mother of his child in arkansas and now he is trying to put these matters behind him. we're about to find out whether or not he is successful. >> dana: this hearing start evidence at 10:00 a.m. these are usually routine matters. we're now at 11:00 hour and harris faulkner will take you through to the next little bit of this and you are expected the hear from hunter biden when he comes out. here is harris. >> harris: we continue our breaking news coverage. as dana said we're at the 11:00 hour just like the saying the 11th hour for president biden's son, hunter. who is in federal court and he has been there since 10:00 a.m. eastern. we are at that point in the saga around hunter biden's criminal life when a judge will either ink his so-called sweetheart plea deal or reject it. that would be huge if she did that. hunter biden is there to plead guilty to tax charges and a slap

on the wrist in terms of the punishment he faces. some legal trouble suddenly for his legal team ahead of the court appearance today in federal court. i'm harris faulkner and you are in "the faulkner focus." so we don't know if this is what's clogged the wheels on getting this thing done more expeditiously. and what some legal experts have said, this would be an also ran when the judge ink this and get the plea deal, special treatment and all the preferentialal treatment and go on with his life. however, the judge now believes a member of hunter biden's legal team concealed her identity to try to get a clerk to seal certain information in the case. team biden apologized, called it all a misunderstanding. house judiciary chair jim jordan said this. >> that was the whole reason chairman smith sent the testimony, the transcripts from mr. shapley and ziegler to the

court so the court could ex appear inthat as part of this deal. what's been reported about the folks on the biden team trying to get that withdrawn, that's what they were trying to keep from the court. again, that's pretty valuable information. i find their testimony and their story hasn't changed. their testimony has been consistent. the biden white house and the biden justice department keep changing their tune. >> harris: well, this kind of slap on the wrist, as i said, some critics have called it a plea deal comes in the wake of a lot of new information that has been bursting and we're covering every second of it. this is information we didn't have when this deal was originally struck. the testimony from those two i.r.s. whistleblowers, the f.b.i. document where a source says hunter biden coerced millions of dollars out of a ukrainian company ceo. one op-ed really hitting the nail on the head here.

it says you would go to prison for what hunter biden did. meaning everybody else except for him. griff jenkins is live outside the courthouse in wilmington, delaware. it is a little bit more than an hour, griff. any word? i know we don't have cameras. we've been watching your great coverage outside the courthouse. what do we know? >> we know nothing, harris. good morning. we are more than an hour after what is normally a very routine not time consuming plea deal taking on historical significance. we expect for the president's son, hunter biden, to walk into the federal district courthouse and plead guilty to the two tax evasion misdemeanors and avoid charges on the gun issue. here we are more than an hour into it and no camera inside. we have a producer, jake gibson who covers the justice beat. we are watching the door closely to see if anyone is coming out.

we are on pins and needles. for our viewers it is important to note in the last 24 hours a lot has transpired starting with the chairman of the house ways and means committee jason smith issuing that amicus brief, a filing to the court in which he basically asks the court to consider the testimony of those two i.r.s. whistleblowers. he says in it that in the interest of full trance pair en see it is critical for the court to have this information when evaluating the plea deal. they say that because the plea deal was reached way before the testimony from the i.r.s. whistleblowers came to light. and this, of course, is after a years' long investigation by u.s. attorney david weiss. now, what also transpired late last night that kept us up was the judge of this case saying that she is concerned that the

hunter legal team misrepresented themselves when they called the clerk's office late yesterday and asked for this amicus brief to be not under consideration in this case. we do not know, we can probably assume, that was dealt with. it was the first part of this hearing. but we don't know whether or not the judge has accepted this plea and whether or not the president's son has pled guilty in court. we're waiting for anyone, our producer or any members of the court to come out here behind us and give us that information. but one thing is clear at this point that we know. that is that a lot has transpired in the last 24 hours and it has made this a longer process than we normally would see in a situation like this. right now we're just waiting and we'll bring it to you, harris, as soon as we get something coming out of this courthouse. of course, whether hunter will walk out. we watched him go in an hour and a half ago and obviously i

wasn't talking to us. i would love to ask him whether or not if he refutes the whistleblowers testimony and if his former partner archer is lying that he was indeed in business with his father, as the white house is so adamantly now den denying. >> harris: the white house press secretary is saying hunter and his father were not in any business dealings together. we just saw that this week. a moving of the goalpost. it went from talk to the white house counsel to she is on the record with something different. all right. so we'll come to you as the news breaks out where you are in wilmington, delaware. interesting this is happening on the home turf of the current president with his son there in

