Judge criticizes proposed deal as 'not standard,' unprecedented, possibly unconstitutional
Hunter Biden made his first appearance in a Delaware federal court Wednesday, pleading not guilty after Judge Maryellen Noreika rejected his plea deal that she criticized as "not standard," unprecedented and possibly unconstitutional.
The president’s son was expected to plead guilty to two misdemeanor tax counts of willful failure to pay federal income tax as well as enter into a pretrial diversion agreement with regard to a separate felony charge of possession of a firearm by a person who is an unlawful user of or addicted to a controlled substance.
But that all fell apart after the judge, appointed by former President Donald Trump in 2017, took specific issue with the diversion clause and the supposed immunity that Hunter Biden would receive under the terms of the plea agreement.
U.S. District Court Judge Maryellen Noreika, left, rejected Hunter Biden's plea deal on Wednesday. (Teresa Kroeger / Getty Images | United States District Court for the District of Delaware)
BIDEN'S NARRATIVE ON NEVER DISCUSSING BUSINESS DEALS WITH HUNTER CONTINUES TO CRUMBLE
Prosecutors acknowledged that Hunter was still under active federal investigation, though they wouldn’t say why, and that the plea agreement would not immunize him from future charges related to his foreign business dealings, for example.
Ultimately, Hunter Biden pleaded not guilty because Noreika could not accept the plea deal as it was constructed. Here are the top five moments from the hearing.
‘Not standard’
Noreika started her grilling of both parties Wednesday by pointing out the peculiarity of some provisions in the plea agreements concerning the charges, including the terms of immunity and her role in the case should a breach occur.
"There are some provisions in those agreements that are not standard and are different from what I normally see, so I think we need to walk through these documents and get some understanding of what is being proposed so that I can give due consideration to the determination that you all are asking me to make," the judge said.
Noreika later asked the government whether it had "any precedent for agreeing not to prosecute crimes that have nothing to do with the case or the charges being diverted?"
"I'm not aware of any, Your Honor," prosecutor Leo Wise responded.
Noreika repeatedly expressed her concerns about the constitutionality of the diversion deal related to the felony gun charge, specifying that the main issue with the agreement was that if Hunter Biden breached the deal, the judge would need to make a finding of fact on the matter before the government could bring charges.
The diversion was an agreement in which the government would not charge Hunter Biden with the more serious federal gun charge — if he pleaded guilty to the misdemeanor tax charges and behaved under certain terms of the agreement for a period of approximately 24 months. If Hunter Biden breached the diversion, the government would try to bring the serious gun charge against him.
At that point, the government would bring that information to the judge, and the judge would be required to determine whether charges should be brought — that was the portion of the diversion that Noreika rejected, saying it would be unconstitutional as charging decisions are made by the executive branch, not the judicial branch.
"Do you have any authority that any court has ever accepted that or said that they would do that?" Noreika asked.
"No, Your Honor, this was crafted to suit the facts and circumstances," Wise replied.
Noreika said she saw that as being "outside of my lane," noting that if the diversion agreement might be unconstitutional then the entire plea deal would be unconstitutional, meaning that Hunter Biden would not be getting the immunity he thought.
Hunter Biden, right, leaves the J. Caleb Boggs Federal Building in Wilmington, Delaware, on July 26, 2023. (Ryan Collerd / AFP via Getty Images)
Chinese payments
Hunter admitted to Noreika that he received more than $600,000 from a Chinese Communist Party-backed company, contradicting President Biden’s insistence that nobody from his family "made money from China."
Prosecutors said in their proposed plea agreement that Hunter received $664,000 from a "Chinese infrastructure investment company," according to the official court transcript.
Hunter then confirmed to the judge that he earned $664,000 from a company he formed in 2017 with the chairman of the CCP-backed CEFC.
"I started a company [in 2017] called Hudson West, Your Honor, and my partner was associated with a Chinese energy company called CEFC," Hunter said.
"Who was your partner?" the court asked.
"I don't know how to spell his name, Yi Jianming is the chairman of that company," Hunter responded.
"$664,000 from a Chinese infrastructure investment company – is that one of the companies we've already talked about?" the judge continued.
"I believe so, yes, Your Honor," he said, before adding, "I believe CEFC."
Hunter’s apparent confirmation that he made more than a half-million dollars from a Chinese company directly contradicts President Biden’s previous denials.
"My son has not made money in terms of this thing about, what are you talking about, China," then-candidate Biden told then-President Donald Trump during an October 2020 debate.
President Joe Biden and first lady Jill Biden, joined by Hunter Biden and Ashley Biden, attend granddaughter Maisy's graduation from the University of Pennsylvania at Franklin Field on May 15, 2023, in Philadelphia. (Brendan Smialowski / AFP via Getty Images)
"The only guy who made money from China is this guy," Biden said at the time. "He’s the only one. Nobody else has made money from China."
