Typically, if the government is offering a defendant to either drop charges or decline to bring new charges in return for the defendant’s guilty plea, the plea is structured under Federal Rule of Criminal Procedure 11(c)(1)(A). Pleas under this subsection are subject to judicial approval. So if a judge believes the government’s decision to decline prosecution or dismiss charges in return for a plea to other charges is unjust, the judge can reject the plea agreement.
The deal reached between the DOJ and Hunter seems to have been that, in return for his pleading guilty to the two tax misdemeanor charges that were the subject of his plea, the government would agree not to prosecute Hunter for unlawful possession of a firearm, Foreign Agent Registration Act (FARA) violations, and other crimes related to his international business schemes in China and Ukraine with Bohai and Burisma, among others. In any normal case, this would have been structured as a Rule 11(c)(1)(A) plea, which would have made it subject to judicial approval.
In Hunter’s case, though, the parties were apparently worried that Judge Norieka might reject such a broad grant of immunity from prosecution in return for such minor guilty pleas. As a result, Hunter’s plea was structured under a different provision, Rule 11(c)(1)(B), which is usually just a plea agreement in return for a nonbinding sentencing recommendation, and which does not provide any ability of a court to intervene or reject the plea.
To insulate Hunter’s plea from judicial oversight — and the possibility of judicial rejection — Hunter’s lawyers and the Department of Justice included no mention of the agreement not to prosecute Hunter for further crimes in the plea agreement. Instead, they buried it in a separate pretrial diversion agreement, which they argued the judge was not a party to and therefore lacked the power to reject.
Publicly, this pretrial diversion agreement was described as applying just to the unlawful possession of a firearm charge. This was a wild mischaracterization of the agreement. Included in the agreement was a provision that bound the United States to not prosecute Biden “for any federal crimes encompassed by . . . the Statement of Facts” attached to the Plea Agreement.
The referred-to Statement of Facts includes: Hunter’s role with and compensation from Burisma; Hunter’s role with and compensation from Chinese private equity firm Bohai, Harvest, and Rosemont; Hunter’s holding company Owasco; Hunter’s consulting firm Rosemont Seneca; and many other aspects of Hunter’s controversial web of business relationships.
