[Updated] Hunter Biden Attempts A Novel Plea Strategy
I suspect it isn't going to work
Just as his trial on tax evasion is about to start, Politico reports that Hunter Biden’s legal team is attempting a very unique strategy. Here’s the reporting by Politico’s Betsy Woodruff Swan and Melanie Mason:
Hunter Biden submitted a plea to accept responsibility for tax evasion and other tax crimes on Thursday just moments before his trial on those charges was scheduled to begin.
The plea offer is a major plot twist in a six-year investigation of the president’s son that exposed his lucrative business deals with foreign companies and his lengthy struggles with drug addiction.
Biden’s attorneys told the judge that Biden would like to enter an unusual plea known as an Alford plea, in which a defendant maintains innocence but concedes that prosecutors have enough evidence to obtain a conviction. Courts treat Alford pleas the same as guilty pleas. […]
If the plea is accepted, Biden would admit that prosecutors can prove that he willfully failed to pay more than $1.4 million in taxes he owed for tax years 2016 through 2019. He would also avoid a trial that threatens to embarrass the president’s family by dredging up unflattering details from the younger Biden’s past.
[source]
Even though his father is no longer running for President, there are some key reasons that Hunter Biden would want to get through his trial and sentencing as soon as possible. The biggest reason is that, as we have seen multiple times, Federal trials and sentencing take a while. If things continue as is, it’s entirely possible that the process could extend past the 2024 Presidential Election. It’s probable that sentencing might not occur until after next year’s transition of power. Given that it’s entirely possible that Donald Trump could be our next President, it’s in Hunter Biden’s best interest to have this resolved before a potential Trump DOJ takes over.
However, the court must accept the plea deal to avoid trial. My sense is that is far from a done deal. Again, from Politico’s reporting:
U.S. District Judge Mark Scarsi did not immediately say how he would handle the new plea and ordered a short recess to consider the matter. Prosecutors said the courtroom revelation was “the first we’ve heard of this,” and that they want to assess whether an Alford plea is “appropriate.”
Biden’s lawyer Abbe Lowell said it’s indisputable that his client, who had previously pleaded not guilty to the nine tax charges, has the right to enter the new plea. It’s unclear if the trial will continue Thursday as planned.
While Lowell is correct that they have the right to submit this plea, it’s also the case that the Court isn’t required to accept it. While the Alford plea is treated the same as a traditional guilty plea, the fact that Hunter Biden is unwilling to acknowledge guilt could be a big blocker.
Additionally, this is the type of move that both judges and prosecutors want to know about before it is publicly announced. This is especially the case when the defense waits until the last minute to enter a unique plea. Fair or not, pissing off the judge and the prosecution is not the best thing to do when you are essentially admitting that there is more than enough evidence to convict.
That said, the court may accept the plea and then extract their pound of flesh during sentencing. The results could mean that Hunter Biden will get a harsher sentence than if he had pleaded guilty earlier in the process. Only time will tell.
Hat tip to Jack for the heads-up about the plea offer in today’s open forum.
Update: The Washington Post now has an article up with some additional details about “Alfrod pleas” and the Prosecution’s reaction to this move:
Prosecutors objected to the proposal, which they had not been told of in advance. U.S. District Judge Mark Scarsi is expected to decide this afternoon whether to adjourn the proceedings until Friday or give the two sides more time to come to agreement.
“I want to make crystal clear: the U.S. opposes an Alford plea … Hunter Biden is not innocent, he is guilty,” Leo Wise, an attorney working for special counsel David Weiss, told the judge. “We came to court to try this case.”
Biden’s attorney, Abbe Lowell, noted that Alford pleas are an option available to all criminal defendants — even though such plea agreements are relatively rare. “All over the U.S. people do this,” Lowell said. “It’s not that [Hunter Biden] seeks special treatment, but that he gets the same rights as everyone who is charged.” …
An Alford plea, named after a case North Carolina v. Alford, is a way for a defendant to register a formal admission of guilt toward charges they are facing while simultaneously maintaining their innocence.
