DOJ’s Dirty Deeds

It has been a week of scandalous doings on Attorney General Merrick Garland’s watch.   Congress seems paralyzed to intervene with more than hearings, and so far, only federal district court Judge Maryellen Noreika has tried. As I explain, it’s questionable whether her conduct will prevent the Justice Department from exonerating Hunter Biden from laundering what may be as much as $50 million in bribes from countries, including China, Ukraine, and Romania, into his family’s pockets. Through Jack Smith, it has corralled President Trump’s valet and the Mar-a-Largo maintenance worker into the ridiculous documents case. Finally, it dropped another case against crypto scammer Sam Bankman-Fried, who contributed as much as $90 million dollars of ill-gotten funds almost entirely to Democrat candidates and their action committees.

Hunter Biden and the No-good, Dirty Deal

Ferried to the courthouse by a substantial (obviously taxpayer-paid) motorcade, Hunter appeared chipper, obviously believing that his very significant tax avoidance and FARA (Foreign Agents Registration Act) violations were going to be wiped off the prosecution table if he pled guilty to two misdemeanor charges for unrelated offenses.

The tables quickly turned. It was alleged that counsel for the defense had misled the court clerk into believing she was acting for the government in requesting the amicus brief filed by House Ways and Means Committee Chairman Jason Smith be removed from the docket. Upon learning of the impersonation deception, the Judge threatened sanctions against Hunter’s team. It’s not clear whether or not she accepted the explanation offered, ("an unfortunate and unintentional miscommunication”), but on Friday, she entered an order that reads in relevant part:

“Any such issues and inquiries shall be submitted in writing and placed on the docket. To the extent that the rare instance arises in which a writing is not practicable, a phone call may be made to my Chambers by an attorney who represents one of the parties in these cases or an interested third party.”

The case went downhill after that when it appeared the government and defense counsel had tried to pull the wool over her eyes about the full extent of the plea deal. The plea on its face seemed to recommend probation after Hunter admitted guilt on two misdemeanor charges that he failed to pay over $100,000 in taxes on income earned in 2017 and 2018 and would avoid consequences for a felony gun charge. The devil was in the details: A side pretrial diversion agreement, the most important portion of which (paragraph 15) had just been handed to the judge before she entered the courtroom. The judge needed clarification of it as it appeared to give Hunter immunity from a firearm offense as well as tax and other tax crimes. 

"Have you ever seen a diversion agreement where the agreement not to prosecute is so broad that it encompasses crimes in a different case?” she asked assistant U.S. Attorney Leo Wise.

Mr. Wise replied that he had not.

Questioning why such promises were made in the diversion agreement -- an agreement she could not rule on [by its very terms] -- the judge said: “It seems to me like you are saying ‘just rubber stamp the agreement, Your Honor.’ …This seems to me to be form over substance.”

Ultimately, the judge deferred action on the plea deal, declaring that she could not accept it as is.

The DoJ has been insisting to congressional investigators that it could not respond to inquiries about the Hunter case in those matters still under investigation, but the diversion agreement, of course, would render that claim and any “investigation” baseless. In any event, when pressed, the prosecution team denied that accepting the plea deal would grant Hunter criminal immunity in perpetuity, at which point the deal fell apart because Hunter’s counsel quite reasonably believed that would be the effect. Hunter responded, “not guilty,” and the hearing ended. I think it is beyond debate that the government backed off what criminal lawyers call a “global agreement” because it stunk of a partisan cover-up, mostly to protect the “big guy,” President Biden.

“In Hunter’s case, according to what folks in the courtroom have told me, Hunter’s plea was structured under Federal Rule of Criminal Procedure 11(c)(1)(B), which is usually just a plea in return for a joint sentencing recommendation only, and contained no information on its face about other potential charges, and contained no clear agreement by DOJ to forego prosecution of other charges,” Will Scharf said.

“Instead, DOJ and Hunter’s lawyers effectively hid that part of the agreement in what was publicly described as a pretrial diversion agreement relating to a § 922(g)(3) gun charge against Hunter for being a drug user in possession of a firearm,” Scharf said.

The lawyers slipped Hunter’s blanket immunity in the pre-trial diversion agreement so the judge could not accept -- or reject -- the blanket immunity part of the deal.

However, the judge smelled a rat and blew up the entire plea deal!

“So, they put the facts in the plea agreement, but put their non-prosecution agreement in the pretrial diversion agreement, effectively hiding the full scope of what DOJ was offering and Hunter was obtaining through these proceedings. Hunter’s upside from this deal was vast immunity from further prosecution if he finished a couple years of probation, and the public wouldn’t be any the wiser because none of this was clearly stated on the face of the plea agreement, as would normally be the case,’ Will Scharf said. 

It’s as yet unclear to me what the next step by the prosecution will be. I understand that the first thing Hunter did when he entered the courtroom was to sign the diversion agreement. Former Deputy Independent Counsel Sol Wisenberg tweeted it was of no effect because it was conditioned on a plea agreement that was not accepted by the Court. Will Hunter’s counsel argue that is an independent agreement that does not require court approval to be effective? Would that work?

New Charges in the Trump Document Case

As if admitting the prior charges were weak, this week, Jack Smith added charges against Trump’s valet and the Mar-A-Lago maintenance man, accusing them of concealing documentation by deleting security tape footage in the storage room. They tried that gambit earlier before Judge Aileen Cannon in Florida, where they were forced to admit they only needed to see the video from May 24 until June 2, which they were already given.

Sam Bankman-Fried

You may recall Sam, the son of two Stanford University professors:

who was accused of misusing customer deposits and who made $90 million in campaign contributions to around 300 predominantly left-wing political candidates or action committees (PACs).

Prosecutors argued the United States “mishandled” the process of extraditing Bankman-Fried from the Bahamas, writing a letter stating, “In keeping with its treaty obligations to the Bahamas, the government does not intend to proceed to trial on the campaign contributions count.”

Bankman-Fried, who had a net worth of around $26.5 billion at his peak, ranked behind only George Soros in donations to the Democrats last year. He also donated to some Republicans through what he described as ‘dark’ channels. [snip] 

Bankman-Fried was the founder and former CEO of cryptocurrency exchange FTX but resigned last November after the company’s collapse, costing customers and lenders billions of dollars. He was subsequently arrested and released after paying a $250 million bond: the largest in American history.

There remain other charges for fraud involving banks and customers. It will be interesting to see if the Justice Department conjures up another catch-us-if-you-can phony baloney diversion agreement.

To sum up, this week, in two cases -- Hunter and Bankman-Fried -- the Department of Justice went out of its way to hide evidence of millions of dollars of overseas money being funneled to Democrats and in a third, it is resurrecting stale, paltry charges against the likely Republican challenger for president.

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