federal court. griff jenkins, great job always. we'll check back as news warrants. a new op-ed argues the judge must nix hunter biden's plea deal to show that her court won't approve a blatant miscarriage of justice. let's bring everybody in now. charlie hurt, fox news contributor washington times opinion editor. doug schoen former clinton advisor and democratic pollster and we'll broaden out to include our two guest attorneys when big moments legally begin to happen. politically, doug, talk to me about where we are in this moment for hunter biden, for the president. >> harris, politically we're moving in the same direction that we are legally. what was going to be a almost routine plea bargain is now fraught with, at best, unanswered questions. those unanswered questions are, you know, from the two

whistleblowers, was this handled in a political way by the justice department. was joe biden involved or was he on conference calls listening in, what role, if any, did he have when hunter flew on his plane? how do we reconcile nine members of the biden family getting money from hunter's business deals. these are all unanswered questions that from my perspective are getting worse for the white house, not better. we don't have definitive answers. i think that's important to say, to the issues the republicans are raising. but we also don't have anything from the white house yet that is clearly exculpatory. >> harris: i tell you to hear a leading democrat, high-profile democrat like yourself say all of this you and i have been in those position is where you have declared publicly you aren't

voting for hillary clinton. you have said some things that are so critical about your party. charlie, as you hear that let's flip this on the other side now and what this means for the investigation for republicans who really would like to lean in on hunter biden. >> well, i think that if anything, it vindicates republican efforts to investigate this because it sort of proves that there is, in fact, fire where there is so much smoke. it is not just a partisan witch hunt, which, of course, we've seen a lot of in recent years and certainly the white house would like to cast it off as that. i think in your conversation with griff a minute ago, you put your finger on the most important thing here, which is the most revealing thing, which is the white house has kind of changed its stance from for years or months and going back a year and a half or so we've listened to the white house deflect all questions by saying

you have to talk to hunter's lawyers, it's a legal question. nothing to do with us and just last week we started to hear the white house start to take on some of those questions piece by piece to defend the biden family. i think the reason for that is because of the political nature of all of this. the fact that -- i think that even though so many of the networks try to pretend what was happening last week on capitol hill with i.r.s. whistleblowers tried to hide it. it broke through despite their efforts to try to conceal it. people are starting to tune in a little bit more. it sounds confusing. i always caution people it is not that it's confusing. it is that there is so much overwhelming evidence of corruption it sounds confusing but it is not. it's very clear, it is just over and overwhelming amount of information, which is all evidence of corruption. so i think it is starting to

break through. i think that it vindicates republicans who have pursued this and they have done a good job of pursuing not the crack head, whore loving son of the president but the fact that the son, along with the current president, used the presidency and vice presidency as a way to make millions of dollars for the biden family over the course of his 50-year career in public office. that's what matters here. >> harris: quickly, doug, i want to get your take on something. republicans are talking about this. are we at the point now politically do you feel and then how would democrats deal with it where you start to look at talk of impeachment inquiry into a president when there seems to be a suspension of disbelief around the fact that they had to have talked about what hunter biden

was doing? where do you think we are? >> where i would say is we have lots of unanswered questions and i think charlie is exactly right. this is a story about joe biden and the biden family but principally joe biden. and we have to drill down to was he on the phone, was the bribe paid, did he get the bribe, what did he do in ukraine? remember, donald trump was impeached for, quote, asking a favor of zelensky. so i think the unanswered questions are leading us to the point where kevin mccarthy said we're at the beginnings of asking ourselves do we need an impeachment inquiry? >> harris: the house speaker did that just yesterday. i want to bring in our legal experts. phil holloway, former assistant district attorney. we'll begin with you, phil. everybody plays here. phil, i'll go to you.

talk to me about the time this is taking. is it significant? we're all watching it. an hour and 12 minutes since proceedings reportedly began. we don't have cameras in there. as this ticks away what are some of the things that may be critical for that judge to be looking at. >> great to be with you. this is taking quite a long time. federal courts are notorious for starting on time and being very efficient. that being said, the judge is driving this train. there are other issues, as we've been talking about. she needs to perhaps get to the bottom of the question about whether or not one of the lawyers for the defense team misrepresented themselves when dealing with the clerk yesterday. maybe that issue has been resolved quickly, maybe not. maybe she is hearing testimony from the clerks. who knows what she is doing with that issue? she may want to get that out of the way. she has got to formally make

sure the defendant, we call them the rights. she has to be over the rights with him on the record and make sure that he is knowingly and voluntarily waiving those rights. she has to do that before she can address the issue of whether or not she is going to accept a plea. that, i think, though, is the question that may be causing this delay. i think that there is a lot of information not only in the public sphere but now that's been filed with the court where basically this amicus brief, a friend of the court form of brief, outside parties are asking the judge not to accept this plea deal. that's where her power really lies. she can't tell the department of justice, harris, what to charge anybody with. what she can say is i don't approve of this plea deal. you guys have to go back to the

drawing board or we can just sentence him based on the plea he is entering today and he has a felony in there. and so she may have some very big reservations about whether it's an appropriate resolution. >> harris: i want to bring in andy mccarthy, fox news contributor and i want to have you both. andy, i want to pick up where phil left off with this question. if the judge kicks this back and rejects this plea deal, does that mean that they go back and do a different deal and can the charges be changed if that happens? what's at stake for hunter biden here? >> well, harris, i'm glad that phil said what he said because there is a lot of misunderstanding about it. he really put it perfectly, which is the judge is not in the business of telling the justice department what charges to bring. the judge has no authority to do that. but the judge is in charge of the integrity of the court.

