(C) Daily Kos This story was originally published by Daily Kos and is unaltered. . . . . . . . . . . Hunter Biden's Case For Selective Prosecution [1] ['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.'] Date: 2023-12-12 Yesterday Hunter Biden’s attorney filed a motion to dismiss his gun charges on grounds of selective/vindictive prosecution. You can read that motion HERE. This article shall discuss that defense and the chance that it will succeed. Bottom line up front, this defense almost never works, but Hunter Biden has a stronger case than I have seen ever before. This defense almost always fails because prosecutors have incredibly broad discretion on whether to bring charges. Prosecutors are free to weigh such nebulous facts as the the social value of obtaining a conviction when deciding when to prosecute. A defendant invoking this defense bears the burdens of proving the prosecution was intentionally and deliberately rooted in an impermissible purpose and that most similarly situated people are not prosecuted. The good faith of prosecutors is presumed until the defendant, by a clear preponderance of evidence, overcomes that presumption. In practice it almost never works. Both Roger Stone and Paul Manafort asserted it in their prosecutions by Mueller, and failed. Lawyer, Michael Avenatti, attempted it claiming his prosecution was retribution for his representing adult movie performer Stormy Daniels against Trump. He failed. Trump attempted it in the New York Attorney General’s civil case against him. He failed. The Supreme Court, in 1996, advanced sweeping language favoring prosecutorial discretion in United States v. Armstrong. I can’t find a case where the selective prosecution defense succeeded since. However, no case has argued that the defense no longer exists, only that it is very difficult. Avenatti failed, even though he showed there was animosity between him and Trump. The court found Avenatti failed to show that Trump influenced the prosecution of him. Thus, with better evidence, Avenatti might have succeeded. My point here is that in Avenatti’s case the court treated selective or vindictive prosecution as a still existing doctrine, that in the right circumstance might succeed. Armstrong did not completely kill it. Courts still entertain the idea of it, they just don’t seem to ever find a circumstance where the evidence supports it. Which brings us to the evidence Hunter Biden’s motion cites. Hunter Biden’s attorney claims that “not only does the evidence show that Mr. Biden is the victim of a selective and vindictive prosecution, but—to use a phrase—that evidence is on steroids.” It is certainly very strong. Whether it is strong enough to overcome the powerful presumption of prosecutorial discretion remains to be seen. That evidence includes: In the words of Hunter’s attorney: “Trump is ground zero for improper motive. During his term in office, President Trump incessantly called in demagogue-like fashion on DOJ, the media, the public, and even foreign governments to target and investigate Mr. Biden.” Trump tweet after tweet is offered as proof of this, but that is not all. Handwritten notes by Acting Deputy Attorney General Richard Donoghue show that in a call with him, and Acting Attorney General Rosen, Trump directed them to, “figure out what to do with Hunter Biden” insisting “people will criticize the DOJ if he’s not investigated for real.” After leaving office Trump continued the campaign. Again, numerous Truth Social posts and public comments by Trump are cited. These comments ramped up when Trump himself was charged with crimes, in an effort to deflect attention towards Joe Biden. They ramped up even more as Trump criticized the plea agreement, with deferred prosecution, originally signed by the government for Hunter Biden. Trump claimed it was a “sweetheart deal” proving “our system is broken” that was part of a “scam” and a “cover up.” Trump has even sold “Where’s Hunter?” t-shirts as a fund raiser. Trump’s comments went further than mere criticism. He promised action against the FBI, DOJ and prosecutors when he returns to power. Trump threatened to “defund the DOJ and FBI” and appoint “a real special prosecutor” to go after the Bidens. Hunter’s attorney quotes Trump’s statement that he would be a dictator on “day one” of his Presidency, and states, “no one familiar with Mr. Trump would lightly call his bluff. The prospect that Mr. Trump may be elected and turn his vengeance on the prosecutors, if they fail to take a hard line against Mr. Biden and aid Mr. Trump’s election hopes, is surely not lost on them.” Republicans in Congress not only demanded that Hunter Biden be investigated and prosecuted, their Congressional Committees investigated why the DOJ and FBI weren’t doing so to their satisfaction. The Director of the FBI and Attorney General were subpoenaed with members demanding they explain why they had not charged a private citizen or why the original plea agreement was offered. They subpoenaed records for an active criminal investigation, to include internal records of the prosecutors’ internal deliberations. Dissatisfied with the FBI’s and DOJ’s investigations they converted Congress into a criminal investigation agency and investigated the Bidens themselves. Republicans in Congress brought in two IRS whistleblowers