What Happened to Hunter Biden’s Plea Agreement

Because people who ignored the motion to dismiss proceedings have now decided to weigh in on what happened with Hunter Biden’s failed plea agreement last year, I wanted to lay out what is actually known to have happened, rather than what pretty faces like Ken Dilanian falsely claim happened.

The timeline makes several things clear: First, Weiss did revoke the terms of the immunity agreement he offered in June 2023. But that’s not what killed the plea deal. Hunter was willing to accept a narrowed plea deal. What killed it was Judge Noreika’s intervention in the Diversion Agreement. Once she gave David Weiss the opportunity, he withdrew all remaining meaningful terms of the plea deal, got Special Counsel status, and chased the Alexander Smirnov hoax.

Weiss was personally involved in a plea offer on June 6 that would have immunized Hunter against further charges on the fact set under discussion (so guns, taxes, drugs, and FARA). It remains uncontested that Weiss’ office told Chris Clark on June 19 there was no ongoing investigation.

On July 20, Probation agreed to changes to the Diversion Agreement, seemingly indicating approval. But then, as Wise and Hunter were signing the Diversion Agreement on July 26, the head of Probation told AUSA Ben Wallace she would not sign the Diversion Agreement; no one ever told Hunter this in the hearing or the negotiations immediately after the hearing, but it appears that Judge Maryellen Noreika knew Probation was not going to sign.

Before any specific discussion of scope of immunity, Judge Noreika suggested Probation could veto Diversion Agreement because grant of immunity is too broad. After that, she complained over and over and over that she didn’t get to sign the Diversion Agreement.

At the plea hearing, Leo Wise asserted (contrary to earlier assurances) there was an ongoing investigation.  After Wise said the immunity permitted FARA charges and there would be no deal if FARA were excluded, Clark agreed to orally modify the scope of immunity, and by the end of the hearing both Wise and Noreika recognized that. At that point, Hunter believed he had a signed Diversion Agreement covering guns, taxes, and drugs (but no longer FARA).

After complaining that she didn’t get to sign the Diversion Agreement over and over, Noreika deferred the plea, and ordered more briefing.

Hunter pled not guilty.

In their first offer after the plea hearing, Weiss proposed getting rid of judicial arbitration and also eliminating all immunity, effectively throwing out the plea. After Hunter didn’t immediately accept the no-immunity, no-arbiter plea, Weiss got Special Counsel status.

Hunter was willing to take a plea without FARA immunity. But because Noreika wanted the ability to veto the scope of immunity, she didn’t approve the plea. And that led Weiss’ office to immediately revoke all meaningful substance of a plea offer.


June 6, 2023: Chris Clark spoke to David Weiss and told him any “Agreement’s immunity provision must ensure Mr. Biden that there would be finality and closure of this investigation.” In response, Lesley Wolf proposed this language, to which Chris Clark agreed on Hunter’s behalf:

The United States agrees not to criminally prosecute Biden, outside of the terms of this Agreement, for any federal crimes encompassed by the attached Statement of Facts (Attachment A) and the Statement of Facts attached as Exhibit 1 to the Memorandum of Plea Agreement filed this same day.

June 7: Bill Barr tells Margot Cleveland that the Smirnov FD-1023 had been sent to David Weiss for further investigation.

It’s not true. It wasn’t closed down,” William Barr told The Federalist on Tuesday in response to Democrat Rep. Jamie Raskin’s claim that the former attorney general and his “handpicked prosecutor” had ended an investigation into a confidential human source’s allegation that Joe Biden had agreed to a $5 million bribe. “On the contrary,” Barr stressed, “it was sent to Delaware for further investigation.”

June 19: Per claim from Chris Clark that Weiss never contested in Motions litigation, Weiss’ First AUSA told him that there was not another open or pending investigation into Hunter Biden.

Shortly after that email, I had another phone call with AUSA Hanson, during which AUSA Hanson requested that the language of Mr. Biden’s press statement be slightly revised. She proposed saying that the investigation would be “resolved” rather than “concluded.” I then asked her directly whether there was any other open or pending investigation of Mr. Biden overseen by the Delaware U.S. Attorney’s Office, and she responded there was not another open or pending investigation.

July 19: Chief of Probation Margaret Bray recommends Hunter for 24-month diversion.

July 20: AUSA Benjamin Wallace tells Noreika’s Courtroom Deputy that the government, Hunter’s team, and Probation have agreed to changes in the diversion agreement.

The parties and Probation have agreed to revisions to the diversion agreement to more closely match the conditions of pretrial release that Probation recommended in the pretrial services report issued yesterday.

