Left: Hunter Biden (AP Photo/J. Scott Applewhite); Right: Special counsel David Weiss (AP Photo/Alex Brandon).
After the federal judge overseeing Hunter Biden’s tax prosecution in California ordered defense lawyers to explain why they should not be sanctioned for making “false statements” about the special counsel in a motion to dismiss, the attorneys have responded that they “perhaps inartfully” described the charging history of the case but “never tried to mislead the Court.”
It is a matter of unambiguous public record that U.S. Attorney General Merrick Garland appointed David Weiss as special counsel after the U.S. attorney charged Biden by information in Delaware with misdemeanor tax offenses and for possessing a gun while being an unlawful user of or addicted to drugs, as part of a plea agreement.
Weiss’ appointment came after the plea agreement fell apart, leading to Hunter Biden’s indictments on the West and East Coasts. Biden went on to be convicted of felony charges in the gun case after a trial in Delaware, and the tax prosecution lingers on in California.
It was in that context that Biden’s defense cited former President Donald Trump’s tripped-up Mar-a-Lago case to challenge Weiss’ appointment in both cases as violative of the Appointments Clause and the Appropriations Clause of the Constitution, but the California motion to dismiss for lack of jurisdiction included three lines that set off U.S. District Judge Mark Scarsi and prompted a sanctions threat for a “lack of candor” to the court.
“This Court has little tolerance for lack of candor from counsel,” Scarsi wrote last week in an order to show cause, pointing to statements the defense made about Weiss not bringing “charges” until after he was appointed as special counsel.
On Sunday, Biden attorney Mark Geragos submitted an explanation to the court on behalf of the defense, writing that they would amend their motion to dismiss to replace the word “charges” with “indictments.”
“Defense counsel, perhaps inartfully, intended this use of the word ‘charges’ to refer to the current charges brought by indictment against Mr. Biden, not the lack of any charges at all,” the defense said. “Here, context matters. Defense counsel has never tried to mislead the Court about the fact that Mr. Weiss, as the U.S. Attorney in Delaware, brought charges by way of two now-dismissed Informations that were initially docketed in Delaware for the purposes of facilitating a resolution through a plea agreement and diversion agreement.”
“However,” the Geragos filing continued, “because an issue with the use of the word ‘charges’ in the Motion has now been raised by the Court, the defense will amend its Motion to substitute the word ‘indictments’ in the place of ‘charges’ in the three sentences identified above on pages 5 through 7 of the Motion.”
The defense insisted that this “one word” should not lead to sanctions, claiming that “could easily taint the jury pool and deprive Mr. Biden of a fair trial.”
“Nevertheless, there is no basis on which to sanction Mr. Biden’s counsel for the use of that one word, which was not misleading in the context in which the two prior Informations had been repeatedly addressed with the Court,” the response said, adding that defense counsel “perhaps wrongly but innocently” thought they “conveyed the record accurately[.]”
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