Advisory Opinions - Indictment Watch: Trump's New Charges, Hunter Biden's Plea

Episode Date: July 29, 2023

Sarah Isgur and David French answer questions around the legal troubles of Donald Trump and Hunter Biden, including: -Drained swimming pools and deleted documents -How is Hunter Biden in good standing with the DC Bar? -David’s 10PM runs Show Notes: -"It's Seven Grandkids Mr. President" -Has the Supreme Court fixed qualified immunity doctrine yet? Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to a special edition of Advisory Opinions. We said we would do these sort of updates when there was big legal news coming out of the Trump or Biden world. And for this episode, we have both. I'm Sarah Isger. That's David French.

And David, this special podcast is interrupting one of my new love affairs. Oh, do tell. This is not a sponsor of the podcast. So this is going to be really weird because it's going to sound like it. I'm obsessed with Magic Eraser. And I'm going around my whole house. I think it's because I'm super duper pregnant. But instead of nesting, I'm going around with magic eraser and every single slight mark on my walls is getting magic erased. I don't even know what that is.

You can erase marks on your walls? Yeah, I didn't either. And then someone introduced me like, I should have known about this 20 years ago. And it's just really changed my life, probably in unhealthy ways. I thought you were going to bring up our new sponsor, has the Supreme Court fixed

qualifiedimmunitydoctrineyet.com? I can't. So in our last episode, we talked a lot about qualified immunity. It was a bit of a dark tale. Dark. But you kept saying like, maybe this will now be the chance that the supreme court

will fix it and i was like what we need is one of those websites where you like type in the question into the url and it takes you to a page that simply says no and i gave the example of has the supreme court fixed qualified immunity doctrine yet.com and has the Supreme Court cleaned up qualifiedimmunityyet.com. No sooner did that podcast drop than one of you bought both of those domain names. And now if you type either of those in, it does go, in fact, to a page that says no. And now, David, I can simply send you there. Yes, it's so glorious.

And it's not just that it says no. It has, in black letters, against a stark white background, just no. Not no period. Not nope. Just no. It is so great. It is so great. And, you know, I think that some people may remember

that Husband of the Pod used his last paternity leave to write a law review article about the origins of qualified immunity and absolute immunity and all of that. As one does on paternity leave. Don't get me started. I'm not mad. I'm not pleased. I'm nothing.

I'm just, I have all the feelings about it. But the second I saw this, I, of course, ran, busted into his office and was like, stop everything that you're doing. Yeah. It's so great. And the listener who created the website, you're our new hero because that is- Out yourself. Tell us.

He did in the comments. I missed it. Yes. It's in the comments. I missed it. Yes, it's in the comments. Thank you. Yeah, absolutely. All right. Well, we owe you something.

Name your, you know, name your thing. What do you want? Okay, David, we're going to start with the superseding Trump indictment out of Florida. Then we're going to do the Hunter Biden hearing from hell in Delaware. Yeah. All right. So we start with the superseding indictment out of Florida. Then we're going to do the Hunter Biden hearing from hell in Delaware. Yeah. All right. So we start with the superseding indictment.

There's three additional charges for Donald Trump and one new defendant. We all got sort of word from DOJ to stand by this week. And we all assumed that that was going to be the January 6th indictment coming out of

the D.C. courthouse. And then it wasn't. It was a superseding indictment in Florida in the Mar-a-Lago will for retention of classified documents slash obstruction case. So we do have three new charges. We have one new defendant. Let's actually dive into some of the meat here. So first of all, what is a superseding indictment? Let's start there. All that is, is it replaces the old indictment. Usually it's because they've added charges

or they've added a defendant. In this case, of course, as we just said, they've done both. It is not unusual in any way. It's especially not unusual for the Department of Justice. It's nevertheless newsworthy, but it doesn't even necessarily mean that the new indictment is quote unquote more serious. Anytime you add charges, let's be real, like you have another charge to defend. So it's more serious in that sense of like, well, you did have only 39 charges to defend.

And now if you're Donald Trump, you have 41 charges to defend. Okay, that is more serious. But I wouldn't say that this fundamentally alters the defense's strategy or the prosecution in terms of what they need to prove. Let's just start there, David. Do you agree? Yeah, I agree.

I think big picture, and for the reasons we'll dive into when we dive into the additions, it is a stronger, a slightly stronger indictment in two ways. One is it kind of closes a loophole in the original indictment that was kind of interesting.

And then the other is that it makes the strongest part of the original indictment a little bit stronger, which is, in my view, the obstruction elements of the original indictment. So I do think it's a stronger indictment,

but it is not a substantially different indictment. It's a stronger indictment. But it is not a substantially different indictment. It's a tweak. It's not a transformation, is the way I'd put it. Yeah. A difference in degree, not in kind. Yes, exactly. Another question I got was, will this delay the trial?