July 20: Chuck Grassley and James Comer release Smirnov FD-1023.

July, ND (per indictment): FBI requests Weiss assistance in investigation of FD-1023.

July 26 Plea agreement (note, the links to the transcript come from references Judge Noreika made in her order denying immunity under the Diversion Agreement, as well as all the complaints about not getting to sign the Diversion Agreement which she left out; the order is best understood as an effort to refashion her own intervention):

  • Before Noreika enters the room: Leo Wise and Hunter Biden sign Diversion Agreement
  • As Wise and Biden are signing Diversion Agreement, Wallace approaches Bray regarding Diversion agreement, and she, “expressly declined to sign the draft diversion agreement” [at this point, the prosecution and Probation know she has refused to sign, but Hunter does not; for reasons I laid out here, it appears Noreika did know Bray was not going to sign]
  • 12: Noreika does plea colloquy
  • 40: Hunter says he’s relying on promises in Diversion Agreement
  • 42: Noreika asks whether this is a plea under Rule 11(c)(1)(B) or Rule 11(c)(1)(A)
  • 43: Clark says the plea stands alone
  • 45: Clark says government has reassured him they’ll stand by Diversion Agreement
  • 47: Noreika suggests Probation could reject the Diversion because immunity grant was too broad; Wise says that’s discretion of DOJ
  • 48: Wallace — the only prosecutor who definitely knew Probation had refused to sign — agrees that if the immunity were in the plea, it’d be under Rule 11(c)(1)(A)
  • 51: Wise says there’s an ongoing investigation (conflicting with reassurance offered by Weiss’ office in June)
  • 51: Noreika complains she can’t sign the Diversion Agreement
  • 52: Clark says the Diversion Agreement has been approved by Probation; no one corrects him
  • 52: Noreika complains the Diversion Agreement treats her as a rubber stamp
  • 56: Wise says they could bring FARA charges
  • 56: Wise says if FARA is included, then “there is no deal”
  • 58: Clark agrees to orally modify immunity provision to apply to only drugs, guns, and taxes
  • 84: Wise says the parties to the Diversion Agreement are DOJ and Hunter
  • 90: Wise states that the immunity paragraph has been orally modified to apply only to drugs, guns, and taxes
  • 93: Noreika complains that there’s no place for her to sign off on Diversion Agreement
  • 96: Noreika complains that DOJ won’t be able to charge Hunter if she doesn’t agree he has violated Diversion Agreement
  • 102: Wise repeats that they’ve agreed to terms of Diversion Agreement
  • 105: Noreika complains that she doesn’t have the ability to sign off on immunity
  • 105: Noreika defers plea
  • 106: Noreika asks for briefing on why it’s a plea under Rule 11(c)(1)(B)
  • 106: Noreika recognizes Clark has orally modified the scope of immunity, but tells him to put it into writing
  • 110: Hunter pleads not guilty

July 31 DOJ proposes changes:

  • Eliminate judge as arbiter
  • Delete immunity provision
  • Eliminate cross reference between plea and Diversion agreements

August 7: Clark insists on retaining judge as arbiter and retaining immunity provision

August 9: Wise withdraws all agreements by August 11

August 10: Clark asks to have until August 14

August 11: Before Hunter can respond, Weiss withdraws tax agreement and Garland names Weiss Special Counsel

August 29: FBI interviews Smirnov handler

August 29: Weiss tells Lowell they insist on felony pleas, claims they don’t have to rely on laptop

September 27: FBI interviews Smirnov

47 replies
  1. earlofhuntingdon says:

    “Pretty faces?” Ken Dilanian’s reporting is risible, but a pretty face? Not so much.

  2. Mike_16MAY2022_0915h says:

    What I don’t get is why Margaret Bray changed her position in those 6 days after originally agreeing to changes, and suddenly refused to sign.

    • emptywheel says:

      It is my suspicion that Noreika told her not to sign. That’s why it’s important that Noreika, who was not in the room, somehow knew that Probation had not signed.

      • Savage Librarian says:

        I believe that may have happened, too, primarily because I have been in similar situations. I was asked on several occasions to do something I believed was illegal. I refused and took the hits. But I know a number of people who complied with illegal requests. And I know of several people who initiated illegal acts.

        • wetzel-rhymes-with says:

          I wanted to say hello, Savage Librarian, and say you should get out more. Visit my sportsbar in-town Atlanta after midnight. I think that’s practically my whole social group you’re describing, people who will initiate an illegal act on your car if it’s not a 2008 Sonata. If you give half of them $20 to buy weed, to stay friends call it a gift!

