Hunter Biden (Photo by Moses Robinson/Getty Images for Usher’s New Look Foundation)
Last week, ominous headlines warned that Hunter Biden’s lawyers — including famed attorneys Mark Geragos and Abbe Lowell — could soon be sanctioned. Central District of California Judge Mark Scarsi asked the younger Biden’s team last Wednesday to “show cause why sanctions should not be imposed for making false statements.” A serious charge to make against any attorney, especially attorneys of such stature!
Biden’s team is currently trying to use Aileen Cannon’s classified documents farcical opinion that special counsel are uNleGal to get his criminal case, brought by special counsel David Weiss, booted as well. It’s an uphill slog since Cannon’s opinion — drawing from a Clarence Thomas concurrence that no other justice thought coherent enough to join — turned on Jack Smith not being confirmed by the Senate, while Weiss was already the confirmed U.S. Attorney for Delaware. The judge has already noted this difference in a bad sign for Biden’s argument.
Paradoxically, Weiss’s appointment is probably illegal because the 28 CFR § 600.3 actually requires special counsel to be from outside the government, but Cannon played Mad-Libs-to-Own-The-Libs with the underlying regulations and statutes to create the exact opposite reading so Hunter Biden’s team are stuck playing the hand they were dealt.
In any event… how were these lawyers supposedly trying to pull the wool over the tribunal’s eyes? From the Biden team’s response:
• As U.S. Attorney he had years to bring whatever charges he believed were merited, but he brought no charges until after he received the Special Counsel title that he sought. D.E. 133 at 5.
• That is true of Special Counsel Weiss who brought no charges in this investigation with his U.S. Attorney position but, as Special Counsel, initiated legal proceedings on both sides of the country against Mr. Biden in Delaware and California, as well as in Nevada and California against
Alexander Smirnov. Id. at 6.
• Again, Mr. Weiss did not seek a delegation of authority under Section 510; he sought Special Counsel status before bringing any charges. Id. at 7.
There’s a certain charm to judges treating every case like a blank slate, but this isn’t the 600th faceless defendant marching into traffic court with a broken blinker. Maybe take a second to glance over the case file. Or for that matter read the newspaper. Because the procedural twists and turns of the HUNTER BIDEN prosecution aren’t exactly state secrets like what Cannon ignored in Trump’s bathroom.
Judge Judy said, “don’t pee on my leg and tell me it’s rain.” Judge Scarsi says, “what is a leg?”
To recap, amidst a cacophony of Republican pressure to create a Biden scandal that doesn’t rely on warping space-time, Weiss put together a plea deal with the younger Biden. That deal certainly included “charges” to the extent the parties were negotiating something for Biden to plea to. But those aren’t in the same conceptual ballpark in the context of the present dispute where Geragos and Lowell accuse Weiss never seeing anything worth taking to a grand jury until he saw an opportunity to ride political pressure to the special counsel job. This was all extensively covered at the time!
Whether or not that’s a fair assessment of Weiss’s motives or should have any bearing on his appointment are separate questions, but that’s how this played out.
Indeed, when Biden’s lawyers say Weiss “had years” to bring charges, it undermines any supposed deception because even the negotiated charges arrived on the eve of — and then somewhat precipitated — Weiss’s elevation to special counsel. The point of the motion is the years before the special counsel appointment not the weeks leading up to it.
And moreover, as the Biden response notes, the defense has affirmatively brought up the plea deal to Judge Scarsi on multiple occasions. If they intended to hide the ball, they did it with the subtlety of a neon sign.
That said, the text of the motion is technically incorrect. It should read something like, “As U.S. Attorney he had years to bring whatever charges he believed were merited, but he brought no charges until the parties attempted to negotiate an agreement, and never attempted to bring any charges to a grand jury until after he received the Special Counsel title that he sought.” But it’s one thing to be wrong and another to attempt to mislead the court. The judge suggesting that this wording was intended to OR EVEN COULD mislead him is… kind of a self-own.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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