Behind the breakdown in Hunter Biden's plea-deal hearing Wednesday was a skeptical Judge Maryellen Noreika who subjected the parties to three-plus hours of relentless interrogation over elements of an agreement that she described as “not standard,” possibly “unconstitutional,” without legal precedent and potentially “not worth the paper it is printed on." After the defense declared the deal off, then patched it up over one of the main sticking points that emerged from Noreika's questions — whether the president's son had bargained for broad protection from future charges — the deal was back on shaky ground over the judge's doubts over the role the parties assigned to her for any future inquiries into whether Biden violated the terms of a diversion program.
The plea agreement called for Biden to plead guilty to two misdemeanor tax charges, which themselves earned the judge's probing questions about the sources of Biden's unreported income. The deal also would dispose of another charge, that he lied to get a gun permit by claiming he did not abuse drugs, by requiring him participate in a two-year diversion program that prohibited him from using drugs or owning a firearm. Noreika, the Wilmington, Del., federal judge and former patent litigator appointed by President Donald Trump, objected strenuously to how a violation of its terms would be handled. Typically, the Justice Department could independently verify such a breach and bring charges. But Biden’s team, concerned that the department might abuse that authority if former Trump was re-elected, successfully lobbied to give that power to Judge Noreika herself, arguing that she would be a more neutral arbiter. But Noreika suggested that such an arrangement could be unconstitutional because it might give her prosecutorial powers, which were vested in the executive branch by the Constitution. “I’m not doing something that gets me outside my lane of my branch of government,” said the judge, who repeatedly complained that both sets of lawyers viewed her as a “rubber stamp” rather than someone working to make the agreement more equitable and durable. “Go back and work on that,” she added.