The Daily - Hunter Biden’s Legal Problems Keep Getting Worse

Episode Date: August 17, 2023

A plea deal struck between the Department of Justice and Hunter Biden was supposed to bring his years of legal troubles to an end. Instead, that deal has unraveled and a special counsel has been named to take over the case.Michael Schmidt, a Washington correspondent for The Times, explains why that turn of events is increasingly pitting the interests of Hunter Biden against those of President Biden.Guest: Michael S. Schmidt, a Washington correspondent for The New York Times.Background reading: The lawyer who represented Hunter Biden in plea negotiations stepped down, saying that he intends to testify as a witness on behalf of the president’s son.Here’s a timeline of Hunter Biden’s life and legal troubles.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, a plea deal struck between the Department of Justice and Hunter Biden was supposed to bring his years-long legal problems to an end. Instead, that deal has unraveled, and a special counsel has been named to take over the case. My colleague, Mike Schmidt, explains why that turn of events is increasingly pitting the interests of Hunter Biden against those of President Biden.

It's Thursday, August 17th. Some quality stuff right there. Are you ready? Yeah. Okay. Mike. Yeah. Welcome back. Good to be here. To get to this point where we are right now, in the Hunter Biden saga, where he now faces a full-blown special counsel investigation, I think you and I have to go back to the last time you were on the show to a plea deal that we thought was a done deal between Hunter Biden and the Department of Justice. And that plea deal looked like it was going to forever end this years-long, sprawling investigation into Hunter Biden's conduct over the past few years.

And in the episode where you and I talked about that deal, which ran on July 26th, that morning, the plea deal was going to be signed, and it was all going to be over. That didn't happen. Correct. So when Hunter Bynes heading into court that morning, we think this is going to be a very perfunctory day. This is a hearing that is essentially glorified paperwork. He's going to go before a judge, the judge is going to ask him some questions to make sure he knows what he's doing. Some documents are going to be signed.

And we're going to have this plea deal that brings to an end this wide-ranging investigation that had looked at all this different stuff in his life. Right. And just remind us what is in the plea deal before we get to how it goes off the rails. So over the past five years or so, the United States attorney in Delaware, who was appointed by Donald Trump and actually kept on by the Biden administration to lead this investigation. Guy named David Weiss. Yes. He had looked at a broad array of Hunter Biden's conduct,

from his foreign business dealings with companies like Burisma, which I'm sure people have heard of but are not totally sure what it is. Energy company in Ukraine? Yes. And his use of drugs, his purchase of a weapon, his finances, his taxes. Right. It's taxes. And Donald Trump and Republicans claimed that this investigation was going to end the five decades of the Biden family in American politics. It was going to expose criminality that had gun in which Hunter Biden had lied to the federal government about whether he was using drugs at the time that he tried to make the purchase and no jail time. Right. plea deal from that big, vast landscape down to these two and a half or so charges that really infuriated Republicans who felt it was a scandalously sweetheart deal for the president's

son and a huge relief for Democrats who'd always felt this investigation was bigger than it needed to be and that Hunter Biden had never committed any crimes, so this just made sense. Correct. Okay, so what happened exactly to this plea bargain deal that you just described? So Hunter Biden went into court for what we thought was going to be this straightforward, perfunctory hearing, and it quickly went off the rails. How so? At the heart of this deal, one of the main reasons why Hunter Biden came to the table was his understanding that he was going to get immunity, essentially insulation from prosecution from the Justice Department for all of this conduct, his foreign business dealings,

his work for Burisma, his work with Chinese business officials. The whole scope of this Department of Justice investigation, his understanding was that once he pleaded guilty to a tax charge and a gun charge, that he would never be charged with anything else related to the original investigation. Yes. Hunter Biden says, I'm coming to the table. I'll plead to these tax charges. But we got to give me an ending to this investigation that has hung over me and my family for so many years. And I mean, maybe this is an obvious question, but under investigation, it's important to know that it's over and you can truly take a deep breath. But there was something else, something bigger that was hanging over this.

