Hunter Biden’s plea agreement renegotiation is rare

The highly anticipated July 26, 2023, federal court appearance in Delaware by President Joe Biden’s son, Hunter, ended in a completely unanticipated way.

Hunter Biden was there to get the court to sign off on a plea deal he and his lawyers had negotiated with the Department of Justice related to charges he had paid his taxes late and had illegally owned a gun. What was known of the agreement before the court date was that he would get two years’ probation for the unpaid taxes, which he had ultimately paid off, and that once Biden entered a diversion program, the gun charges would eventually be wiped from his record.

But that agreement was questioned by the judge in the case, Maryellen Noreika of Federal District Court in Wilmington, who wanted to know precisely how much immunity from prosecution the agreement gave Biden. He has been under a number of federal investigations since 2018. By the time the court session ended, the judge had sent the prosecution and defense to renegotiate the deal, which Biden’s lawyers said would take about two weeks.

The Conversation interviewed legal scholar Thaddeus Hoffmeister, an expert in criminal law, for more background on plea deals.

What is a plea agreement?

A plea agreement is sort of like a contract between the prosecution and the defense. They agree on what the defendant will be pleading guilty to, and once their agreement is reached, it goes to the judge for his or her blessing.

Generally speaking, if it’s a plea agreement, then something favorable is going to happen for the defendant. Usually, the charges are going to be reduced or the sentence is going to be less than if the defendant went to trial and was convicted.

A plea agreement avoids trial because the defendant agrees to accept some responsibility for the charges they face. If there’s no agreement, then ultimately the case will go forward.

When is a plea deal offered?

It’s what we do every day – 95% of the criminal court cases in America are resolved through plea deals. The system would break if everyone charged with a crime went to trial. It’s standard.

It’s a regular process. Before the judge signs off, you have a good understanding of what the judge is going to do. I was surprised about the change in the Hunter Biden case today. I’m always taken aback when a judge doesn’t accept a plea. That always surprises me because these things are worked out beforehand between the parties.

It’s just a standard thing you do. The hard part is in the negotiation beforehand. Each side works to get a deal in their best interests and to make sure everyone’s on the same sheet of music. In this case, they weren’t.

Does a judge always have to sign off on a plea deal?

A defendant’s guilty plea, along with terms of a plea agreement between the defense and prosecution, goes into effect after the judge accepts the defendant’s plea. Plea agreements occur every day throughout the country. It’s a regular process of prosecutors and defense attorneys coming to agreements in plea deals. So all parties have a good understanding of what the judge is going to do. But, as we saw in the Hunter Biden case, sometimes judges reject plea deals.

Reportedly, according to Hunter Biden’s attorneys, their client was offered broad immunity from prosecution in perpetuity. Is such a deal common?

That type of immunity is rare. I would be surprised if the Department of Justice offered such immunity.