and the judge can say you guys are going to have to come up with something else. we're not putting the court's stamp on this. this is really what this process is. and if she tells them that she won't sign off on this deal. i doubt they will do anything that drastic today. she is probably more likely to, you know, if she goes that route to adjourn it and get more information from the parties. but if she tells them to go back to the drawing board, then anything can happen short of things that are being lost day-by-day by day under the statute of limitations. for example, the gun charge, which we've talked very little about but which a number of us think is very important. it's a 10-year felony count he is getting a pass on. the statute of limitations runs on that in october. that happened in october of 2018. so it's one thing to tell them go back to the drawing board, figure something else out, in

which case they can cut another deal. go to trial or whatever. everybody should remember tick, tick, tick the clock is going as the delay happens. >> harris: that's really critical. you are saying and other experts you've talked with that 10-year felony count, could that come back onto the plate? if you do sorts of things you have to do them expeditiously because you are up against the clock that says these charges don't have to be looked at if they let the clock run out. real quickly, for this judge, what else is there besides take this today, nixing it and sending them back to go work on this, what else can become part of this case? a lot has happened since that plea deal. republicans and house judiciary and oversight, they've been digging up more information. can that become part of this case? and phil, i'll ask you. >> whether or not that new information or anything relating

to the ongoing investigation becomes part of any case is a question for the department of justice. the judge, as andy correctly pointed out, cannot tell them what to charge anybody with. what she can do is she can hit the pause button or i think she could say okay, i'll accept the plea of guilty on the charges that we have before us because if we're not going to do diversion. let's say she denies that. there is a ten year potential penalty on that and another 12 months plus 12 months for the two miss demeanors. that would be 12 years in custody she has to work with if she feels the penalty part of this is just not sufficient. i think, though, before she can do anything, the sentencing was never supposed to occur today. if she is not going to -- if she is inclined to not take the plea deal. she is probably going to be disinclineed to accept a guilty plea. that may be where we're left.

if she takes guilty pleas today and defers sentencing because she is concerned about this being too much of a sweetheart deal. hunter biden could be in real trouble facing potentially real prison time. of course, that's just reading the tea leaves. something unusual is going on because it's taking so long. >> i don't think any of us could have predicted how long this would take to begin with. you both are telling us that this amount of time, one hour and 19 minutes and eight seconds is extensive and we'll stay on the story. phil and andy, please stay by with me. i want to bring you back as news warrants. we have griff jenkins outside the courthouse and we're all over it. i want to go back to the politics of something else that is happening now on capitol hill. the courthouse we'll come back to as the judge's decision comes down. i want to bring back our power panel now, which we start

evidence with. house speaker kevin mccarthy is signaling an impeachment inquiry that could be on the horizon for president biden and he says it may come to that if there is any stonewalling in the republican investigation of all those nine members of the first family. >> if they withhold information, impeachment inquiry allows congress to have the apex of power to get all the information they need. if at any time i feel as though we're not able to get all the information we need, we'll have to rise to the level of impeachment inquiry. >> harris: a wave of the preen princesses hand the white house -- >> i won't get into hypothetical and what house republicans may or may not do. i won't weigh in on what they may or may not do. >> can you at least say whether you agree or disagree? >> i answered two of your

colleagues this question about what speaker mccarthy is going to do, not going to do. how house republicans are going to move forward. i don't have anything else to share. >> harris: the mounting evidence is not easy to ignore. some republicans are exploring mccarthy's possible plan of action. >> i will tell you the evidence that i've seen is overwhelming and it would lead one to believe that our president, our sitting president is corrupted and compromised. >> the president is head of the free world. what it looks like this guy has done, forget the damage he is doing to this country while he is in office. but the money he has accepted, it appears what his son is involved with, if that's not pay to play i don't know what is. let the evidence lead us there. people ask me all the time. what are the consequences? there has to be consequences. >> harris: let's get into that and i'll bring by charlie hurt and doug schoen. charlie, consequences, what would it look like for you for

republicans to you? >> at the very least kevin mccarthy is right. impeachment inquiry gives them additional power. over the past six years we saw democrats absolutely destroy the value of impeachment by turning it into a nakedly partisan political. they used the impeachment inquiry for pure political fishing expedition even though they had no actual evidence of real crimes against donald trump and they used it just to politically hurt the guy. that is the real problem for them. the big difference here, of course, is the fact that what there is mounting evidence of and what we believe is going on with the biden family is actual bribery. the word bribery is actually in the impeachment statute. so they have every reason to