And that was Donald Trump. So at the heart of this deal is immunity, immunity that Hunter Biden wanted. Why did he really want immunity? immunity? Because if his father loses re-election and Donald Trump becomes president, Donald Trump has essentially said he will use the Justice Department to prosecute his political enemies. Right. And Hunter Biden's certainly... Number one, number two, number three, wherever you want to put him in, you know. He might be number one, number two, and number three. In other words, Hunter Biden worries that Donald Trump could be re-elected and turn his Department of Justice into kind of a one-man wrecking ball aimed at Hunter Biden. Yes. One of the most important things that I think gets

lost in the shuffle of Trump is his desires to use the powers of the federal government proactively against those he doesn't like. And he has said this openly. He has said, this is what I'm going to do. So if you're Hunter Biden, you know that you've been a target of Donald Trump, and there's a chance your father could lose re-election, you want that protection. And Hunter Biden's understanding as he prepares to sign this document in a perfunctory manner, get this deal over with, is that he has baked into this deal exactly that level of broad immunity you just described. Correct. But in the courtroom, the judge looking at this deal focuses in on the paragraph on immunity and starts questioning the prosecutors about what appears to be a pretty broad level of immunity. And in response to the judge's questions,

the prosecutors give a far more narrow definition of what they think the immunity applies to. How narrow? Narrow to Hunter Biden's taxes and his purchase of the gun, but not all of his foreign business dealings over the past decade. So not this protective shield of a very broad kind that Hunter Biden wanted and understood this plea deal to give him that would potentially protect him against a future Donald Trump Department of Justice investigation instead of criminal charges.

Correct. And it was outrageous because this was one of the most high profile investigations the Justice Department had undertaken in the past few years. Both sides had finally come to a deal and they walked into a courtroom in front of a judge where they knew the deal would be closely looked at and picked over. And they had completely different understandings of the most central part of the whole agreement. So what's outrageous, because I just want to be really clear, is the fact that professional lawyers on a case this important somehow had been so derelict that they didn't fundamentally understand the deal that they were a party to. Yes. How did that happen? Hunter Biden's defense lawyer is a guy named Chris Clark,

who's a former federal prosecutor and is considered to know what he's doing. So it's hard to think, like, I don't think that Chris Clark walks in the courtroom thinking, oh, we're going to pull a fast one here and get broad immunity that the government wasn't going to give us. What about the Justice Department lawyers? How do you explain them not necessarily knowing just how broad this immunity was? It doesn't make any sense. One of the biggest questions we still have is that how do you have such a high-profile matter that you know is going into court and there be diametrically different views on the most important part of it? Right. So we don't know why these experienced, prestigious lawyers on both sides are confused, but they are confused.

Correct. And the judge goes on to highlight other issues she has with this deal. And this thing, which we thought was a layup and essentially signing of paperwork, gets put on hold. She says, Justice Department, Hunter Biden's lawyers, go back and try and figure this out. Right, get on the same page. Correct.

Which is a logical thing for both sides to do. Leave the courtroom, maybe with their tails between their legs, because this is all pretty embarrassing, and try to renegotiate this plea deal so that everyone is on the same page. Is that what happens? In the days that follow, there's a back and forth between Hunter Biden's lawyers and the prosecutors in Delaware on trying to reach a deal. And those negotiations are not going well.

And it appears like that deal or whatever deal anyone thought they had is unreachable. And if the deal is unreachable, then there's only sort of one conclusion or two conclusions about where this is headed. Either the government is going to walk away from it, they're going to walk away from a case of the president's son, or they're going to have to go to trial. But Mike, wouldn't a trial be very bad for Hunter Biden? Because unlike a plea deal, it would be public, it would probably be long, and it might mean jail time, which was never part of this plea deal. And a trial, correct me if I'm wrong, it doesn't get Hunter Biden any immunity

from future criminal charges, right? Correct. And it would put him in an incredibly stressful position. He would be on trial. And to your point, on trial means greater exposure to time in prison. But I think that in the aftermath of the deal unraveling in the courtroom, there was a sense in Hunter Biden's orbit that he had kind of looked into the belly of the beast, saw what it looked like, and was more open to fighting than he had been at any other point up until then. Why though? Because what he saw didn't scare him or did scare him? I'm a little confused.

You have to understand, walking into the courtroom, the government and Hunter Biden are essentially partners. They have come to an agreement on a really complex matter. But that partnership that got them to that deal has been shattered dramatically in front of them. And if you're Hunter Biden, you're pretty upset because you thought this thing was over and you thought you had this protection going forward. And now that's all gone. So if you want to go and indict me on misdemeanor tax charges, like have at it. So once the immunity he thought he was getting is gone, he sees virtually no upside left in this plea deal.

