Special counsel fires back at Hunter Biden's lawyers over latest argument as top attorney withdraws representation

Special counsel David Weiss fired back at Hunter Biden's lawyers on Tuesday, rebuking their assertion that Biden's pretrial diversion agreement is valid.

What is the background?

Last Friday, Weiss asked a federal court to vacate criminal charges against Hunter Biden because he and Biden's attorneys were "at an impasse" and "not in agreement on either a plea agreement or a diversion agreement." Weiss indicated he would file charges in other U.S. jurisdictions.

In response, Biden's attorneys accused federal prosecutors of having "renege[d]" on their deal.

They also argued in a court filing on Sunday that the controversial diversion agreement allowing the first son to avoid prosecution for a felony gun charge is valid because both parties — Biden and prosecutors — had signed it.

How did prosecutors respond?

In a court filing on Tuesday, prosecutors forcefully denied the attorneys' claims and the validity of the diversion agreement.

"The Defendant chose to plead not guilty at the hearing on July 26, 2023, and U.S. Probation declined to approve the proposed diversion agreement at that hearing," prosecutors explained. "Thus, neither proposed agreement entered into effect."

According to prosecutors, the diversion agreement was written to require the approval of the court before it took effect — one of U.S. District Court Judge Maryellen Noreika's chief concerns about it — and thus it never took effect because the court never signed it.

Indeed, Biden and prosecutors signed the diversion agreement, but Chief United States Probation Officer for the District of Delaware Margaret Bray did not.

"In sum, because Ms. Bray, acting in her capacity as the Chief United States Probation Officer, did not approve the now-withdrawn diversion agreement, it never went into effect and, therefore, none of its terms are binding on either party," prosecutors explained.

Anything else?

Meanwhile, one of Biden's top attorneys, Chris Clark, filed a motion on Tuesday to withdraw from representing the first son.

Citing Delaware Lawyers' Rules of Professional Conduct, the court filing explained that Clark's withdrawal is necessary because the ethics rules state that "a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness."

"Based on recent developments, it appears that the negotiation and drafting of the plea agreement and diversion agreement will be contested, and Mr. Clark is a percipient witness to those issues," the filing said. "Under the 'witness-advocate' rule, it is inadvisable for Mr. Clark to continue as counsel in this case."

The development, then, foreshadows the potential of a showdown over the validity of the diversion agreement, and the increasing likelihood that Biden is heading to trial.

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