A Delaware federal judge appointed by former President Donald Trump and supported in the nominations process by Democratic senators has been assigned to the criminal case against President Joe Biden’s son Hunter Biden.
U.S. District Judge Maryellen Noreika had a 25-year career in private practice as a corporate litigator with Morris Nichols Arsht & Tunnell LLP before she was nominated to the court in December 2017 — with the support of Democrats — and confirmed by a voice vote in August 2018.
Though reportedly a Democrat, FEC records show that Noreika’s political donations have been bipartisan, the most recent of them going to Sen. Tom Cotton’s (R-Ark.) 2014 campaign. Before that, Noreika donated to Republican Utah Sen. Mitt Romney’s presidential campaign in 2012, the Democratic Senatorial Campaign Committee in 2009, John McCain (R-Arizona) in 2008, Hillary Clinton for President (D) in 2008, and to Pennsylvania Republican Rick Santorum’s U.S. Senate campaign in 2006.
The equal opportunity political donor has been inactive in that respect for nearly a decade, FEC records indicate.
Why Noreika’s appointment matters
As Donald Trump’s supporters — and conservatives more broadly — continue expressing outcry about the resolution of the Hunter Biden case and a “two-tiered” justice system, amid reporting that President Biden’s son is looking at a couple of years of probation, it will repeatedly be noted that the case was brought by Republican U.S. Attorney for District of Delaware David C. Weiss, a Trump appointee, and will be handled by a judge who was also appointed by Trump. Just like in the Mar-a-Lago prosecution, any complaints of process or judicial unfairness will be met by the plain fact that the judge overseeing the case was given power by Trump.
But in what way will Noreika preside?
Hunter Biden has been charged by information with misdemeanor tax crimes for “willful refusal to pay federal income tax” and with felony possession of a firearm by a person who is an unlawful user of or addicted to a controlled substance.
“According to the tax Information, Hunter Biden received taxable income in excess of $1,500,000 annually in calendar years 2017 and 2018. Despite owing in excess of $100,000 in federal income taxes each year, he did not pay the income tax due for either year,” prosecutors said in a press release. “According to the firearm Information, from on or about October 12, 2018 through October 23, 2018, Hunter Biden possessed a firearm despite knowing he was an unlawful user of and addicted to a controlled substance.”
In a Tuesday letter and a statement, the U.S. Attorney’s Office revealed that Hunter Biden has agreed to plead guilty to the misdemeanor charges and enter into pre-trial diversion agreement. Under the reported agreement, the felony charge punishable by up to 10 years in prison would be dismissed upon Biden’s completion of probation.
Noreika’s role will consist of scheduling a change a plea hearing and accepting (or rejecting) the agreement brought before her. If, for whatever reason, the government brings her a “C” plea, fireworks could occur, as some judges detest such agreements for removing their sentencing discretion from the picture.
As of Wednesday afternoon, the court docket does not show a set date for a change of plea hearing nor a copy of the plea agreement. Typically, a plea agreement will hit the docket and thereafter the parties will submit memoranda with recommendations on punishment under sentencing guidelines. After that, the proverbial ball is in the judge’s court as to punishment — which can be an upward or downward “departure” from the guidelines.
On March 24, Noreika tossed a defamation lawsuit that Hunter Biden laptop repairman John Paul Mac Isaac filed against CNN, granting the federal government’s March 8 “motion to substitute itself” as a defendant in place of Rep. Adam Schiff (D-Calif.) under the Federal Tort Claims Act.
“The causes of action alleged in this matter are all state law claims. The United States properly removed this action pursuant to the FTCA. The United States, however, has been dismissed from this case. In light of that, the Court will remand the remainder of this case to the Superior Court for the State of Delaware,” the judge wrote.
In a June 12 reply in support of the motion to substitute and dismiss the case, the government said Mac Issac moved on March 24, the day of the dismissal, to “set aside that judgment under Rule 60(b), attaching a proposed brief that he wished to file in opposition to the United States’ motion to substitute.”
“In his proposed opposition brief, plaintiff adduces no evidence to rebut the Westfall Act certification and makes only conclusory assertions. Therefore, plaintiff has failed to meet his burden, and the Court should substitute the United States as defendant for Representative Schiff,” the government wrote. “Once substituted as defendant, plaintiff does not dispute that the Court lacks subject matter jurisdiction over the United States. Accordingly, plaintiff concedes that dismissal would be appropriate upon substitution.”
A June 7 letter from Politico’s lawyers went into more detail about the procedural wrangling — and the plaintiff’s missed deadline to reply:
As Your Honor will recall, Plaintiff John Mac Isaac asserted defamation claims against U.S. Rep. Adam Schiff, Robert Hunter Biden, Politico and Cable News Network, Inc. (“CNN”) in an action filed in Superior Court. On January 30, 2023, Defendants Politico and CNN moved to dismiss for failure to state a claim. See ECF 3-61 & 3-68. On March 7 and 8, the United States removed the case to this Court, moved to substitute for Rep. Schiff and moved to dismiss for lack of subject matter jurisdiction. See ECF Nos.1, 2, 4. On March 24, after Plaintiff failed to respond timely to the United States’ motion, this Court dismissed as to the United States and remanded the case back to the Superior Court. ECF 15, 16. That same day, Plaintiff moved to set aside the judgment, which motion is fully briefed.
Plaintiff advised us that instead of opposing our Motion to Dismiss he will amend his Complaint. Defendants consented to the filing of the amended pleading, and Politico and CNN notified Plaintiff we will renew the Motion to Dismiss promptly after the amendment is filed. Plaintiff has represented to Defendants that the Superior Court prothonotary is unwilling to accept the filing of the amendment until the motion to set aside the judgment pending in this Court is resolved.
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