United States attorneys are only able to consent to Alford pleas “in the most unusual of circumstances” and consult with top officials at the Department of Justice before doing so, according to federal prosecution guidelines. [source]
What’s also great about the OTB commenter community is we have folks from all professions contributing, including a lot of lawyers. Before the update Ski, who is a lawyer (but not in a criminal legal system practice), added this commentary:
I would be shocked if the Court didn’t accept it. Failing to accept it would be a huge waste of government resources and the Court’s time.
IMO, the judge may not count it as a guilty plea in terms of sentencing considerations/factors but they are definitely accepting it.
Ski’s right that trials require a LOT of resources, creating incentives to avoid them. That’s part of what has led to our Criminal Legal System being based on plea deals (an issue I’m very attuned to). I know cases are more likely to go to trial in the Federal System versus State/County courts.
I agree that if the plea is accepted over the objections of the prosecutors, I expect that Biden will pay for this move when it comes time for sentencing.
I look forward to learning what the rest of our learned counsels think about this topic.
While criminal law isn’t my area, my understanding is that Alford pleas are bog standard. I would be shocked if the Court didn’t accept it. Failing to accept it would be a huge waste of government resources and the Court’s time.
IMO, the judge may not count it as a guilty plea in terms of sentencing considerations/factors but they are definitely accepting it.
I think your points are correct. They have pissed off the DoJ, and probably the judge. They want things expedited.
But Abbe Lowell is a smart lawyer and knows the dangers to this. Further, he also probably knows the judge can do what he wants.
Doesn’t need the DoJ. Who knows what pressures are being brought??
That all said, let’s get real. This is an in your face move. The fix is in. Daddy will pardon him at the end of the day.
Two systems of justice.
Then again, everyone knows the tax code is complex. You know, you take the standard deduction and then, who says hookers and blow aren’t legitimate deductions? I’m not sayin’ I’m just sayin’.
Alford pleas are rare. And it is vanishingly rare to spring them at the last minute, for obvious reasons. We shall see if the judge, who can act independently of the DoJ has a pair.
This was in your face. The Daddy legal strategy. Hunter is a scumbag, like his father.
As an aside. When you look at this DoJ, especially the original sweetheart plea deal, you can see why Merrick Garland had no business being on the Supreme Court.
@SKI:
First, I’m sorry that the moderation thing is still happening. I am working on that but cannot figure out where the issue is.
As I wrote this, I wondered what I would get wrong. I should have checked about the entire
claim that “Alford pleas” are rare.
I accept your learned counsel.
@Jack:
Time will tell Jack. I suspect that Joe Biden won’t pardon him. But once again we haven’t had a past example to rely on.
Conservatives keep saying this, but I’m still not sure I know what you mean by this. Is this a rich/connected versus poor/unconnected thing? If so, I generally agree.
If it’s Democrats/Liberals get good treatment, and Republicans/Conservatives don’t, then I don’t think there is much evidence to back that up.
Matt
Alford pleas, I believe, are something like <5%. For real reasons. “Yeah, you caught me, but I don’t want the ball and chain” is pretty much an immoral argument. And in HBs case, laughable.
On the pardon, yes, only time will tell, but I find you remarkably naive. The HB defense just did a hail marry, and have basically admitted guilt. You ask us to believe Abbe Lowell just walked out on the cliff……..while pissing off the people who can help his client. Not buying it. You only do something like he did when you have an ultimate backstop. It’s PR. And/or HB controlling his lawyer, not the opposite.
We can do this later. HRC and JB and DT are all rich. HRC bleach bitted and smashed into oblivion evidence. Yet Comey licked her arse clean. “No prosecuter…”.
Yet, the Trump cases are contortions of law that would stress a gymnasts best efforts. J6 defendants. Illegal immigrants……
@Matt Bernius:
He should.
1. Hunter is being treated very differently because he is the President’s fail-son. He would likely not be being prosecuted if he was a random white collar criminal.
2. The pardon has been abused so much by outgoing Republican administrations that making it a bipartisan problem might get some efforts of reform. Who can forget George HW Bush pardoning all the people involved with Iran-Contra that might have implicated him? Or Trump’s pardon of Roger Stone?
