What Did You Say?

Are The DOJ And Hunter Biden Attempting to Commit Fraud in Federal Court?

BY: MARGOT CLEVELAND | JULY 31, 2023

Read more at https://thefederalist.com/2023/07/31/are-the-doj-and-hunter-biden-attempting-to-commit-fraud-in-federal-court/

MARGOT CLEVELAND

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One sentence — 13 words — out of the thousands spoken last Wednesday over the course of the three hours that federal prosecutors, defense attorneys, Hunter Biden, and Judge Maryellen Noreika discussed the president’s son’s plea agreement suggests the Department of Justice and Hunter Biden are attempting to commit fraud on a federal court. 

On Wednesday, Hunter Biden appeared before a federal court in Delaware prepared to enter a guilty plea on two misdemeanor tax counts. The hearing, however, did not go as planned when Judge Noreika, rather than rubberstamping the sweetheart deal the Biden administration had entered into with the president’s son, quizzed the attorneys and Hunter Biden on the terms of the agreement and their respective understanding of the government’s promise not to further prosecute Hunter. 

When Noreika questioned Hunter Biden about the $1 million Patrick Ho paid Owasco LLC on March 22, 2018, purportedly for legal representation, the president’s son was cornered. With the government and the defendant both telling the court that money represented fees for legal services, Hunter Biden had to explain how: “I think Owasco PC acted as a law firm entity, yeah.” That’s how Hunter replied initially, but then immediately equivocated: “I believe that’s the case, but I don’t know that for a fact.” 

Hunter’s hedge was a tell that what he had just told the court was not the truth. But it was imperative that the president’s son caveat his prior statement that his law firm entity was retained to provide legal services for Ho because the judge had made clear that Hunter Biden was under oath and that “any false answers may be used against [him] in a separate prosecution for perjury.”

While Hunter’s backtracking may have saved his backside from a perjury conviction, it may well blow up his plea deal because it highlighted that the “Statement of Facts” the government incorporated into the plea agreement contained a near-certain false representation: that the $1 million Patrick Ho transferred to Hunter Biden was “payment for legal fees.”

Statement of Facts?

While the government did not file the plea agreement or the exhibits incorporated into that deal on the public docket, during last week’s hearing the prosecutor and the court read excerpts on the record. Among other things, in the plea agreement, Hunter Biden “admits to the information contained in the Statement of Facts,” which was attached as Exhibit 1. And the Statement of Facts, as read by the prosecution, declared: 

On or about March 22, 2018, Biden received a $1 million payment into his Owasco, LLC bank account as payment for legal fees for Patrick Ho, and $939,000 remained available as of tax day. Over the next six months Biden would spend almost the entirety of this balance on personal expenses, including large cash withdrawals, transfers to his personal account, travel, and entertainment.

After commenting that having the U.S. attorney’s office read the Statement of Facts “into the record” “is not common in my experience,” Judge Noreika proceeded to question Hunter Biden on the facts to which he was admitting, engaging in this colloquy: 

COURT: All right. In the third paragraph, which is actually the second full paragraph, it says on or about March 22, 2018, you received a million-dollar payment into your Owasco bank account as payment for legal fees for Patrick Ho.

DEFENDANT: Yes, Your Honor. 

COURT: Who is that payment received from, was that the law firm? 

DEFENDANT: Received from Patrick Ho, Your Honor. 

COURT: Mr. Ho himself? 

DEFENDANT: Yes. 

COURT: Were you doing legal work for him separate and apart from the law firm? 

DEFENDANT: Yes, Your Honor. Well — 

MR. CLARK: That wasn’t through Boies Schiller, Your Honor, Mr. Biden was engaged as an attorney. 

COURT: Right. So that’s why I asked. You were doing work for him — 

DEFENDANT: My own law firm, not as counsel. 

COURT: So you had your own law firm as well? 

DEFENDANT: I think Owasco PC acted as a law firm entity, yeah. 

COURT: OK. 

DEFENDANT: I believe that’s the case, but I don’t know that for a fact.

The court then moved on to the next section of the Statement of Facts, and the hearing continued. It shouldn’t have, however. Rather, Judge Noreika should have questioned Hunter Biden more fully to ensure the representation attested to by both the government and the defendant and incorporated into the plea agreement — that Ho paid Hunter $1 million as payments for legal fees — was true. For the overwhelming evidence indicates that was a lie and that the money, at best, represented payment for influence peddling and, at worst, was a bribe.

