By Federal prosecutors on Tuesday said a pretrial diversion deal that they had offered to Hunter Biden on a felony gun charge did not take effect, despite what lawyers for the son of President Joe Biden are arguing.
Special Counsel David Weiss also accused Hunter’s defense attorneys of “inaccurately” characterizing the collapse of renewed plea negotiations, which fell apart last week after a judge raised questions about the deals Weiss was offering.
Earlier Tuesday, one of Hunter’s lawyers asked the judge in the case for permission to withdraw from the case, citing the likelihood he will be a witness to the failed plea negotiations.
Weiss originally said he would not recommend jail time for Hunter if he pleaded guilty on July 26 to two misdemeanor counts of failure to pay federal income taxes.
And the prosecutor also was willing to allow Hunter to avoid conviction and have the felony firearm charge dropped if he abided by the conditions of the agreement over two years.
“The Government did not ‘renege’ on the ‘previously agreed-upon Plea Agreement,’ Weiss said in his new filing in U.S. District Court in Delaware.
“The Defendant chose to plead not guilty at the hearing on July 26, 2023, and U.S. Probation declined to approve the proposed diversion agreement at that hearing,” wrote Weiss, who is also the U.S. Attorney for Delaware.
“Thus, neither proposed agreement entered into effect.”
Weiss wrote that after the plea hearing, both sides proposed agreements to each other to address the judge’s concerns.
“Without going into the substance of the negotiations between the parties, in the afternoon after the hearing on July 26, defense counsel asked to meet with the Government,” Weiss wrote.
He said that after Hunter’s lawyers proposed changes to the deal, prosecutors “did not believe they were in the best interests of the United States, and offered counterproposals.”
Hunter’s lawyers in turn rejected that offer on Aug. 7, the prosecutor wrote.
“Seeing that the parties were at an impasse, the Government informed the Defendant, in writing on August 9, 2023, that it was withdrawing the most recent version of its proposed plea and diversion agreements,” Weiss said in his filing.
Tuesday’s separate withdrawal bid by Hunter’s attorney Chris Clark came a day after the lawyer Abbe Lowell entered an appearance to represent Hunter in the case.
And it followed a court filing by Hunter’s legal team alleging that federal prosecutors reneged on the plea deal they had offered.
Clark’s withdrawal request was based on the chance — now confirmed by Weiss’s filing — that prosecutors will now oppose the diversion agreement and any other offers related to the tax crimes.
In a filing over the weekend, Hunter’s lawyers wrote that the diversion agreement is “valid and binding.” The judge in the case then asked Weiss to respond to that filing.
In his withdrawal request, Clark said his stepping down from the case “is necessitated by recent developments in the matter.”
“Pursuant to Delaware Rule of Professional Conduct 3.7(a), ‘a lawyer shall not act as advocate at a trial in
which the lawyer is likely to be a necessary witness unless … disqualification of the lawyer would
work substantial hardship on the client,'” Clark wrote.
“It appears that the negotiation and drafting of the plea agreement and diversion agreement will be contested, and Mr. Clark is a percipient witness to those issues,” the filing said. “Under the ‘witness-advocate’ rule, it is inadvisable for Mr. Clark to continue as counsel in this case.”
Clark noted that Hunter will continue to be represented by other lawyers in the case, so his withdrawal “will no cause a substantial hardship to Mr. Biden.”
Hunter appeared in court on July 26 prepared to plead guilty to two counts of failure to pay federal income taxes on annual income of more than $1.5 million in 2017 and 2018.
He also expected to sign a diversion agreement, which related to his charge of possessing a gun while being a user and addict of illegal drugs, approved by Judge Maryellen Noreika.
But that plan fell apart when Noreika questioned prosecutors about the terms of the entire deal, and the condition that she, and not the Department of Justice, be the one to decide whether Hunter was complying with the conditions of the gun charge diversion over a two-year period.
The judge then gave prosecutors and Hunter’s lawyers time to resolve her questions before returning to court. Hunter left court after pleading not guilty to the tax charges.
But after those renewed talks failed, and Weiss last week requested to be appointed special counsel in the case by Attorney General Merrick Garland, a sign he could move to charge Hunter with other crimes.
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Garland granted Weiss’s request. The prosecutor in a court filing then said Hunter would likely face trial in California or Washington, D.C., and that he might be hit with other counts.
Clark in response, said at the time, “We are confident when all of these maneuverings are at an end my client will have resolution and will be moving on with his life successfully.”
Weiss’ moves last week have been eyed skeptically by Republicans.
Republicans in Congress, some of whom initially sought Weiss’s appointment last year as special counsel in the case, now claim he gave Hunter a sweetheart plea deal and therefore cannot be trusted.
Those criticisms were made despite the fact that Weiss was appointed U.S. Attorney by Republican former President Donald Trump.
Republicans also fear that Weiss’s new special counsel status will effectively halt longstanding efforts by several GOP-led House committees to secure documents and testimony related to Hunter Biden’s case.