This might require a constitutional amendment to reform, but we’ve had lots of constitutional amendments over the years. It’s doable.
3. He’s Biden’s last son. The old man should do what he can to give his kid a chance to turn over a new leaf (which he will undoubtably fuck up because he is clearly a fail-son)
@Jack:
I wish I could say that I’m surprised that as usual you see political party as the great determiner and that people you support are always victimized by it.
I strongly disagree with that perspective. To be clear, I don’t believe the opposite (i.e.e that Democrats are the real victim).
Let’s agree that it’s not worth continuing this back and forth because that’s all it will be. You have yet to demonstrate any curiosity about anything that disproves your point. No discussion, let alone one that might be productive, is possible with you (at least when there is a political lense to view it through).
Jack having posted
three out of the fivefour out of nine comments, three in succession no less, tells me that a lot of it has to do with the sound of his own voice (or the voices in his head, who can say?).ETA: ““Yeah, you caught me, but I don’t want the ball and chain” is pretty much an immoral argument.” Yeah, except it doesn’t work that way. The original Alford simply escaped “old sparky” and died in prison. (Wikipedia) Have any Alford pleas resulted in the court releasing the defendant? I kinda doubt it.
@Matt Bernius:
Shall we nuke this account and recreate it?
Or should I create a new account to see if that works?
@Jack: a rather profoundly pathetic party tribalist nastiness as comment – Biden as “scumbag” – as Biden is rather clearly a very standard issue centrist politician.
@SKI: might I suggest Bobsled or Luge?
Or maybe even Huge Luge.
Taking an Alford plea is unlikely to encourage a judge to reduce your sentence, Jack. Judges look more favorably on people who admit and confess. This might be better than forcing a trial (for all number of reasons), but it’s not a stay out of jail free move.
Testing
Yup, its definitely something with my WordPress account. This was with a different email though.
Test2 – with different name but same email
https://www.nytimes.com/2024/09/05/us/politics/hunter-biden-tax-trial.html
Looks like he just went straight guilty…
And it looks like it is my email address…
@SKI:
Would it be ok if I emailed you with next step suggestions? I didn’t think deleting your account is the right approach… It might nuke all your post comments.
Though I also appreciate the test you just ran!
@Joe:
I think Jack’s rationale isn’t that the judge will go easy on him during sentencing because of the plea type. I interpret Jack as saying the plea is an F.U. to the courts by not accepting guilt and because (according to Jack) his father will ultimately pardon him rendering any sentence moot.
Jack’s statement that Alford pleas are less than 5% intrigued me, because I thought 5% sounded pretty darn high. I’m not any kind of lawyer, much less a criminal lawyer well versed in Federal plea deals (by the way he talks, I assume Jack is, of course), so I did a little digging. As I suspected, just under 90% of Fed cases are pled down. 8.2% are dismissed which, of course, is not going to happen with a plea deal of any kind. 2.3% go to trial and of those 1.9% are found guilty and 0.4% acquitted. [EDIT: Sorry, I screwed up the link and now can’t find it again. It was on Politifact, I believe]
I guess the remaining question is: what percentage of the plea deals are Alford pleas offered to the judge but not accepted by the prosecutors? My gut tells me it’s virtually none. Why? Well, for one, I don’t see how it can be considered a plea “deal”. It’s just a plea. The DOJ gives nothing in return, and you are accepting that they can prove everything charged. And second, based on the statistics, prosecutors are extremely willing to plea bargain. If you are willing to plead guilty, the Feds will give you something. So it doesn’t make sense to me that 5% throw that away just in order to enter “But I didn’t do it” into the public record.
A little more research doesn’t settle the question, except by the negative. By this I mean that I couldn’t find any discussion of an instance at the state or federal level where the Alford plea was proffered without the prosecutors accepting it. In fact, in the past 30 years it is usually seen as a way for prosecutors to cover up wrongdoing.
