Hunter Biden’s Plea Deal on the Rocks

Happy Thursday! Declan is back from a few days off just in time to point out the Chicago Cubs have the longest active winning streak in baseball. Don’t let them get hot right before the trade deadline!

Quick Hits: Today’s Top Stories

• Hunter Biden’s plea deal to resolve two misdemeanor tax charges and a felony gun possession charge hit a wall yesterday when Judge Maryellen Noreika expressed concern over the agreement, prompting Biden to plead not guilty to the charges. She scrutinized the deal’s scope, meaning, and even constitutionality. “You all are saying, ‘Just rubber stamp the agreement,’” Noreika said. “I’m not in a position to accept or reject it. I need to defer.” Biden will likely change his plea to guilty if the judge ultimately signs off on the deal.
• Members of the Federal Reserve’s Open Market Committee approved another 25-basis point interest rate increase Wednesday, after previously pausing the hiking campaign at the committee’s July meeting. The central bank’s target federal funds rate range is now between 5.25 and 5.5 percent—the highest level since 2001. Fed Chair Jerome Powell declined to say whether additional hikes are to come at the September meeting but noted the Fed’s staff are no longer forecasting a recession.
• Retired Maj. David Grusch, a former intelligence officer in the Air Force, told the House Oversight Committee during a hearing yesterday that the U.S. government is secretly operating a UFO retrieval and reverse engineering program. He also alleged that the government has recovered “non-human biologics” from recovered unidentified items. Republican Rep. Tim Burchett of Tennessee accused the Pentagon—which has denied the claims—of covering up details around the supposed program.
• The presidency of Niger announced on X—the platform formerly known as Twitter—that its army is ready to retaliate against members of the Presidential Guard who launched a coup against the palace yesterday. They said President Mohamed Bazoum—who remains detained by the insurrectionists along with his family—is doing well. The U.S. and its allies have called for the soldiers to abandon the attempted coup against Bazoum, the first democratically elected leader in the country since it achieved independence from France more than 50 years ago.
• President Biden nominated Gen. David Allvin Wednesday to be the next Air Force Chief of Staff—Allvin currently serves as the Air Force’s vice chief of staff. If confirmed, he would replace the current chief Gen. C.Q. Brown, whom Biden tapped earlier this year to be the next chairman of the Joint Chiefs of Staff. Both Allvin and Brown’s nominations are currently stalled by a hold placed on scores of nominations by Alabama GOP Sen. Tommy Tuberville, who is protesting the Biden administration’s policy of paying for the travel of military personnel seeking abortions..
• The White House also announced yesterday that Biden intends to tap former Maryland Gov. Martin O’Malley to serve as the Social Security Administration’s top official. O’Malley will take over from acting Commissioner Kilolo Kijakazi, who has led the agency since Biden fired a Trump-appointed commissioner who was only two years into his six-year term. O’Malley will be tasked with finding a lifeline for the program, which is expected to deplete the funds for its key programs by 2035.
• Senate Minority Leader Mitch McConnell appeared to abruptly freeze and seemed unable to speak during a press conference on Capitol Hill yesterday. McConnell, 81, later told reporters he was okay, with an aide attributing the incident to light-headedness. McConnell was hospitalized with a concussion after falling in March.
• Irish singer Sinéad O’Connor died at 56 yesterday. O’Connor was known for her 1990 cover of the Prince song “Nothing Compares 2 U,” which was the number one single of the year and earned the singer three Grammy nominations.

‘Sweetheart’ Deal Sours

If you think you know where Hunter Biden’s legal saga is headed next, think again.

We’re not insulting your intelligence—even Biden’s defense team and those prosecuting him aren’t sure how this thing will end. They thought they were, but the plea deal they’d hashed out fell apart after facing scrutiny from a judge yesterday, leading Biden to enter a (possibly temporary) not guilty plea. As much as White House officials would like to put this story behind them, it’s not going anywhere fast.