pursue that. if for no other reason. i don't think they'll get democrats to go along with it. you said something earlier that i thought was interesting talking about the willing suspension of disbelief. this is like broadway theater level of suspension of disbelief on the part of democrats because they are so committed. they have been so committed to using impeachment as a purely partisan thing as opposed to removing someone for out and out bribery. at the very left republicans are -- republicans have a good reason to use impeachment inquiry if the bidens further stone wall. >> harris: thank you for listening to what i was talking about earlier. it is, almost like they want to ignore the facts that are in front of them and there is nothing else to look at but that. you are looking out the window and all you can see is the rain. you can't see anything else. my question would be --

>> it is better an a broadway show. >> harris: it is real. impeachment, talk to me billion what that can do to a sitting president. when you were in the white house, bill clinton. the polls went up. maybe there is some reasons why republicans not all of them agree that's the road ahead right now. >> yeah. i listen carefully, harris, to what kevin mccarthy said. he said we are at the point where we are beginning to consider an impeachment inquiry. what i took him to say is we don't want to rush willy-nilly into it for the reasons charlie suggested. because if it gets politicized, if it looks like a naked political act in the absence of clear factual evidence, the loser will be the republicans. the democrats, as you know, harris and charlie certainly knows, are expert at turning these kind of dialogues into

political harry carey fights. to my way of thinking we need more time, more answers. it has been a week. we've learned a lot. another week or two we may learn more and we may learn more today. let's receive what comes out and then, i think kevin mccarthy can make the appropriate decision. >> harris: i want to double down with you, doug. what kind of damage does what we're watching at the courthouse as we continue to await what a judge's decision is on that so-called sweetheart deal for hunter biden. will she reject that? a lot of things have gone into today. we're almost at 90 minutes for something that is routine according to the legal experts with me this hour and many others. this is a distraction, i would imagine. how does it play inside the white house? you've been there. >> yes, i have. we found when we were there we were able to contain what was coming out and largely control the narrative.

not entirely but largely. here -- i've spoken to the risks to the republicans of impeachment. there are clearly risks to biden and the biden white house if the judge for some reason either rejects the plea, holds it up, asks for more information, whatever, because the facts as they are coming out are not helpful to the white house. indeed, what is coming out is clearly potentially -- i underscore that -- very harmful. >> harris: thank you for that transparency on your part is why we love having you on the program. it can't be easy to watch your side lose. it's not a winning day trying to explain. >> it is very sad. >> harris: eventually the president will have to speak on this. if it goes their way today and hunter biden gets the plea deal there is still a sideline and it is becoming bigger and bigger. the main show the way charlie would put that broadway

comparison. the main show of all the evidence that has come out against nine members of the biden family is still coming out, too. the biden risks, i'm curious, charlie, what is the strategy then. they have their side and watching this closely. what should republicans be doing right now? i would guess you get everybody in a huddle. kevin mccarthy, as house speaker and figure out how far can you ride the pony of impeach. inquiry? you have to get people on the same payment. >> exactly. i think if republicans are unable to peel off democrats publicly now who are willing to look at reality and realize what is going on, then it is a fool's errand to go too far down that track, especially since we're looking and getting into political season again. campaigns are already underway. we will be in full force in the next six months of the next

presidential election. and republicans are in a very good position to -- if they don't think they can peel off the democrats they would need in the senate, to not only have him impeached but convicted in the senate. then you -- you know, you can do the inquiry but make it a political issue. at the end of the day what matters is the american people and what voters want and voters who voted for joe biden did not vote for this. in 2020 they voted for a different joe biden. they did not vote for corruption and bribery. the reason they voted for him is because all the stuff was hidden from them. now it's not hidden. >> harris: when we've had our voters' voices here and on election night live in studio, they have said so many times. these are different groups of people coming in from all over the country, they aren't talking about me. you know what the democrats aren't doing today? they're not talking about the

economy or the voters. now the voter can focus in and say what are they talking about? to the detriment of the presidential candidate for re-election we get this. hunter biden in a courtroom for longer than anybody thought he would be. a lot on the line. what will the judge do with the sweetheart deal. i will ask everybody to stand by. charlie hurt, doug schoen and phil holloway and andy mccarthy. they have to leave the courtroom at some point. thank you for your time and expertise. i'll be back in a moment. something simultaneously going on on capitol hill. judiciary chairman jim jordan in the house did warn this man to be prepared and right now that man dhs secretary alejandro mayokas is getting an earful from house republicans for the administration's handling of the

