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Hunter’s Indictment Raises Major Legal Issues, Including Going Full NRA; Validity of Diversion Agreement, of Weiss’s Appointment, Selective Prosecution
Hunter Biden’s Indictment Raise Several Legal Issues
WASHINGTON, D.C. (September 15, 2023) – The indictment of Hunter Biden by Special Counsel David Weiss for three felony counts related to his purchase and possession of a firearm raise several legal questions, and may have a impact in other legal proceedings, suggests public interest law professor John Banzhaf.
Banzhaf helped kill Hunter’s earlier “sweetheart” deal with his own filing before U.S. Judge Maryellen Noreika opposing it, and by pressuring the Heritage Foundation and Congressman Jason Smith, Chairman, House Ways and Means Committee, to file even more persuasive oppositions.
Also read: Hunter Plea Deal Scuttled – Law Prof Played Major Role
As Abbe Lowell, Hunter’s attorney, has already telegraphed, he plans to argue that the Diversion Agreement which purportedly immunizes Hunter from firearm (and perhaps also other) charges is still valid; that Hunter is being improperly singled out for prosecution for various political reasons; that Weiss’s appointment as special counsel is illegal and therefore he cannot bring these charges; and that the very statutes Hunter is being charged with are unconstitutional and therefore cannot provide a basis of a trial, much less a conviction.
But, suggests Banzhaf, there are at least six reasons why the Diversion Agreement is not longer valid, even though two parties signed it:
- It said it would not go into effect until the “date of approval,” but it was never approved by the other two it named (the judge and the Chief Probation Officer)
- The only reason it was submitted to the judge was to get her approval, but she never approved it
- It says the “Diversion Period” only begins with the “approval of this Agreement” – something which never occurred, so there was no beginning
- The judge expressly rejected it, saying it was likely unconstitutional, and an unconstitutional agreement can’t be valid or binding
- One of the conditions was that Hunter be in a probation program, but the probation office “declined to approve the proposed diversion agreement”
- The document required the signature of Chief United States Probation Officer, but she never signed the document where provided
Since the proposed Diversion Agreement was not signed at the time of the hearing, and the government advised the judge that “U.S. Probation declined to approve the proposed Diversion Agreement at that hearing,” this condition has not and will not occur. Since agreement by this outside office was required for the proposed Diversion Agreement to become and to remain in effect, and no agreement was even given (no signature) and was expressly “declined” (at the hearing), this is still another reason why this attempt to provide unprecedented immunity never became valid or binding.
Many seeking to defend Hunter have also argued that he is being singled out for prosecution for political reasons. More specifically they suggest that anyone else – “anyone not named Biden” – would not be charged with serious felonies under the circumstances. So it is possible that his attorneys might try to argue abuse of prosecutorial discretion and/or selective prosecution (prosecuting only one defendant when others who are similarly situated are not prosecuted, and doing so for an impermissible reason).
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But these arguments are rarely successful even where there are the most blatant and egregious violations, notes the law professor.
Here it would be even more difficult to argue that the prosecutor was out to get Hunter for political reasons because the same prosecutor tried to provide Hunter with a no-prison-time so-called “sweetheart” deal, allowed various statutes of limitations to expire, allegedly prevented a full and complete investigation, etc.
In any event, even a person appointed special prosecutor is subject to some pressure and controls by the Attorney General, and by the President – both of whom are Democrats. Also, Joe Biden is obviously not prejudiced against the son he loves, so any abuse of prosecutorial discretion is more likely to benefit, rather than hurt, the President’s son.
Hunter may have a stronger argument in claiming that Weiss cannot legally indict or prosecute him as “special counsel” – which is how he styled the indictment – since the legally controlling regulation requires that a special counsel can only be someone outside the government.
The Wording Of Federal Regulations
Although no current federal statute now provides for the appointment of a special counsel (or “special prosecutor” or “independent counsel” as they were once known), federal regulations [28 CFR 600] do provide for such appointments, and expressly and unambiguously provide [at 600.3] that “The Special Counsel shall be selected from outside the United States Government.” [emphasis added]
Weiss was obviously not from outside the government, and the fact that he was from a different political party than Hunter does not meet the express requirement of the regulation, not avoid the very conflicts of interest (or even appearance of a possible conflict of interest) this legal requirement was designed to protect against,
Professor Banzhaf says that it is important to note several things about these federal regulations.
First, regulations are legally binding on the government and on its various officials, including the AG and his subordinates, unless and until amended or rescinded in accordance with applicable law. These special counsel regulations remain in place, and are binding on the AG. Thus they should be followed by judges in appropriate proceedings.
Second, the use of the mandatory word “shall” in the regulations, rather than “may” or even “should,” means that the requirement is clearly compulsory, and cannot be avoided or overlooked by the AG or by judges. Indeed, what makes a special counsel special is not just the assignment to him by the AG of additional duties or powers, but rather – in order to assure that he will be a truly “independent” counsel – that he will come from outside the government.
Third, the appointment of Weiss was made pursuant to and under these special counsel regulations, although Garland also cited 28 U.S.C §§ 509,510,515, and 533. As the AG said in his statement announcing the Weiss appointment:
“I am here today to announce the appointment of David Weiss as a Special Counsel, consistent with the Department of Justice regulations governing such matters. In keeping with those regulations, I have today notified the designated members of each House… Consistent with the Special Counsel regulations, at the conclusion of Mr. Weiss’ work, he will provide me with a report…” [emphasis added]
If this argument the Weiss is not legally a special counsel is accepted, it might be possible to have another U.S. Attorney re-file the charges. But if this happens only after several months, the statute of limitations might have expired, thereby creating another interesting legal problem.
Still another tactic Hunter might try to use is what Banzhaf’s colleague, law professor Jonathan Turley, calls going full NRA.
Recently, the Fifth Circuit held that 18 U.S.C. § 922(g)(3), which provides that anyone who is an “unlawful user of or addicted to any controlled substance,” including marijuana, is barred from possessing a gun and can face up to 10 years in prison, is unconstitutional because it violates the Second Amendment.
But two of the three charges against Hunter are for lying about his status (as not a drug user), not for possessing a gun.
So it can still be a crime to lie on a federal form even though the lie might not relate to anything illegal. For example, two persons who claim to be married in order to pay lower taxes commit a crime, even though being single (not being married) is certainly not a crime.
Now that Hunter has been formally accused of a crime, the indictment strengthens any claim he might wish to assert under the Fifth Amendment, and may help to block – or at least stall – any further investigations, demands for documents, etc., notes Banzhaf.