In a court filing last Friday, now-special counsel David Weiss
a federal judge to vacate charges filed against Biden in Delaware so that he could refile the charges in other jurisdictions. Weiss told the court that prosecutors and Biden's counsel were "at an impasse and are not in agreement on either a plea agreement or a diversion agreement."
But regarding the diversion agreement, that point is moot, Biden's lawyers argued.
Despite prosecutors' desire to start over, Biden's lawyers said their client "intends to abide by the terms of the Diversion Agreement that was executed at the July 26 hearing by the Defendant, his counsel, and the United States" because, in their view, "the parties have a valid and binding bilateral Diversion Agreement."
To support their argument, Biden's attorneys cited the words of federal prosecutors, who repeatedly stated at the July 26 hearing with U.S. District Court Judge Maryellen Noreika that the diversion agreement is "binding," "in effect," a "contract between the Government and a defendant," and separate from the plea agreement.
copy of the diversion agreement
was posted to the court docket with signatures from Biden, his attorney Chris Clark, and federal prosecutor Leo Wise. The line for the probation officer, however, was left blank.
Because diversion agreements — technically agreements
not to prosecute
— are struck between prosecutors and a defendant, judicial approval is typically not required, the Washington Post
. But this deal was complicated by the fact that prosecutors included key terms of the plea agreement in the diversion agreement, one of the central issues that Noreika raised last month.
It's not yet clear whether prosecutors agree that the diversion agreement remains binding and in effect. They have until noon on Tuesday to file a response.
If the diversion agreement is, in fact, binding, that means Biden will escape prosecution for a felony gun charge that the Justice Department typically prosecutes aggressively.
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