Left: Special counsel David Weiss (AP Photo/Alex Brandon); Hunter Biden departs after a closed door private deposition with House committees leading the President Biden impeachment inquiry, on Capitol Hill, Wednesday, Feb. 28, 2024, in Washington. (AP Photo/Alex Brandon)
Hunter Biden’s lawyers once again poked at the Special Counsel’s Office, this time while arguing against prosecutors’ effort to force President Joe Biden’s to comply with a court order in his California tax prosecution as he appeals to the U.S. Court of Appeals for the Ninth Circuit.
On Monday, special counsel David Weiss pushed for U.S. District Judge Mark Scarsi to order the defense to file proposed jury instructions “pursuant to the Court’s Standing Order,” so that a June 20 trial date won’t have to be moved. Weiss argued that Biden “ignored the deadline and has not submitted any proposed jury instructions to the government” — just so he could delay his trial by asserting that a notice of interlocutory appeal automatically divested Scarsi of jurisdiction in the meanwhile.
The special counsel said Biden “unilaterally decided” not to comply with the court order and, thus, should not be rewarded with delay by filing an “improper notice of appeal of a nonappealable order.”
“The defendant is simply choosing to ignore the Standing Order, without first seeking relief from this Court, while hoping that the Ninth Circuit will, contrary to its prior precedent, be the first court to find it has jurisdiction to consider the issues involved in his interlocutory appeal,” Weiss said. “An order is therefore needed from this Court to keep the pretrial schedule and deadlines on track for the trial scheduled for June 20, 2024.”
But the defense responded on Tuesday that prosecutors didn’t give any warning about the “ex parte application” filed before Scarsi with a proposed order that would force Biden’s compliance.
“Although the Special Counsel did inform Mr. Biden’s counsel by email that it had a different interpretation of whether the Court’s Standing Order remains in effect while this case is on appeal, the Special Counsel never advised Mr. Biden’s counsel that it planned to file this ex parte application, nor asked Mr. Biden’s counsel’s position on the application, nor advised on an anticipated deadline to file an opposition,” the defense said.
How we got here
In early April, Scarsi thoroughly rejected Biden’s dismissal arguments, including the assertion that Donald Trump confidant Roger Stone was “similarly situated” to Hunter but was treated better. A notice of interlocutory appeal to the Ninth Circuit followed on April 12.
That same month, but in the context of Hunter Biden’s Delaware federal gun prosecution, the defense filed a notice of interlocutory appeal of the U.S. District Judge Maryellen Noreika’s denial of his “immunity”-focused motion to dismiss right before a deadline for submitting a proposed trial schedule. That history is helpful in understanding the legal jousting afoot.
In that case, Weiss responded that the defense only informed prosecutors on the eve of the deadline that it would not endorse a joint scheduling proposal and would, instead, separately file a status report. In that status report, the defense made their first reference publicly to its notice of interlocutory appeal to the U.S. Court of Appeals for the Third Circuit.
Weiss first answered that he would not agree to a status report that ran afoul of a clear court order and threatened to impact the June 3 trial date. In another response, the special counsel said the notice of appeal was an “improper” and “frivolous” attempt at delaying trial by incorrectly arguing the trial judge’s hands were tied until the appeal ran its course.
“[T]he defendant for the first time asks this Court to stay the district court proceedings while he pursues a frivolous appeal which the Third Circuit does not have jurisdiction to hear,” Weiss said, urging Noreika to plow ahead. “Without providing any authority to support his claim that the issues he appeals are subject to interlocutory review, the defendant simply asserts that ‘[t]his Court has been divested of jurisdiction, so it cannot proceed.’ The defendant is incorrect.”
In his latest California case filing, Weiss argued much the same. This time, however, the defense responded by blaming prosecutors for springing the compliance demand on them without notice and for filing their application in a manner that “flagrantly violated each requirement for seeking such relief under this Court’s rules.”
“Mr. Biden’s counsel twice requested a call to discuss the issue. Both times the Special Counsel refused, the last time stating only ‘in light of the position you’re taking we don’t think a call would accomplish anything,”” the defense said. “It is now clear that the prosecutors intended to file their motion and could easily have used Mr. Biden’s counsel’s request for a call to discuss the application, rather than invoke imaginary ‘extraordinary’ circumstances in seeking an ex parte application.”
Biden’s lawyers, maintaining that Weiss is “wrong” to say the tax case can continue during the interlocutory appeal, urged Scarsi to take the “prudent course” of waiting on the Ninth Circuit to rule, rather than siding with Weiss and pushing ahead.
“This Court has been divested of jurisdiction to determine the Ninth Circuit’s jurisdiction because that very question is before the Ninth Circuit,” the defense response said. “Nor does it make sense for this Court to wade into that thicket. The Special Counsel’s motion to dismiss is now fully briefed and pending before the Ninth Circuit. There is no point in reinitiating that briefing process again in this Court, particularly when either side could then appeal this Court’s decision to the Ninth Circuit.
“Given that the issue already is before the Ninth Circuit, the prudent course is to wait for its decision,” the filing concluded.
Read Biden’s response here.
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