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The drama over Hunter Biden’s disappearing plea deal, explained

A plea deal seemed set to end Hunter’s legal woes. Then things fell apart.

Hunter Biden, son of US President Joe Biden, and Valerie Biden, sister of US President Joe Biden, board Air Force One at Joint Base Andrews, Maryland, US, on Tuesday, April 11, 2023.
Hunter Biden, son of President Joe Biden, and Valerie Biden, sister of President Biden, board Air Force One on April 11, 2023.
Al Drago/Bloomberg via Getty Images
Andrew Prokop is a senior politics correspondent at Vox, covering the White House, elections, and political scandals and investigations. He’s worked at Vox since the site’s launch in 2014, and before that, he worked as a research assistant at the New Yorker’s Washington, DC, bureau.

Just a few short weeks ago, it appeared as though the years-long saga of Hunter Biden’s legal problems might be drawing to a close, courtesy of a plea deal with the Justice Department in which he’d plead guilty to two tax charges and admit to lying about his drug use on a federal gun form. That deal was derailed during a late July court hearing, but talks to stitch it back together continued.

Now those talks appear to have failed. Prosecutors said in court filings Friday that talks were “at an impasse,” that they intended to refile tax charges against the president’s son soon, and that they expected their case to go to trial.

That same day, Attorney General Merrick Garland named the US attorney leading the case, David Weiss, as a special counsel. The designation will let Weiss file charges against Hunter outside of Delaware (the state where Weiss was US attorney). Garland had already claimed Weiss would be permitted to do this, but the designation officially gives him that authority.

It’s a remarkable turnaround in a short time, and just what happened to derail the agreement isn’t yet fully understood.

The key sticking point in last month’s court hearing and reportedly since then in private is how much immunity the Justice Department was promising Hunter. In the hearing, Judge Maryellen Noreika surfaced this issue by asking whether the plea deal would rule out charges against Hunter for acting as an unregistered foreign agent. When prosecutors said it would not, Hunter’s attorney Chris Clark then said the agreement was “null and void.”

The two sides appeared to have patched things up by the end of the hearing, but talks to finalize a new agreement collapsed afterward over the same basic issue. Hunter’s team insists they understood the plea deal to mean the end of the investigation into Hunter for the years in question. They are insisting the Justice Department is reneging on what it had promised.

Yet from the day the initial deal was announced, Weiss had repeatedly mentioned that the investigation was “ongoing,” even though it was widely reported as winding down.

The years-long investigation has focused on Hunter Biden’s well-compensated work for foreign interests over the past decade or so, particularly for businesses in Ukraine and China. Ethical questions have long swirled about this work, which he began as his father was set to become vice president and continued amid tumultuous years as he struggled with addiction. This investigation (headed by Weiss, a Trump appointee) began in earnest in 2018 and explored whether Hunter had broken foreign lobbying or money laundering laws.

So far, the charges that have resulted from this lengthy investigation have fallen far short of the vast Biden crime conspiracy theories that have consumed the GOP. Republicans claim that must be because the fix was in. Two IRS officials, Gary Shapley and Joseph Ziegler, came forward to Congress as whistleblowers in recent months, arguing that prosecutors weren’t aggressive enough in making the case. And now, all of a sudden, prosecutors seem to have gotten more aggressive.

Why was Hunter Biden investigated?

It’s long seemed that Hunter’s relationship with the law from the mid-to-late 2010s — a period when he both raked in massive sums of money from foreign interests and struggled with serious drug addiction — was rather strained.

For nearly his entire adult life, Hunter was in the business of being Joe Biden’s son, monetizing his perceived access and connections to a powerful senator and then the vice president of the United States as a lobbyist and consultant. These clients included a Ukrainian gas company and a Chinese energy company, and Hunter raked in millions from them.

There is nothing inherently illegal about accepting money from foreign interests if you are a private citizen and your dad is a famous, powerful person. But you do have to pay taxes on it.

According to testimony by Ziegler, one of the IRS whistleblowers, he pushed to open an investigation in 2018 after Hunter’s name came up in another case, about a social media company that served as a porn and prostitution platform. Per the agent’s testimony, the reports “identified Hunter Biden as paying prostitutes related to a potential prostitution ring,” and contained evidence he was “living lavishly through his corporate bank account.” The case was soon merged with another probe from the office of the US attorney for Delaware.