          I think though you are talking about criminal professionals who can’t quit crime because their company is criminal; they find out Mayor McCheese is diabolical; they find out too late; and they need the job. Most people will accommodate to anything at work because their beliefs will change to fit how they are behaving. What justifies it is that person’s family is an issue in itself and the kids won’t know.

          I used to go into the by-the-weeks on Fulton Industrial Blvd just to see what was going on like I was some kind of Jean val Jean without the super strength. I was the Mayor of Little Five Points both before and after Jimbo (after the first and before the second) In all this, I think criminals actually targeted me for grifting, mugging, scamming less than twenty times ! !! Maybe only five times have I been truly in danger!

          Back to work. Reading physics in radiology manuscripts is like watching somebody who played high school saxophone think they have jazz . . . Peace

        • Rayne says:

          wetzel, you know by now I’m not happy with the verbosity-to-content ratio in your comment.

          I’m also not happy with your marginalization of someone else’s lived experience. Don’t do that.

      • Capemaydave says:

        As IANAL I’m ignorant if her early involvent presents any appealable opportunities.

        But it stinks.

        Also curious how a Federalist liked Judge gets praise for exposing an illegal gun purchase.

        Curious times.

      • Spencer Dawkins says:

        Dr. Marcy, you are better at being suspicious than I will never be, but for me, it is helpful to divide “why did Margaret Bray decide not to sign” and “how did Noreika know that Probation had not signed” into separate, but perhaps equally disturbing, questions. If there is one answer for both questions as you suspect, that’s ALSO disturbing.

    • EatenByGrues says:

      A further question: is signing, or not signing, a plea agreement (and this being able to veto a plea deal) in fact a discretionary power of the probation department?

      Or is Bray essentially a functionary in this matter, whose refusal to sign either should have resulted in a call from her supervisor, a writ of mandamus commanding her to do her job, or the agreement being approved without her signature?

      • bmaz says:

        No, it really is not, the most the APO is obliged to do is give a recommendation to the court.

        • Ginevra diBenci says:

          I remember reading that Bray was going to sign, but was stopped at the last minute–heavy emphasis on the passive construction (“was stopped”) and its concealment of the stopper’s identity.

          The only logical inference was that Noreika threw the wrench into the works…consistent with her repeated self-justifying complaints during that fateful hearing.

  3. PeggyJo_12JUN2024_1435h says:

    The order and outcome of all these steps sound not so much blundering but rather manipulating. I feel for Hunter.

    [Welcome to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We have adopted this minimum standard to support community security. Because your username is far too common (there are several Peggys/Peggies in this community) it will be temporarily changed to match the date/time of your first known comment until you have a new compliant username. Thanks. /~Rayne]

  4. PensionDan says:

    I’m trying to imagine a response from Margaret Bray as to why she didn’t sign the diversion agreement which would not represent grounds to throw out Biden’s conviction. (?)

  5. Upisdown says:

    Almost a year has passed and there’s been no news on FARA or any other non-gun/tax/drugs offenses under consideration. Weiss’ Hunter Biden investigation has lasted longer than Mueller and is fast approaching Durham.

    Isn’t it about time for Garland or Monaco to land this plane?

  6. Error Prone says:

    Related – Litman is critical of the decision to prosecute and without getting into the pretrial hearing detail, nor the 1023 form’s release, he basically says it was a targeting outside of the norm. MSN carries the LATimes item: https://www.msn.com/en-us/news/opinion/litman-a-jury-was-right-to-find-hunter-biden-guilty-it-s-the-prosecutor-who-was-wrong/ar-BB1o2oUa

    If anyone else wrote a comparable post mortem, I have not seen one. I don’t know a thing about Litman’s work product quality history, other readers may. It appears he does simplify pretrial issues for his readers.

    • earlofhuntingdon says:

      MSN’s not a great source. It’s an aggregator, not a news originator. You’ll also note that it uses a shortened url. That’s bad for privacy: it doesn’t disclose the source link, and sends the data through an intermediary, which scrapes your data to sell it to third parties.

      • RipNoLonger says:

        Thanks for reiterating that fact, EoH. It’s hard to tell the sites that actually have the real content from those that are parrotting/digesting it with their trackers/advertising. MSN, Yahoo, RawStory, and others come to mind.

        It’s also becoming much more difficult or impossible to find any links to the original source in these aggregator’s sites. I would think they would be held to some plagiarism laws but those are probably considered archaic.

        • earlofhuntingdon says:

          Raw Story is usually among the better aggregators. It uses full url addresses and usually has a link to the original source. It also occasionally produces its own stuff.

      • Error Prone says:

        Understood it is an aggregator. Saying it was an LATimes item gave readers the word that they could go there instead.

