On Friday, Attorney General Merrick Garland elevated David Weiss, the federal prosecutor overseeing the investigation into Hunter Biden, to special counsel status, a surprising move that ratchets up the probe into President Joe Biden's son.
The decision gives Weiss, the U.S. Attorney for the District of Delaware nominated in 2018 by then-President Donald Trump, more power, independence and financing to conduct the investigation. It comes weeks after Hunter Biden, 53, was set to plead guilty to two tax crimes, while entering into a separate deferred agreement on a gun charge, but U.S. District Court Judge Maryellen Noreika — a Trump-appointed judge — raised concerns about the terms.
Attorneys for Hunter Biden argued in a court filing on Sunday that federal prosecutors reneged on the terms of the plea deal, the diversion deal to address the felony gun charge — he was accused of posessing a firearm as a drug user, but the charge would be dropped if he passed drug tests amid other conditions for two years — is still "valid and binding" and that he still "intends to abide by" its terms.
"The parties have a valid and binding bilateral Diversion Agreement," wrote Hunter Biden attorney Christopher Clark wrote in a court filing on Sunday, arguing that it was agreed to by both sides and presented to a judge. It's unclear what Weiss' stance is on the diversion agreement.
"On July 26, what was very clear is that the prosecution presented the diversion agreement, which they signed, which we signed, and as an agreement of which they have described it as being a standalone, independent, bilateral agreement with two signatures on it, that agreement is different than the [tax charges] plea," Hunter Biden attorney Abbe Lowell said in an interview on CBS' "Face the Nation" on Sunday.
"The plea did not go forward," Lowell added. "The diversion agreement is already filed in court, and it has the signatures necessary for it to be binding."
When pressed by moderator Margaret Brennan if he thinks that Weiss will still go through with the deal, Lowell said he "can't answer that," but added that "as recently as in the last week or two, [prosecutors] have made a filing at court ... which called it a bilateral agreement between the parties, and if it's a bilateral agreement between the parties, it's an agreement that's in effect."
Under the original agreement, Hunter Biden would have pleaded guilty to two misdemeanor tax charges for failing to pay taxes on income in 2017 and 2018 — he has since reportedly repaid the debt, including fines. Republicans in Congress and on the campaign trail have railed against the agreement, calling it a "sweetheart" deal put together by a "politicized" Justice Department, and pledging further probes into the president's family and their business dealings.
On CBS on Sunday, Lowell said that the results of the "five-year long, thorough, painstaking investigation" into his client resulted in the conclusion "that the only two charges that made sense were two misdemeanors for failing to file, like millions of Americans do, and a diverted gun charge for the 11 days that Hunter possessed a gun" — and claimed that any change in those results would come from political pressure, not new facts.
"People should keep in mind that while Mr. Weiss' title changed last week, he's the same person he's been for the last five years," Lowell said. "He's a Republican U.S. Attorney appointed by a Republican president and attorney general who had career prosecutors working this case for five years looking at every transaction that Hunter was involved in. So whether it was tax or the gun or possible any other charge, if anything changes from his conclusion, which was two tax misdemeanors and a diverted gun charge, the question should be asked, what affected the process that was not the facts in the law?"
When asked if he was confident Hunter Biden would not face new charges, Lowell replied that if Weiss looks "at the facts, the evidence and the law," then he will come to the same conclusion that was reached in July.
"There's no new evidence to be found," Lowell insisted. "Some of these transactions are years old. They've had people in the grand jury. They've had data that was provided to them. I don't know the possibility exists after this kind of painstaking investigation for there to be, 'oh, my gosh, there's a new piece of evidence which changes.' The only thing that will change is the scrutiny on some of the charges, for example, the gun charge."
Prosecutors have also indicated that a criminal trial — which would no doubt overlap with, and cast a pall over, Hunter Biden's father's reelection bid — is possible in the case, but Lowell said that such a proceeding is "not inevitable."
"We were trying to avoid one all along, and so were the prosecutors who came forward to us and were the ones to say, ‘can there be a resolution short of a prosecution?’ Lowell said. "So they wanted it and maybe they still do want it."
When asked at a breifing on Monday afternoon about President Biden's reaction to the appointment of a special counsel into a probe related to his son, White House press secretary Karine Jean-Pierre stressed the independence of the Justice Department.
All Jean-Pierre offered otherwise was that the president "loves his son, and he is proud of him overcoming his addiction and how he's continuing to build his life."