Doesn’t Add Up

Of course, President Biden’s DOJ didn’t tell that to Judge Noreika nor provide her any evidence related to the $1 million payment. Instead, the DOJ declared the payment was for “legal fees,” and Hunter’s legal team enthusiastically nodded. But that’s not what the evidence indicates.

First, there’s the problem that the $1 million payment on March 22, 2018, was made not to Hunter Biden’s law firm, Owasco PC, but to Owasco LLC. And if you are going to pay $1 million for legal representation, you kinda want to pay the law firm supposedly providing those services. 

Second, not only did Ho not pay Hunter’s law firm, Owasco PC, Ho didn’t even pay Owasco LLC. Rather, Ho paid Hudson West III LLC $1 million on Nov. 2, 2017 — mere weeks before federal prosecutors charged Ho with bribing foreign officials to advantage the Chinese communist energy company CEFC. Then on March 22, 2018, Hudson West III LLC transferred that $1 million to Owasco LLC with a notation that it was for “Dr Patrick Ho Chi Ping Representation.” 

According to a U.S. Senate Committee on Homeland Security and Governmental Affairs finance report, Hunter “Biden stated that the incoming wire amounting to $1MM on 11/2/2017 from CEFC Limited foundation should have gone to Owasco LLC, however, he provided the wrong wire instructions, and due to the large amount the transaction was not corrected until 3/22/2018, which consisted of an outgoing wire for the same amount benefiting Owasco LLC.” 

The Senate report further explained that Biden had stated that “Boies Schiller Flexner is co-counsel for Dr. Patrick Ho’s case. Hudson West III LLC has no involvement with Patrick Ho Chi Ping[’s] case and won[’t] expect further transaction related to Dr. Patrick Ho Chi Ping trail [sic] for Hudson West III LLC. Owasco LLC and co-Counsel Boies Schiller Flexner will represent Dr. Patrick Ho Chi Ping [at] trial.”

But again, Owasco LLC was not Hunter Biden’s law firm; Owasco PC was. And even in hedging to the court last week, Hunter Biden claimed, “Owasco PC acted as a law firm entity.”

Saying he made a mistake during last week’s plea hearing and that it was actually Owasco LLC that acted as the law firm, however, won’t extricate Hunter Biden from the mess. As the president’s son stated in response to the court’s question of whether he was “doing work for [Ho]”: “My own law firm, not as counsel.” 

So, who was part of Hunter Biden’s Owasco LLC law firm at the time, if Hunter did not serve as counsel? And how did Owasco LLC pay its lawyers given that the government said over the next six months Biden would spend almost the entirety of the $1 million “on personal expenses, including large cash withdrawals, transfers to his personal account, travel, and entertainment?”

Then there is the Attorney Engagement Letter reportedly recovered from Hunter Biden’s laptop, dated September 2017, between Patrick Ho and Hunter Biden, which provided for a $1 million retainer for legal representation. Significantly, this agreement was not entered into between Ho and any of the Owasco entities, but with Hunter Biden personally. Yet on Wednesday, Biden told Judge Noreika his law firm was doing the work for Ho. But what law firm that was, Biden seemed not to know.

Of course, Hunter didn’t know because no “legal” representation was provided to Ho and none was expected. Yet that’s precisely what the government and Hunter Biden represent as true in the Statement of Facts, and they may have gotten away with the deception had Judge Noreika accepted the plea agreement without question. But she didn’t.

Instead, the judge asked the parties to brief the issue of whether the government could include its promise not to prosecute Hunter Biden for other crimes in a side diversion agreement, stressing she needed to make sure the plea agreement got Hunter Biden what he believed it got him, but also to make “sure that I do justice as I’m required to do in this court.”

There will be no justice, however, if the court allows the government and Hunter Biden to pretend the $1 million payment from Ho was for legal representation. At the next hearing, Judge Noreika must question both Hunter Biden and the government on this representation — because if it is false, as the overwhelming evidence indicates, it would be a fraud on the court and the country to accept the plea agreement.

In advance of that hearing, the House of Representatives should consider filing a supplemental brief detailing the above evidence because the U.S. attorney’s office has proven itself unwilling to provide an honest assessment of the evidence to the court. While neither the legislative nor the judicial branch has the power to force the executive branch to charge Hunter Biden with any specific crimes, the executive branch also lacks the power to force the judicial branch to blindly accept a false plea agreement.

Editor’s Note: This article has been updated since publication

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Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.