No. No. Again, there's a lot of things that I think will delay the trial. And certainly dealing with all of the classified information, and I've described this, that it's not just the individual documents that were at Mar-a-Lago, but when those documents reference other documents, et cetera, et cetera,

that you've got to work through all of this stuff. That's overall what is going to delay this trial, in my view. Adding one more substantive charge on that, now, maybe it'll turn out that document references seven different classified documents, and one of those is, you know, actually going to be the thing that delays it more or something.

I'm open to that possibility, but by itself, this does not delay the trial just because there's a superseding indictment two months later, because it doesn't change the strategy, the underlying sort of what needs to be proven at trial. However, David, just a little, can we do a little cul-de-sac? Because there was another filing in this case from the government.

Oh, gosh. Again, so this is the government characterizing what the Trump team has asked for as they start these SEPA negotiations, the classified information protocol stuff. According to the government, Trump is requesting that he be permitted to discuss classified information with his counsel outside SCIFs, meaning the places that are secure enough to discuss classified information. All right, this is, I'm sorry, this is funny. You are more or less being accused

of mishandling classified information. And the first thing you do is ask the government if you can mishandle classified information? I know, it's funny, almost. And thank you to Laura Jarrett at NBC for flagging this for me because I laughed out loud. So some people have speculated

that this is the Trump team once again trying to test Judge Cannon and make her actually rule on this. It's a great example of what's going to delay here. You know, it's these little ticky-tack whack-a-mole type things. Yes. But like, what? Now, again, this is the government's characterization. It is quite possible to me that what Trump has actually said is, I don't have a skiff at Mar-a-Lago. I don't want to have to fly to D.C. every time I want to meet with counsel and

discuss my case. I need a skiff built in Mar-a-Lago or I want to be able to discuss classified information outside of a SCIF, for example. Right. I'm open to that being what the actual ask was, but that's not how the government has characterized it. No, no. I just, I saw that, you know, just one of those really eye-rolling moments,

not worth a huge amount of commentary, but worth the podcast equivalent of an eye roll. Yes. So here we are. That was that. That was the podcast equivalent of an eye roll. Okay, so now let's get to some of the meat here. Why is this in the superseding indictment?

Why wasn't it simply charged back in June? Initially, there was a whole lot of flurry with reporters who follow this closely assuming that what was going to be in the superseding indictment had happened after the initial indictment. That is not true. Everything in these additional charges

happened before the initial indictment. So why the superseding indictment? I'll run through my theory, David. We don't know for sure, but I have a good hunch. All right. On the willful retention, the additional willful retention charge,

first of all, it involves that Iran document. Yes. Ben, I know you're going to talk more about some of that fun part, but basically, the Iran document transcript conversation

where Trump is saying, look, this is secret information. This was done by the military and given to me. And then when they talk about whether it can be in the book, the Mark Meadows biography, he says they'd have to declassify it.

See, as president, I could have declassified it, but now I can't. So that conversation was in the original indictment, but the charge related to that document wasn't. So Trump then does the thing that I described as every defense counsel's just reoccurring nightmare. He gives an incredibly long, detailed interview

to Brett Baier on Fox News, where he says there is no document. And in fact, he was referring to, quote, newspaper stories, magazine stories, and articles. So this starts a lot of speculation. Where's the document? Maybe it wasn't ever there. Maybe Trump, you know, wadded it in his mouth and ate it. But as it turns out, we now know, the government had it the whole time so why didn't they charge it my best guess is that the owner the national security agency that had authorizing authority over that document thought that it was sensitive enough that they did not want it to be part of

this SEPA process and basically be open to disclosure. And so it was like, look, we have all of these other documents, right? We have 31 other documents. Use those. You don't need number 32. And then Trump gave that interview and that authorizing agency, fork me?

No, fork you. And they gave the special counsel permission then if there was going to be a superseding indictment, to include this as a substantive charge. So it's really just a Trump self-owned, he talked himself into a 30-second substantive willful retention charge. That's my hunch number one on that superseding charge. The second one is about the additional obstruction. The allegation is that Trump instructed his employees to try to delete the security footage showing them moving the documents after they got that subpoena last June. Right. Well, why wasn't that included? It happened last June. Well, we know that after this initial indictment,

the special counsel not only didn't stop interviewing Trump employees, but like picked up the pace in talking to Mar-a-Lago employees. So what this tells me, they've got a new cooperating witness, David. Yes, exactly. That is exactly my thought about this as well, that they've been talking to people and they just have new information. And if you want to talk about something that makes this more serious, to me, I mean, David's right.

Like it's always, it is more serious. They have more evidence, all of that. But what actually is important here is not the two additional charges for Trump. It's the fact that they have a new cooperating witness. And if you're the defense, that's just bad news, brother. Yeah. Yeah. It's very, very bad. You know, and what's, what is interesting to me to go, let's go back to the document issue because this was one, what was emerging was a little bit of what we saw in the sort of classic Trump defense.

