It's safe to say 2024 likely won't go down as a banner year in Biden family lore. Between congressional investigations, Hunter Biden's firearm conviction and looming tax trial, Special Counsel Hur's outing Joe Biden's senility, and Joe Biden then putting the exclamation point on that with his abysmal debate performance followed by being forced out of the 2024 presidential race, it's been pretty rough. 

It doesn't look to be improving much on the legal front for Hunter either. We've shared with you some of the recent misadventures involving his legal team, their rather puzzling strategies, the various pleadings they've filed, and the drubbing they've received at the hands of both Special Counsel David Weiss and the judges overseeing his cases. 

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of His Motion for New Trial...and Ouch!

In late July, as we reported, Biden's legal team got absolutely scorched by U.S. District Judge Mark Scarsi, who's overseeing the California tax case against the First Son, for filing a pleading with false statements in it. The judge ordered Biden's lawyers to show cause why they shouldn't be sanctioned for this egregious behavior. 

At the time, I speculated that Biden's attorneys might respond with humility, explain that in the process of adding new counsel (Mark Geragos) to the team (in addition to Abbe Lowell), there had been an inadvertent oversight, and throw themselves on the mercy of the court (as most attorneys might do with a federal judge breathing fire at them). They quickly proved me wrong, though, responding to the judge's order with a rather snarky, "Oh, sorry you misunderstood our unmistakable meaning; here, we'll change a word." 

As of this writing, Scarsi has yet to issue a further ruling on that issue other than to note that he had taken it under submission (i.e., no need for a hearing on it). 

But there's a funny thing about that problematic pleading that earned Judge Scarsi's ire: It was filed in the California case on July 18th and signed by Geragos, though Lowell was listed as well. On that same day, a virtually identical pleading, signed by Lowell, was filed in the Delaware court where Biden was tried and convicted on firearms charges in early June. With his sentencing now set for November 13, the case remains with Judge Maryellen Noreika who oversaw the trial and has before her several post-trial motions.

One of those post-trial motions is a motion to dismiss for lack of jurisdiction, which asserts, as did the motion filed in the California case, that the Delaware case should be dismissed because the appointment of Special Counsel David Weiss violated both the Appointments Clause and the Appropriations Clause of the Constitution. Basically, after Biden's team saw those arguments work successfully for former President Donald Trump in the Florida classified documents case, they decided to try to piggyback off his success. 

Setting aside the fact that there's a significant distinction between the two situations, in that Weiss was already a sitting U.S. Attorney (confirmed by the Senate) when he was appointed as Special Counsel, unlike Jack Smith, who, as Jonathan Turley framed it, was "a private citizen plucked by Merrick Garland from the general population for the position," there are critical flaws with the motion itself, as Weiss's team is only too eager to point out in its response. 

First and foremost, the same false statements contained in the California motion are contained in the Delaware motion. 

As a threshold matter, the Court should strike the defendant’s motion because it contains multiple misrepresentations of the record. The defendant has failed to correct even the blatant false statements that prompted the district court in the Central District of California to issue a Show Cause Order as to why defense counsel should not be sanctioned for making misrepresentations to the Court.

As noted above, Biden's lawyers did amend the California motion to substitute the word "indictments" for "charges," but they've made no attempt to correct the issue in the Delaware pleading.

In this case, the defendant has not amended his motion, and it still contains this false assertion in several places. See Def.’s Mot. at 5 (Special Counsel Weiss “brought no charges until after he received the Special Counsel title”); id. at 6 (“Special Counsel Weiss . . . 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 . . . .”); id. (“Mr. Weiss . . . sought Special Counsel status before bringing any charges.”). That statement is obviously not true, as defense counsel himself acknowledged in his response to the California district court’s order to show cause. See Defendant’s Response to Order to Show Cause, United States v. Biden, No. 23-cr-599 (MCS) (C.D. Cal. July 28, 2024), ECF 139. And making the minor change he made in the California case by substituting the word “charges” to “indictments” would not solve the issue, as the statements would still misleadingly suggest that United States AttorneyWeiss failed to take action against the defendant until after he became special counsel. That is patently incorrect.

There are other issues with the Delaware motion, including its timeliness, but here's what stands out to me: On the same day, in two separate federal courts on opposite ends of the country, Hunter Biden's legal team filed two virtually identical motions with the same false statements in them. The California court clearly took issue with the misleading verbiage and issued a show cause order on July 24, to which Biden's lawyers have responded, albeit rather flippantly. It's over two weeks later, and they haven't bothered to amend the Delaware pleading, despite the fact that they know it contains false statements and they know the court knows it contains false statements — and they know the court knows they know it contains false statements. That takes some brass. 

Say what you will about David Weiss — there's ample room to question why he seemingly dragged his feet in prosecuting Hunter Biden, as well as why he seemingly chose to let Biden off the hook on potential FARA charges (see Jennifer Van Laar's excellent coverage of that here) — his team did secure a conviction of Hunter in Delaware and appears to be having some fun beating the figurative snot out of Hunter's attorneys. At minimum, the legal wrangling makes for solid entertainment — at least for us law nerds.