Hunter Biden's plea deal doesn't include a jail sentence. A judge could impose one anyway.

• Hunter Biden's criminal plea deal still needs approval from a judge — which isn't guaranteed.
• A judge could always impose a higher sentence or reject the plea altogether.

Hunter Biden isn't out of the crosshairs just yet.

On Tuesday, the US Attorney's office in Delaware — led by an appointee of former President Donald Trump — announced that Hunter Biden would plead guilty to two criminal counts of failing to pay taxes.

Prosecutors also brought a third charge against the son of President Joe Biden, alleging he possessed a gun while he unlawfully used or was addicted to a controlled substance.

According to a court filing, Hunter Biden agreed to enter a pretrial diversion program for that charge, meaning that prosecutors reserve the right to dismiss it later if he seeks treatment. The Justice Department won't seek any jail time for the tax charges, either, according to the Washington Post.

The plea deal, however, still must be approved by a judge. Most plea deals skate through court without any problems, but judges do occasionally reject plea deals in high-profile cases. Last year, federal judges rejected plea deals for one of Ahmaud Arbury's killers and a married couple who tried to sell America's nuclear secrets, each deeming the agreed-upon sentences as too light.

It's extremely unlikely that the judge who'll oversee Biden's case will reject the deal, three different prosecutors-turned-defense-attorneys told Insider.

The only role judges have in plea agreements like this, they said, is to make sure the charges match Biden's conduct, and to make sure Biden understands his constitutional rights.

Biden is pleading guilty to charges in a document called an information, which briefly describes what he did. In the case of the gun charge, for example, the one-paragraph information says Biden unlawfully possessed a Colt Cobra revolver for 11 days in October 2018 while he was also addicted to or used a controlled substance.

"The only thing they're really gonna be looking at is if the admitted conduct matches the charged conduct," Sarah Krissoff, a defense attorney at Day Pitney LLP and former Manhattan federal prosecutor, told Insider. "It's gonna be pretty simple — Hunter Biden stands up and says, 'I did X, Y, and Z, and did those things constitute a violation of 26 United States Code 7203.'"

The judge could impose a higher sentence

The place where judges get to flex their muscles is during the sentencing process. With a plea deal, prosecutors bind themselves to recommend a particular sentence. But it's still the judge's discretion to give whatever sentence they think is appropriate.

Since the tax charges are misdemeanors, there won't automatically be pre-sentencing reports prepared by probation services, according to Neama Rahmani, the president of West Coast Trial Lawyers. But the judge can order one if they want. Those sentencing reports may include more detail about Biden's taxes and his failure to pay them, but may be filed under seal, Rahmani said.

It's unusual for a judge to reject a plea deal if the sentencing recommendations are too harsh. The judge can always impose a lower sentence. It's more likely, according to Rahmani, for a judge to reject a plea deal if the sentencing recommendations are too light and they believe more charges should have been brought for the underlying conduct.

"As far as the recommendation, judges do go higher or lower, and it's not uncommon for judges to go higher or lower," Rahmani said. "Obviously, you can't go lower than probation, right? So the question is, is the judge gonna go higher?"

To make that kind of call, however, the judge would need more information. And they might just not have much to go by. The judge won't have any knowledge of the full scope of the Justice Department's investigation or any other evidence entered into the court record.

"There are circumstances where a judge has a window into what's happening in a case, and they then will question the outcome," Krissoff said. "Usually, it's still with great deference to the parties, but at least we will sort of raise their hand and say, 'What's going on here? Why is this fair? But in this case, whoever is assigned is not going to have that information available to them."

Judges aren't allowed to look under the hood into the details of the prosecutors' investigation. It's the prosecutors' discretion, under the separation of powers in the Constitution, for which charges to bring.

"It's not really any of their business," Krissoff said. "The investigation could have gone in 9 million different directions and the judge has no right to know any of that."

What about Burisma? The big guy? The laptop from hell?

While Biden's attorney said the Justice Department's five-year investigation into Biden was "resolved," US Attorney David Weiss, who is overseeing the prosecution, said in a statement that "the investigation is ongoing."

His office has reportedly been examining whether Biden broke laws related to money laundering and lobbying for foreign governments. Republicans in Congress have said they plan to continue investigating Biden's conduct as well, including over allegations that he was engaged in corruption through his role in the Ukrainian company Burisma, that he entangled his father in the alleged corruption, and various nebulous claims related to his laptop.

A judge, Rahmani said, would not want to interfere with an ongoing criminal investigation — especially as it's subject to partisan attacks from Republicans.

"There's no way the judge, for instance, could say, 'Well, I want to prosecute him for the laptop or for corruption or Ukraine' — it's outside the judge's hands," Rahmani said.

In order to ward off charges related to that conduct, Biden would need to reach a global non-prosecution agreement with the Justice Department. It doesn't look like that's the case, according to Randy Zelin, a defense attorney and professor at Cornell Law School.

"There's nothing that I've seen that indicates that that the US Attorney's Office in Delaware is going to tie the hands of a US attorney's office elsewhere," Zelin said. "In particular, any US attorney's office investigating the corruption and investigating the allegations that Hunter Biden failed to register as a foreign agent, the allegations that he paid his then-vice president father for influence on behalf of foreign entities."

The diverted gun charge, Rahmani said, is highly unusual. It may give prosecutors some leverage over Biden. If he doesn't comply with his probation requirements, prosecutors can bring a felony charge against him carrying a sentence of up to 10 years in prison. That process could also dredge up more embarrassing information.

"I put a thousand people in federal prison, and I never offered a diversion," Rahmani said."

Absent any kind of document confirming that the investigation into Biden is over, it's highly unlikely the charges function as some kind of cover-up for more serious offenses related to foreign lobbying and political corruption, Zelin said.

"Unless and until we see that in a plea agreement or in some side letter, who in their right mind would rely on a wink and a nod to cover such serious offense conduct?" Zelin said.

The crimes he's pleading guilty to, after all, are still pretty bad. If Biden ever wants to go back to being a practicing lawyer (he has recently taken up memoir-writing and painting), he would have a tough time.

"This is not some deal of the century by any stretch," Zelin said. "He's still pleading guilty to crimes, he's still facing the possibility of a jail sentence, he's going to have a criminal record. There is no expungement in federal criminal practice, so this criminal conviction will stay with him for the rest of his life."