Judge Noreika was troubled by the potential role she was supposed to play:
<><>determining whether Biden had breached the terms of his probation,
<><>potentially subjecting him to prosecution on the gun charge and other offenses.
While the Biden government acknowledged that this feature of the diversion agreement was unique and unprecedented, the parties suggested that it was necessary because a future Justice Department under a Republican president might decide, for political reasons, to allege that Biden had breached the terms of his agreement in order to file additional charges against him.
Given the sweetheart deal that the court was being asked to swallow as well as the whistleblowers’ allegations that higher-ups at the Justice Department interfered with the investigation in order to protect Biden and his father, this assertion is pretty galling.
It became quite clear to Judge Noreika that
<><>the government was agreeing not to prosecute Biden for additional crimes
<><>as a condition of his calculated guilty plea to the two dramatically reduced tax charges.
Unlike all other normal diversion agreements she had seen,
<><>she was being called upon to play a critical gatekeeper role—
<><>should the government conclude that Biden had breached the terms of his probation—
<><>in deciding whether the government could file additional charges against him.
Moreover, it was clear as mud what potential offenses were covered by paragraph 15 of the diversion agreement. None of this sat well with her, and for good reason.
Noreika told the parties that she had no intention of being “a rubber stamp” to this arrangement, and she clearly meant it. Once she started inquiring, things unraveled quickly.
<><>The first thing she established was that the government’s promises contained in the diversion agreement were indeed material to Biden’s decision to plead guilty to the two tax charges, even though those promises were not contained in the plea agreement itself.
<><>The second thing she established is that the parties did not, in fact, agree on the scope of the immunity that he was being offered—a shocking thing given how long the parties had been dealing with each other to try to hammer out this sweetheart deal.