Under the deal the two sides agreed to last month, the president’s son would have pleaded guilty to misdemeanors for failing to pay more than $100,000 in income taxes in 2017 and 2018, reportedly in exchange for the prosecution recommending probation rather than prison time. Biden would have also entered a pre-trial diversion agreement to address a felony gun charge related to his efforts to purchase a gun while an active drug user. Prosecutors would drop the latter charge if Biden stayed sober and didn’t commit further offenses.

Legal scholars were mixed on whether the agreement was too lenient or too heavy-handed—although such tax charges are rarely brought, the penalty when they are is generally stiffer—but Republican lawmakers quickly derided the bargain as a “sweetheart” deal. And on Tuesday, the GOP chair of the House Ways and Means Committee, Rep. Jason Smith, sought to file an amicus curiae asking the judge to take into account IRS whistleblowers’ claims that the Justice Department’s investigation into the president’s son had been mishandled. The move kicked off a bizarre sideshow—the judge said a staffer for Biden’s legal team falsely claimed to be working for Smith during a conversation with a clerk while seeking the filing’s removal, an account the staffer denies.

Things got even more confusing once inside the courtroom, as U.S. District Judge Maryellen Noreika—nominated by former President Donald Trump in late 2017—questioned the diversion agreement’s constitutionality and discovered the two parties didn’t actually see eye to eye on a key provision of the proposed agreement: how much immunity it would grant Biden from further charges.

In response to questions from Noreika, prosecutors acknowledged that their investigation into the younger Biden remains ongoing and he could theoretically still face charges under the Foreign Agents Registration Act. This was news to the defense, which apparently believed  the agreement foreclosed most further charges. Plea agreement documents obtained by Politico last night appear to support the Biden team’s interpretation of the deal. When the prosecution disputed this understanding of the deal, Biden attorney Chris Clark declared the bargain “null and void.” 

It’s unusual for a plea deal to fall apart in the courtroom, as opposing counsel typically get on the same page before taking their agreement before a judge. Some of the details leading to yesterday’s dramatic events remain fuzzy, but skeptics of the deal have suggested the immunity it granted was indefensibly broad to begin with, leading prosecutors to quickly break down under Noreika’s questioning. “It’s very telling that the judge intervened here and said basically, ‘No, I’m not going to approve some sweeping blanket deal,’” GOP Sen. Josh Hawley of Missouri told CNN. “I mean, that tells you the court has serious concerns about other potential charges here, and also the scope of the deal, which has seemed outrageous from the beginning.”

After multiple recesses to negotiate, the prosecution and defense embraced an agreement to offer immunity only for tax, drug use, and gun possession offenses from 2014 to 2019. While broader immunity could protect Biden from future efforts by a Republican administration to revive investigations of the president’s son, this comparatively limited version would leave open avenues such as charges under the Foreign Agents Registration Act.

But the arrangement didn’t satisfy Noreika, who also had questions about the constitutionality of the diversion agreement. This deal would leave it to Noreika to determine whether Biden breaches its terms—which include abstaining from drugs and alcohol—while on probation. She questioned whether involving her in this manner would allow her to prevent the Department of Justice from bringing charges, usurping the executive branch’s role. At one point, when Noreika asked prosecutor Leo Wise if the deal’s details had precedent—he answered, “No, your honor.”

All the back and forth didn’t settle Noreika’s lingering questions—she concluded the hearing without approving or rejecting the deal, giving the parties additional time to submit more information. “I can’t predict if I will agree if that’s an appropriate sentence or not,” she said of the probation recommendations. “I’m not going to say I’m going to accept the agreement. I’m not going to say I’ll deny it.”

U.S. Attorney David Weiss of Delaware attended the hearing, drawn in as the deal his team had struck disintegrated. He has denied IRS whistleblowers’ claims that he lacked full freedom to charge Biden as he saw fit, and the Department of Justice on Monday told lawmakers it would make Weiss available to testify. “We are deeply concerned by any misrepresentations about our work—whether deliberate or arising from misunderstandings—that could unduly harm public confidence in the evenhanded administration of justice,” Assistant Attorney General Carlos Felipe Uriarte wrote, offering dates in September and October for Weiss to testify. Yesterday’s dustup could delay any such testimony—and even if Weiss testifies on schedule, the ongoing Biden investigation will limit what he can say. “Testimony at this early juncture must be appropriately limited to protect the ongoing matter,” Uriarte wrote.