Now, this is a classic Trump defense that has been offered in the court of public opinion, not one that has yet worked in the court of law, but it's worked pretty well in the court of public opinion. And that is this situation where, let's say, the facts, available facts say that Trump committed a bad act that was on a scale of one to 10 and nine. And the media or somebody else runs around saying it's a 10. And so the Trump defenders are like, ha, ha, ha, you idiots, pearl clutchers, it's not a 10. Look at how little credibility you have. It's not a 10. And they never deal with the nine-ness

of it all. It's just that it's your problem for calling it a 10. And there was a small element of this in this complaint because the taped conversation was so bad for Trump. It was one of these conversations we've talked about before, these criming conversations, yet the document wasn't charged. And so that gave the Trump team, sort of in this court of public opinion, the opportunity to say, see, it's not as bad as they would tell you or they would charge this document.

Maybe there's not even a document. Trump said there's not a document. Why aren't they charging this document? Now, notice that you're not talking about the other 30 or 31 documents at all in this. You're only focusing in on this one. Well, now that loophole is closed. Now that document is there. And so that argument, which was pretty prevalent in kind of Trump world prior to the superseding indictment, has been dealt with. And this other element regarding the swimming pool. Explain the swimming pool. Yeah. So the swimming pool, well, explain the other, the basic reality is I use the term swimming pool because a swimming pool was drained. A Mar-a-Lago swimming pool was drained and a server room was flooded. And that's not actually been charged here. That is something

that occurred. Mistakes were made. Mistakes were made. Yeah. So I was thinking deleting footage and in my mind, I said swimming pool, but swimming pool is part of all of this, but not really. Let me just talk about deleting footage. So you're exactly correct, Sarah. So what happens is it's a very, they have a timeline here. It says on June 3rd, when the agents arrived at Mar-a-Lago, they noticed there were surveillance cameras located near the storage room. This is a room where a ton of boxes containing national defense information. So there were cameras located near the storage room. On the 22nd, the DOJ emails an attorney for Trump,

Trump's business organization, a draft grand jury subpoena requiring the production of security camera footage. On the 23rd, Trump calls De Oliveira and they speak for about 20 plus minutes. On the 24th, the DOJ emails the attorney for Trump's business organization the actual final grand jury subpoena that requires the any and all surveillance records, videos, images, photographs, and or CCTV. That same day, it says, now this is interesting, Trump attorney one spoke with Trump by phone regarding the subpoena for security camera footage. Some of that there, Sarah, is penetrating your attorney-client privilege. So you have a Trump attorney speaking with Trump about the subpoena for the security camera

footage. That's at 125. At 344, NADA gets a text message from a co-worker saying that Trump wants to see him. Then NADA, who is scheduled to travel with Trump, changes his travel schedule and begins to make arrangements to go to Palm Beach. Nada gives inconsistent explanations for this. And then you get to this lovely part of it. At 7.14 p.m. on June 24th, he texted one person that he would not be traveling with Trump the next day because he had a family emergency

and used shushing emojis. Now, I was unfamiliar with the shushing emoji. Yeah, no, you know the shushing emoji. It's literally like finger to mouth, index finger to mouth emoji. Oh, okay. See, nobody ever tells me to shush, Sarah. That's... Right. Yeah, that's the thing. Can't wait to talk to your teenage daughter about this. So he sends shushing emojis. Then Nada contacts Di Oliveira. So he sends a text message, talks to Di Oliveira.

He also sends a text message to Trump employee four saying, hey, bro, you're around this weekend. Nada texts Di Oliveira, hey, brother, you around this weekend? Nada texted De Oliveira. Hey, brother, you working today? And essentially, they exchanged texts. And the argument is that Trump, the boss, wanted the footage deleted. That's what it all boils down to. Trump, the boss, wanted the footage deleted. Now, is this going to be, is this, this is evidence. It is not proof because they've really got the NADA, D'Oliveira communications and the other communications down with, between NADA, D'Oliveira and other Trump employees,

they don't have the communications, apparently, between Trump and Nada. So they know that they talked, but they don't have that communication recorded in the same way. So that's the basic deletion narrative, is right as soon as the DOJ sends the subpoena, everything moves, brings into action to try to delete the footage,

which is an absolute no-no. Kids at home, do not, do not try to delete footage that has just been subpoenaed by a grand jury. But that's the basics of the story. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family give the moms in your life an aura digital picture frame pre-loaded with decades of family photos she'll love looking back on your

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That's A-U-R-A frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. All right, good. Now let's do Hunter Biden. Okay, so when we were recording our last podcast, this thing was falling apart before our very eyes, but it was like flip-flopping around. And so we couldn't really talk about it until the whole thing was going to end. So we were like, you know what? Put a pin in this. Let's actually get the transcript, figure out what happened.

We have the transcript. And even better than that, we have now the plea agreement and the pretrial diversion agreement and can paint the whole picture of why this thing was such a disaster. And it's really fascinating to me, David. So, reminder for everyone, Hunter Biden is charged with two counts of tax evasion misdemeanor. Hunter Biden is charged with two counts of tax evasion, misdemeanor. He agrees to plead guilty to those in exchange for probation. Separately, he is charged with illegally possessing a gun as a user of a controlled substance. He agrees to, that's a felony.

He agrees to pretrial diversion for that one. If he completes what is basically two years of pretrial probation, then he would not, it would be like the charge wasn't brought. He would not have a felony on his record. All gone. They're two separate agreements. So we go into this hearing. And as we talked about last time, I had flagged the fact that it didn't seem like these people were on the same page. Initially, after that announcement

of the indictment and the various agreements, the defense says, thus ends the investigations into my client, Hunter Biden. And the prosecution says, the investigations are ongoing. Yes. And we were all just left with that. It was very confusing. So not surprisingly, they walked into this hearing and the judge was like, so what is going on with this? This is the first part of the drama. What's interesting that we know now and what the judge

knew at the beginning of this hearing, and I'll try to explain this and maybe then David, you can help explain it again. The pre-trial diversion agreement says that if you complete all these things, charges will be dropped, no new charges will be filed. And in paragraph 15, it says that this includes all facts encompassed in the plea agreement on the misdemeanors. in the plea agreement on the misdemeanors. So the one document references and includes basically Exhibit 1 from the other document. Now, if you go to that fact summary, Exhibit 1 in the plea agreement,

the guilty plea agreement over the two misdemeanor tax evasion charges, they walk through in great detail how Hunter Biden evaded taxes, But it includes all sorts of facts about various business dealings, money coming in, all sorts of stuff. So if it's just, I'm curious how you read it, but David, I thought the defense had the better argument here. If the judge hadn't asked about this, and we know the tie goes to the runner, meaning the defendant, on these sorts of things, it didn't say all charges encompassed in the plea agreement.

It says any federal crimes encompassed. Yep. But facts. Facts. So by that logic then, the defense walked in and was like, we have a pretty big immunity agreement here. And the prosecution appears to have walked in not knowing that. So the first time around, the judge is like, so what's included in this? And the government's like, just these two tax charges and the gun charge. And defense counsel's like,

no, wait, that's not our understanding. So they take a brief recess to get on the same page. They come back. They're like, we're good now. All is well. And so she says, the judge now says, okay, so what is your understanding now? And they're like, that it would include all potential is your understanding now? And they're like, that it would include all potential tax charges and gun charges in this timeframe. And so the judge says, all right, and I'm now reading from the transcript. So there are references to foreign companies, for example, in the facts section. Could the government bring a charge under the Foreign Agents Registration Act? Prosecution? Yes. Judge, I'm trying to figure out if there is a meeting of the minds here, and I'm not sure that this provision is part of the plea agreement,

and so that's why I'm asking. Defense. Your Honor. Judge. I need you to answer the question, if you can. Is there a meeting of the minds on that one? Defense attorney. As stated by the government just now,

I don't agree with what the government said. So mind you, they had an initial meeting about the plea agreement and the pretrial diversion agreement in the first place. Then they're in the hearing. They don't agree the first time. They already had a recess to talk about what's going to be included, and they've come back. And now they are still not agreeing over what charges the government could still bring if they're investigating his client. So the whole thing falls apart there.

That's where we're recording, David, and like sort of doing a real-time analysis. But then they go take another recess. And they come back. And the defense moves over to the prosecution. It's like, fine, yep, it only covers potential tax charges and gun charges for this limited time frame referenced in the facts section in the plea agreement. So then all seems well, the plea agreement's back on, but wait. Normally, a plea agreement

involves three parties. The defense, the prosecution, and the judge because you're pleading guilty. It comes with the enforcement of the judiciary branch. It's imprimatur on that.

A pretrial diversion agreement, however, is between two parties. The defense and the prosecution because you're basically saying the prosecution's agreeing not to prosecute if you abide by these certain conditions. But not this one. This pretrial

diversion agreement requires judicial involvement, not her agreeing to the terms of pretrial diversion like she would on a plea agreement, for instance. She has to agree that those are, that's basically a fair quote-unquote sentence in the plea agreement, in this case probation. Even if the two parties agree to it, the judge can object. Not true in a pretrial diversion agreement because it would normally only involve two parties. They can work out whatever contract they want. So they're not asking the judge to weigh in on the merits. In fact, they're saying that she can't. But they do want her to be the enforcement mechanism on the back end. If the prosecution says Hunter Biden violated the terms of his pretrial diversion agreement,

there's a two-key missile launch system. The prosecution has to say that he violated it, and they have to get agreement from the judge that he violated it. She asked four to get agreement from the judge that he violated it. She asked four times, can you point to any precedent for something like this? And four times the government says no. Why did they do it this way?

Because clearly the Hunter Biden team is concerned that if Donald Trump won the election, or any Republican potentially, they would simply say he violated his pretrial diversion because it's a contract between two people and it's only up to the prosecution of whether he violated it. They could basically make up the fact that he violated it,

reinstate charges on the gun charge, and send him away for a gun charge. So they want a neutral third party to also have to agree that he violated the terms. But forcing the judge into what would otherwise be a contract between two parties that she has no say in the substance of, the judge was like, I don't know, guys. This sounds crazy to me. There's real separation of powers problems here. Go do some briefing. Come back later. Yes. I have multiple thoughts.