who claimed the investigation was but cover for a cover up. That their claims were contradicted by the Special Prosecutor himself, and ten other witnesses, didn’t stop the Republicans from publicly releasing the unsupported claims of the “whistleblowers,” some of whom turned out to be paid by the Republicans. Republicans subpoenaed, and then released, confidential grand jury information in violation of federal laws. Republicans in Congress repeatedly took credit for charges being brought and for killing the original plea agreement providing for deferred prosecution. When the deal was killed, and the more serious charges brought, Republicans celebrated in the end zone. House Way And Means Chairman Jason Smith declared that: “Announcement of a special counsel only happened because congressional GOP exposed the two-tiered judicial system.” It’s rather difficult to deny it is a political prosecution when those who applied the politics to the prosecution take full credit for that prosecution. exposed the two-tiered judicial system.” It’s rather difficult to deny it is a political prosecution when those who applied the politics to the prosecution take full credit for that prosecution. The prosecution of Hunter Biden on the gun charge violates DOJ policy for use of that criminal statute. That policy, affirmed during the Trump Administration by Attorney General Jeff Sessions says that prosecutorial resources should be preserved by using the statute Hunter Biden was indicted under for “criminals responsible for significant violent crime.” In essence the DOJ policy restricts this charge to instances where the illegally acquired gun is used in a violent crime. Nothing like that happened here. Hunter owned the gun for 11 days, never even loaded it and has no violent criminal past. His prosecution clearly violates the DOJ’s own policy. It will be very interesting to see DOJ’s response to this. Citing a New York Times report Hunter’s attorney claims that the Special Prosecutor (David Weiss) told an associate, “that he preferred not to bring any charges, even misdemeanors, against Mr. Biden because the average American would not be prosecuted for similar offenses.” It should be noted that The Times article also stated that a senior law enforcement official “forcefully denied” this story. Hunter’s attorney argues that if the story is in doubt that discovery should be allowed to determine the truth of it. The DOJ offered and accepted the deferred prosecution plea deal. Nothing changed in the facts yet the DOJ reversed course, withdrew a deal it had committed to, and filed the much more serious active charges. The only change in the law in the interim was adverse to the DOJ as a court decision (in a different jurisdiction) ruled unconstitutional the gun law Hunter Biden is charged under. With no change in the facts, and the only change in the law adverse to DOJ, the only explanation for DOJ’s change of heart is the enormous and threatening blowback against the deal from Trump, Republicans in Congress and the conservative media. Alas, is even all this enough? Successful selective/vindictive prosecution defenses pre-Armstrong suggest it would have been then. But we live in a post-Armstrong world. A case cited by Hunter’s defense counsel involved political pressure. The brief cites United States v. Mardis decided in 2009. In that case a prosecution was brought after a single Congressman urged the DOJ to do so. The problem is that the defendant lost in Mardis, the court denied his claim that the Congressman’s involvement violated the separation of powers. However, the court emphasized it was “dubious that an individual legislator's interaction with executive branch officials could ever interfere with the authority of the executive in a way that would violate the separation of powers.” For Hunter Biden we have much more than a single legislator. We have entire committees, acting on behalf of the whole of the House of Representatives, urging the prosecution, using their subpoena powers to call members of the executive branch to task for not prosecuting, threatening agency funding, and taking credit for the very prosecution that is currently before the court. You have the spectacle of a President abusing his power to start the investigation, and then as former President stoking more pressure to demand strong punishment of the investigated, all for that former President’s political gain in current campaign for office. You have this particular prosecution violating DOJ policy. You have the powerful evidence of the Special Prosecutor deciding the appropriate resolution was a plea agreement with deferred prosecution, with that decision abruptly changed by the enormous blowback and political pressure against it. If the demanding standards for selective/vindictive prosecution are not found here, one wonders the fact circumstances where they ever would be. [END] --- [1] Url: https://www.dailykos.com/stories/2023/12/12/2210500/-Hunter-Biden-s-Case-For-Selective-Prosecution?pm_campaign=front_page&pm_source=trending&pm_medium=web Published and (C) by Daily Kos Content appears here under this condition or license: Site content may be used for any purpose without permission unless otherwise specified. via Magical.Fish Gopher News Feeds: gopher://magical.fish/1/feeds/news/dailykos/