The judge who will review Hunter Biden’s plea deal on Wednesday accused a member of Biden’s legal team of misrepresenting herself in a phone call to the court — a bizarre episode that prompted the judge to threaten sanctions even as Biden’s lawyers insisted it was all a misunderstanding.
In a brief order Tuesday afternoon, U.S. District Court Judge Maryellen Noreika wrote that an employee at Latham & Watkins, the main law firm representing the president’s son, had called the court clerk’s office and falsely claimed to work for a Republican lawyer in the hopes of persuading the clerk to remove documents that apparently contained Biden’s personal tax information.
Latham denied any misconduct, saying the firm’s employee identified herself as a Latham staffer and called from a law firm phone that typically displays “LATHAM” on the caller ID. The firm said there must have been an “unfortunate and unintentional miscommunication” between the employee and court staff.
The documents in question had been submitted earlier in the day as part of an amicus brief by House Ways & Means Committee Chairman Jason Smith (R-Mo.). Smith complains in the brief that Biden’s plea deal on gun and tax charges is too lenient, and he alleges that federal prosecutors’ investigation of Biden was tainted by political interference.
Under the plea deal, Hunter Biden has agreed to plead guilty to two misdemeanor tax charges and enter a pretrial diversion program in order to avoid being prosecuted for a felony gun charge. Noreika, a Trump appointee, is scheduled to review the deal at a hearing in Wilmington, Delaware, on Wednesday morning.
On the eve of that hearing, a dispute arose over Smith’s amicus filing, which was signed and submitted to the court by Theodore Kittila, the managing partner of the Wilmington law firm Halloran Farkas + Kittila.
Shortly after Kittila filed the brief, the clerk’s office informed the judge that a Latham employee, Jessica Bengels, had called the clerk and falsely claimed to work with Kittila. During the call, Bengels asked that Smith’s filing be removed from the public docket due to sensitive information in it, the judge wrote in her order.
“It appears that the caller misrepresented her identity and who she worked for in an attempt to improperly convince the Clerk’s Office to remove the amicus materials from the docket,” Noreika wrote, before ordering Biden’s legal team to explain why Noreika should not issue formal sanctions “for misrepresentations to the Court.”
Bengels, who is listed on Latham’s web site as the firm’s director of litigation services and litigation services counsel, did not respond to an email and phone call seeking comment. But Latham lawyers representing Biden said in a court filing Tuesday night that Bengels never misrepresented herself.
“The matter under consideration appears to stem from an unfortunate and unintentional miscommunication between a staff member at our firm and employees of the Court. We have no idea how the misunderstanding occurred, but our understanding is there was no misrepresentation,” Latham partner Matthew Salerno wrote, stressing that Bengels is not part of the team of lawyers assigned to the Hunter Biden matter.
Bengels also submitted a formal declaration denying she misrepresented herself.
“I am completely confident that I never indicated that I was calling from Mr. Kittila’s firm or that I worked with him in any way,” wrote Bengels, who is a member of the New York bar, according to a state database and Latham’s website.
The judge temporarily removed Smith’s amicus brief from the court’s public docket, although copies of it remain available on other websites.
Kittila claimed that all the information about Hunter Biden contained in Smith’s brief is already public on the House Ways and Means Committee website. But Christopher Clark, Biden’s lead attorney, wrote that was beside the point if court rules forbid putting it on the public docket.
“Most troubling is that you have sought to append to a filing on the public docket hundreds of pages of documents, many of which contain grand jury secret information and confidential taxpayer information,” Clark wrote in a letter to Kittila also contained in the court docket. “We have alerted you to this issue and you have refused to file these materials under seal, frivolously claiming that because a congressional committee has improperly disseminated these materials, they no longer need protection. Your position is baseless and abusive.”
The details of the Biden plea deal will likely be made public on Wednesday. The general terms, which were announced last month, call for Biden to plead guilty to two misdemeanor tax offenses for failing to pay or file his federal taxes over a two-year period and to enter into a deferred prosecution agreement on a felony charge of possessing a firearm while being a drug user. The arrangement, which is subject to approval by Noreika, contemplates that Biden will get probation on the tax charges and no punishment on the gun charge assuming he stays out of trouble for two years.
Biden’s political allies have said the deal is fair and perhaps even tough given the facts involved and Biden’s long, publicly acknowledged struggles with drug addiction. Republicans have portrayed the agreement as a slap on the wrist, particularly because no charges were brought relating to his alleged attempts in his foreign business dealings to trade on his ties to his father.
The prosecutor who signed off on the deal, U.S. Attorney for Delaware David Weiss, was appointed by President Donald Trump, confirmed by the Senate in 2018 and allowed to remain on duty into the Biden administration by Attorney General Merrick Garland in order to complete the probe of the president’s son.