ON ICE — It was perhaps the most perplexing event of a head-spinning legal week in Washington: Hunter Biden’s controversial plea deal, which hit an unexpected snag in a contentious and lengthy hearing Wednesday in federal court in Delaware.
Those of us who were not present in court struggled to make sense of what was happening as news trickled out that the presiding judge, U.S. District Judge Maryellen Noreika, was asking pointed questions about the structure and scope of the deal that the parties seemed ill-equipped to answer in a satisfying way. A lawyer for Biden at one point declared the agreement “null and void.”
So, what just happened? And what’s next for the president’s son?
There were two agreements between the U.S. Attorney’s Office in Delaware and Hunter Biden. The first was an actual Plea Agreement, pursuant to which Biden was supposed to plead guilty to two misdemeanor tax charges. The second was an unusual “Diversion Agreement” between prosecutors and Biden, pursuant to which Biden is supposed to enter a pretrial diversion program for drug users in order to resolve a potential felony charge — with no guilty plea required — that he had knowingly possessed a firearm while being an unlawful user of a controlled substance.
The judge’s principal concerns appeared to be twofold. First, she questioned the scope of a provision under which the government agreed not to prosecute Biden “for any federal crimes” encompassed by the statements of facts attached to the documents, which principally concerned Biden’s overseas consulting work.
Provisions like this are standard fare in plea agreements because, among other reasons, defendants need some clarity about the prospect of additional charges — or, usually, lack thereof — before resolving a criminal investigation.
Noreika asked in particular whether Biden could still be charged under the Foreign Agents Registration Act. It was there that things went very awry — with a prosecutor saying that it was still possible under the terms of the deal, and one of Biden’s lawyers strenuously objecting, apparently on the theory that the deal was designed to resolve any and all potential charges related to the consulting work that gave rise to the tax charges.
Second, the judge took issue with the fact that the immunity provision was not in the Plea Agreement. Instead the provision was in the Diversion Agreement, which, as structured by prosecutors and Biden’s lawyers, did not appear to require her sign-off.
So, what’s going on?
This was not the first time that a plea hearing has gone awry in federal court. As I can attest from personal experience, defendants sometimes are not ready to plead guilty despite what their lawyers believe, or they may have outstanding questions that need to be resolved privately between them and their lawyers. Usually, this all gets worked out behind closed doors, and the plea hearing goes through as planned on another day.
It would be too simple to suggest that the Biden plea hearing neatly fits this more common fact pattern. The structure of the deal is legitimately unusual (whatever you might make of that fact), and this was a heated dispute among lawyers and the judge concerning key legal questions that were frankly not that hard to foresee.
There is little question that prosecutors and lawyers for Biden are now working to close any gap in their understanding of the deal and perhaps to revise the relevant documents in order to address the judge’s concerns.
In this case, that could conceivably be done a variety of ways, including by agreeing to modify the terms of the immunity provision (at a minimum, to make it more specific) and by moving it from the Diversion Agreement into the Plea Agreement for the judge’s approval. It is virtually always to everyone’s benefit — prosecutors, defense lawyers and defendant alike — to figure out a way to get a plea deal back on track.
Noreika gave the lawyers for both sides 30 days to submit briefs in support of the deal. Under normal circumstances, it would be safe to assume that this dispute will get worked out among the lawyers, and that the plea deal will eventually go through in substantially the same form. But as Wednesday’s hearing showed us yet again, legal proceedings in the highest of high-profile cases sometimes take very strange and unexpected turns. These are not normal circumstances.
Welcome to POLITICO Nightly. Reach out with news, tips and ideas at [email protected]. Or contact tonight’s author at [email protected].
— Virginia Democratic congresswoman tells Democrats she will run for governor: Rep. Abigail Spanberger, a centrist Democrat from Virginia who sits in a must-win seat for her party in 2024, has told multiple people she will run for governor in 2025. Spanberger, a powerhouse fundraiser who recently earned a spot at House Democrats’ leadership table, has been laying the groundwork for a statewide run for months — even years. But she has begun to make her intentions clearer more recently.
— Biden signs military justice reform for sexual assault cases: President Joe Biden signed an executive order today to implement military justice reforms aimed at strengthening how the military handles sexual assault cases. The executive order gives decision-making powers to independent military prosecutors in serious cases, including sexual assault, instead of the victims’ commanders, the White House said in a statement. In the past, victims have often been at the mercy of their commanders to decide whether to take their assault claims seriously.
— Biden pushes SUVs to be more fuel efficient: The Transportation Department today floated a fuel economy rule that would require automakers to more aggressively increase the efficiency of SUVs and pickup trucks compared to passenger vehicles through 2032. Sedans have already improved at a rapid clip, but SUVs and pickup trucks — which have become increasingly popular with American drivers — have “more room to improve,” the proposal said. The fuel economy proposal aligns with EPA’s April tailpipe emissions proposal, Reg. 2060-AV49, that by 2032 would effectively require 67 percent of new vehicles to be zero-emissions. That’s an order of magnitude more than current electric vehicle sales levels, though many automakers plan to significantly expand their electric vehicle offerings.
