Federal prosecutors rejected a claim by Hunter Biden‘s lawyers that a pretrial diversion agreement on a felony firearm offense survived the collapse of their plea deal.
In a filing in Delaware’s federal court on Tuesday, special counsel David Weiss and his team said the agreement — in which prosecutors would drop the gun case if Biden met certain conditions — “never took effect.”
Prosecutors “never said the proposed diversion agreement was in effect because it is not,” the filing added.
The diversion agreement was developed alongside a plea deal on tax evasion charges, but the arrangement hit a snag last month when U.S. District Judge Maryellen Noreika raised concerns about a provision that might have granted Biden sweeping immunity from prosecution in the future.
In a filing over the weekend, defense attorneys claimed that while Weiss opted to “renege” on the plea deal, the diversion agreement had been “executed” at the hearing in late July. Biden — who is the president’s son — intended to abide by its “valid and binding” terms of the agreement, they added.
But, in the government’s response on Tuesday, prosecutors said the chief U.S. probation officer in Delaware declined to approve the agreement at the hearing. Weiss’s team also noted that the version docketed by the defendant in early August lacked an approving signature from the official.
“To reiterate, the now-withdrawn diversion agreement, by its own terms, is not in effect,” prosecutors said.
With the felony gun charge, prosecutors accused Biden of knowingly possessing a firearm while being an “unlawful” drug user in 2018. If convicted, he could face up to 10 years in prison on that count.
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After plea deal negotiations fell apart, Weiss — Delaware’s U.S. attorney — was elevated to special counsel status on Friday by Attorney General Merrick Garland. The new designation gives the prosecutor broader authority to bring charges in districts outside of his own.
Biden, 53, pleaded not guilty to the tax charges in Delaware, but Weiss has indicated he wants to move the case to trial in Washington, D.C., or California. Each of the misdemeanor charges for an alleged failure to pay taxes on more than $1.5 million in income in 2017 and 2018 brings a maximum penalty of 12 months in prison.
Earlier in the day on Tuesday, the defense filed a motion for lead attorney Chris Clark to withdraw from the case, pointing to a “witness-advocate” rule that could become an issue during future legal proceedings.
“Based on recent developments, it appears that the negotiation and drafting of the plea agreement and diversion agreement will be contested, and Mr. Clark is a percipient witness to those issues,” the filing said. Clark’s withdrawal will not cause “a substantial hardship” because Biden has other lawyers to assist him in the matter, the filing added.
The new filing from Weiss’s team explored some of Clarke’s remarks at the hearing in late July where the plea deal hit an impasse.
Clark and his client “were both telling the Court that the Defendant was pleading guilty because of promises that were not contained in the plea agreement,” prosecutors said. “This was a problem entirely of their own making and not one that resulted from the drafting of the proposed plea or diversion agreements.”
Abbe Lowell, another lawyer who was hired by Biden last year to spearhead his defense against GOP-led investigations in Congress, filed on Monday to become an “additional counsel” for Biden in the criminal case, according to Axios.