Biden denied the allegations again this year after the House Oversight Committee said subpoenaed financial records revealed that members of the Biden family received more than $1 million in payments from accounts related to Hunter Biden’s business associate Rob Walker and their Chinese business ventures in 2017.
"That’s not true," the president said March 17.
‘No deal’
Hunter’s legal counsel declared the deal was "null and void" after learning the plea agreement did not include broad immunity for the president’s son.
The dustup started after the judge asked prosecutors, "Could the government bring a charge under the Foreign Agents Registration Act?"
The prosecution confirmed, and Noreika asked if there was a "meeting of the minds here" on the level of immunity Hunter was expecting.
"As stated by the government just now, I don't agree with what the government said," Hunter’s lawyer, Chris Clark, responded.
"So, I mean, these are contracts," the judge replied. "To be enforceable, there has to be a meeting of the minds. So, what do we do now?"
"Then there is no deal," the government responded.
"Do we need to talk about a preliminary hearing since we didn't really need to do one with the agreement?" the judge asked.
"We'll waive the preliminary hearing," Clark responded. "As far as I'm concerned, the plea agreement is null and void. We are going to have to discuss things with the government."
A courtroom sketch depicts Hunter Biden in a federal courtroom in Wilmington, Delaware, on July 26, 2023. (William J. Hennessy Jr.)
Rejected
After returning from an official recess, Clark agreed to the government’s terms that immunity would be limited to offenses uncovered during their probe of Hunter's tax returns and the illegal purchase of a firearm.
Noreika, however, accused both parties of trying to get her to "rubber stamp the agreement" and said she couldn’t approve.
"Again, you all are telling me just rubber stamp the agreement, Your Honor, because all we're doing is recommending a plea," she said. "But it seems like the argument you're making is form over substance."
"What's funny to me is you put me right smack in the middle of the diversion agreement that I should have no role in, you plop meet right in there, and then on the thing that I would normally have the ability to sign off on or look at in the context of a plea agreement, you just take it out and you say, 'Your Honor, don't pay any attention to that provision not to prosecute because we put it in an agreement that's beyond your ability,'" she continued.
"So, this is what I am going to do. These agreements are not straightforward and they contain some atypical provisions. I am not criticizing you for coming up with those, I think that you have worked hard to come up with creative ways to deal with this. But I am not in a position where I can decide to accept or reject the plea agreement, so I need to defer it."
"So, I cannot accept the plea agreement today," she added.
The aftermath
House Republicans celebrated with cautious optimism after Hunter's plea deal fell apart, saying it "collapsed under the weight of its own blatant corruption."
Now, jail time may be back on the table, they say.
Rep. Darrell Issa, R-Calif., told Fox News Digital in an interview that Biden gets two more chances, pretrial and during trial, to reach a plea bargain that could be more stringent than the first.
"That could be something that's going on behind the scenes of the DOJ, saying, ‘Oh, what is it we could work out with Hunter that, in fact, we get this judge to go away?’ Because there's very little likelihood that Hunter Biden would win this case," said Issa, a member of the House Judiciary Committee. "So now the question is, what is he willing to plead to that would be less than what he might be sentenced to if he loses? And so I fully expect that some of that is going on behind the scenes as we speak, trying to figure out what the judge would accept."
Hunter Biden (Brian Lawless / PA Images via Getty Images / File)
Issa said he initially cheered the Delaware judge’s decision but is skeptical that the DOJ is going to suddenly prosecute Biden aggressively.
"My thought initially was, ‘Great. We have a judge that’s willing to do the right thing.’ But how are we going to get DOJ to do the right thing?" he said. "Remember, the Biden DOJ is the one that gave him a sweetheart deal, and now you're expecting them to prosecute aggressively? I doubt that they will."
"They do not prosecute the president, they don't want to prosecute the president’s son, and they certainly don't want to follow the leads that seem to lead from the president's son to the president," he continued.
"I’d love to ask for a change of prosecutors to ones that would actually prosecute, but I suspect that's not possible," Issa added. "So, one of the truisms that we expect right now is to have a comparatively lackluster prosecution by those who were perfectly willing to give him a sweetheart deal."
House Oversight Committee Republicans told Fox News Digital that the court dealt a major blow to the Biden family.
"Today’s development that Hunter Biden’s sweetheart deal has now turned sour is welcome news to every American – it collapsed under the weight of its own blatant corruption," Rep. Virginia Foxx, R-N.C., said Wednesday.
"The two-tiered system of justice that has metastasized under the Biden administration just received a swift kick in the ribs," she said. "Nobody is exempt from following the law in this country, especially those with the last name of Biden."
Fox News' Brooke Singman contributed to this report.
Jessica Chasmar is a digital writer on the politics team for Fox News and Fox Business. Story tips can be sent to
