Judge Maryellen Noreika’s finding that she could not accept the agreement drawn up by prosecutors and Hunter Biden’s defense team appears to have been driven, at least in part, by the consideration that the government was asking of the jurist something the Framers forbade her from doing.

The deal, which is now in limbo, came in two parts. The plea agreement involved two guilty pleas to tax charges in exchange for probation. The second part was a diversion agreement, where an illegal gun purchase would not be prosecuted if Mr. Biden stayed on the straight and narrow, as defined by prosecutors, for two years.    

This rang an alarm for Judge Noreika. She leveled at the parties a warning on the government’s request that she supervise the “judicial diversion program” Mr. Biden fils would be required to enter to avoid felony charges for lying about his drug use to purchase a gun. 

Normally these programs, which are common in drug cases involving offenders with no previous criminal records, are overseen by prosecutors — that is, the executive branch — and not the courts. Judge Noreika said she is loath to “violate the  separation of powers or do anything unconstitutional.” She intends to “figure out what my role is and what the appropriate rule is that applies.”

The agreement, as drawn up by prosecutors and now on life support, details that “if the United States believes that a knowing material breach of this Agreement has occurred it may seek a determination by the United States District Judge for the District of Delaware with responsibility for the supervision of this Agreement.”

The diversion text also notes that the “United States agrees not to criminally prosecute Biden, outside of the terms of this Agreement, for any federal crimes encompassed.” When pressed by Judge Noreika about this and other “atypical provisions,” one of the prosecutors, Leo Wise, allowed that he knew of no precedent for a grant of such broad immunity. 

This novelty could be one reason the plea agreement has come under such a firestorm of criticism. The critics include Speaker McCarthy, who called it “a sweetheart deal” and an example of a justice system tilted toward the wealthy and privileged. Then again, too, he was horning in on a matter between the judiciary and the executive branch and from which Congress is supposed to refrain.

While Judge Noreika pressed the convoluted circumference of the promised immunity, she also appeared unsettled by her role in enforcing it. The diversion agreement, unlike its plea counterpart, would have given the jurist no discretion, meaning that it would have locked her into the role habitually occupied by prosecutors. She balked at being assigned the role of a “rubber stamp.” 

In search of an explanation, the New York Times ventures that “Mr. Biden’s team, concerned that the department might abuse that authority” if President Trump “is re-elected, successfully pushed to give that power to Judge Noreika, arguing that she would be a more neutral arbiter.” Prosecutors, the Times reckons, are seeking “some protection against the possibility that Mr. Trump, if re-elected, or another Republican president might seek to reopen the case.”

If one opens the Constitution, Article II, Section 1 ordains, “The executive Power” — including the power to prosecute, and the discretion to do so — “shall be vested in a President of the United States of America.” The Department of Justice, an executive branch agency that ultimately reports to the president, is tasked with enforcing the law as part of this grant of authority. It is the president — not Judge Noreika nor any other jurist — who must “take Care that the Laws be faithfully executed.”

In court, Mr. Wise described the diversion agreement as “contract between the parties so it’s in effect until it’s either breached or a determination, period.” It appears that Judge Noreika saw that distinction, on which the decision to prosecute would hang, as one for the government, not a judge, to draw. 

It is, as Chief Justice Marshall wrote in Marbury v. Madison, “emphatically the province and duty of the judicial department to say what the law is,” not to determine the how — and if — those who violate it are to be punished.