charges between the years of 2014-2019 - the years that investigators examined - and nothing else.

Biden's camp, on the other hand, has been adamant that the terms meant he no longer would have to worry about criminal investigators and would also be protected if Trump returned to the White House and tried to order his Justice Department to again pursue charges against the son of his Democratic rival.

That was the backdrop when both sides stood before Noreika last month in her Wilmington, Del., courthouse. Once the deal was approved, the judge asked, could Biden still, in theory, be charged with violating the Foreign Agents Registration Act?

"Yes," said federal prosecutor Leo Wise.

"I don't agree with what the government said," Biden's attorney Christopher Clark said.

"Then there is no deal," Wise said.

Noreika had another concern as well.

The structure of the plea deal, she said, was unusual.

Biden had agreed to sign a proposed diversion agreement in which he would admit to having illegally possessed a gun, but would not plead guilty to that crime - which was a felony, and therefore more serious than the two misdemeanor charges of failing to pay taxes. Such diversion agreements are typically applied to nonviolent offenders with substance abuse problems and do not require a judge's approval.

In the uncommon construction of Biden's deal, however, the immunity clause was part of the diversion agreement, and the plea deal and diversion agreement referenced one another.

Noreika noted that the terms of the diversion deal were by definition outside the terms of the guilty plea deal. And judges are not supposed to approve plea deals in which promises or threats have been made outside the terms of the guilty plea paperwork.

She told the two sides to try to rework the agreement and get back to her.

But the lawyers could not put the deal back together.

Biden's lawyers proposed changes to the language of both the guilty plea and the diversion deal, which prosecutors formally rejected five days later, according to court papers. Prosecutors made a counteroffer, which Biden's team shot down.

Prosecutors wanted to take the immunity provision out of the diversion agreement, according to people familiar with the deliberations. Biden's team called that change a dealbreaker.

Last week, federal prosecutors said in court filings that the plea negotiations could not be salvaged and "a trial is therefore in order." They asked the judge to drop the two tax charges they filed against Biden in Delaware, saying charges should instead be refiled in California or Washington, D.C., where the president's son has lived.

At the same time, Garland announced that he would appoint Weiss, a Trump administration holdover, as a special counsel in the case - giving him statutory independence from the Justice Department and direct authority to charge Biden outside of Delaware.

Garland, a Biden appointee, had long resisted calls by Republicans to appoint a special counsel to investigate Hunter Biden, saying Weiss had already been told he could run the investigation with complete independence. But now, Garland told reporters, things had changed.

"Mr. Weiss advised me that in his judgment, his investigation has reached a stage at which he should continue his work as a special counsel," Garland said in a statement. Given the "extraordinary circumstances" of the case, the attorney general said, "I have concluded it is in the public interest."

In court filings this week, the disagreements have continued to pile up.

Biden's attorneys argued Monday that even though they are at a stalemate with the plea deal, the diversion agreement should stand.

Less than a day later, Clark - Biden's attorney who submitted that filing - said he was leaving the case because he could be called as a witness if the two sides end up arguing to a judge about how and why the deal fell apart.

Prosecutors rejected the Biden team's claims in a Tuesday filing, saying the diversion deal was never finalized and that the defense team has no one but themselves to blame for scuttling the plea deal.

"This was a problem entirely of their own making and not one that resulted from the drafting of the proposed plea or diversion agreements," Wise wrote.

The failed plea deal and special counsel appointment has only fueled partisan finger-pointing and questions about how the Justice Department handles politically sensitive cases.

"If Weiss negotiated the sweetheart deal that couldn't get approved, how can he be trusted as a Special Counsel?" House Speaker Kevin McCarthy (R-Calif.) wrote on social media last week. "House Republicans will continue to pursue the facts for the American people."

And the possibility that charges would be filed in either California or Washington has brought new attention to claims by Gary Shapley, the IRS whistleblower who in testimony told a congressional committee that investigators had enough evidence to bring more serious tax charges against Hunter Biden in those jurisdictions.

According to Shapley, Weiss told agents last year that he did not have the authority to bring charges outside Delaware. Garland and Weiss have both pushed back against the whistleblower's criticism, saying Weiss had authority to bring charges whenever and wherever he wanted to.

In order to do so, however, Weiss would have had to seek and be granted special attorney status from Garland - a role that is slightly different from a special counsel. Among other things, a special counsel operates with more independence from the rest of the Justice Department, but must submit a report to the attorney general at the conclusion of an investigation.

In the months and years leading up to the plea negotiations, Weiss never made a request to be appointed a special attorney or special counsel, according to two people familiar with the matter, who spoke on the condition of anonymity because they were not authorized to discuss internal Justice Department communications.

But he did ask to be made a special counsel once the deal collapsed, signaling that the Hunter Biden case may carry on for many months to come.