Josh Duggar’s defense team once argued that the former “19 Kids and Counting” star could not be prosecuted for alleged child pornography offenses because former President Donald Trump’s Department of Homeland Security was led by unlawful appointees. Explaining why he rejected that theory, a federal judged issued a written ruling on Wednesday calling that defense nothing short of “frivolous.”
“This motion is frivolous,” U.S. District Judge Timothy Brooks wrote flatly in a 15-page opinion and order. “There is no legal support for Mr. Duggar’s claim that an indictment handed down by a properly impaneled grand jury would be subject to dismissal due to an alleged Appointments Clause violation. Department of Homeland Security agents are sworn to enforce federal criminal statutes, and the Court is not aware of any reason why their authority to investigate crimes would somehow be undermined if the acting secretary of their agency were improperly appointed.”
When federal agents started looking into Duggar in 2019, Homeland Security Investigations (HSI) was under the control of Acting Secretary Kevin McAleenan, and the probe continued into the tenure of Acting Secretary Chad Wolf. The Government Accountability Office later found that Trump appointed both men unlawfully, circumventing the normal process of congressional approval. Federal judges later ruled similarly, invalidating some of the agency’s actions under their control.
Duggar’s lawyer Justin Gelfand cited rulings in advancing their arguments, but the judge noted a crucial difference: Those were “civil immigration cases involving the direct policymaking or rulemaking authority of the acting secretary of Homeland Security.”
“These cases are inapposite to Mr. Duggar’s,” Judge Brooks wrote.
The judge articulated a separate reason criminal cases are different. A grand jury was involved.
“An indictment returned by a legally constituted and unbiased grand jury . . . is enough to call for trial of the charge on the merits,” the judge wrote, quoting from the 1956 Supreme Court decision in Costello v. United States.
The ruling also explains why the judge rejected Duggar’s bid to suppress statements he made to Homeland Security Agents Gerald Faulkner and Howard Aycock on Nov. 8, 2019, when authorities arrived at his used car dealership and obtained his cell phone.
“According to Agent Faulkner’s testimony at the hearing, Mr. Duggar immediately asked, ‘What is this about? Has somebody been downloading child pornography?'” the ruling states. “And in response, Agent Aycock instructed Mr. Duggar to stop asking questions until he could start the recording device.”
A 51-minute interview followed, which began with Aycock reading Duggar his Miranda warnings. Duggar signed a written waiver of his rights. His lawyer claimed the document was signed after his iPhone was seized.
Judge Brooks ruled that this interview was voluntary.
“At that time, Mr. Duggar was free to leave the premises, but he chose not to do so,” the ruling states. “Although he points out that he did not have a vehicle at his disposal and could not drive away, he was perfectly capable of leaving on foot.”
In a footnote, the judge pointed out that Duggar theoretically could have used any of the cars on his lot to leave.
“[T]here is no compelling evidence that the agents used ‘strong-arm’ tactics during questioning, nor does the Court find that the interview was unnecessarily prolonged,” the opinion continues. “Mr. Duggar points out that at times during the interview, the agents interrupted him. The Court reviewed the transcript with the audio recording played during the hearing and concludes that the participants were talking over (or into) each other. The Court does not believe the agents were attempting to silence or intimidate Mr. Duggar.”
Slated for a trial on Nov. 30, Duggar stands accused of receiving and possessing a horrendous collection of dozens of photographs and videos depicting the sexual abuse of children “as young as toddlers.” During Duggar’s bond hearing in May, HSI Agent Faulkner testified that a video found on an HP computer in Duggar’s car lot, titled “Daisy’s Destruction,” was one of the “Top Five Worst of the Worst” that he ever had to examine because it depicted the assault of an 18-month-old girl.
An episode of Law&Crime’s podcast “Objections” explored the story of Australian human trafficker who made that horrific video: Peter Scully, who has been dubbed the “world’s worst pedophile.”
Read the ruling below:
(Image via mugshot)
Have a tip we should know? [email protected]
Follow Law&Crime:
