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National Review
National Review
2 Apr 2024
James Lynch


NextImg:Judge Shuts Down Hunter Biden’s Motions to Dismiss Federal Tax Charges

A judge on Monday denied Hunter Biden’s eight motions to dismiss the nine federal tax charges against him, based on various legal and procedural arguments.

U.S. district judge for the Central District of California Mark Scarsi, a Trump appointee, denied each of Biden’s motions to dismiss the tax charges brought by a federal grand jury last year as a result of special counsel David Weiss’s criminal investigation.

Hunter Biden’s attorneys argued that all of the charges should be dismissed based on his failed pretrial-diversion agreement, Weiss’s eligibility to serve as special counsel, selective prosecution, and outrageous government conduct by IRS whistleblowers Gary Shapley and Joseph Ziegler.

In addition, Biden sought to have counts 1–4 dismissed for improper venue, counts 2, 4, and 6 dismissed in part for duplicity, count 9 for selective prosecution, and count 1, or all counts, for being untimely and failing to state a claim.

Scarsi’s 80-plus-page order goes through each of Biden’s claims and the court’s reasons for denying his motions. The status of Biden’s diversion agreement took up a significant portion of Scarsi’s attention, given the circumstances surrounding it and his guilty plea that fell apart last summer.

Delaware U.S. district judge Maryellen Noreika’s skepticism of the prosecutorial immunity provision inside Biden’s diversion agreement caused a dispute with the Justice Department, resulting in his guilty plea for two tax misdemeanors falling apart. Regardless, Biden’s attorneys have argued in Delaware and California that the diversion agreement is still legally binding, meaning Biden is immune from prosecution.

Weiss’s team has rebutted those arguments by pointing out that the probation officer never approved the document. Weiss, the U.S. attorney for Delaware, was appointed special counsel by Attorney General Merrick Garland after the guilty plea collapsed. Assistant U.S. attorney Ben Wallace gave a sworn statement to Scarsi that the diversion agreement was never signed by the probation office. Hunter Biden is simultaneously staring down three federal gun charges in California being prosecuted by Weiss.

“Having found that the Diversion Agreement is a contract that binds the parties but that the parties made the Probation Officer’s signature a condition precedent to its performance, the Court turns to Defendant’s theory of immunity: that the United States’ obligation to refrain from prosecuting Defendant under section II(15) of the Diversion Agreement is currently in force,” Scarsi wrote.

“It is not. The immunity provision is not one exempted from the term of the contract under the survival clause,” Scarsi added. The judge likened his analysis of the diversion agreement to a “Schrodinger’s cat” scenario and invited each side to file further motions in the dispute, while denying Biden’s motion.

Hunter Biden’s attorneys have argued in both jurisdictions that Weiss is an unlawfully appointed special counsel based on Justice Department regulations. Scarsi rejected this interpretation and Biden’s claims that Weiss’s appointment violates the appropriations clause.

“That the Attorney General used the term ‘Special Counsel’ instead of some other term similarly indicative of an independent counsel is a distinction without a difference,” Scarsi said.

He was even less charitable to Hunter Biden’s claims that he is the victim of selective prosecution by the Justice Department because of pressure from former president Donald Trump and House Republicans.

“As the Court stated at the hearing, Defendant filed his motion without any evidence. The motion is remarkable in that it fails to include a single declaration, exhibit, or request for judicial notice. Instead, Defendant cites portions of various Internet news sources, social media posts, and legal blogs. These citations, however, are not evidence,” Scarsi remarked. The judge’s order notes Biden’s attorneys, led by Abbe D. Lowell, misinterpreted “several cited sources” in the selective-prosecution motion. He also rejected claims from Biden’s lawyers insisting that public statements by government officials are enough to dismiss an indictment for violating the separation of powers.

Before issuing the order, Scarsi appeared skeptical of the selective-prosecution claims when both sides presented their arguments last week.

The “outrageous government conduct” motion by Hunter Biden’s attorneys because of Shapley’s and Ziegler’s congressional testimony and disclosures received similar treatment from Scarsi.

“The parties do not cite, and the Court has not found, any authority invoking the outrageous government conduct doctrine to dismiss a prosecution in any situation remotely analogous to the one presented here. Shapley and Ziegler’s conduct does not fall into any of the recognized grounds for application of the defense,” Scarsi asserted.

“Aside from failing to substantiate his allegations that the agents influenced the prosecutorial decision with anything but speculation, Defendant offers no case in which a court exercised supervisory powers to dismiss an indictment due to conduct that impacts the fundamental decision to prosecute,” the judge later added.

The IRS whistleblowers issued a statement after Hunter Biden’s tax indictment saying they were vindicated by the charges brought against him. Biden allegedly failed to pay over $1 million in taxes over the 2016–19 tax years and made over $7 million in income from his foreign business dealings and other sources.

Shapley and Ziegler came forward to Congress last year alleging that the Justice Department gave Biden special treatment by slow-walking and shutting down necessary investigative steps. The IRS agents both spent years working on the Hunter Biden tax investigation and turned over hundreds of pages of evidence to the House Ways and Means Committee to supplement their testimony.

Scarsi parsed through the legal arguments made by Biden’s team on dismissing the selected counts of the indictment, and all the counts if count 1 is not to be dismissed. He left the question of count 1 to the jury and found the indictment to be “legally sufficient,” therefore rejecting Biden’s attempt to have all counts dismissed for failure to state an offense.

For counts 2, 4, and 6, Scarsi said the defendant failed to demonstrate their duplicity and denied Biden’s motion to have them dismissed. Furthermore, the judge rejected Biden’s claim of selective prosecution on the ninth count for failure to pay taxes for 2019, because of his failure to present evidence that the Justice Department is prosecuting him for political reasons.

“The selective and vindictive prosecution claims accordingly lack merit because Defendant fails to present evidence showing the Government elected to prosecute Count 9 based on Defendant’s political and familial affiliations,” Scarsi found.

Lastly, Scarsi denied Hunter Biden’s motion to dismiss charges 1–4 for improper venue, noting the possibility Biden could have split time between Delaware and Washington, D.C., in 2018 before he moved to California.

“We strongly disagree with the Court’s decision and will continue to vigorously pursue Mr. Biden’s challenges to the abnormal way the Special Counsel handled this investigation and charged this case,” Lowell said in a statement to CBS News.

Hunter Biden has pleaded not guilty to the federal tax charges, and his trial is set to begin in late June.