Jump on in. All right. Here's thought number one, which is more meta. Once again, the federal judiciary is proving to be the best functioning branch of government. Totally. And you know, in this podcast, we have critiqued judges when we feel like they've gone wrong. But you'll also notice we don't end up doing that all that much. You know, even when we disagree, say, with judicial reasoning, that's not a sign that a judge has gone wrong. It's only when they've really fumbled the ball.

But here you had the judge walking into an agreement that was quite frankly a giant mess. Now, it was a giant mess that favored Hunter Biden by and large, but it wasn't clear. So that even if you are Hunter Biden's attorneys and you say to Hunter Biden, you're in the clear here, I'm not so sure about that. And if you're the United States and you say, no, we could prosecute him for other crimes, you would say, I'm really not so sure about that. But the problem was neither interpretation of these documents was definite.

So that's exactly the time in which a federal judge should step in who's sort of the last line of defense here against an injustice or an ambiguity and says, uh-uh, we got to clear up this ambiguity. And just to use some of the language here to show why I think I'm with you, Sarah, I think that the Hunter Biden defense team has the better of the argument, but I would not feel so confident of that that I would say to my client, you're clear, right? So here's the language in paragraph 15, agreement not to prosecute. 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 one to the memorandum of plea agreement filed this same day. The agreement does not provide any protection against prosecution for any future conduct by Biden or any of his affiliated businesses. Okay. Yeah, first of all,

just that last sentence, I think, implies that all past conduct somehow is covered. Bingo, bingo. And then you go and you pull some of the language. So here's some of the statement of facts in Exhibit 1. At all times relevant to the instant information, the defendant, Robert Hunter Biden, was an attorney and businessman

with lucrative domestic and international business interests. From 2017 to 2019, he served on the board of Ukrainian Energy Company and a Chinese private equity fund. He further negotiated and executed contracts for business and legal services that paid millions of dollars of compensation to him and or his domestic corporations, and they named the corporations. Through at least early 2017, he was also employed by a prestigious multinational law firm in an of-council capacity. For this work, he earned substantial income totaling more than $2.3 million in 2017

and $2.1 million in 2018. I'm sorry, Sarah. I think Biden's attorneys have the better of this argument. By a lot, actually. I didn Biden's attorneys have the better of this argument. By a lot, actually. I didn't really think it was a close call. And the judge implies that as well. Yeah. It says, look, it's all federal crimes encompassed by the statement of facts.

And you included in the statement of facts all sorts of things about being a foreign agent, potentially. So could you charge him with failing to register as a foreign agent, which is exactly, by the way, what we all think they were still investigating whether to charge him with. Yep. The government says yes. Defense counsel says no. Defense is just right. I think they're right. The only reason why I would say, hey, look, this is not something I would approach my client and say, you're in the clear for sure, is it's all just weird. This is not the way these things play out normally. And you're normally not walking into court with the two parties having a fundamentally different interpretation of the same document in the plea context. Now, two parties walking in and having a fundamentally different interpretation of the same document is called commercial litigation.

It happens all the time. It is not typically called a plea deal. That is not the, you don't normally have the same level of disagreement. And so in that circumstance, I'm with you, Sarah. Hunter Biden's attorneys have the better argument. It does look like the deal was a better deal for their client than the DOJ was portraying it to be. And the judge was absolutely 100% right to step in in this context and say,

nope, nope, nope. We are only gonna do this when the parties, when there's a meeting of the minds. And that was exactly what she should do in this situation. So that leaves us with some of the narratives, right? The narrative is this was sort of a conspiracy that the judge exposed, that there's a reason that the department

did not release the plea agreement in advance, that even the judge didn't get to see paragraph 15 until like the night before or something um was doj trying to help hunter biden let's start with that question just with the with this element of it um were they about this on the Dispatch podcast, Sarah. There's one way you squint at this and you say there isn't a favor here because he was prosecuted for things people are not normally prosecuted for. And then you squint at it another way. And it can be, yeah, he absolutely got a favor because when people are in fact prosecuted for this stuff, they tend to be prosecuted more vigorously than he's been prosecuted. The other thing is there's also another element of the criminal justice system that can look like favoritism, but is also called excellent representation.

Yep. Hunter Biden has basically the best defense attorneys that money can buy. Yeah. And I do, there is a version of this where the defense attorneys wrote the language in a way that, but you have to then assume, frankly, either way, this is not good for DOJ.