crisis at the border. while mayokas claims a reduction in border encounters, republicans say the administration is playing a shell game. >> any semblance of border security and immigration enforcement. americans are paying the price and they demand accountability. only this administration and my democrat colleagues would call it a success. >> the chairman and colleagues in the majority will use today's hearing as a predicate for a baseless attempt to im preach mayokas. >> even within our broken immigration system is working. unlawful entries between ports of entry along the southwest border have consistently decreased by more than half compared to the peak before the end of title 42. >> harris: you know how i'm always talking about the interesting timing of things. a federal judge has blocked the biden administration's asylum policy, which it used to reduce border crossings when title 42 ended. remember, that was that health

covid era restriction that former president trump had put on at the border to try to slow the numbers down. biden let that expire. the numbers still are eye-popping. some 1.7 million reported border encounters through june of the current fiscal year. the fiscal year started on october 1st. so we're not talking about a whole year yet. a whole calendarier, just a few months. tom homan, fox news contributor and former acting ice director, art -- and gentlemen, great to have you in "focus" right now. so tom, i will come to you first. mayokas, seeing him in that hot seat and being told come prepared, your top line thoughts. >> he needs to be impeached. he should have been impeached a year ago. what this man has done. violated the oath of office he

took. he is an embarrassment for the position he holts. he sits under oath and tells congress illegal entries are down 50%. what he have is doing is taking thousands of people who enter illegally and pushing them through a port of entry to an unlawful program he created. he is violating the statute by bringing thousands of illegal aliens to the port of entry that he knows don't qualify for asylum based on data and he is doing that so say -- less people are entering illegally. you are taking them to the ports of entry. if you take the thousands he is bringing through the port of entry illegally and add it to the border patrol apprehensions, less than 6,000 last night. you are still around 8,000 or 9,000 a day as high as 10,000 that is historic. he is lying to the american people and members of congress. he have created an illegal system that he will lose in court when the 20 state lawsuit

comes to court. >> harris: it's amazing like you are still doing it. you know day-by-day how many people are coming across. mayokas can't even give us that information. >> look, anybody can go to cdp.gov and look. >> harris: maybe he didn't. >> the port of entry is up 300%. why not talk about that? he talked about the number of encounters nationwide last week. he only talked about the southwest border. not the airports like miami airport bringing thousands. he is using airports and the northern and southern border but not telling congress and the american people exactly what he is doing. he is lying to the american people and lying to congress under oath. a crime in itself. >> harris: current and former border agents are furious claiming the biden administration retaliated against central border patrol chief for being honest about the border crisis. former border patrol chief

rodney scott claims the administration is -- this is a quote -- trying to silence for providing testimony to a house investigation. scott also says it is just another horrible message to send to the troops as they grapple with the surge in migrants. cbt has denied any allegations of retaliation against bovino. >> when morale is stretched and under pressure, what does this do? >> it destroys the morale even more. getting back to talking about secretary mayokas, they don't even know how many people have been crossing. they can talk about the encounters. they don't know how many people crossed. the agents aren't working in the areas they should be working. they are busy with administrative duties. they don't know how many people get away. you see retaliation. some of us have been being truthful and speaking the truth for quite some time. unfortunately you see some individuals they wait until they

are near retirement or until they are retired to start telling the truth. a lot of that comes from the leadership. tom homan being the exception. he have has always been able to come out and say this is what's happening and the truth. but there is a lot of individuals out there they wait until they have a job outside or until retirement before they decide to speak up. >> harris: i will ask my team if they can -- i won't do that. we'll listen to representative chip roy as we dip in here. let's watch part of this hearing with the secretary of homeland mayokas. >> period, end quote. followed up i said i read to you the definition of operational control. i actually held up this chart operational control as defined under the secure defense act. put it up for plain reading plain as day. i put up the second part of the same statute which defines operational control. means the prevention of all

unlawful entries in the united states including entries by terrorists and instruments of terrorism, narcotics and i said to you do you stand by in your testimony that we have operational control in light of this definition? you responded with quote, i do. end quote. earlier, you testified i didn't give you a chance to finish. yet you specifically, when asked and held up a statute, defining exactly what operational control meant under the secure defense act you said quote, i do. i believe that was purposeful. i believe you want the american people to believe we have operational control of the border when we very clearly do not. less than a month later in homeland security you testified quote, under that strict definition this country has never had operational control. this year homeland house

security then border patrol chief ortiz testified before the homeland committee that dhs did not have operational control of the border either by the statutory definition or not. that is an honest answer. in the senate judiciary committee shortly thereafter you testified with respect to the definition of operational control, i do not use the definition that appears in the secure fence act. in the secure fence act provides that operational control is defined as preventing all unlawful entries. no administration has had operational control. if you recall when you testified here in front of me when i asked that question and clearly stated we do have operational control, when presented with the actual definition of operational control, you didn't hesitate. you said i do. and you in fact then referred back and said i believe that my predecessors would have said the same thing. i asked chad wolf that question

