Now-Special Counsel David Weiss assured a Delaware federal court on Wednesday that an indictment against Hunter Biden would be forthcoming by month’s end. Meanwhile, Hunter Biden’s attorney told the same federal court his client continues to abide by the terms of a pretrial diversion agreement, representing that agreement as a done deal and the gun case over.
The dueling status reports filed late Wednesday follow presiding Judge Maryellen Noreika’s order last week directing the parties to provide her with an update on the case following the implosion of the plea agreement.
The plea deal between Delaware U.S. Attorney Weiss and Hunter Biden collapsed soon after the July 26, 2023, hearing at which Noreika questioned the parties on the interaction between the plea agreement on the two misdemeanor tax counts and a separate pretrial diversion agreement designed to resolve a separate felony gun offense. The judge was particularly concerned that the pretrial diversion agreement included a provision granting wide-ranging immunity to Hunter Biden, far beyond the gun charge, and ordered the parties to provide supplemental briefing on a variety of issues.
After Noreika continued the hearing, according to documents filed by Weiss in federal court, the parties “reached an impasse,” leaving the government to believe the case could not be resolved short of trial. Because “venue,” meaning the proper location for a trial, for the tax cases did not lie in Delaware but rather Washington, D.C., or the central district of California, Weiss moved to dismiss those charges against Hunter Biden “without prejudice,” so he could refile them later in the proper jurisdiction. Weiss also sought and obtained special counsel status from Attorney General Merrick Garland and permission to file charges in other jurisdictions.
Conversely, because Delaware was the proper venue for the gun charge, Weiss did not dismiss that charge. It remains pending before Judge Noreika, albeit on “information” and not an indictment.
While the federal government can charge a crime by information with a defendant’s consent, Hunter Biden’s agreement to waive his constitutional right to indictment by a grand jury was contained in the pretrial diversion agreement, and the government maintains that agreement is not valid. So if it is not valid, as the government maintains, then neither was Hunter’s waiver. Accordingly, to prosecute Hunter Biden on the gun felony, Special Counsel Weiss must obtain a grand jury indictment against the president’s son.
Late Wednesday, Weiss promised to do just that, writing in a status report to the court that “[t]he Government intends to seek the return of an indictment” by Sept. 29, 2023, which is when the indictment must be returned to abide by the Speedy Trial Act, a federal statute that requires the government to meet certain deadlines in prosecuting a crime.
In response to Noreika’s order, counsel for Hunter Biden also filed a status report late Wednesday. The one-page status report filed on behalf of the president’s son merely reiterated the defense’s position that the parties had executed a diversion agreement to resolve the felony gun charge and that the agreement remains in effect.
Whether the pretrial diversion agreement is valid and enforceable will be the ultimate issue in this case — and possibly in other criminal cases Weiss seeks to bring against Hunter Biden given the breadth of the immunity provided.
The government maintains that because the probation office “declined to approve the proposed division agreement,” the agreement was never executed. Conversely, Hunter Biden maintains the agreement was executed when he and a representative for the Delaware U.S. attorney’s office signed the diversion agreement.
There is no case law addressing this scenario, however, because the federal government has never entered into an agreement remotely resembling the deal offered to Hunter Biden. Thus it will be for Judge Noreika to decide the question as an issue of first impression.
But before she does, Special Counsel Weiss will need to obtain a grand jury indictment against Hunter Biden on the gun charge. While he promised to do so soon, that he hasn’t already suggests Weiss will be no more aggressive with the special counsel title than he was when just a U.S. attorney.