Either they were conspiring to secretly help Hunter Biden and hide it from the public, or they weren't bright enough to know what they agreed to, which is why they're sitting in court continuing to say things that are contradicted by the plain words in the pretrial diversion agreement in paragraph 15. Neither of those are great options

for the Department of Justice. I'll tell you also a little behind the scenes thing. So remember, they didn't appoint a special counsel here. This is simply the Trump appointed Delaware U.S. attorney who the Department of Justice and the Attorney General said has full carte blanche to bring whatever charges, run whatever investigation he wants against Hunter Biden, which for what it's worth is actually basically all the powers of a special counsel anyway. Special counsel is basically creating a outside U.S. attorney. They have all the powers of a U.S. attorney, but they also report to the attorney general, same as a U.S. attorney. The only sort of relevant difference is if they are denied some resource or ability,

they get lost, tell Congress. Setting aside that small distinction, this guy basically is a special counsel for all intents and purposes. And clearly this team was left on their own out there in Delaware to figure this all out. Yeah. Normally for something this size and scope,

you would have all sorts of help and resources coming in from, quote unquote, main justice, the criminal division, reviewing every single word. There's a good chance that didn't happen here because DOJ was trying to protect themselves politically, which also isn't great. Right. This is all under category of not great. So it's all in the category of not great. The only thing in the category of great is the judge intervening. And just repeatedly, by the way, she was relentless. She kept asking the same questions over and over again. You could tell the lawyers are getting annoyed.

They don't know why they're being prosecuted this closely. You know, that's a hypothetical judge. And she's like, yeah, it is a hypothetical. Yep. Hypothetically, if you're like, she's just not backing down. There's not a hint of sort of insecurity in her throughout any of this. It's really impressive judging. But David, I want to ask you the other part of the narrative.

Yes. Republicans were upset about this deal in the first place and thought the Department of Justice should be continuing to investigate Hunter Biden for, for instance, the failure to register as a foreign agent. But they also are mad

that he's not getting this immunity deal and that DOJ says that they're still investigating him because they believe that's thwarting Congress's ability to then investigate Hunter Biden because Hunter Biden will simply plead the fifth in his right

against self-incrimination if they call him, you know, subpoena him to come testify. What am I missing here, David? That seems a little contradictory. Yeah. You want them to charge him I guess but you don't want them to just sit on an investigation I mean I get that yeah but you do have to investigate in order to charge so like right there I think their view would be they would square that circle by saying hurry up already you know finish this thing it up, charge him what you're going to charge him with. But this is sort of the worst of both worlds. Their view would be

that you are giving him a sweetheart deal, but also in a weird way, giving him an odd benefit of a continued investigation that might be futile anyway, because the plea agreement that he just entered into means that it isn't really any future, any investigation of all of that past conduct is futile because of the plea agreement. It's a giant mess. It's just a giant mess. And I don't think there's any way to look at this as not a mess. So I'm open to a reader. I mean, there I go again, a listener. I'm open to a listener saying, this is not a mess. I'm in a USA and in X district and this is not a mess. This happens more often than some of the legal commentators may tell you. But to me, it looks like a mess from every direction. There's no one who's coming out of here smelling like a rose.

I do think that we might be underestimating the element of this, which is just Hunter Biden has really good attorneys. And when you're a criminal defendant in the United States of America and you have a really good criminal attorney, your outcome and your reality can look a lot like favoritism.

Because that's what happens when you get excellent representation. It matters. There's a reason why people charge those large, large sums of money for excellent representation because it does matter. And that looks to me, the more I think about this, and even as we talk about it, Sarah, my thinking on this is evolving as we're sort of going back and forth on this. It almost feels to me like what happened is Latham and Watkins wrote this sort of labyrinthine, was involved in drafting this sort of labyrinthine legal trail that led me in a meandering way to, ha ha, we got him off everything. And the U.S. attorney may not fully understand it yet, but he will. And it feels a little bit like that. But on the same time, part of you is saying, could the U.S. attorney's office really be

saying, could the U.S. Attorney's Office really be outmaneuvered like that? Could that really be the case? But yes, the bottom line is the right result under these facts occurred in court, which is, nope, try again. That was the right result. Can I tell you just like a footnote, one other interesting part of this hearing that stood out to me, that again, this judge looks awesome. I don't know how else to say it. Yeah. But this was a part that didn't get a lot of attention because it didn't result in any sort of material changes to the agreement. I'll read from the transcript here. Judge, from the transcript here. Judge, the information charges Mr. Biden with violation of 18 U.S.C. 922G3. Remember, that's the gun charge,

unlawful possession by someone who's under the influence of a controlled substance. Does anyone have any concerns about the constitutionality of that charge in light of the recent Third Circuit range case, which we have talked about on this podcast? Yeah. Prosecution.

No, Your Honor. Yeah, well, no joke. Of course, you'd think that 922G is all constitutional. Defense. Your Honor, I note our... That's one of the reasons the parties, I think, are in the disposition we are in. We don't waive in a later prosecution

any challenges on that. Judge, I completely understand. That was kind of why I was asking the government the question. So if 922G3, which makes it unlawful for a drug user addict to possess a gun, were found by some court to be unconstitutional, what happens to this agreement? Prosecution. Your Honor, the diversion agreement is a contract between the parties, so it's in effect until it's either breached or determination, period. Defense.