in this room. and chad said well no, we didn't use that framing to say we have operational control. we are striving to achieve operational control. but you didn't do that. you looked straight at the american people, straight at me, straight at every person on this committee and said we have operational control. why? >> congressman, two points. one, you did not let me complete my answer. two. >> hold on. give me your second point, go ahead. >> thank you. two, the secure fence act defines operational control as not a single individual crosses the border. >> i read it and i read it to you and you read it and in fact you said i do. you didn't hesitate. you didn't say i do. i need to explain what i mean by i do. you said i do over and over again. here is the problem with that. this is a pattern. did you lie another time when

you said on september 24, 2021, at a press conference, quote, we know those images painfully con your up the worst elements of the nation's ongoing battle against systemic racism when responding to the alleged whipping incident by the border patrol agents that report to you when in fact on october 22nd,, 2 1/2 hours before that press conference the assistant secretary of dhs public affairs and cc de other leadership and alerted you all. >> harris: that was getting fiery as you saw the representative chip roy telling mayokas he hasn't been honest on the record. we're looking outside a federal courthouse in wilmington, delaware. it has been more than 90 minutes that hunter biden has been in there. all he had to do is plead guilty to what is being called the most

gentle slap on the wrist in terms of a tax fraud and gun case against him. it is a sweetheart plea deal so-called. really if the rest of us were up on these charges they wouldn't be sweetheart anywhere in the mix. here we wait. now there is a lot going on that we did not know about. andy mccarthy, former assistant u.s. attorney and fox news contributor, along with andrew, a former federal prosecutor joining me now, also phil holloway is here and phil, i want to go back to you. criminal defense attorney, former assistant district attorney. bring me up to speed about what you know about what's been going on and what it means that all this time is passing. >> i think it's very clear that hunter biden's legal team really wants these pleas to be entered today for the reasons that we talked about earlier.

every day that goes by certain things might be dying due to the statute of limitations but there is also double jeopardy considerations. anything that the prosecutor maybe has in their case file could be potentially barred from being prosecuted under double jeopardy if this plea is entered today. so they have everything on the line. they really want it to go through. now we're getting unconfirmed report the court may be in recess. that people -- the judge may want more information. a possibility we talked about earlier in the show. the judge may have serious concerns about whether this is an appropriate place to put the official seal of the court and say look, this is justice because that's what the judge is saying when the judge signs off on it. she may very well have some major questions that she wants either the prosecutors to answer or the defense team to answer. it may even be related to the

amicus material that involved all the whistleblower transcripts that were sent. so unfortunately we'll have to wait and see. it does appear that the judge is certainly requiring the parties to make out a good case as to why their positions should prevail today. >> harris: if you push the can down the road to the point where they don't come to any agreement or maybe this judge nixes the plea deal all together, you are running up against that october statute of limitation on particularly the gun charge that both of you have said that should have been a 10-year felony count. you don't want to mess with that unless you can bump it up. a lot of jeopardy for hunter biden, i get that. is the plea deal in jeopardy now, andy? >> we don't know, harris. we just don't know what's been going on in there. the way that court proceedings run, whether in federal or state court, is really dependent on

the judge. >> harris: i will cut in for a moment. it will answer some questions and we'll be right back. griff jenkins with what he can confirm. griff. >> i can confirm that this plea deal may be falling apart before our eyes. i've been here reporting our side. our producer is inside. no electronics or cameras and finally i said look, it has been over an hour and a half. let's see what's going on. i just left the courtroom seconds ago. they are in recess at the moment. here is what has transpired. the judge basically began by asking questions about the plea deal itself. about whether or not the pleading guilty to two tax misdemeanors could be tied to the diversion part, which is avoiding charges which is a felony on the gun charge. there was disagreement in that. but the major headline that's

transpired in the courtroom that is likely going to be what we're talking about for the rest of the day is the judge asked if, asked the prosecution if there was an ongoing, existing separate investigation into hunter biden right now. the prosecutor saying yes. and what is holding this deal up and they are in recess now because the defense asked for some time so the judge granted it. what's up in the air is whether or not the judge will even accept this deal because this deal would possibly give hunter some immunity to future charges. she is not okay with that. that's why this is taking so very long. so again to recap, this deal is by no means underway being accepted by the judge because the judge is not okay with linking the tax guilty pleas with avoiding the charge on the gun or any other possible charges as we now know, there is

an ongoing, existing current investigation separate from this case into hunter biden. that's what we have so far. we expect the court to resume here for them to be back in session and we'll bring you more as we get it. but quite stunning headlines. i was shocked to walk in the courtroom and see they are in recess with this judge very much not ready to accept hunter's plea. we do know that hunter did speak just briefly saying he was prepared to plead guilty, but the judge obviously holding that up saying hold on a second. i'm not okay with the part where you plead guilty to tax and avoid the diversion portion of this. avoid any future charges on the gun thing and now we don't know the details of the current investigation that the prosecution has now acknowledged the judge asking for details on that. the prosecutor weiss saying that no, i can't go into that.

