Ouch! That’s the only thing I could think to say in response to reading the order handed down by U.S. District Court Judge Mark Scarsi on Wednesday requiring Hunter Biden’s legal team to show cause why they should not be sanctioned for making false statements in their recently filed motion to dismiss. While Hunter was presumably focused on his father’s Oval Office address, his attorneys were getting lit up by a federal judge.
Here’s what happened: On July 15th, Judge Aileen Cannon dismissed the Florida criminal case against former President Donald Trump regarding his alleged improper retention of classified documents on the basis that Special Counsel Jack Smith’s appointment violated the Appointments Clause of the Constitution.
On July 18th, Biden’s legal team filed a motion to dismiss the California tax case against him, attempting to piggyback off Cannon’s ruling and asserting that Special Counsel David Weiss, likewise, was improperly appointed and thus didn’t have authority to bring the charges against Biden.
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In the motion, Biden’s lawyers argued, “The Attorney General relied upon the exact same authority to appoint the Special Counsel in both the Trump and Biden matters, and both appointments are invalid for the same reason.”
There’s just one problem with that: Weiss was already a sitting U.S. Attorney when he was appointed as Special Counsel. Or, as George Washington Law professor Jonathan Turley noted:
However, a key difference between Smith and Weiss is that it could lead these courts to asking “why is a Weiss like a Smith?” The extent that he is not could prove a critical distinction. Weiss is a Senate confirmed U.S. Attorney where Smith was a private citizen plucked by Merrick Garland from the general population for the position.
But there’s an even bigger problem with the motion than that: Biden’s lawyers contended in the motion that Weiss only brought charges against Biden after he was appointed as Special Counsel. Which, as Scarsi very pointedly notes in his order, is false (emphasis mine):
The Court orders Mr. Biden’s counsel to show cause why sanctions should not be imposed for making false statements in the motion.
…
In support of his motion, Mr. Biden asserts, several times, that Special Counsel Weiss “brought no charges [against Mr. Biden] until after he received the Special Counsel title . . . .” (Mot. 5; accord id. at 6 (“Special Counsel Weiss . . . brought no chargesin 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. at 7 (“Mr. Weiss . . . sought Special Counsel status before bringing any charges.”).) These statements, however, are not true, and Mr. Biden’s counsel knows they are not true.
The order notes that Weiss brought charges against Biden as U.S. Attorney in Delaware prior to his appointment as special counsel and further notes that Biden’s attorneys acknowledged that very fact in a prior pleading filed with the court before adding:
The misstatements in the current motion are not trivial. Mr. Weiss’s institution of charges against Mr. Biden in his capacity as U.S. Attorney offers a meaningful distinction between this case and the nonbinding district court decision on which Mr.Biden bases his motion. But Mr. Biden’s motion does not engage with this distinction; instead, counsel avoids the issue by misrepresenting the history of the proceedings.
This Court has little tolerance for lack of candor from counsel.
The order notes that Biden’s counsel may withdraw or amend their pleading, but they still must show cause as to why they included the false statements in the first place.
Here’s my prediction as to how Biden’s legal team will play this: Attorney Mark Geragos (also known for representing such notables as former President Bill Clinton’s business partner Susan McDougal, Roger Clinton Jr., former Congressman Gary Condit, Scott Petersen, Michael Jackson, Jussie Smollett — oh, and being implicated but not charged in Michael Avenatti’s attempted extortion of Nike) recently (on July 3rd) entered his appearance for Biden, joining his legal team. Abbe Lowell is still co-counsel, but Geragos is the one who signed and filed the motion. My best guess is the legal team will plead miscommunication and confusion between the original legal team and the new one and issue multiple effusive mea culpas for their “inadvertent oversight.”
Will Scarsi have mercy on them? We’ll soon find out.