As usual, the White House said little on the details of Biden’s case. “Hunter Biden is a private citizen, and this was a personal matter for him,” said press secretary Karine Jean-Pierre. “This case was handled independently, as all of you know, by the Justice Department under the leadership of a prosecutor appointed by the former president, President Trump.” 

Like it or not, though, the White House will keep facing questions about the president’s son as the sleazy stories stack up. The younger Biden recently settled a child support case for his daughter, granting her some of his paintings as part of a settlement that also blocked her from taking his last name. Speaking of his paintings, he’s reportedly sold $1.3 million worth—including at least one to a Democratic donor the president appointed to a prestigious committee.

And the president is well within the splash zone of his son’s scandals. The IRS whistleblowers have alleged Hunter Biden threatened a business associate with his father’s wrath if the man didn’t cooperate. The president’s official line on these allegations has morphed from “I have never spoken to my son about his overseas business dealings,” to the White House’s more recent claim that the president was “never in business with his son.” Asked if there’s a distinction between those two, Jean-Pierre insisted “nothing has changed.” GOP lawmakers investigating the president’s son don’t buy it, and they’ve reportedly summoned former Hunter Biden business associate Devon Archer for closed-door testimony on Monday—they’re looking for evidence the president was involved in his son’s dealings in Ukraine.

It’ll be a few weeks before Biden returns to court and we find out what deal Noreika may be prepared to accept. Many Republicans argue the chaotic process and allegations of mishandled prosecution call for a personnel change—presidential candidate and onetime U.S. Attorney Chris Christie demanded Weiss’ removal from the case and replacement with a special counsel to investigate and make new charging decisions if necessary. “We need a special counsel who has jurisdiction over any and all Biden family investigations,” he tweeted. “Appoint a special counsel who will investigate with competence and independence.”

Introducing ‘The Collision’

We know the word has been overused to the point of worthlessness in recent years, but the 2024 presidential election is truly shaping up to be an unprecedented collision of politics and the law. 

As we just detailed, the president’s son is placing strains on the Justice Department’s credibility, caught up in a tangle of criminality from which he seems increasingly unlikely to escape. On the Republican side, former President Donald Trump has already been indicted twice—and two more sets of charges are likely coming. Despite these developments—or perhaps because of them—the man who nearly tore the country apart with his 2020 election lies is the prohibitive frontrunner for the GOP nomination and has a real chance of becoming president once again.

Following the campaign over the next 16 months will require a deep understanding of the intersection of politics and the law. Enter The Collision. Every Thursday—with plenty of bonus editions as news dictates—Sarah Isgur and Michael Warren will be in your inbox, breaking down the dynamics that will decide who’s occupying the White House on January 20, 2025.

Having held senior positions both on presidential campaigns and in the Justice Department, Sarah is better-positioned than just about anyone to explain the logic—or lack of it—driving our increasingly crazy political moment. Michael, meanwhile, has been covering politics—on the campaign trail, inside Capitol Hill, and at the White House—for more than a decade. Together, they will track every development and provide reporting and analysis in plain English—translating complicated legal jargon into language that’s accessible to lawyers and non-lawyers alike.

Keep an eye on your inbox for more details about The Collision, but in the meantime, see here for the sneak preview of this collaboration we published last week and click here to make sure you’re subscribed. Finally, here’s a taste of what today’s offering will bring.

Waiting for Another Indictment

This week, we expect the next shoe to drop from special counsel Jack Smith. The letter Trump received from the Department of Justice last week said that he was the target of its investigation into violations of, among other things, Section 241 of the U.S. Criminal Code related to January 6. We will cover the indictment as soon as we get the details, but it’s worth a short discussion on Section 241 while we’re all waiting. 

