Hunter Biden plea deal appears to fall apart at court hearing
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00:00 Griff Jenkins live outside the courthouse with what he can confirm.
00:03 Griff.
00:04 Yeah, Harris, I can confirm that this plea deal may be falling apart before our eyes.
00:11 You know, I've been here reporting outside.
00:13 Our producer Jake Gibson is inside.
00:15 There's no electronics, there's no cameras.
00:17 And finally I said, look, it's been over an hour and a half.
00:20 Let's see what's going on.
00:21 I just left the courtroom seconds ago.
00:24 They're in recess at the moment.
00:26 Here's what's transpired.
00:28 The judge, uh, the judge Noriega basically began by asking questions about the plea deal
00:36 itself about whether or not the pleading guilty to two tax demeanors could be tied to the
00:44 diversion part, which is avoiding charges, which is a felony on the gun charge.
00:51 And there was disagreement in that.
00:53 But the major headline that's transpired in this courtroom that is likely going to be
00:58 what we're talking about for the rest of the day is judge Noriega asked if, asked the prosecution
01:03 if there was an ongoing existing separate investigation in 200 Biden right now, the
01:10 prosecutor saying yes, and what holds holding this deal up and they're in recess now, uh,
01:18 because the defense asked for some time.
01:20 So the judge granted what's up in the air is whether or not judge Noriega will even
01:23 accept this deal because this deal would possibly give Hunter some immunity to future
01:30 charges and she's not okay with that.
01:32 That is why this is taking so very long.
01:35 So again, to recap, this deal is by no means, uh, underway being accepted by the judge because
01:41 the judge is not okay with linking the tax guilty pleas with avoiding the charge on the
01:51 gun or any other possible charges.
01:53 As we now know, there is an ongoing existing current investigation separate from this case
02:00 into Hunter Biden.
02:02 That's what we've got so far.
02:03 We expect the court to resume here for them to be back in session and we'll bring you
02:07 more as we get it.
02:09 But quite stunning headlines.
02:10 I was shocked to walk in that courtroom and see that they're in recess with this judge,
02:15 very much not ready to accept Hunter's plea.
02:18 Now we do know that Hunter did speak just very briefly saying that he was prepared to
02:23 plead guilty, but the judge obviously holding that up saying, hold on a second, I'm not
02:29 okay with the part where you plead guilty to tax and avoid the diversion portion of
02:36 this, devoid any future charges on the gun thing.
02:40 And now we don't know the details of the current investigation that the prosecution has now
02:46 acknowledged the judge asking for details on that.
02:49 The prosecutor wise saying that, no, I can't go into that.
02:54 I'm not at liberty to discuss.
02:55 She asked what it could have possibly involved Farrah for an agent registry charges and the
03:04 prosecution not willing to say exactly what's under investigation.
03:08 But this is very much a moving, developing story right now.
03:12 We'll bring you as much as we get it.
03:14 And certainly when Jay Carr producer comes out of that courtroom, we have a decision.
03:18 We'll bring that to you.
03:19 But at this moment, at this hour, this plea deal is very much up in the air.
03:25 Harris, Griff Jenkins, great reporting.
03:27 And I know that it's difficult when you're not in there.
03:30 There's no technology that, that we can share information with text messages and all of
03:35 that.
03:36 And we understand the challenges of all of that, but great job today being able to confirm
03:40 some things, get it on the record, which you could.
03:43 I mean, we were hearing things come out of that courtroom and you've got to be really
03:46 careful with that because this is legal and you taking your time to get that information
03:52 is very important.
03:53 Thank you.
03:54 I'll come back to you moments from now.
03:56 Andy McCarthy, former assistant U.S. attorney and Fox News contributor, Phil Holloway, former
04:00 assistant D.A. and criminal defense attorney are back with me now.
04:05 So Andy, I'm just going to come right back because you and I had just said, does this
04:10 mean that the Hunter plea deal appears to be in jeopardy?
04:13 Is it falling apart?
04:14 And you said, we don't know yet.
04:16 After all of that reporting from Griff Jenkins, your answer.
04:20 Well based on what Griff said, all I can say, Harris, is what I've been saying all morning,
04:24 which is this just seems so corrupt.
04:28 There's no good reason for the justice department and the internal revenue service to take a
04:35 plea where you're giving away the store to somebody as to whom you have a pending investigation
04:42 so why do they do it?
04:46 Because there's political pressure.
04:47 I mean, it's obvious if you had an independent counsel, if Merrick Garland had done his duty
04:53 and said that there is a conflict of interest here because the Biden justice department
04:59 can't with integrity and ethics investigate the president's son in conduct in which the
05:05 president is implicated, you would have an independent investigator in here.
05:10 You would have a special counsel.
