Biden’s legal team and federal prosecutors under special counsel David Weiss are expected to square off at an afternoon hearing before U.S. District Judge Mark C. Scarsi, who was appointed to the bench by Donald Trump, at the 1st Street U.S. courthouse in downtown L.A. Biden is not expected to appear in court.
Biden’s defense, led by prominent Washington, D.C., attorney Abbe Lowell, filed eight separate motions to throw out all or part of the case, with arguments ranging from the technical — such as whether Biden resided in L.A. when some of the alleged tax violations occurred — to the contractual — like whether an immunity agreement signed by prosecutors is valid. (Biden insists that it is.)
Weiss’ office accuses Biden of failing to timely pay his taxes on $7 million of income from 2016 to 2019, a period when prosecutors say he “performed very little actual work.” Biden subsequently paid off his tax debt, with penalties and interest, in 2021.
Three of the nine charges in the indictment are felonies — for tax evasion and for twice filing false tax returns — and center on how he reported his 2018 taxes. Prosecutors allege he misclassified several personal expenses that year as business expenses, like $30,000 for his daughter’s tuition, $1,500 paid to an exotic dancer and $11,500 to an escort, according to the indictment.
Weiss has separately indicted Biden in Delaware for allegedly lying on a federal firearms form.
Biden, 54, has pleaded not guilty in both cases. He filed similar motions to dismiss in the Delaware case, and the judge there has not ruled.
The pair of indictments came after the collapse of a plea deal last summer that would have allowed Biden to avoid a possible felony conviction and prison time, as well as the negative headlines of a trial coinciding with his father’s reelection campaign. Now he faces two trials this year, although the case in L.A. is more serious and complex than the Delaware one.
Much of Biden’s arguments to dismiss the tax charges center on the months before and after the plea deal fell apart last summer.
At that time, Weiss and his team faced a barrage of attacks from Trump and others over the plea deal. Lawmakers including Rep. Jim Jordan (R-Ohio), chair of the House Judiciary Committee, blasted it as a “sweetheart plea deal.” Gary Shapley and Joseph Ziegler, two IRS agents involved in Biden’s long-running criminal investigation, had by then come forward and given rounds of press interviews alleging political interference into the Biden probe.
“This case follows a nearly six-year record of [the Justice Department] changing its charging decisions and upping the ante on Mr. Biden in direct response to political pressure and its own self-interests,” Biden’s lawyers wrote in their motion to dismiss the case for selective and vindictive prosecution.
“The prosecution could have brought these charges years ago and then agreed not to multiple times, only to pull the deal, deny it was made, and pile on felony indictments,” his lawyers added.
(Jose Luis Magana / Associated Press)
Prosecutors assert that Biden’s argument is a fiction that ignores a clear fact: Trump is no longer president and Biden’s father oversees the Justice Department.
“The defendant concocts a conspiracy theory that the prosecution has ‘upped the ante’ to appease politicians who have absolutely nothing to do with the prosecution and are not even members of the current Executive Branch,” prosecutors wrote.
Separately Biden’s lawyers want the case dropped on grounds of “outrageous government conduct,” arguing in a motion that Shapley and Ziegler, the two IRS agents who claimed to be whistleblowers, have trampled on Biden’s constitutional right to due process.
“In numerous acts spanning months, these agents engaged in what is best described as vigilante justice in the court of public opinion, making a public mockery of the framework within which these types of investigations should be handled,” Biden’s lawyers wrote.
They also cited the maelstrom of political pressure in their quest to enforce an immunity deal.
Prosecutors and Biden’s lawyers had drawn up what’s known as a diversion agreement last summer, which called for Biden to comply with certain terms, like not using firearms or drugs. In exchange, prosecutors would not file charges for his past conduct, including tax crimes.
Courtroom sketch shows Hunter Biden seated, left, as his defense attorney Abbe Lowell speaks in Los Angeles in January.
(Bill Robles / Associated Press)
Prosecutors and Biden had signed the diversion agreement, which Biden’s lawyers say renders it binding and valid. To bolster their argument, the defense points to comments by Assistant U.S. Atty. Leo Wise in July, who said in court that the agreement “is a contract between the parties so it’s in effect until it’s either breached or a determination [of breach has been made], period.”
Federal prosecutors dispute that the diversion agreement is in force and have taken to calling it a “draft,” despite the signatures on the document. Prosecutors insist the agreement is not in effect because a federal probation officer in Delaware had not formally approved it.
In addition, Biden is seeking to dismiss the case by arguing that Weiss is not lawfully appointed or legitimately funded by Congress — a claim that his lawyers also filed in the Delaware case and that prosecutors have opposed.
The remainder of the motions to dismiss allege technical errors in the case: that one count, based on taxes for 2016, is barred by the statute of limitations; that three counts each contain two offenses in the same charge; and that four of the charges should not have been filed in California, since Biden did not officially reside in the Golden State until summer 2019.
Biden’s final motion focuses on the 2019 tax year, arguing that charging him for failing to pay his taxes that year is “selective and vindictive” prosecution. Defense lawyers note that Biden filed his tax return on time that year and paid his taxes two years later, with penalties and interest.
IRS agents Gary Shapley, left, and Joseph Ziegler testify before Congress in December . Both claim they were blocked from pursuing leads during their five-year investigation into Hunter Biden.
(Win McNamee / Getty Images)
Biden’s lawyers say they have not found “a single case” in which a defendant filed his tax return on time in 2019 but was charged for not paying on time.
“When a taxpayer has paid all they owe under those circumstances, as Mr. Biden has, criminal tax charges simply are not brought,” Biden’s lawyers wrote.
Defense attorneys highlight that at this time, the COVID-19 pandemic had prompted the IRS to offer relief and leniency programs to taxpayers facing financial challenges.
Prosecutors contend that Biden’s lawyers have mischaracterized the IRS’ leniency programs and say it is “utterly fallacious” that amid the pandemic, “the IRS effectively immunized all who willfully failed to pay their income taxes.”