Andrew McCarthy: Judge Wasn’t In On Hunter’s Sweetheart “Scheme”

Andrew McCarthy, Fox News contributor, former federal prosecutor and bestselling author joined the Guy Benson Show to discuss the bombshell Hunter Biden plea deal crumbling. He explains how the deal fell through, and why the deal was shabby and poorly drawn up in the first place.

Listen to the full interview:

Full transcript:

Guy Benson: But we continue with our top story today as we welcome back into the show, Andy McCarthy, FOX News contributor, former federal prosecutor and bestselling author. Hunter Biden’s plea deal put on hold just went away. Lots of finger pointing, some acrimony in the courtroom. And then ultimately what they had hashed out and we thought was going to be formalized today is now, at least for the moment, null and void. Andy, welcome back to the show.

Andy McCarthy Guy, great to be with you.

Guy Benson: Before we get to the dramatic events of today. Please help us understand the dramatic events of last night, because the judge in this case got very angry and demanded an explanation from the Hunter Biden lawyers firm about what happened. There were allegations from the clerk at the court that a member of the Biden legal team had called up the court to try to get this document that had been put into evidence or the request was to put it into evidence. As the judge was considering the plea deal by House Republicans. The allegation, at least, was this woman called up pretending to work for the House Republicans, requesting that that document be removed. The Republicans said, wait, we didn’t do that. No one on our side did that. And the judge said, what went on here? You have till 9 p.m. last night to explain yourselves. And there was an explanation, which was that there was an honest misunderstanding. What happened there?

Andy McCarthy Yeah, Guy, I think that’s why this ended up not being much of an issue today, because I think there really was a garble and I say that as you and I know from our discussions, you know, I’m suspicious of anything the Bidens do. But I think on this one, what happened and this this is a I think it’s a function and I don’t want to cast aspersions at the court personnel because they work very hard. But sometimes, you know, busy people make mistakes and especially lawyers, non-lawyers dealing with lawyers can sometimes that doesn’t always go well. But what I think probably happened here is the House Republicans in their filing included testimony from the IRS agents, the whistleblower testimony. And Hunter’s legal team has claimed from the beginning the IRS whistleblowers dispute this, that in their testimony they provided what by law is nonpublic personal tax information. So this woman, who was a lawyer for Hunter Biden, called the clerk. But first the Hunter team tried to get the House to agree that its motion should be under seal. And this is an important point because a lot of people have said they’ve tried to keep this information from the judge. They were not keeping the information from the judge. They didn’t want it to be part of the public record. You can’t keep information from the judge, the judges, and gets to know everything. And then when the House wouldn’t agree to do that, they told Hunter’s team, told the House that they were going to move the court to seal that part of the submission. So this woman called the clerk’s office. What I suspect she was trying to do was get some kind of process to have to have that part of the record sealed. It’s unfortunate that this wasn’t done in writing rather than in a phone call to the to the clerk. But it doesn’t make sense to me that she misrepresented herself because she used her own name and she did it after her firm told the house that they were going to make this motion. So what I suspect happened is perhaps the clerk didn’t completely understand what was being asked and who was doing the asking.

Guy Benson: Right. So, I mean, I get that it makes sense handy that if someone from Hunter’s side wanted to pretend, like throw a wrench into this thing in an unethical way, wanted to pretend that she was representing the Republicans, saying, you know what, never mind. Let’s we don’t need to include that after all. She wouldn’t have used her real name. She wouldn’t have left her real phone number. So just logic would dictate that if it were subterfuge, it was really, really stupid subterfuge, which doesn’t appear to be the case here. But the judge, at least at first, thought it was possible that that was exactly what happened and seemed very unhappy with it. It appears that they got that all hammered out and dealt with. So I woke up this morning, saw that it had not blown up further. I said, okay. So it seems like in Delaware today, Hunter Biden is going to show up and we’re going to see this plea deal, in my view, this awful, preposterous plea deal, and it’ll get accepted and we’ll all move on as expected. And those of us who are critics will explain why and other people will try to make it seem like this is the end of the story. Case closed. But then what happened, Andy There was like one or two different rounds of big time drama in the courthouse today, resulting in no plea deal. How did that go down?

