Trump and Hunter Biden legal woes get more complicated

MARY REICHARD, HOST: It’s Tuesday the 1st of August, 2023.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. First up: the legal woes of Donald Trump and Hunter Biden.

Well, last week, Hunter Biden walked into a federal courtroom in Delaware thinking he was going to walk away with a no-muss, no-fuss deal. Didn’t work out that way, at least for now.

ABC News: The plea deal that Hunter Biden had initially made on those misdemeanor tax charges has basically fallen apart.

NBC News: But the federal judge overseeing the case said she was not ready to accept the plea agreement, questioning its legality.

REICHARD: Both sides walked out with instructions to demonstrate that the plea deal is constitutional. Hunter Biden originally pleaded guilty to two separate tax misdemeanors. That also allows him to avoid prosecution for a gun-related charge. But when all that fell through, Biden changed his plea to not guilty.

EICHER: Meanwhile the special counsel investigating Donald Trump’s handling of White House documents added new indictments. Special counsel Jack Smith alleges Trump and his aides tried to erase security camera footage at Mar-a-Lago and moved boxes around.

What does all of this mean for Trump and Biden?

Joining us now to talk about it is Bobby Higdon. He’s a lawyer in private practice in North Carolina and formerly served as a U.S. Attorney.

REICHARD: Bobby, welcome.

BOBBY HIGDON: Good morning, Mary. Thank you.

REICHARD: First, and most briefly, the new charges against Donald Trump. The DOJ released a superseding indictment on Thursday. What is that?

HIGDON: Well, superseding indictment is basically a tool whereby the prosecutors go back to the grand jury, following the issuance of an original indictment. And they asked the grand jury to make some change in the indictment. They may be asking to delete charges or defendants or in this case, they added a defendant and added additional charges revolving around the facts that you've just summarized. It's a, it's a very common tool. And it's being used to do just what I've described.

REICHARD: Turning to Hunter Biden’s plea deal that fell apart. What happened?

HIGDON: Well, Mary, the prosecutors and the defense attorneys, according to statements made to the judge during the hearing, crafted an arrangement to "Suit the facts and circumstances," which included what they call "political drag" was the phrase they use. And they admitted to the judge that there was no precedent for the type of deal with arrangement that they had crafted that they wanted her to approve. She was very uncomfortable with the format and with the fact that it cast her in a role that she wasn't sure she was constitutionally permitted to assume. And that's why it fell through.

REICHARD: What goes on between the prosecution and defense to craft a plea deal with a high profile person like this? What’s next?

HIGDON: Well, of course, I don't know exactly how the deal that was negotiated and rejected was actually crafted. This is a case that's been percolating for some time, years really. But as a general rule, prosecutors will attempt to resolve every criminal case by agreement if they can. I prosecuted thousands of people as a federal prosecutor, and resolved the vast majority of those cases by plea agreement. It's an extremely commonly used tool in the federal court system to conclude cases. And it's a practical result of having more cases than any one prosecutor or frankly, all prosecutors across the country can resolve if they had to try them before courts and before juries. There are tools which are part of the plea bargaining process that can be used to resolve the cases and to accomplish the goals that the prosecutor and the defense attorneys have. Used right, plea bargains are the result of both sides taking a hard look at the law and at the evidence in a particular matter. Evaluating the strengths and the weaknesses of the case, determine the goals for the prosecution and defense and assessing the resources that are available to pursue a particular case, as opposed to other cases that you might pursue. High profile cases, as a practical matter, you have sort of an added level of scrutiny. And prosecutors may feel increased pressure to send a message of deterrence and also to send the message that we're not giving anybody special, special treatment. So all that swirling around in a plea bargaining situation is certainly, wasn't this case.

REICHARD: Okay, that’s helpful. But I want to dive into another aspect of this. As I understand it, the original deal had two parts- probation for the tax misdemeanors, and a “diversion agreement” for the gun felony. DOJ wouldn’t prosecute if Hunter did a two-year pretrial diversion program. What is that and why did the judge say no?

HIGDON: Well, the goal of a diversion agreement is to allow some mercy, if you will, to someone who, perhaps a prosecution is not going to achieve a good result for them or for the government, but yet their situation needs to be addressed. And so you try to find a way through an agreement and this is legally permitted to avoid charges, you leave them kind of hanging over the individual's head until they show a pattern and a long term good performance according to the terms you negotiate. But really when you have to look at the entire arrangement that was in front of the judge in this case, to understand how it why she rejected it. So here, they agreed to defer his prosecution, require him to comply with certain rules in return for an agreement to dismiss his case in 24 months when the agreement ends, if he's successful. And where this gets unusual is that the parties, the prosecution and the defense, agreed to tie the two agreements together when they wouldn't normally be linked. The prosecutors agreed not to bring additional charges on the facts laid out in the addenda to the two agreements. In other words, this is all that's going to happen to him and all we're going to base it on it both as to the tax charges and the gun charge. And there will be consequences. He'll get the benefits if he complies with the agreements. And that's not unusual. But rather than leave that up to the court and the plea agreement, the document which the court normally reviews and is involved with, they're silent in that agreement on what happens if Mr. Biden breaches the plea agreement. But in the agreement that would not normally be before the court, they included the process for determining whether there is a breach of that agreement and tasked the judge with making a determination as to whether there was a breach in the future and made that a condition to the filing of any firearms charges. And that's authority that is not normally invested with the court, but in the executive branch, here the Justice Department under our constitutional principle called separation of powers, and that's what upset the deal.

REICHARD: Anything else about this case listeners should keep in mind as it continues to unfold?

HIGDON: Well, so if the court had accepted the arrangement last week when they were in court, it would have run through at least July of 2025. And I suspect that they fear that any new administration that comes in might have a different view of the matter and might look to void the agreement based upon some type of violation if one occurs, resume the prosecution of Mr. Biden for the gun charge, which would then have him facing jail time. And so I think that's probably the political drag that the prosecutor was referring to when asked that question about the judge.

REICHARD: Bobby Higdon is a former federal prosecutor now in private practice in North Carolina. Bobby, thank you for your time!

HIGDON: Thank you, Mary.

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