Chastened: Biden Legal Team Withdraws Motion for New Trial in Light of Spanking From Special Counsel

AP Photo/Jose Luis Magana

Well, that didn't take long. Fresh on the heels of Special Counsel David Weiss's barb-tastic takedown of their efforts to obtain a new trial on jurisdictional grounds in his Delaware gun trial, Hunter Biden's legal team has now withdrawn the motion. 


Let's review the pertinent chronology here: 

  • June 11, 2024 — Biden is convicted in federal court in Delaware on all three counts (making a false statement during a background check to deceive a federally licensed firearms dealer, making a false statement on a form that the seller kept as the firearm transaction record, and illegally possessing the gun).
  • June 17, 2024 — Biden's legal team files a motion for new trial, then, inexplicably, almost immediately requests that it be removed from the court's docket.
  • June 24, 2024 — Biden's legal team files/refiles virtually the same motion for new trial, asserting that the trial court lacked jurisdiction over the case when it was tried because the Third Circuit Court of Appeals, which had dismissed Biden's interlocutory appeals for lack of jurisdiction, hadn't properly sent a formal mandate, sending the case back to the trial court.
  • July 8, 2024 — Special Counsel David Weiss's office files its response to the motion for new trial, pointing to standard Third Circuit practice regarding mandates as well as the actual language contained in the court's certified orders dismissing the appeals "Issued in Lieu of Mandate," referring to Biden's attempt as a "laughable tale," and more or less snickering that reading is fundamental. 
  • July 9, 2024 — Biden's legal team withdraws the motion for new trial. 

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I'm probably far too entertained by this whole thing, but to me, the withdrawal notice carries the distinct whiff of sheepishness:

Referencing the procedure used by the Clerk of the Third Circuit explained in the Special Counsel’s opposition, Mr. Biden withdraws his Rule 33 motion for a new trial based on the absence of a mandate. Federal Rule of Appellate Procedure 41(b) requires that a mandate “must issue” within seven days after certain decisions concerning an appeal have passed, while noting that a Court of Appeals can “shorten or extend the time [for doing so] by order.”1 The Third Circuit usually does the same, issuing a mandate after an appeal has been dismissed for lack of jurisdiction.

However, no mandate was issued by the Third Circuit. Instead, the Clerk of the Court’s signature block, not the Order itself, contains “Certified Order Issued in Lieu of Mandate” language. As it appears that the Third Circuit views issuing a certified order “in lieu” of a mandate as compliant with Rule 41’s procedure for shortening the time for issuance of a mandate, Mr. Biden withdraws his motion.


One suspects Biden's lawyers thought better of waiting for Judge Maryellen Noreika's ruling on their motion in light of the spanking issued Monday by the Special Counsel's continuing legal education memo. 

If the first rule of litigation is "Don't piss off the judge," the second is "Familiarize yourself with the local rules, customs, and practices of whatever court you're in, so you don't make a fool of yourself." 



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