Andy McCarthy Well, the main thing is that the judge wasn’t in on the scheme. So you have an unusual situation here because Merrick Garland hasn’t appointed a special counsel. So usually you have an adversarial relationship between the prosecutors and the defense. Here. They’re in cahoots. So they tried to write a plea agreement that had vague terms in it. And that because this is a political exercise, what they were trying to do was Jimmy up something where Hunter could walk away saying he had complete immunity from prosecution for anything arising out of the tax years between 2014 and 2019 so that, you know, he was pleading guilty to two misdemeanors. But what he was getting out of it was immunity not only from any tax fine from no years, but like money laundering, foreign agent registration, act, bribery, conspiracy, anything that might arise out of this investigation. Of course, that’s crazy. BIDEN Justice. Well, the Biden Justice Department, the purpose of a plea agreement is to spell all that out so that everybody has their eyes open about what’s being agreed to. But the Biden Justice Department doesn’t want to put that in a plea agreement because it would be scandalous publicly. So, you know, to say, wait a minute, you’re giving him immunity from all of that for two misdemeanor counts and giving him a walk on a gun charge where it’s a ten year felony. So what they tried to do was write it in a kind of elliptical way that didn’t convey how much immunity was was contemplated. And the judge called them on it. She said, wait a minute, now, what is he covered for? And basically what Biden because I don’t think they expected to get called on it something many plea agreements. The judge just accepts the plea. He or she asked some questions. And that forced Hunter to say, well, I think I’m now covered for everything and it’s worth the government, because that would have been too embarrassing for Biden and the Biden administration if they had agreed to that. They said, no, no, no. There’s a there’s an ongoing investigation. And he’s only covered on the on the tax charges that we’re taking a plea from. And then Hunter said, whoa, wait a minute. That’s not what I agreed to. So they tried to do this with a nod, with a nod and a wink. And the reason it collapsed under, you know, what was was pretty peremptory cross-examination by the judge is because it was a weasel deal and they didn’t expect to be called on it. And, you know, the judge wasn’t in on it.

Guy Benson: So. So your suspicion and it sounds like pretty clearly you feel like the prosecutors and the defense attorneys actually did agree on what Hunter Biden thought was the case, which was blanket immunity on future prosecutions on any of this stuff, plus the slap on the wrist that we already knew about, that they had agreed to a deal that was, in fact, much worse somehow than what we understood it to mean. And both sides had agreed on that privately. But when it became. Obvious and spelled out by the judge exactly how that would look to the public. What the prosecutors got cold feet and said, actually, no, that’s not what we agreed to or who’s being who’s being dishonest here. It feels like we’re not getting the full story. Or someone misinterpreted something or there was deliberate misinterpretation on on both sides. Or I’m still trying to unpack what you’re saying here. I think I get the gist of it, but that seems somehow worse and less ethical than what we even previously understood.

Andy McCarthy Guy There’s something that’s missing from this case that is fundamental to every single case, and when you realize it’s missing, then all of it comes together. Guess what? The Justice Department never did here. They never indicted Hunter Biden. Did he know? Somebody asked me after this is all over. Does this mean they go to trial now? And I’m like, go on, go to trial on what? They never indicted him because they never wanted to spell out what the case was. Wait, wait, wait.

Guy Benson: Hang on, hang on, hang on. Because he pled not guilty today. What did he plead not guilty to? If there’s not an indictment of charges sitting there?

Andy McCarthy An indictment is brought by a grand jury. If a defendant pleads guilty, he can waive indictment and he pleads guilty to a criminal information that’s written by the Justice Department. So the only thing they wrote was a barebones little thing that has two misdemeanor tax charges. They never did what prosecutors do. In normal cases, they haven’t laid out.