THE DOUBLE HATER VOTE — Back in 2016, neither Trump nor Clinton were widely liked. But Trump got some important help among a key group that amounted to about a fifth of voters: those who didn’t like either of them. Trump’s advantage among these “double haters” helped him win the presidency. This cycle a key role will likely be played by a similar group, also amounting to about a fifth of voters: those who like neither Trump nor Biden.
These “double haters” at this point seem to lean toward Biden, writes Ruy Teixeira in The Liberal Patriot substack. But closer scrutiny of this group, afforded by a 6,000 person survey from the Survey Center on American Life (SCAL), suggests Democrats’ hold on this group is not at all secure. First, while the SCAL survey also finds that double haters lean toward Biden against Trump, a matchup of Biden against DeSantis finds the same group leaning toward DeSantis and even more heavily.
MYSTERY MONEY — Senator Tim Scott of South Carolina has more political money than most of his Republican presidential rivals, and he has not been shy about spending it. Where that money is ultimately going, however, is a mystery.
Scott entered the 2024 race with a war chest of $22 million, and his campaign raised $5.8 million from April through June. In that same time, he laid out about $6.6 million, a significant clip — but most of it cannot be traced to an actual vendor, reports the New York Times.
Instead, roughly $5.3 million went to two shadowy entities: newly formed limited liability companies with no online presence and no record of other federal election work, whose addresses are Staples stores in suburban strip malls. Their minimal business records show they were set up by the same person in the months before Scott entered the race.
VEEPSTAKES — When President Joe Biden scrambled to raise money for his re-election campaign last month, he tapped his running mate, Kamala Harris, to headline fundraising receptions across the country. By all accounts, the events were a success, with one LGBTQ gala in New York City bringing in $1.25 million, more money than it had during any previous year in its decades-long history.
But, privately, the fundraisers did little to calm concerns among a group of high-powered Democratic donors over Harris’ place on the ticket, POLITICO reports. Interviews with nine donors and top donor advisers revealed that some of the biggest money-men and women in the Democratic Party remain lukewarm to the vice president even as she has taken on more of the responsibility of wooing them.
FOUR-WAY RACE? — We are underestimating how turbulent next year’s campaign will be and how likely, on the current trajectory, it is to become a three- or even four-person race. If voters are faced with a nearly 82-year-old incumbent who may not be able to serve a full second term and a 78-year-old challenger who could be a felon by Election Day, millions will seek a safe harbor.
The possibility of Cornel West, tapping into the youthful discontent with the president, claiming votes from Biden’s left and a moderate, third-party candidate offering an escape hatch for voters who grudgingly supported Biden in 2020 is already panicking senior Democrats. But these officials have taken solace that, despite Biden’s weak approval ratings, no elected Democrat has emerged to challenge the president in the primary.
Yet even that may no longer be a sure thing. U.S. Rep. Dean Phillips, a Minnesota moderate, has been receiving inquiries about his willingness to challenge Biden and is going to New York City next week to meet with Democratic donors about such a race, POLITICO reports.
FAMINE RISK — Azerbaijan is accused of throttling the ethnic-Armenian enclave of Nagorno-Karabakh — setting off a crisis in relations with the European Union just as the country becomes an increasingly important fossil fuel supplier to replace imports from Russia, writes Gabriel Gavin.
Members of the European Parliament are demanding action, and late Wednesday the EU’s chief diplomat Josep Borrell said that the bloc is “deeply concerned” about the worsening humanitarian situation in the region.
Worry is growing over the risk of famine in Nagorno-Karabakh, a breakaway region inside Azerbaijan’s internationally recognized borders. Since December, the only road in or out of the mountainous territory has been under the control of Azerbaijan’s armed forces and, for the past two weeks, local officials say a checkpoint on the Lachin Corridor linking Karabakh with Armenia has been closed to civilian traffic and supply trucks. In a statement Tuesday, the International Committee of the Red Cross, which has been bringing food and medicine to the tens of thousands of Armenians in Karabakh, said that “despite persistent efforts, we are currently unable to deliver aid.”
BELARUS SANCTIONS — The European Union is set to slap on a fresh sanctions package against Belarus after EU ambassadors okayed the raft of measures at a meeting this week, write Sarah Anne Aarup, Camille Gijs and Jacopo Barigazzi.
The sanctions are set to include export restrictions on dual-use goods like drones or computers that can be used on the battlefield against Ukraine, as well as aviation parts.
The latest package also includes new listings against 38 individuals and three entities, according to four EU diplomats who were granted anonymity to speak because they weren’t authorized to comment on the record. The exact items are designed to mirror the export restrictions against Russia, in an effort to crack down on military components being illegally routed through Belarus to Russia as it wages its 17-month war against Ukraine.
CONCERT CLASH — Concerts around the world are getting prohibitively expensive. Spurred on by rises in fees and the closing of venues post-Covid, the shows that are going on now have prices rising much more quickly than inflation. You’ve likely heard about huge acts like Taylor Swift or Drake selling tickets for earth-shattering prices. But a huge part of the problem is also mid-sized acts, who a few years ago a concert-goer could see for around $20, now selling tickets for something like $50-60 including fees. For Defector, Soraya Roberts digs deep into the issue, some of its root causes and what it means when it’s harder to discover new acts or familiarize yourself with older ones live.
Did someone forward this email to you? Sign up here.