First, this law comes from the post-Civil-War era as a way to charge members of the Ku Klux Klan. What it criminalizes is very broad:

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States …

In lay terms, you can get 10 years in prison if you have an agreement with anyone else to prevent someone—or even just threaten to prevent someone—from doing something they have the right to do under federal law. And there’s a lot of federal laws—not to mention that whole Bill of Rights thing.

But there’s a rub. (You knew there had to be a rub, right?) Most courts have held that a defendant has to intend to prevent someone from, let’s say, having their vote counted. Here’s a hypothetical that might be helpful: A guy cuts you off while you’re driving, and you and your buddy yank him out of his car and rough him up. You’ve committed quite a few crimes to be sure. But then it turns out that your victim was on his way to vote. Can the feds charge you with violating Section 241 too? Probably not. Unless they can prove you didn’t want this guy to vote or at least knew he was on his way to vote. 

In short, it’s not enough to show that the effects of your agreement with your friend were enough to prevent someone from exercising their constitutional right; it has to also be your intent. But there are limits to how “specific” one’s intent needs to be, too. What if you decide to rig a city council election by throwing away ballots—but that local race is on the same ballot as the federal races? Does the prosecution need to show that your goal was to rig a federal election—thereby denying that person their federal right to vote? No, it’s enough that you knew you were denying them their right to vote in a federal election even if it wasn’t the purpose of your vote-rigging scheme. 

Sarah’s View

Where does that leave us with Trump? It’s impossible to say right now. That’s why we need the indictment. I doubt this will have a lot to do with the events on January 6 itself—Trump’s speech, the violence at the Capitol, or even Trump’s calls to individual members of Congress urging them not to certify the vote. Instead, I think we’re going to see a lot of details—and I assume a lot of new evidence—related to the plan to submit competing slates of electors from states that Trump lost.

Worth Your Time

• In the span of 20 years, internet cafes burst onto the world’s scene only to be quickly made redundant by mobile internet connections. Rest of World profiles how the increasingly obsolete venues are finding creative ways to hang on in locales like Mexico City and Lagos. “D-TEE is located down a dusty street in Ikorodu Garage, a motor park-turned-business district in a Lagos suburb. Getting there means wading through crowds of people, bank agents, and street vendors blocking the path,” Sultan Quadri writes. “Some customers show up as early as 9 a.m. They’re greeted by Olorunseye Michael, 19, who started at D-TEE as an ‘apprentice’ and is now spending a year here as an employee. Despite the growing prevalence of smartphones and cheap internet access, low-income families without personal computers send their children to internet cafes like D-TEE to learn basic computer skills such as typing, browsing, filling forms online, and designing graphics. These apprentices leave with a skill that helps them make a living. ‘I decided to learn computer skills because I have an interest in it,’ Michael told Rest of World. ‘Now, people give me design jobs, I do them and they pay me.’”

Presented Without Comment

CNN: [Rudy] Giuliani Concedes He Made Defamatory Statements About Georgia Election Workers

Also Presented Without Comment

Politico: [Ron] DeSantis Suggests He Could Pick RFK Jr. To Lead the FDA or CDC

Toeing the Company Line

• In the newsletters: The Dispatch Politics team visits North Carolina (with a scoop on the state’s attorney general race), Scott looks at (🔒) the ideological divisions between two dueling factions on the right, and Jonah explains (🔒) how we’re getting empathy all wrong.
• On the podcasts: Theologian, pastor, and Christianity Today editor-in-chief Russell Moore joins Jonah on The Remnant to discuss his new book and calls for an evangelical revival, while Sarah and David tackle Hunter Biden, an immigration policy injunction, three qualified immunity cases, and country music in a particularly depressing episode of Advisory Opinions.
• On the site: Peter dives into equity-driven changes in school math curricula, Audrey B. breaks down the abortion referendum on the ballot in Ohio, and Drucker checks in with GOP donors a month out from the first Republican presidential primary debate.

Let Us Know

Which burning questions at the intersection of politics and the law you would especially like to see covered in The Collision?