‘No Deal’
Chaos ensued when the court found that there was also disagreement about which charges the diversion agreement provided immunity against.
In contract law, there must be a “meeting of the minds,” an agreement about the meaning of interpretative clauses by both parties. But questioning cast into doubt whether such a condition existed between the parties.
“To the extent that the agreement not to prosecute is promised, do the parties have some understanding what the scope of that agreement is?”
Mr. Wise responded that there was. But further questioning threw that declaration into doubt.
“Could the government bring a charge under the Foreign Agents Registration Act?” Judge Noreika asked as an example.
“Yes,” Mr. Wise said.
“Is there a meeting of the minds on that one?” the judge asked.
“As stated by the government just now, I don’t agree with what the government said,” Mr. Clark said.
“So I mean, these are contracts,” Judge Noreika said. “To be enforceable, there has to be a meeting of the minds. So what do we do now?”
“Then there is no deal,” Mr. Wise said.
A murmur of excitement brushed across the courtroom at these words, as some reporters rushed out to transmit the news to their colleagues on the outside. Others scribbled on their notepads frantically, while still others, confused, tried to learn from whispered comments what had just occurred.
“What just happened?” was a common refrain among reporters during an ensuing recess; more knowledgeable members of the audience tried to provide an explanation to peers.
After the recess, the parties appeared to have reached some agreement about the scope of the deal: immunity for Mr. Biden from tax and drug charges committed between 2014 and 2019, and immunity from other charges related to the particular illegal firearm purchase.
But Judge Noreika had additional concerns.
‘Not Guilty’
Judge Noreika turned to procedural requirements related to Mr. Biden’s decision to plead guilty to the tax crimes, but again found herself questioning the diversion agreement because of its close link to the plea deal.
Thus, before asking Mr. Biden to formally enter a plea on the tax charges, she again raised questions, this time about the constitutionality of the deal due to the role it gave her.
It mandated that she arbitrate any alleged violations of the deal. Mr. Wise again confessed he knew of no precedent to back this arrangement.
Her involvement, the judge said, raised issues around the separation of power between the executive and the judicial branches, as she would thus have a role in the state moving forward with additional charges.
“That seems like it’s getting outside of my lane in terms of what I am allowed to do,” she said.
The attorneys sought to assuage her concerns about the constitutionality of the deal, arguing that the political nature of the defendant demanded such a neutral arbiter to protect against political interference.
But her concerns about the agreement were too steep, she said.
“I can’t let [Mr. Biden] plead to something if he thinks he has protection and he doesn’t.”
Later, she added, “I am not in a position where I can decide to accept or reject the plea agreement, so I need to defer it.”
Due to her unwillingness to accept the diversion agreement, Mr. Biden was forced to enter a “not guilty” plea pending further consideration of the deal.
After the trial ended, Mr. Biden was escorted out first by Secret Service agents, while reporters were again left wondering and discussing what had just happened.
The judge emphasized that the deferral isn’t a sign one way or the other of her final ruling, but it throws into doubt the entire fate of the plea agreement.