I can tell you our intention would be to abide by the agreement and only raise such constitutional determining at such time that somebody tried to bring any charges on this. Otherwise, it's an agreement between the parties. We are going to honor the agreement. Several pages down, this idea of something in this pretrial diversion agreement

being unconstitutional comes up again, this time, of course, in the context of her role. And she's like, okay, but what if this is found to be unconstitutional because it's a separation of powers? What happens? Is there a severability clause? Does the whole thing fall apart? They try to go off the record at one point. She's like, no, what? You can tell me why you want to go off the record and then we can talk about that. But we're not just going off the record

because you don't want to. Again, like just very confident judging at this point. And of course, that's how this thing's going to end with them not being able to convince her that if the plea agreement itself and her role in it is found to be a violation of the separation of powers or unconstitutional, then this pretrial diversion agreement still stands. There's no severability clause. There's nothing discussing what would

happen if her role is stripped out of this. Yeah. Well, and the other thing that's interesting is this is conditioned on an addict. The current agreement, which who knows if it will be the ultimate agreement, is conditioned on an addict staying clean, including from alcohol. Yep, no alcohol. No alcohol, which is very, very interesting. So I actually found that in some ways to be the most vulnerable aspect of this plea deal.

Having interacted over the course of my life with quite a few people who've struggled with addiction. That's a strong incentive to stay clean, but we have seen addicts with every incentive in the universe to stay clean, not stay clean. But you want to make sure

this thing is tied up. Like, it's not this like, well, look, 99% chance he can just do this for two years and this whole thing goes away. So why are we scrutinizing this? She had mentioned exactly your point at one point, David. Like, look, great if we're not ever back here again,

but we need to make sure this thing is real and enforceable in all the ways that you guys think. And there's a meeting of the minds here on all of this stuff and that's my job. And they're kind of like, no, it's not. And she's like, I'm going to say what my job is today thanks yeah yeah now the interesting thing is what what happens next because the question becomes okay if do they come back in and then say okay judge latham and watkins was right this This takes care of everything, including Farah.

Well, then all of a sudden the argument that this is a sweetheart deal gets a lot stronger. Yeah, definitely. A lot stronger. Or if the DOJ is like, wait a minute, we were being taken for a ride, but then the problem is there, if they just say, okay, we don't have a deal for right now,

then Hunter's staring at charges on these counts that it's really risky for him to just plow forward without a deal because he could look at actual prison time as a result of these charges. So this was ultimately a bad day. If I had to say who was it a worse day for, it's ultimately a worse day for Hunter Biden because he doesn't get his plea deal, which contained language that if push came to shove,

probably, almost certainly would say he couldn't be prosecuted for the FARA stuff. And so he lost that deal, at least for the time being, and that's a bad day for him. Now, the DOJ may capitulate and it might be a good day for him again, and maybe even a better day because there's then no ambiguity. But as of right now, when you've got a good deal and you're the defendant and it falls apart in court, that's not your favorite moment. I'll also note that,

so there's the Hunter Biden part of this. There's also a more global interesting thing, which is if I'm any defense attorney and signing a pretrial diversion agreement that again would normally be between the two parties and only the prosecution gets to decide whether I violated the terms of the contract, I'd always rather have a second bite at that apple

and have a judge also have to determine that I violated that contract. And so if this sort of moves through in the way that the parties wanted it to, any criminal defense attorney is now going to be like, and also the judge signs off on the pretrial diversion violation, which is going to be a mess for DOJ.

Yeah, and a mess for judges. This whole thing was ill-conceived. Yeah. Bad plan. Now, yeah. I mean, there's like some other stuff to get into. Other examples, not pretrial diversion, sort of queen for a day immunity

that judges do get involved in sometimes. But this just opens up another whole door that's not great, Bob. Side note, David, how in the world is Hunter Biden still a member of good standing in the DC bar? An admitted addict who is agreeing to plead guilty to two fraud charges.

Those are the two things that get you not as a member of good standing. Now, the addiction thing is, that is different. Like, lots of addicts are members of the bar. Yeah. Well, and also I would say, you know, what's interesting, I mean, look, look, can we just, the elephant in the room is,

the guy's last name is Biden. That's the short answer as to why he got, for example, the two point some odd million per year of counsel to a law firm. That's why he's being investigated under FARA. There's so many examples of him using his name to bring him riches. So the question, has Hunter Biden experienced favoritism in his career? Heck yes, of course. Okay, then has Hunter Biden experienced favoritism in this prosecution? That's when we're talking about the squinting. Well, how are you looking at this? But if he had

gotten cleared of all the FARA stuff through pleading guilty to misdemeanor tax charges, I would have said, yeah, you know, that Biden name's still doing him good right now. But we'll see, we'll see. I understand the constitutional problem with the 922G3 that we've talked about plenty of times, right? And the defense team absolutely threatened DOJ and said, we will contest whether this is even a constitutional law if you try to bring it. the Biden administration in a far tougher bind in terms of, you know, the president's son

being the one to loosen up gun restrictions in this country. I know. And so in the end, though, this is what, like, I'm mad about the granddaughter thing, but I'm also mad that when you do bring charges on guns, a clear violation of 922G3. Again, set aside the constitutionality, it's a clear violation of a law in the books that

lots of other people get charged with. Well, not lots, but you know, some. You're going around giving speeches about gun control, about gun violence, and then the White House press secretary is asked at the briefing, does the president believe that anyone charged with the illegal possession of a gun should be prosecuted to the fullest extent of the law?