05:11 And if it was a credible person, the last thing that person would do is take a plea
05:16 while the investigation is still underway.
05:19 The only time I've ever heard of that happening is you have somebody who is cooperating with
05:24 the investigation and is willing to plead guilty to serious charges and enter a cooperation
05:30 agreement.
05:31 But this is just a straight plea agreement where they're giving away the store and they're
05:36 giving away the store to somebody who's under investigation involving millions of dollars
05:43 paid in by actors who are foreign parties that are corrupt and anti-American.
05:48 It makes no sense.
05:49 Lay on the plane.
05:50 Who does that benefit?
05:51 Andy?
05:52 It's got to be who, who, what?
05:57 I'm sorry.
05:58 Who does it benefit to do that?
05:59 Hunter.
06:00 Yeah.
06:01 Well, it obviously benefits the Biden's president Biden principally.
06:05 Wow.
06:06 OK, Phil, I want to ask you this.
06:10 When they announced this plea deal a few weeks ago, the Justice Department said that they
06:16 were going to leave it open as an ongoing investigation.
06:19 And I remember talking with legal experts at the time saying, well, why would you do
06:23 that?
06:24 Was that to try to block some of the information that might come through, you know, house oversight
06:29 or judiciary?
06:32 Do you have any thoughts about that now?
06:33 I mean, I, it's still dangling to me.
06:36 Yeah, I do.
06:37 And of course, I think that's one of the big concerns that the judge has.
06:40 As I mentioned, the defense really wants to get this done because they want the protection
06:46 of the double jeopardy clause.
06:48 The only reason that I can think of why a prosecutor would want to go ahead and take
06:54 this plea now with an ongoing investigation is because the prosecutor also wants to give
07:01 that defense to Hunter Biden and his team.
07:05 So that would mean that both sides of this are manipulating the system in a way to create
07:11 a double jeopardy bar from any future prosecutions.
07:16 If you're a cynic like I am at this moment, that's the only conclusion that I can draw
07:20 from it.
07:22 You had a problem with it, like you mentioned Harris, when this was first reported.
07:26 Lots of us in the legal field had problems with it.
07:29 And today the judge also has a problem with that.
07:32 How she resolves it, I don't know.
07:34 Perhaps she could get Hunter Biden to go ahead and say that he waives formally on the record
07:40 any statute of limitations defense, but that seems far fetched.
07:44 I really don't know what's going to play out, but I do see that this plea deal is falling
07:48 apart before our eyes.
07:50 Phil, I just want to know what kind of deal are you going to cut in that courtroom right
07:53 now?
07:54 Like what is going on inside that courtroom?
07:57 That it's been almost two hours.
07:59 We know they're on a break.
08:00 They're supposed to go back to this, but that's, I want to know what's happening, what's unfolding.
08:05 We can't see it, but you have so many years of experience.
08:10 What is possible for his attorneys at this point?
08:14 If the judge is willing to even accept a plea on the information, the charging document
08:19 that she has before her, the only thing they could be negotiating about sort of on the
08:24 fly in the courtroom is some type of sentencing enhancement, i.e. jail time.
08:30 It could be that they say, all right, we're going to agree to do a little jail time now
08:34 on this gun charge and not do diversion.
08:36 They could try to put more teeth in it to see if that satisfies the judge, but the judge
08:41 is not going to tell them in advance what she will and what she won't take.
08:45 She's just going to say, go back and try again and bring something else back to me.
08:49 I'll tell you if I'll take it when you bring it to me.
08:53 That's a lot of times how these things go.
08:55 Andy, it gets back to what you said.
08:57 It's that 10 year felony count.
08:59 It's that softness and particularly that gun charge.
09:04 Yeah, I think that's right, Harris.
09:07 To Phil's point, in federal law, a number of states are different in this regard, but
09:13 in federal law, judges cannot participate in the plea negotiations.
09:18 She can signal to them what's okay with her and what's not, but she can't get into the
09:23 nuts and bolts of it.
09:24 The second thing I want to say is that I think one of the most important things that Griff
09:29 reported a few minutes ago was when the judge raised one of the terms in the agreement and
09:35 Griff said there was disagreement about what that meant.
09:38 At that moment, I must say, I think you tear up the plea agreement and you have to start
09:43 over again.
09:44 So people are clear on this.
09:46 A plea agreement is a contract.
09:49 And just like to go contracts 101, a contract is a meeting of the minds.
09:54 So if you have the two sides getting up and saying, we disagree about what this means,
10:00 then they don't have an agreement.
10:01 And if they don't have an agreement, there's not really anything to talk about.
10:05 Yeah.
10:06 I mean, it's like any other type of thing that you're doing, whether you're buying a
10:09 house, a car or anything.
10:12 Until it happens, it hasn't happened.