i'm not at liberty to discuss. she asked what could be involve foreign agent registry charges and the prosecution not willing to say exactly what is under investigation. but this is very much a moving developing store see right now. we'll bring you as much as we get it. when our producer comes out of that courtroom and have a decision, we'll bring that to you. at this moment, at this hour, this plea deal is very much up in the air. harris. >> harris: great reporting. i have know that it is difficult when you are not in there. there is no technology that we can share information with text messages and all of that. we understand the challenges of all of that. but great job today being able to confirm some things, get it on the record, which you could. we were hearing things come out of that courtroom and you have to be careful with that because it is legal and you taking your time to get that information is very important. thank you.

i will come back to you moments from now. andy mccarthy, former assistant u.s. attorney and fox news contributor, phil holloway former assistant d.a. and criminal defense attorney are back with me now. andy, i will come right back. you and i had just said does this mean the hunter plea deal appears to be in jeopardy? is it falling apart? you said we don't know yet. after all that reporting from griff jenkins, your answer. >> based on what griff said, all i can say is what i've been saying all morning, which is this just seems so corrupt. there is no good reason for the justice department and the internal revenue service to take a plea where you are giving away the store to somebody as to whom you have a pending investigation. >> harris: why did they do it? >> because there is political pressure. it is obvious. if you had an independent counsel. if merrick garland had done his

duty and said there is a conflict of interest here because the biden justice department can't with integrity and ethics investigate the president's son in conduct in which the president is implicated, you would have an independent investigator, special counsel. if it was a credible person the last thing that person would do is take a plea while the investigation is still underway. the only time i've ever heard of that happening is you have somebody who is cooperating with the investigation and is willing to plead guilty to serious charges and enter a cooperation agreement. this is just a straight plea agreement where they are giving away the store and they are giving it away the store to somebody who is under investigation involving millions of dollars paid in by actors who are foreign parties that are corrupt and anti-american. it makes no sense. >> harris: who does that benefit? land the plane.

andy? >> it has to be -- what? i'm sorry. >> harris: who does it benefit to do that? >> hunter. >> it benefits the bidens. president biden principally. >> harris: wow. okay. phil, i want to ask you this. when they announce this plea deal a few weeks ago, the justice department said that they were going to leave it open as an ongoing investigation. i remember talking with legal experts at the time saying why would you do that? was that to try to block some of the information that might come through, you know, house oversight or judiciary? do you have any thoughts about that now? i mean, it is still dangling to me. >> yeah, i do. that's one of the big concerns that the judge has. as i mentioned, the defense really wants to get this done because they want the protection of the double jeopardy clause. the only reason that i can think of why a prosecutor would want

to go ahead and take this plea now with an ongoing investigation is because the prosecutor also wants to give that defense to hunter biden and his team. so that would mean that both sides of this are manipulating the system in a way to create a double jeopardy bar from any future prosecutions. if you a cynic like i am at this moment, that's the only conclusion i can draw from it. you had a problem with it, like you mentioned, when it was first reported. lots of us in the legal field had problems with it. and today the judge also has a problem with that. how she resolves it, i don't know. perhaps she can get hunter biden to say that he waives any statute of limitations defense. that seems farfetched. i don't know what's going to play out but the plea deal is falling apart before our eyes. >> harris: i want to know what kind of deal will you cut in

that courtroom right now? what is going on inside the courtroom that it has been almost two hours. they are on a break. supposed to go back to this. but that's -- i want to know what's happening, what is unfolding. we can't see it but you have so many years of experience. what is possible for his attorneys at this point? >> if the judge is willing to even accept a plea on the information, the charging document that she has before her, the only thing they could be negotiating about sort of on the fly in the courtroom is some type of sentencing enhancement, that is jail time. it could be they say all right, we'll agree to do a little jail time now on this gun charge and not do diversion. they could try to put more teeth in it to see if it satisfies the judge. the judge is not going to tell them in advance what she will and won't take. she is going to say go back and try again and bring something else back to me and i'll tell you if i'll take it whether you

bring it to me. >> harris: andy, it gets back to what you said. the 10-year felony count. the softness in that gun charge in particular. >> yeah, i think that's right, harris. to phil's point, in federal law, a number of states are different in this regard. in federal law judges cannot participate in the plea negotiation. she can signal to them what is okay with her and what's not but she can't get into the nuts and bolts of it. the second thing i want to say is i think one of the most important things that griff reported a few minutes ago when the judge raised one of the terms in the agreement and there was disagreement about what that meant. at that moment i must say i think you tear up the plea agreement and start over again. so people are clear on this, a plea agreement is a contract. just like to go contract 101, a contract is a meeting of the