We don't have anything for you on that. Yeah. And then, you know, the layer, there's this human layer on top of it, which is, this is his only surviving son, who he's been struggling with for years. And every paternal instinct, of course, is to just absolutely rally around your now sober son. Totally get that. Totally get that. Then you know what? Put your family first and don't put the politics first and answer the damn question. Bingo. You still have a job. You still have a job. And nobody, you were not conscripted into that job. No one drafted you. You chose to put yourself forward as president of the United States. And I'm sorry in that circumstance, this sort of, but David, he's also a father. Totally get it. Totally understand. Being a dad is going to create a situation where you're going to create an unequal system of justice or extreme favoritism for your son.

Don't run for president. If you cannot reconcile that tension, don't do it. And I know that sounds super basic, but sometimes things are pretty basic. That's why I do think it is actually quite important whether or not Biden is receiving some kind of sweetheart deal. And then also, Sarah, highlighting the idea that it is through Hunter Biden that potentially gun control laws get struck down

in that circuit. Wow. I mean, just think that through for five seconds as to how bad that circuit. Wow. I mean, just think that through for five seconds as to how bad that is. Yeah, and we haven't even talked about the granddaughter situation, which just kind of makes me throw up in my mouth. Yeah.

Hate it. Just read the Maureen Dowd column. I approve of all of it. Yes. All right, well, that's going to bring us to our conclusion of our special episode of Advisory Opinions where we only look at two people in legal jeopardy.

We are still expecting that indictment from D.C. on January 6th. We've mentioned that before and sort of what we're looking for in a previous episode. But just so everyone's clear, if all we get is the fact of an indictment itself, we're not doing an emergency podcast about the fact that he's been indicted if we don't know

what for. We will do an emergency podcast once we get the full indictment and can actually discuss some of the details. Similarly, Georgia, still waiting on Georgia. I think we're gonna have a busy August, David. Oh my gosh. I mean, when you see them putting up crowd control barriers outside of Fulton County Courthouse. And it's just worth mentioning, I'm so pregnant right now and it's so hot outside.

And there are feet. Like you can now, we're at the point where you can like see the feet basically. Oh my gosh. And they're like in my rib cage. It's just, for a while, I know this is like listeners are going to judge me

and I accept that because I should be judged for this. But, you know, even when I was pregnant, I sort of thought like, why do pregnant people get like sort of preferential treatment, but then fat people get like really negative treatment? Because you're basically just fat. Not in the third trimester. No, it's very different from being fat.

It's a whole different thing and it's really uncomfortable. I hear you. I'm so sorry. I hear you about the heat. You don't want to hear about my travails because they're in, cannot compare.

But I waited to go running last night until 10 p.m. David, that's like the middle of the afternoon for you. Well, that is true. You stay up till 2, 3. I've got stuff to stream. Lately, Hijack on Apple TV+.

Okay. Very good. Endorse. Yeah. Yeah, it's basically, you know, remember the show 24? Where it was 24 hours a day? I can't believe you have to say, do you remember the show 24?

Because to me, it's like, that was so ubiquitous. But yeah. Yeah. Well, not everybody remembers it. No, it was 20 years ago. You're right. Yeah.

It's now an old show. You could have called this show seven because it's the seven hours of a hijacking of an international flight. And it's each hour of the hijacking. And so, yeah, I'm on, I just finished four and we're moving into five. Have I ever told you about the time I was on a plane

and the guy next to me, like as we're moving down the runway, keeps looking back at the bathroom and like keeps looking back. He's sweating profusely now and it's like one of those like see something say something so the second the plane's in the air he runs back to the bathroom and then he's gone like doesn't come back and just 10 minutes goes by and finally i'm like you know what nope i'm not going down because i was being shy so i stand up and press the call

button and right at that moment, he comes out and it's very clear the man had serious intestinal distress. Oh, no. He was trying to see how quickly, you know. Yeah, yeah. Oh, man. I regret nothing. Yeah, I would not either.

I would not either. But did he have to explain his gastrointestinal problem? No, it was very clear from the start. I don't need to explain why it was clear. It was very clear what had happened. Somehow the story just got worse. And I don't want to know how. But to be clear, other passengers were also getting nervous.

There was sort of some hushed whispering in my part of the plane as we were all like, uh, where did that guy go? Yeah. Yeah, that, that, yeah. There is no shame in pressing the flight attendant call button in that circumstance. Thank you.

Thank you. Poor guy though. Poor guy. I know. On that note. Happy flying, everyone. We'll talk to you at the next episode of Advisory Pitch.