He's just suddenly pleading guilty to crimes. Why should he do that if he's not getting anything in return? So he decides, screw it, I'm going to roll the dice and hope to beat those charges entirely at trial. Correct. So as these negotiations are falling apart and it becomes clear that a trial might be on the horizon. David Weiss, that U.S. attorney who was appointed by Trump, was kept on by Attorney General Merrick Garland to lead this investigation, goes to Merrick Garland with an ask. An ask that will take

this high-profile investigation that's gotten all this attention and will jack it up several times more. And that ask was for a designation that would give him some more powers and authority and independence. He asks Merrick Garland to make him a special counsel. Good afternoon. And three days after Weiss makes that request, Merrick Garland... I'm here today to announce the appointment of David Weiss as a special counsel. ...stands up at the Justice Department in Washington and makes an announcement. The appointment of Mr. Weiss reinforces for the American people the department's commitment to both independence and accountability in particularly sensitive matters. I am confident that Mr. Weiss will carry out his responsibility in an even-handed

and urgent manner and in accordance with the highest traditions of this department. Thank you. We'll be right back. So Mike, what's our understanding of why David Weiss, this U.S. attorney looking into Hunter Biden's conduct and who negotiated this plea deal that fell apart, why he asked to basically be promoted to this rarefied status of special counsel with all these new powers, and why Attorney General Merrick Garland decided to grant him that. I think to understand or try and understand this, we have to unwrap what a special counsel is. So up until this point, Garland and the Justice Department have been saying, Weiss has all the independence that he needs. This is a Trump-appointed U.S. attorney. He's off doing his thing. But what a special counsel appointment does is it really solidifies that. How so? Because it comes with added

provisions that give that prosecutor more independence, or at least the perception of it. There are three major things that do that. The first is that prosecutor still reports to the attorney general, but is not managed on a day-to-day basis. Remember, this is an investigation in which the president's son is under investigation by his justice department that is run by his political appointees. Right. So this is a classic case where a special counsel seems merited because you want that prosecutor to feel independent since the investigation is kind of looking inward at the president and the president's family. Kind of reminds me of Trump and special

counsel Robert Mueller, who was looking at Trump's relationship to Russia. You want an independent prosecutor if that prosecutor is looking at the president. Correct. The second thing is that if that prosecutor wants to take a major investigative move and is overruled by their higher-ups, the attorney general has to report that to Congress. As an added layer of accountability. Extra sunshine into how the investigation is being run. Yep. is that that prosecutor, when they are done with their investigation, can write a report, a potentially damning report,

to the attorney general about what they found. And that report can become public, similar to what we saw at the end of Robert Mueller's investigation into Trump's ties to Russia. Okay, why do we think Weiss, if he was, as we have reported in the Times, at the end of a years-long investigation, suddenly wants all these layers of independence from the Justice Department? So Attorney General Garland hasn't said why Weiss wanted this, and Weiss hasn't answered that question either. And that has left us trying to figure out what was behind that request. Why did he think he needed that? And what's a logical explanation?

Well, one is, is that if he's going to go to trial, having that extra layer of insulation and perception would be a great thing for a prosecutor to have if they're walking into court and trying to make a case. Against the president's son. Correct. The second is that it might be trying to get leverage to make that deal. A new plea deal. Correct. Because remember, the plea deal fell apart.

They tried to put it back together. And if you're Hunter Biden, do you want a special counsel mucking around still in your life and doing all these different things when if you make a deal, it could all potentially go away? Interesting. And the third thing might be that the political wins on the Hunter Biden investigation have just become so great. It is so front of mind for Republicans. There are so many conspiracy theories about what's going on. Why wouldn't you want that extra layer of independence or

perception of it as you finish this investigation? Right. And I think what you just said speaks to why Attorney General Garland kind of had no choice but to grant him these powers. Attorney General Garland kind of had no choice but to grant him these powers. If Garland had said to him, no, I'm not making you special counsel with all that independence, it would surely look like the attorney general was taking a step to handicap the rest of this case and protect the president and his son. Correct. Okay. So given everything, Mike, that's happened up to this point, I want to talk about how we expect Weiss to use this new status he has of special counsel. Because it seems like it could mean a couple of things. It could just let him, like you said, prosecute the trial with greater independence or perhaps use it as leverage to get a better plea deal.

But it could also, in theory, lead him to pursue all kinds of new avenues in an investigation of Hunter Biden. And the reason I ask that is because, as we know, Republicans in Congress have been turning over their own rocks when it comes to Hunter Biden. They've been calling their own witnesses whistleblowers who are making allegations that the original investigation was biased. In theory, couldn't David Weiss, as special counsel, mop all that up and just investigate Hunter Biden in a new, more energized way? I think you're going too far afield.