Given all this, it seems that Hunter’s offering the plea to the judge is what is especially unusual here. I assume they offered it to the prosecutor first, who turned them down. Given that 90% of the Fed cases get a plea of some kind, and 8% end in dismissal, what was the motivation of the prosecutor in this case turning down what is arguably the most valuable plea deal he could get? (Acceptance that all the charges will be proven, with no recommendation from the prosecutors for a reduction in sentence.) It is literally worse than simply pleading guilty to the original charges and throwing yourself on the mercy of the court.
But of course, all of that is just my hypothesizing built on top of statistics. I await for our Federal Criminal law expert to weigh in and set me straight, citing specifics better than my own.
If the reporting I just saw is correct, the Defense has shifted to a normal plea (i.e. admitting guilt), the Judge accepted it, and sentencing is set for mid December. I will update more details come out.
I’m I doubt that President Biden will pardon his son.
Also, how does a Presidential pardon work in the case of an Alford plea? Doesn’t accepting a pardon imply acceptance of one’s guilt? (There was some insider baseball talk at some point about why someone had decided to turn down a pardon because of the impact it would have on the defense argument for a parallel civil suit.)
…and yeah, it’s been a long time since Crim Law, or even the study I did for the Bar. Ask me about IP law or business law instead…
@MarkedMan:
Can you share the source of those percentages you shared. They feel off to me.
@Matt Bernius: Argh! I knew this would happen when I saw the link was screwed up! Let me see if I can find it in my search history.
Here it is. It’s a pie chart about halfway down. Here’s what the caption says: “Data is for cases resolved between Oct. 1, 2021, and Sept. 30, 2022. Federal courts only. Ongoing cases that were not resolved in that time span are not included.”
What really surprised me wasn’t the percentage of plea deals or the ratio between convictions and acquittals. It was that 1 in 12 cases were dismissed! What the hell is that about?!
President Biden has said, months ago, that he wouldn’t pardon Hunter, but I wouldn’t be surprised if he let the conviction stand and commuted the sentence.
Biden has shown himself to be a man of character, and I think that might be the right balance.
Poor Mr Trump. This trial was going to be the centerpiece of his campaign against the “Biden Crime Family”! All that time and effort by him and his lackeys in the House like James Comer and the massive propaganda network, all that braying about shell companies and bank statements and Biden meeting foreigners, all totally wasted! No wonder Mr Trump is pissed that they changed nominees on him. Anybody would be.
@Lounsbury:
Because he is, in fact, a scumbag. You may, in fact, find bagman bribe taking, sex trafficking, coke snorting and illegitimate child ignoring people to be just swell. Which of course would make you a scumbag.
I see your need to take offense.
@Matt Bernius:
Ain’t got no arguments, eh?
@Jack: Jackie Boy, while you’re here… and on the subject of scumbags… any thoughts on the right wing influencers being paid by Putin?
@Jack:
Feel free to believe what you want Jack. You’ve demonstrated time and again that nothing will change your mind and frankly you aren’t worth my valuable time.
@MarkedMan:
For what it’s worth I find the numbers at Pew. The way they are presented doesn’t make the most sense on first glance.
https://www.pewresearch.org/short-reads/2023/06/14/fewer-than-1-of-defendants-in-federal-criminal-cases-were-acquitted-in-2022/
@Jack I will comment that if you truly believe the following about Joe Biden is true:
Then it explains why you come across so agro. I would also be full of self loathing and anger if I supported a party that has been conducting an impeachment investigation for over a year and manages not to find any significant proof of those “obvious” activities and can’t move forward with and indictment. Or continuing to carry water for a person who only won one election and then cost your party both the presidency and the Senate… And is currently looking like he might just lose you the Presidency again.
On the plus side, it will be good practice for getting ready for how worse your mood will be if Harris wins the election.
As for me I am off to touch some grass. Toodles!
@Matt Bernius: I believe those accusations are lodged against Hunter, rather than Joe himself. But I am not up on the Biden Crime Family.
I don’t think we have any indication that Hunter was pimping out women (or men, or children), though, so the “sex-trafficking” part seems to be hyperbole.
And the “bagman” claims are more likely to be Hunter being a bit of a grifter trading on his family name than accepting money that goes to Old Joe. At least, no one has found any evidence of it.
