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The special counsel prosecuting Hunter Biden in Delaware has asked a judge to deny an “improper” attempt by President Joe Biden’s son to prove vindictive or selective prosecution by subpoenaing former President Donald Trump and former U.S. Attorney General Bill Barr.
Special counsel David Weiss on Monday told U.S. District Judge Maryellen Noreika that Hunter Biden’s “motion is meritless and should be denied” for several reasons, including for being an impermissible “fishing expedition.”
In mid-November, Hunter Biden cited an excerpt from Bill Barr’s book “One Damn Thing After Another” in an effort to bolster the claim there was “more than a mere appearance” that Trump “improperly and unrelentingly pressured DOJ to pursue an investigation and prosecution […] to advance […] partisan ambitions.”
In the excerpt, Barr recalled Trump asking about a Biden probe.
“Dammit, Mr. President, I am not going to talk to you about Hunter Biden. Period!” Barr yelled back, according to the excerpt.
Weiss has been doing some reading as well, it seems.
Leaving aside the fact that Weiss was appointed as special counsel by U.S. Attorney General Merrick Garland, a Joe Biden appointee, the special counsel’s filing said, Hunter Biden “himself acknowledged committing criminal conduct relevant to this case when he authored a book admitting that he was addicted to crack cocaine in 2018, the year in which he illegally purchased a gun.”
Hunter Biden was indicted in September after an agreement to plead guilty to two misdemeanor tax crimes crumbled. The three-count indictment alleged Biden lied when he said wasn’t addicted to drugs in order to obtain a Colt Cobra 38SPL revolver, a gun he’s accused of illegally possessing for 11 days in October 2018 while “knowing” that he was an unlawful user of or addicted to drugs.
Hunter Biden most recently responded to the controversy surrounding the failed plea agreement and his ensuing indictment by framing it as part of a larger improper and politicized DOJ effort to selectively or vindictively prosecute him, and characterizing the subpoenas as “highly relevant and material to his pre-trial and trial defense.”
Weiss began his response by attacking the use of the term “trial defense” in this context.
“It is worth noting from the outset that defendant misunderstands the difference between pretrial arguments to dismiss an indictment and trial defenses. It is black-letter law that claims of vindictive and selective prosecution are not trial defenses and may only be brought and litigated pretrial. They are not defenses and, therefore, are never argued to trial juries,” said the filing submitted by the special counsel and signed by principal senior assistant special counsel Leo Wise.
More importantly, Weiss said, Hunter Biden’s claims “turn on the actual intent of the specific decisionmaker in a defendant’s case: here, the Special Counsel.”
The defendant failed to “identify any actual evidence of bias, vindictiveness, or discriminatory intent on the Special Counsel’s part” and ignored “an inconvenient truth: No charges were brought against defendant during the prior administration when the subpoena recipients actually held office in the Executive Branch.”
“Instead, every charge in this matter was or will be brought during the current administration — one in which defendant’s father, Joseph R. Biden, is the President of the United States and Merrick B. Garland is the Attorney General that was appointed by President Biden and who personally appointed the Special Counsel,” Weiss continued. “Defendant has not shown, nor can he, how external statements by political opponents of President Biden improperly pressured him, his Attorney General, or the Special Counsel to pursue charges against the President’s son.”
Hunter Biden has not shown “similarly situated” people weren’t prosecuted, he failed to plead the elements of selective prosecution, and he didn’t identify an “actual retaliatory motive” on Weiss’ part, the government said.
Weiss summed up Biden’s “real argument” this way:
Defendant’s real argument is that if political actors uninvolved in the prosecution claim credit or leverage the prosecution for their own political ends, those statements must have necessarily influenced the Special Counsel’s decisions. That is nothing more than a conclusory assertion fundamentally at war with the presumption of regularity accorded to the actions of the Special Counsel, who is also a Presidentially appointed, Senate-confirmed constitutional officer under oath to apply the law faithfully and discharge his duties impartially. To permit a subpoena based on such peripheral atmospherics would render Armstrong a dead letter and open the gates for expansive discovery demands in any prosecution about which uninvolved elected officials — or those seeking office — seek to make political hay.
Calling Biden’s “sweeping” requests for anything from “diaries, journals, memoirs, memoranda, or notes” all the way back to Trump’s inauguration the “kind of fishing expedition that courts have condemned as improper,” Weiss noted that the “broadly worded requests appear to encompass both personal and official documents, including those over which the Executive Branch may retain a variety of possible privileges.”
The “untenable” position advanced by Biden in his “notably deficient” motion must be denied, the special counsel concluded.
“This Court should decline to allow its compulsory process to be invoked for defendant’s unsupported, improper attempt to circumvent the rules applicable to criminal subpoenas, particularly with respect to the claims at issue,” Weiss said.