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)
Special counsel David Weiss urged the judge overseeing the Delaware-based federal gun case against Hunter Biden not to allow the defense to delay proceedings in a pointed motion filed late Friday.
On Wednesday, attorneys for President Joe Biden’s son asked to indefinitely stay proceedings pending the outcome of an appeal with the U.S. Court of Appeals for the Third Circuit — imploring U.S. District Judge Maryellen Noreika not to “plow ahead in scheduling a trial.”
In that request, the younger Biden characterized the government’s efforts to move forward with the case as “unlawful and illogical.”
On Friday, Weiss shot back in scathing fashion — saying the defense is wrong about several basic areas of law and federal procedure.
“[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,” the government’s response reads. “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.”
As Law&Crime reported, the defendant intends to raise the same arguments Noreika recently rejected before the appellate panel. Hunter Biden claims his torpedoed plea and diversion agreement “conferred” him with immunity from prosecution and that his indictment violated the separation of powers. He has also argued unsuccessfully that Weiss was unlawfully appointed and funded by U.S. Attorney General Merrick Garland, arguments Donald Trump’s defense attorneys have embraced in the Mar-a-Lago case.
As of now, the Third Circuit has only asked the parties to brief the issue of jurisdiction in the matter by the first week of May. The merits of the case itself being considered by the appeals court are an open question that a higher collection of judges have yet to answer.
Weiss says the appeals court cannot take the case.
“Defendant cannot establish appellate jurisdiction because the orders he appeals are not final orders or collateral orders subject to interlocutory review,” the special counsel’s response reads.
The government, citing some Supreme Court precedent, says Hunter Biden’s claimed immunity from prosecution is not the kind of appellate courts have been allowed to consider before a trial occurs.
“The immunity the defendant claims to enjoy is contained within the diversion agreement, which he incorrectly argued was in effect,” the filing goes on. “That is different from a right not to be tried.”
More Law&Crime coverage: Hunter Biden appealing judge’s resounding refusal to throw out gun indictment based on ‘immunity’ under crumpled up agreement
Weiss also argues defense attempts to seek the higher court’s intervention over how Weiss was hired, while not specifically addressed by case law, are essentially an argument that intra-agency regulations were not properly followed. And, there, the government notes, case law suggests indictments cannot be dismissed just because the federal government occasionally ignores its own rules.
Hunter Biden, in real terms, is trying to un-schedule a currently penciled-in and otherwise fast-approaching June 3 trial date. The defense says this schedule essentially caters to the government.
Again, Weiss sharply rebuked the president’s son.
“This is misleading,” the government’s response continues. “The parties agreed to the June 3, 2024, trial date at the last status conference with the Court. The parties then provided a joint submission that included a series of agreed pretrial deadlines in advance of that trial date.”
The government then takes a long view of the case to argue that the defense has had adequate time to prepare for trial — and again, in fact, for the fourth time, accuses the defendant of baseless delay tactics.
“The grand jury indicted the defendant over seven months ago and the defendant has been represented by counsel in connection with this investigation for more than three years,” the special counsel’s brief concludes. “The defendant’s change-of-heart following the Court’s denial of his pretrial motions for which there is no right to interlocutory appeal in no way prevents this Court from issuing an appropriate scheduling order consistent with its prior orders. Defendant’s frivolous notice of appeal is nothing more than a transparent attempt to delay trial.”
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