        MSN is unlikely to be infected, and does not use a paywall, where my local online source, MN Star Tribune does. As does WSJ, which is a known Murdoch empire thing I’d never link to..

        Best practice would have been tracking the item down on LATimes.

        Which correctly has been pointed out. Which I failed to do.

        Any other thoughts on Litman’s history or the particular item?

        • bmaz says:

          Lol. And yet another perfectly sound response is in “moderation” for no explicable reason. Litman is a decent chap and is right on this issue.

    • bmaz says:

      Litman is fine, and he is correct here. All the Hunter Biden prosecution is tedious garbage at this point. He paid back taxes in full with whatever interest/penalty the IRS asked for. The gun charge was idiotic. It either is never brought, or ends with a simple diversion agreement. As in pretty much 1,000 out of 1,000 instead of the 999 out of 1,000 Harry said.

  7. Booksellerb4 says:

    I was reading EW all last summer when the first trial went down. And, after getting info here, I’m willing to dig a little to read the original source material provided by aggre-gator (McKlusky) sites and other online/print media, to try to understand a (any) particular news item. It’s not my grandpa’s journalism, that’s for sure!

    I did go back and read again the original indictment/plea, and I have to say this appears to be an extremely complex set of circumstances as far as a legal manoeuvre (in my non-lawyer view) in the way that it went from a Federal Case to a State of Delaware, California case… and the reneging of USA on a legal, binding agreement made in good faith, etc.

    I just wonder who the Probation Officer will be in this case!?? Will that detail not be available until sentencing?

    • Error Prone says:

      That site is new to me. The footer copyright notice is dated 2018, so it’s been around. It looks to be AI – human curated, as a link farm, rather than a licensed republisher “content farm” such as MSM (EoH, 6:26 pm). Whether it skims any user data in linking to original content is unclear. Interesting. The site has browser plugins available to users wanting one. Rayne, any moderation thoughts?

      • Rayne says:

        The site operates somewhat like Memeorandum, another aggregator (though Memeorandum says its content is algorithmically driven, untouched by humans). Current io describes its operations:

        👋 Whoa! WTF is this?
        Current Status is the consensus view of the current top U.S. political stories from a cross-section of the news media ecosystem.

        There are three components that determine the Current Status: First, there is an editorially-responsible algorithm that considers the signals news editors send about a story’s news value. Second, there’s a human-in-the-loop curating the list and providing oversight to ensure that the Current Status is a fair and accurate representation of the day’s essential political stories. And third, Current Status is biased toward recent, highly-cited stories, with an emphasis on depth and accuracy. The stars are a reflection of a story’s current relative news value.

        This is what the political web is talking about right now.


        It’s not scraping content, just reposting headlines with links to the original content.

        No idea how it’s measuring the popularity of political content or other measures. YMMV, caveat lector, no warranty for fitness and safety implied by my comment.

    • tuoba_denrael says:

      sorry, Rayne, Error Prone, for the [possible] confusion [plus the additional moderation workload]… am just always glad when articles from the emptywheel site come up at other places [possible wider reach].

      this [current status] is the second site of the creator of “What The Fuck Just Happened Today”, Matt Kiser [open source code at https : // github . com / mkiser, if interested, spaces excluded].

      no relation [family, advertising, work] to it, for me, these [WTFJHT, CS] sites are some of the places to skim for possible headlines to read [if any worth it] in early mornings.

  8. NYsportsfanSufferer says:

    How is it in July everyone walks into court agreeing to two tax misdemeanors and diversion and a month later at a meeting Wise is demanding felonies and jail with the same set of facts? Oh and the investigation continues even after a felony plea with jail.

    That is in no way good faith.

  9. Justin Beck says:

    C I have seen little comment on the tax case. Criminal tax cases require proof of wilful intent, which in tax cases is subjective, not objective, the standard in most other criminal cases. Putting aside the deductions issue, there is good evidence that Hunter honestly thought much of his income was actually a loan that is not taxable. If the jury thinks that possible, much of the criminal case disappears. I also suspect the jury could take Hunter’s drug problems into account in judging subjective willfullness.

  10. Thomas A Fine says:

    It would be easy to use these facts as a skeleton, and write a narrative in which Noreika was one of several corrupt people surrounding a hapless but well-meaning Weiss who was endlessly goaded and manipulated (and threatened) into pursuing a political investigation.

  11. Fedupin10 says:

    Since the plea hearing, when Noreika casually stated she might have violated the defendant’s Constitutional rights and then moved on, I’ve thought that would be the basis of any appeal.

Comments are closed.