At that time, Hunter’s personal life was tumultuous. He progressed from alcohol to hard drugs, including crack cocaine. His older brother, Beau, died of brain cancer in 2015. Hunter then split from his wife, who would later accuse him in a court filing of “spending extravagantly” on “drugs, alcohol, prostitutes, strip clubs, and gifts for women with whom he has sexual relations.” He began dating Beau’s widow, until that relationship collapsed too. He fathered a child with a different woman who later sued him for paternity (their legal fight over child support is still unfolding in Arkansas court). He repeatedly went in and out of rehab. He was a mess.

Much of this personal drama was publicly known (though the federal investigation wasn’t, yet). And as Joe Biden prepared to launch a presidential bid in 2019, Hunter became a particular fixation of Trump and his allies, who hoped to damage the elder Biden politically. Their great hope was to link Hunter’s foreign work to action taken while Biden was vice president, but they never succeeded in doing so.

Their efforts became a saga that ultimately resulted in Trump’s first impeachment — remember, it was Trump’s attempt to coerce Ukraine to dig up dirt on Hunter that started it all — and, eventually, the “October surprise” release of Hunter Biden’s private emails, texts, and other documents said to be from a laptop abandoned at a Delaware computer repair store.

The federal investigation into Hunter preceded all this partisan drama. It’s being led out of the Delaware US attorney’s office by Weiss, a Trump appointee left in place by President Biden (due to a desire not to interfere with this specific investigation). Weiss has worked in various capacities in that office since 2007 and isn’t known to be a partisan or a Trump crony. And Attorney General Merrick Garland testified in a Senate hearing that Weiss is “not restricted in his investigation in any way.”

However, Shapley and Ziegler raised questions about whether Weiss was truly independent. They were told, they testified, that Weiss had to ask permission to bring charges outside of Delaware — and that US attorneys in both Washington, DC, and southern California declined his requests. Weiss disputed this, writing that he had “never been denied the authority to bring charges in any jurisdiction.”

What are the charges?

Though the investigation did delve into Hunter’s foreign work, no charges have yet materialized on that front. Instead, prosecutors zeroed in on two main issues: Hunter’s taxes, and that gun form he filled out.

Regarding taxes, it does not seem that Hunter properly paid taxes on all those millions he made from foreign sources — he belatedly coughed up over $1 million to pay off his tax liability in 2021, per the Times.

As prosecutors weighed an indictment, they considered charging Hunter with two misdemeanor counts for failure to file taxes and “a single felony count of tax evasion related to a business expense for one year of taxes,” per NBC News.

But when Hunter’s team initially struck their deal with prosecutors, they agreed to plead guilty to the two misdemeanor tax charges focusing on 2017 and 2018. The felony charge would not have been brought.

Then there’s the gun thing. In 2018, during a period in which Hunter has admitted to having a serious drug addiction (he wrote a book about it), he bought a gun. In connection with that purchase, he filled out a federal form and attested that he was not a drug user. The gun became an issue when his sister-in-law became concerned he might harm himself and threw it in an outdoor trash can, where it was discovered and reported to police. Texts from his laptop make clear he was not particularly stable at the time, but no one was hurt.

This seems to be an open-and-shut crime — he said on the form he wasn’t a drug user, but he was. Still, prosecutors have discretion about whether they think such a case would be worth charging. And it was noteworthy that after such a sprawling, years-long investigation, this was one of the few things agents believe they can prove. Many long probes into purported corruption end this way, with a false statement on a federal form — with something clear and written-down, rather than something murky and hard to establish.

According to the Post, the initial deal was that Hunter would admit the facts of the gun false statement but will not technically plead guilty to it. Instead, he has agreed to enter a pretrial diversion agreement (diversion is a process that lets some defendants avoid the court system if they agree to abide by certain conditions, and is often used for nonviolent offenses stemming from addiction).

The upshot of the felony tax count not being charged and the gun count being handled as diversion would have meant that Hunter was likely to avoid jail time. Prosecutors were set to recommend two years of probation and diversion, according to the Post’s sources — until the agreement blew up at Judge Noreika’s hearing.

Has the investigation been politicized?

The Hunter Biden investigation has been both lengthy and leaky. Grumblings of behind-the-scenes discontent have frequently gotten out to the press and to members of Congress.

But these complaints have spilled out into public view with recent testimony, both behind closed doors and in public, from the two IRS officials, Gary Shapley and Joseph Ziegler.

