The deal isn’t dead, but federal prosecutors and Biden’s lawyers will now have to satisfy Noreika’s concerns about technical aspects of the deal and her own role in enforcing a so-called pretrial diversion agreement under which Biden would avoid prison time on the gun charge if he remains drug-free for two years and doesn’t break any other laws.

If Noreika ultimately approves that deal, Biden will be able to withdraw the not-guilty pleas he entered on Wednesday. He would then replace them with guilty pleas on the tax charges, and prosecutors would defer prosecution on the gun charge.

The judge made clear that she viewed the proposed plea deal — the outline of which was announced last month — as outside the norm.

“These agreements are not straightforward, and they contain some atypical provisions,” Noreika said as the hearing reached a close.

Biden faces federal criminal charges for willfully failing to file or pay his income taxes in 2017 and 2018 and for owning a handgun in 2018 — a time when he has admitted he was regularly using cocaine. Federal law prohibits drug users from possessing firearms.

Biden’s attorneys and federal prosecutors reached the deal after a nearly five-year investigation overseen by U.S. Attorney David Weiss, who was appointed by former President Donald Trump.

But early in the hearing, it became clear that Noreika, also a Trump appointee, found the deal concerning and abnormal, describing some of the provisions as “not standard” and “different from what I normally see.” It consisted of two parts: the plea agreement to resolve the tax charges, and the diversion agreement to resolve the gun charge. In the diversion agreement, however, the Justice Department committed not to bring charges against Biden for actions related to the tax plea deal.

The judge raised concerns about that, and said she couldn’t find another example of a diversion agreement so broad that it shielded the defendant from charges in a different case. Leo Wise, a prosecutor working for Weiss, told the judge he also was unaware of any such precedent.

Read More