Hunter Biden's BigLaw lawyers deny deception day before their client’s plea deal put on hold

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Hunter Biden, son of President Joe Biden, boards Air Force One with the president in February 2023 at the Hancock Field Air National Guard Base in Syracuse, New York. According to the New York Times, a Delaware judge “quickly zeroed in on a central component” of a deal for Biden, “a paragraph offering Hunter Biden broad immunity from prosecution.” Photo by Patrick Semansky/The Associated Press.

Lawyers for Hunter Biden are fighting on two fronts as U.S. District Judge Maryellen Noreika of the District of Delaware asked attorneys from Latham & Watkins on Tuesday to show cause why they shouldn’t be sanctioned and then put a proposed plea agreement on hold the next day.

Latham & Watkins lawyers told Noreika in a letter that there was no deception in its employees’ phone call to the clerk’s office—made to inquire how to seal what Latham thought was confidential material contained in an amicus brief.

Above the Law, Law360 and CNN are among the publications with coverage.

The amicus brief had asked Noreika to consider claims by Internal Revenue Service whistleblowers who alleged that Biden received preferential treatment during a tax investigation that led to the plea deal, according to Axios. The brief was filed on behalf of Jason Smith, the chair of the U.S. House of Representatives’ Ways and Means Committee.

The lawyer representing Smith had alleged that the Latham employee misrepresented herself as affiliated with his law firm, rather than with Latham, when she called the clerk’s office. The employee, Latham’s director of litigation services, countered in an affidavit that she identified herself as working for Latham when she spoke with a clerk about the proper procedure for restricting e-filed material from public view.

When the clerk asked the Latham employee what in particular was confidential, the Latham employee said she would find out and call back, according to her affidavit. But before she could call back, a different court clerk called the Latham employee to let her know that the docket material would be removed.

The alleged misrepresentation “appears to stem from an unfortunate and unintentional miscommunication between a staff member at our firm and employees of the court,” Latham lawyer Matthew S. Salerno told the judge in a July 25 letter filed with the affidavit.

The fireworks continued Wednesday, when Noreika put a proposed plea deal on hold. The plea and diversion agreement, published by Politico, calls for Biden to plead guilty to two misdemeanor tax charges for failing to pay more than $100,000 in taxes in 2017 and 2018.

The deal also calls for dismissal of felony gun charges if Biden refrains from possessing guns and doesn’t consume illegal drugs and alcohol for two years. The gun charges are related to Biden’s possession of a gun during a period when he was addicted to illegal drugs.

Law360, ABC News, the Washington Post and the New York Times have coverage of the hearing Wednesday in Noreika’s Delaware courtroom.

According to the New York Times, Noreika “quickly zeroed in on a central component of the deal, a paragraph offering Hunter Biden broad immunity from prosecution, in perpetuity, for a range of matters scrutinized by the Justice Department during its five-year investigation.”

During “incisive questioning,” Noreika exposed differences in the interpretation of that language, the New York Times reports.

Christopher J. Clark Jr. of Clark Smith Villazo, a lawyer for Biden, said the language protected his client for tax and gun offenses and for offenses stemming from Biden’s consulting agreements with foreign companies.

Prosecutors, on the other hand “had a far narrower definition,” according to the New York Times. They said the deal protected against prosecutions related to his tax returns and his illegal gun purchase. During a recess, the lawyers “quickly reworked the deal,” according to the Washington Post, “to include immunity for certain tax, drug and gun charges between 2014 to 2019, essentially the main time period covered by the investigation.”

Noreika also expressed concern during the hearing that the “atypical” agreement gave her the power to determine whether Biden violated the gun-charge agreement.

Usually, the Department of Justice would verify whether there were violations of the agreement and would then bring charges, the New York Times explains. But Biden’s agreement gave Noreika the power to make the determination, apparently because of a fear that the DOJ could be swayed if former President Donald Trump is reelected.

Noreika said giving her the power could violate separation of powers by giving her prosecutorial power.

“I’m not doing something that gets me outside my lane of my branch of government,” Noreika said.

Noreika refused to approve the agreement and gave the lawyers 30 days to explain why she should.

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