The testimony reveals that the investigation collapsed into bitter acrimony and finger-pointing, with these IRS officials repeatedly pressing for more aggressive action, while the DOJ prosecutors they worked with during both the Trump and Biden administrations counseled caution.

Shapley and Ziegler, in their telling, repeatedly pushed for speedier and more aggressive action in the investigation, while DOJ prosecutors, both in Delaware and in the department’s Tax Division, were constantly telling them no or slowing things down. One sticking point was the DOJ’s desire to avoid taking actions that could leak in the sensitive periods before elections, a concern the whistleblowers seemed not to share.

Shapley has argued he was on the trail of a bigger scandal, one involving Joe Biden himself, until he was waved off it. The investigation “could have been much more,” Shapley testified. “It could have been much bigger. There could have been income streams, more income streams, to other people associated with it, to include the president.”

These tensions came to a head in October 2022, when the Washington Post published an article describing how unnamed “agents” concluded long ago there was sufficient evidence to charge Hunter, implying the holdup was prosecutors’ fault. After this, Weiss held a meeting with Shapley and other officials. The leak was at the top of the agenda, but Shapley then expressed his grievances about how the investigation have been handled. (Shapley and Ziegler have denied leaking the story.)

Soon after, the IRS team was removed from the case. The Justice Department has not publicly explained why, and Shapley argues this was pure political retaliation. But there are signs something else may have been going on. “We were told that the prosecutors had found some emails that concerned them if they could actually charge the case,” Ziegler testified.

We don’t yet know the full story here, but it is possible that the pre-midterms leak destroyed the DOJ’s trust in the IRS team, and in which, after investigating, they found concerning emails of some unspecified nature.

The whistleblower allegation that has gotten the most play, though, pertains to Weiss’s independence. Shapley says Weiss told him that his request to be named special counsel was denied, and that US attorneys in other districts denied his requests for charges against Hunter in those districts.

This, Shapley argues, puts the lie to Garland’s claims that the investigation was independent. Weiss has disputed Shapley’s claims, but hasn’t yet answered them in detail — saying he can’t do so yet because the Hunter investigation is ongoing.

What comes next?

Despite all this drama, the US Attorney’s office and Hunter’s team announced they’d struck a plea deal in June. But when they put the deal before Judge Noreika in late July, she put the brakes on it.

The first curveball came when Noreika surfaced a disagreement between the prosecution and defense over whether the plea deal would rule out charges against Hunter for acting as an unregistered foreign agent. When prosecutors said it would not, Hunter’s attorney Chris Clark then said the agreement was “null and void,” per the New York Times.

After a court recess, the two sides worked out a deal, in which prosecutors would rule out further tax, gun, and drug charges against Hunter for the period of 2014 through 2019, per CNN. The deal was back on!

But, Judge Noreika said, not so fast. She said she had “concerns about” the agreement, said it was “unusual,” and that she felt like she was being asked to “rubber stamp” it. So, she said, she would not accept it just yet. She wanted more clarity on what immunity would be offered to Hunter. The hearing adjourned without a final decision on the plea as she awaited more information.

Yet the talks between Weiss’s team and Hunter’s attorneys fell apart last week over this immunity issue. The key question was whether, in striking the deal, the government was effectively agreeing not to prosecute Hunter on a variety of matters related to his business that they had investigated. According to a New York Times account, Weiss now insisted he would agree to no such thing, and Hunter’s team concluded that this “was a deal breaker.”

One consequence of the collapsed deal was that the government could no longer charge Hunter in Delaware. Hunter lived in Washington, DC, and in California during the years in question, meaning the proper venue for the charges lies there. He had agreed to waive venue as part of the deal, allowing his expected guilty plea to move forward in Delaware. But now that the deal is gone, he will no longer agree to do this. So Weiss has said he now plans to refile the tax charges in those other districts. This may be one rationale for his requesting special counsel status from Garland.

Republicans had long requested Weiss be named special counsel, but now, many are professing outrage over this, saying they lost confidence in Weiss’s impartiality due to the whistleblower accusations. And yet the upshot is that Weiss is now deciding to charge Hunter with crimes and head to trial, rather than stick with the plea deal these Republicans had complained about. Now — unless another deal can be struck — Hunter is headed for his day in court.

Update, August 14, 11:15 am ET: This article was originally published on May 12 and has been updated multiple times, most recently to include the news of Weiss being named special counsel and plea talks collapsing.