The Department of Justice has failed to provide a copy of the pretrial diversion policy adopted by the Delaware U.S. attorney’s office as required by law, an open-records request lawsuit filed on Wednesday alleges.
Wednesday’s Freedom of Information Act complaint comes on the heels of a federal judge ordering the DOJ to stop dragging its feet and provide communications between the DOJ and David Weiss — documents that, as The Federalist exclusively reported on Monday, establish the DOJ sought to thwart congressional inquiries into the Justice Department’s handling of the Hunter Biden investigation.
The Heritage Foundation and its director of the Oversight Project, Mike Howell, filed suit late Wednesday in a federal court in Delaware under the Freedom of Information Act, or “FOIA,” seeking to compel the Delaware U.S. attorney’s office to produce its policy regarding pretrial diversion agreements. As the complaint stresses, the Department of Justice’s manual provides that “[e]ach U.S. Attorney’s Office shall develop and implement a policy on the use of pretrial diversion appropriate for the Office’s district.”
Because the manual uses the “shall” directive, it is a mandatory requirement for U.S. attorneys’ offices. Accordingly, the Delaware U.S. attorney’s office “must have such a policy,” the complaint emphasizes.
In the court filing, the Heritage Foundation explained that on Aug. 2, 2023, it submitted the FOIA request directly to the Delaware U.S. attorney’s office and the Department of Justice, seeking:
All records pertaining to the policy on the use of pre-trial diversion required by Justice Manual 9-22.010 for the Office of the United States Attorney for the District of Delaware (“USADE”).
The FOIA request also sought a fee waiver and “expedited processing” under the controlling regulations, arguing, “[T]he controversy surrounding the proposed Hunter Biden pretrial diversion agreement is ‘a matter of widespread and exceptional media interest in which there exists possible questions about the government’s integrity which affect public confidence.’” To support the need for an expedited response, the Heritage Foundation included a 500-plus-page appendix that included a letter from three House Committee chairs conducting oversight of the Hunter Biden plea deal, a copy of the transcript from Hunter’s July 26 plea hearing, and copies of media coverage detailing apparent irregularities of the proposed pretrial diversion agreement.
The DOJ acknowledged receipt of the FOIA request on Aug. 3, also noting the Heritage Foundation’s request for an expedited response. However, to date, the DOJ has failed to respond to the request for expedited processing, even though FOIA requires an agency to respond to such requests within 10 days. The DOJ’s violation of the FOIA mandate prompted Wednesday’s lawsuit and the Heritage Foundation’s request for a preliminary and permanent injunction compelling the DOJ to produce the policy and any other responsive records within 20 days of the court order.
It is unclear how long it will take the court to address the Heritage Foundation’s complaint and its request for a preliminary injunction, but Wednesday’s complaint presents a prime example of the need for an expedited production of documents.
A little over a month ago, Hunter Biden appeared in federal court to enter a guilty plea on two misdemeanor tax counts, with the pretrial diversion agreement on a felony gun count set to be accepted the same day by the probation office. That plea deal imploded when the presiding judge pushed the Delaware U.S. attorney’s office on the validity of the pretrial diversion agreement and its inclusion of a broad promise by the government not to prosecute the president’s son for crimes far removed from the gun charge. The court then ordered additional briefing before adjourning the hearing.
Two weeks later, U.S. Attorney Weiss’s team informed the court that a plea deal could not be finalized and requested the court dismiss the tax charges so he could refile where venue was appropriate — something possible following Attorney General Merrick Garland’s appointment of Weiss as special counsel.
Weiss has yet to file charges against Hunter Biden — unless, of course, they have been filed under seal. Weiss’s failure to aggressively seek an indictment against the president’s son suggests the special counsel appointment changed nothing. In any event, Weiss cannot be trusted after his office negotiated the sweetheart plea deal that included the pretrial diversion “get-out-of-jail-free” agreement. And given the DOJ’s resistance to turning over the Delaware U.S. attorney’s policy on pretrial diversion agreements, it seems likely Garland knows that document will provide further proof of the impropriety of the deal gifted to the president’s son.