It's hard to think that after Weiss has looked at all these different matters in Hunter Biden's life over the past five years, that House Republicans who have less power than he does have really uncovered something criminal that he didn't look at. It doesn't totally make sense, but I don't know. We know that in court, one of Weiss's prosecutors

said the investigation was ongoing. And if you look at the history of these types of prosecutors who've been appointed in the post-Nixon era, they often start on something and end up on a completely different place than anyone thought when they began. looking into Hunter Biden won't just be about David Weiss preparing for a trial on tax and gun charges, but will morph into a sprawling investigation, potentially even involving the president himself, his conduct, and it will become a major political liability in the presidential race because it's going to produce, in theory, streams of embarrassing revelations, a final report that could be used by Republicans as a weapon against Joe Biden, and could ultimately become, in the eyes of Democrats, decisive in determining the result of a close 2024 election. If you're a Democrat, you remember how the Clinton email

investigation ended in 2016. And you can easily see, oh no, investigative steps happening in the final months of the election, a report dropping in the summer of 2024. These are all things that Democrats lived through so dramatically in 2016. Who knows where the special counsel is going to go? Who knows how it's going to end? Who knows what the report may say?

Right. They'd rather it not happen. Correct. It's interesting because every time we talk about Donald Trump and a special counsel investigation or a set of criminal charges he faces, the latest, of course, just being in Georgia this past week, we always talk about it politically as something that makes him stronger. But we all seem to be operating under the assumption that when it comes to Joe Biden, a special counsel, a trial, criminal charges against his son Hunter, that politically makes President Biden weaker. And I wonder, is that actually true? Yeah. Trump has portrayed himself as a victim where Biden has portrayed

himself as a person of integrity. So if you have an investigation that in the final year of a campaign is kicking off different disclosures or news stories that raise questions about whether you are truly a person of integrity, that could be damaging. So nothing good could come of this for the Bidens. So as we think about how this case is now going to unfold, with Weiss as special counsel and Hunter Biden increasingly not liking the plea deal offers on the table, I wonder if we can presume for a moment that there is going to be a trial. I know it's not a certainty, but there's a much greater chance of it now than there was before.

How do you think about that trial and what it might look like? Well, it could put the Biden family itself in a very awkward position where the president's son is going into court to face down his father's justice department. I'm not sure if that's ever happened before. There's no way it has.

It's just another extraordinary twist in this story that doesn't appear to be going away. Mm-hmm. And sitting here listening to you and thinking about this trial, Mike, it strikes me that a trial might put the interests of father and son very much at odds in a way that they haven't been. Because a plea deal seemed like it was in the interest of Hunter Biden, gets it over with, and his father, no messy public saga anymore. That ends.

If there's a trial that Hunter Biden thinks he needs to pursue, everything becomes public. Everything becomes messy. I can't imagine that's what his father wants. On a daily basis, you would have the president's son in court against his father's Justice Department, fighting for an acquittal, at the same time that his father

is running for re-election against the man in Donald Trump who says he's going to essentially throw Hunter Biden in prison for the rest of his life if he wins. I don't know what that is. I don't know how to describe that. I don't have the word for it. But if you're Joe Biden, a person who is running on the idea that you restored integrity to the White House, that is not just a distraction, but... Undermining.

Undermining. If you're Joe Biden, that's the last thing you want. But if you're Donald Trump, who's been trying any way possible to attach criminality to the Biden family, that's a gift. Well, Mike, thank you very much. Thanks for having me. In the latest twist in the Hunter Biden legal saga,

the lawyer who represented him in his plea negotiations with the Department of Justice now says he will step down so that he can testify as a witness on Hunter Biden's behalf. As the case proceeds towards a potential trial, that lawyer, Chris Clark, is expected to testify that the Justice Department tried to back out of a plea deal that was legally binding. We'll be right back. Thank you. Washington. The aide, Samuel Mealy, is accused of sending fundraising emails and making phone calls in which he pretended to be the chief of staff to House Speaker Kevin McCarthy. The charges against the aide come three months after Santos himself was indicted on 13 federal counts, including money laundering, wire fraud, and public theft of funds. including money laundering, wire fraud, and public theft of funds.

Today's episode was produced by Mary Wilson, Shannon Lin, and Olivia Nat. It was edited by Devin Taylor and Rachel Quester, contains original music by Romy Misto and Marian Lozano, and was engineered by Corey Schreppel. Our theme music is by Jim Brunberg and Ben Landverk of Wonderly. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.