minds. so if you have the two sides getting up and saying we disagree about what this means, then they don't have an agreement. if they don't have an agreement, there is not anything to talk about. >> harris: yeah. it is like any other type of thing you are doing, whether you are buying a house, a car, or anything. until it happens, it hasn't happened. >> right. >> harris: and right now through our reporting, our great reporter and producer jakes gibson and griff jenkins the hunter plea deal appears to be falling apart at this hearing. they are in an extended break. as soon as they resume, hopefully we'll learn more. we are waiting for our producer to come out of the courtroom to update us. again, jake gibson, to get together with our reporter, griff jenkins. that's how the information is flowing right now. i want to get into the politics of this. gentlemen, stand by. we take it up to the top of the

hour now. charlie hurt and doug schoen. no doubt the president knows what's going on here. he has to be, if he is not in front of the tv they have to be telling him what's happening. >> of that, harris, i am certain. bill clinton, during impeachment, knew every detail of what was going on in the house and in the senate. everything was carefully monitored. in this case, joe biden is sitting in the white house now hoping against hope that this plea deal goes through. if this plea deal doesn't go through politically this will be whatever else comes, damaging to the white house, damaging to the re-election, and damaging to the work of the biden administration. so there is a huge amount at stake here getting this plea deal done. that is why hunter biden's lawyers will do anything

possible to get that deal ratified today if they possibly can. >> harris: is there anything that the president can do at this point? this was put together by his d.o.j. i'm curious your thoughts on that, charlie. >> i don't see -- obviously it appears he has been very involved all along in this. and -- but i don't know at this point what more you could do to help the situation. this is the craziest level of brazen political corruption i've ever seen. i have covered politics for a long time. i covered politics in detroit. i've never seen this level of just complete shameless political corruption. it is truly amazing. a couple of things i think interesting. one is the comment from andy mccarthy talking about the statute of the limitation on the gun charges. that brings you up short. not only does it cast us forward in terms of what could happen but let's not forget during the course of this investigation the

i.r.s., the federal government allowed a lot of these other previous charges to expire before they even charged him. that's not an empty concern about the gun charges. the second thing is the judge's concern and interest in the quote, unquote, ongoing investigation. part of this, the white house has used -- hunter biden's lawyers have used the threat of ongoing investigation as a shield against having to answer questions about this by saying well, ongoing investigation, we can't answer questions about this. so has i.r.s. and d.o.j. if that's the concern and it is not an ongoing investigation they have to answer a lot of questions. that gets into some really politically sensitive questions going into an election. the third thing i would point out is the judge, anybody spent any time in delaware, that's a very small place. a very corrupt place. this judge is under incredible

pressure and the fact that she appears to be taking this all very seriously and doing very hard work, hats off to her. i pray that that is the federal judiciary we have. we haven't seen evidence ofist at this point but i pray that is the federal judiciary we have. we need people who are above corruption. >> harris: you were talking about the judge and you were talking about the home state of the president of the united states that just must sit by and watch this to see what will happen with hunter biden. we have been told by the president of the united states, by his press secretary at least up until two days ago that the president and his son had not been talking either to her or to each other about their business deals. and now we're led to believe they just simply were not in business together. doug schoen, is that a moving of the goalpost to you? >> yes, it is. if there is confirmation that

joe biden was, quote, listening to conversations, it would suggest that the initial position of the white house to go back to watergate would be inoperative and that would be very, very damaging for the president and would suggest that the inquiries of the republicans have much more to uncover. so we need to learn more about what joe biden did, what he knew, what he said, and what role he played, if any, in hunter biden's activities. >> harris: uncomfortably close to an election season. >> yes. >> harris: when do democrats look at this and say our guy is below 40% in the polls anyway. what other dancer can we bring onto the stage? >> we are a ways a way from that but let's say the talk is now in whispers.

>> harris: charlie, you were going to say something. >> of course their bigger concern is not just that but also the fact their backup standing behind joe biden in kamala harris is politically speaking even worse than joe biden. so it really is a tight spot that they're in. that tight spot is getting tighter by the day. >> harris: at least measurably worse off, right? we're still waiting for that one resounding thing that she has done to change stuff for people in the country outside of talking about a few issues that she feels passionately about. outside of flying to jacksonville, florida to talk about race on his turf. that's not dealing with the border. that's not like a box check item. so quickly, doug. >> if talking is her best attribute? >> harris: that's what we've seen and doesn't make sense.

who else could they put up? >> this is a big day potentially for gavin newsom because of what charlie and you are hypothesizing plays out, he will do everything he can to project his candidacy. >> harris: we'll cover the news as it happens. gentlemen, i'm so glad you are with me this hour. good to see you both. thank you, breaking news coverage continues on "outnumbered" now. >> yeementd /* yeemd >> emily: welcome to "outnumbered." griff jenkins has developing news right now. griff jenkins. >> griff: developing it is indeed, this plea deal, the headline may well be falling apart over judge's questioning, the terms of the agreement