Despite the Hunter Biden plea deal falling apart in federal court last week, the case will almost certainly not go to trial, legal experts say.
Still, the investigation could expand if the House Oversight and Accountability Committee probe into the Biden family business deals turns into a criminal referral, former federal prosecutor Robert Ray said.
U.S. District Judge Maryellen Noreika, who expressed skepticism about the original plea deal during a federal court hearing in Delaware last week, would likely accept a new deal that narrowly defined the conditions of immunity as not to include possible crimes such as violations of the Foreign Agents Registration Act or other potential crimes, said Ray, a former independent counsel.
“The scope of the immunity will not include anything relating to [the Ukrainian energy firm] Burisma or bribery or FARA. He won’t get a free pass on that,” Ray told The Daily Signal. “I think Hunter Biden and his legal team have been disabused of that notion. But a defendant wants to get rid of what you can get rid of.”
In January 2001, Ray secured a deal with outgoing President Bill Clinton in which Clinton admitted to lying under oath, paid a $25,000 fine, and surrendered his law license for five years to avoid future prosecution for crimes stemming from trying to cover up his affair with White House intern Monica Lewinsky. Before that, Ray was a federal prosecutor for the Southern District of New York.
“It’s in Hunter Biden’s best interest to get that off the table even if he agrees he might face other charges,” Ray said. “If an agreement isn’t reached, this could go to trial, and he could be charged with felonies. The best threat the government has now is to say if you don’t take the deal, we will charge you with felonies.”
President Joe Biden’s son on June 20 reached a deal to plead guilty to two misdemeanor tax charges and to lying on a gun purchase form.
But last week, the deal collapsed when lawyers for the younger Biden argued the deal offered blanket immunity for other potential crimes. Federal prosecutors said he is under continuing investigation, and the deal would not exempt prosecution. The president’s son ultimately pleaded not guilty in court Wednesday.
Hunter Biden agreed to enter a two-year pretrial diversion agreement with respect to pleading guilty for lying on the gun purchase form.
“Another front the government might cave on is the diversion agreement,” Ray said. “It’s understandable why Hunter Biden and his lawyers might want to reduce that from two years to one year. Two years could run into a potential Trump Justice Department to determine if he is meeting the conditions of the agreement. I don’t necessarily know why the government wouldn’t grant that.”
Republican members of Congress are divided on whether the situation warrants a special counsel. Ray doesn’t believe that is necessary yet.
“For now, I think it can remain with the U.S. attorney’s office,” Ray said. “Congress has a job to do as well. They have uncovered evidence and will likely make referrals. If at that point there are clear conflicts, the Justice Department should consider a special counsel. At least for now, the case can credibly remain where it is.”
A new plea deal crafted to satisfy the judge’s concern is the most likely outcome—but there could be multiple avenues, John Malcolm, director of the Meese Center for Legal and Judicial Studies at The Heritage Foundation, told The Daily Signal. (The Daily Signal is The Heritage Foundation’s news outlet.)
“The government and Hunter Biden’s lawyers could persuade the judge to go with a deal similar to the one that was stalled after a meeting of the minds on the scope of immunity agreement,” Malcolm, a former deputy assistant attorney general in the Department of Justice’s Criminal Division, told The Daily Signal. “He could still be charged with FARA and other violations later.”
Noreika, the judge, did not want to be in charge of deciding whether Hunter Biden was meeting the conditions of the diversion agreement. So a future deal could likely remove her from that, Malcolm said.
While Malcolm predicted a new plea agreement, he admitted that a range of other outcomes is also possible.
“The government might just dismiss all charges, or the prosecutors could seek a grand jury indictment,” Malcolm said. “They could just continue the investigation, to include the possible tax, gun, and FARA charges. There is a possibility that President Biden would pardon Hunter for any and all offenses, even if he says now that he won’t do that.”
The Justice Department has come under significant pressure.
Malcolm noted that the Justice Department didn’t hesitate to charge Paul Manafort or Rick Gates—allies of former President Donald Trump—with FARA violations.
“You do wonder if this Justice Department is in fact conducting an impartial and zealous investigation,” Malcolm said.
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