Guy Benson: Laying out the evidence.

Andy McCarthy Right. And the multiple counts. Because, guy, if you did that, if you wrote a normal indictment like the Justice Department does, like Bob Mueller did again and again and again in the in the Trump investigation. Right. If you wrote out an indictment, there’s no way the public would would tolerate the kind of a plea agreement that they gave to Hunter today because they’d be able to compare what he was pleading to, what the case is, and they’d say, whoa, you know, that’s ridiculous.

Guy Benson: So so.

Andy McCarthy What they.

Guy Benson: Let me just let me rephrase my question then, based on that. You seem to be saying that if this judge, an Obama appointee, I’ll note if she had not drilled down and asked Hunter Biden what his understanding of what this meant for him, then he gave his answer. If that hadn’t happened. This outrageous deal that his attorneys, Hunter’s attorneys insisted was what they had agreed to. That’s what would have happened. And the prosecution. Would have gone along with it because they sort of intended to go along with it without having to say so publicly. Is that your interpretation of these facts?

Andy McCarthy Yeah, exactly. And I would I would say, guys, that’s.

Guy Benson: So.

Andy McCarthy Bad at Trump. I think she’s a Trump appointee, although she’s one that was enthusiastically supported by the two Democratic senators in the state. So I don’t think she’s an Obama appointee.

Guy Benson: Oh, I had read that she was Obama. I might be wrong about that. I can fact check that. But I’m just. Good, good for her one way or another, no matter who appointed her for being somewhat thorough and rigorous here, I’m just sort of gobsmacked at how close this thing came to, not just the sweetheart deal that we know about, but a much, much worse deal of future immunity. Apparently wink wink agreed to by everyone here until they got called on it. That makes the DOJ and the prosecutors here look even worse and more feckless and toothless than they already did. And it makes the whole thing stink even more. I mean, it’s just fetid beyond belief.

Andy McCarthy Yeah, well, let me throw one more thing into the hopper, then to make it even more fetid. And that is they waited guy, like, until the statute of limitations is about to run out because that ratchets up pressure on the judge to accept the plea. Because now now we have delay. Right. The deal blew up, but the statute of limitations doesn’t stop. We didn’t hear anything today that there was any stipulation that the clock stops now. And because the Justice Department never filed an indictment, that means all these things that they’ve never charged. The statute is the clock is continuing to run on them.

Guy Benson: So. Well, they ran out. They they ran out. The statute of limitations on some of the most clear cut tax felonies. Right. From what was it, 2014 and 2015. They had this whole thing go on and on, stretch forever till the most serious tax crimes just went away. We already we already knew that. And it sounds like some of that gamesmanship is still happening here. Like where’s where’s the tough prosecution trying to nail this guy? It sounds like they’re on his side, basically.

Andy McCarthy That’s exactly right. But but this is what I’ve been saying all along. The special counsel regulations say that when there’s a profound conflict of interest, the attorney general will appoint a special counsel. The Biden Justice Department attorney general won’t appoint a special counsel because an independent investigation of this is not something the Biden administration is in a position to sustain. So they’ve tried everything they could do to whitewash this thing and make it go away. But the underlying problem is that Merrick Garland would not tolerate a ethical, independent investigation here.

Guy Benson: By the way, just to circle back to something you mentioned, this judge was indeed appointed by Trump, but she is a registered Democrat and was recommended by the Democratic senators. So that’s where I got that. She’s a Democrat. In her personal political life. And as part of the give and take in politics, Trump nominated her to the bench and she was confirmed. So just to clarify that, Andy, there’s there’s so much here. I wish we had more time and I’m sure we will continue to talk about this in the days to come. Thank goodness this thing blew up on the launch pad today. It raises even more questions and questions that we’re going to keep following here on this show. I know you will as well, where you’re working and where your commentary is. Andy, we really appreciate it.

Andy McCarthy Thanks so much, Guy.