Plea Bargaining

And

Guilty Pleas

By: Bill Schoettler

July 29, 2023

Before we get into what happened on July 26 when Hunter Biden’s “settlement” was thrown out, let’s consider the background. 

When there is a civil lawsuit or a criminal case, each side wants to win. In the criminal case, the prosecution wants to prove the defendant is guilty and have him either fined or sentenced to jail. In a civil suit, the plaintiff wants to win either a requirement the defendant do or not do something or that the defendant pay the plaintiff a bunch of money The winner in a trial is the side that presents evidence showing their position is correct and the opposition is wrong. 

In both criminal and civil cases, there are gradations of results. For example, the winner in a civil case might recover less than what was sought. In a criminal case, the prosecutor might get a conviction on a lesser included charge, resulting in a smaller fine or lesser jail time. Thus, from the outset in either type of case, there is room to bargain. The defendant can agree to pay less money or do less jail time in exchange for the plaintiff or prosecutor accepting a lesser “amount of justice”. 

The basic term referred to here is “settlement”. Any settlement calls for the two opposing parties reaching a settlement which is then put in writing and, certainly in a criminal case, presenting the settlement writing to the Court (i.e., the judge) for approval. In some civil cases, the same process is done, particularly in cases involving minors. 

In Hunter Biden’s case, he was charged with two basic crimes; one was failing to pay taxes on some particular income (not all, just some income) and purchasing a firearm without disclosing that he had a prior felony conviction (which, under the law, prevented a convicted felon from purchasing or owning a gun).

Back to the discussion of settlements. Any case may lend itself to a settlement based on factors not necessarily connected with the case. For example, in a criminal matter, if the defendant is thought to have been involved with fellow criminals, whether or not such involvement dealt with the same crime (for which the defendant was being charged), or with some other criminal matter, the prosecution might be willing to “make a deal” if the defendant is willing to provide information about either fellow criminals or the “other” crime.

In Hunter’s case, the public has heard about many items of his conduct which have a “criminal flavor” such as possibly involving shady deals with the Ukraine company or even the Ukraine government while Joe was Vice President [pause here to recall that Joe actually bragged about using his office as Vice President to withhold money from the Ukraine government unless they stopped an investigation into Hunter’s possible criminal conduct]. There are also stories in the public domain about Hunter receiving money from Chinese companies associated with the government of China in connection with his father’s position as VP and possibly even while his father was President.  Given this information, it is reasonable to consider that the prosecution would be interested in receiving information about these items in exchange for easing up on charges against Hunter for the matters discussed. Or, as an alternative, the prosecution might consider easing up on their attack in exchange for Hunter talking about the possible criminal activity of his father, failing to personally register as an agent of a foreign government, or even dropping any charges against Hunter if he were to “spill the beans” on what he knew/knows about these subjects.

Bottom line, with ample evidence to get a conviction against Hunter Biden on the IRS tax matter and the gun charges, the only reason to bargain or offer a settlement would be to receive something in exchange. The exchange of information could be evidence against fellow conspirators or other criminal activity. If a “win” is virtually certain based on currently available evidence, there is no reason to bargain for a settlement, except to possibly avoid an excessively long and complex trial. Neither condition would seem to exist in this situation. 

And to add frosting to the cake, the settlement agreement in Hunter Biden’s case, as presented to the Judge for approval (which was denied) included an agreement for the government to forego any further criminal complaints about potential criminal activity (not defined or even mentioned in this settlement agreement) for an extended period of past time (2014 to 2019)

The Court decided there were enough holes in the agreement to require a careful re-wording and perhaps a re-thinking on the part of the prosecution. The fact that the Judge threw out the settlement does not mean that another agreement with substantially similar wording might not be acceptable…only that this particular agreement was definitely inappropriate. 

The most beneficial result of this process was the public becoming aware of what took place and the wording the Judge found unacceptable. We can only hope that whatever agreement, if any there is, will be more realistic and, as far as the public is concerned, more equitable. After all, the hallmark of this Administration is equity. Sort of.If you do not take an interest in the affairs of your government, then you are doomed to live under the rule of fools.Plato