But coke-snorting? Pretty sure we have evidence of that with Hunter.
Is that a good touch or a bad touch? Does the grass consent? Don’t go pollinating it against its will!
@Matt Bernius:
Matt, when you post something like that, you should alert the burn ward ahead of time.
Two thumbs up.
In the latest instance of “I know you are but what am I”, nobody should be shocked that Jack is accusing Biden of a list of things that Trump has already done. [Which Biden, of course, remains vague, but that’s half the fun, right?]
Because Trump is, in fact, a scumbag. Which of course makes Jack a scumbag — but we’ve already known that since Jack’s first post.
When you’re a Republican, it’s always EAIAC day.. because really, it’s all they’ve ever had.
@Jack:
Comey was a Republican, and House and Senate Republicans closed their investigations into Hillary’s emails with all the fanfare of a magician who forgot the trick: no findings of criminality or wrongdoing, no indictments, no recommendations for criminal charges. Nada. Trump campaigned on the promise of locking up Hillary; seems he lost the key.
Surely you agree then that Republicans and Trump are incompetent failures, yes? Why should the American people elect them?
Speaking of scumbags, let’s momentarily set aside your support for Trump — an adjudicated rapist and convicted felon who openly admitted his creepy crush on his then-underage daughter while also cozying up to Jeff Epstein for years, praising his fellow predator Jeff for liking women on “the younger side”…
…explain why Trump and the Republicans haven’t indicted or convicted Hunter Biden for sex trafficking or illegal bribery? For years, Hunter’s been hounded by a Trump-appointed special prosecutor and by House and Senate Republican probes. And they got nothing but a low-level gun application violation — just slightly more serious than a parking ticket.
This just screams Republican weakness and incompetence, yes? So why would anyone vote for Trump and the Republicans? They can’t stand up to obvious American criminals, how can we trust them to take on China and Russia?
@Tony W: How does Biden commuting the sentence of his son balance things?
@Jack: So, you are suffering a great deal of that pathetic disease, the Partisan Monkeypox Derangement which leads you to irrational frothing on about someone not of your partisan tribe as if they were the worst ever… in utter incoherency.
Now as I am not an American Democrat by any possible means, and observing from the other side of the Atlantic, my comment is purely analytical – this is simply sad mentally diseased tribalist frothing.
Disliking Biden for his policies is understandable and this lot here could do more with some useful non deranged criticism, disagreement over political goals is a useful exchange, however Partisan Monkey Pox frothing on well that’s simply sad mentally diseased poo flinging that … well convinces no one at all but does lead one to regard the diseased partisan with a degree of disdain.
@Matt Bernius: The factual points that the Orange cretin is reasonably credited with having negative general electoral results for the Republicans in the last 2 or 3 cycles remains the one point that remains a puzzle as to how such realisation has not spread. I think it evident that the Sr. leadership ex-lackies do so realise but as Pr Taylor has ably emphasised (although my formulation here is not his): the Americans reforms of the 60s-70s have resulted in a dangerous removal of insitutional controls for such parties to control own-brand / own-entry so they are unable to control their own ship. (I suppose the problems of coordination adequately if not to great satisfaction do explain why there was not real attempt to put some knives in Trump out of party-political self-interest [of course the bumbling miscacluations of DeSantis])
But how the reasonably literate politically engaged (the Jack example) engaged in mental contortions to not admit this does in fact baffle me, although the diseased projection he engages in may be a coping mechanism.
Now I can quite understand opposing Biden politically (not that I would agree on many points, as Biden has been quite competent and effective, although were I a right side USA voter I would still not probably like many of the social agenda items) but the frothing need to rant about about him is just rather sad (and so strangely misplaced here).
ETA: ah the edit function is back.
@Lounsbury:
I fully agree.
@just nutha: It balances things because his son is being prosecuted largely because Hunter Biden is his son, rather than some random dude. Joe Biden could allow the conviction to stay on his record, but mitigate the punishment for it – rather than a full pardon which is what Trump would have done months ago.
@Tony W: Thanks for the explanation. I don’t think Hunter Biden was singled out for prosecution but can see why you need balance, believing that he was.