A judge shot down Hunter Biden ’s second request that his tax charges be dismissed over David Weiss’s special counsel appointment after the first son used recent developments in former President Donald Trump ’s cases to try to revive his argument.
U.S. District Judge Mark Scarsi wrote in an order Monday night that Biden’s request was untimely and contained no new legal theories to support the claim that Attorney General Merrick Garland improperly appointed Weiss as special counsel.
“There is no reason to revisit the Court’s decision now,” Scarsi wrote after previously denying a similar request from Biden in April.
Biden, whose trial for nine tax charges is set to begin in three weeks, had asked the court in July to reconsider the argument that Weiss’s designation as special counsel violated the appointments clause of the Constitution. Biden argued his charges should be dismissed because of it.
Biden’s defense attorneys said that bringing their motion a second time was appropriate in light of two recent developments in Trump’s federal election interference case and classified documents case.
First, Biden’s attorneys pointed to a concurring opinion in Trump’s election case from Justice Clarence Thomas, who questioned special counsel Jack Smith’s appointment. Second, they cited Judge Aileen Cannon’s decision to toss Trump’s classified documents case on the basis that Smith was unlawfully appointed. Cannon had emphasized that Smith was never vetted by the Senate, which is a significant distinction from Weiss, who is the U.S. attorney of Delaware and was confirmed by the Senate to that position.
Scarsi, a Trump appointee, said the two additional points from Biden's attorneys brought nothing new to the table.
“Neither Justice Thomas’s opinion nor Judge Cannon’s order is binding precedent,” Scarsi wrote.
The judge also addressed his previous demand that Biden’s defense attorneys, Mark Geragos and Abbe Lowell, justify to the court why they should not be sanctioned for misstatements in their motion to dismiss Biden’s charges.
Scarsi observed that in the motion, the attorneys failed to acknowledge that Weiss also brought charges against Biden in June 2023, before he was made special counsel. The judge threatened the attorneys with sanctions at the time, accusing them of making intentional and key omissions to the court.
The attorneys responded by revising their motion to include the information Scarsi found pertinent. In his order Monday, the judge scolded Geragos and Lowell again but said he would not sanction them.
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“Given the amendment and counsel’s recent entry into this case, the Court declines to render a finding of bad faith or gross negligence upon which formal sanctions could be predicated,” Scarsi wrote. “The Court discharges the order to show cause [for why the attorneys should not be sanctioned], but counsel’s conduct warrants an admonition: candor is paramount.”
Biden's trial is set to begin Sept. 9 in Los Angeles.
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