In one of the most eye-popping arguments in a flurry of motions to toss the case against him, former “19 Kids and Counting” star Josh Duggar claimed on Friday that his child pornography charges must be dismissed because the investigation into him began under a Department of Homeland Security then-run by leaders “unlawfully” appointed by former President Donald Trump.
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.
Now, Duggar hopes to benefit from the Trump administration’s actions via a motion arguing McAleenan’s and Wolf’s “unlawful” appointments should torpedo his case.
“As the actions by DHS HSI in this case were all conducted under the authority of individuals who were acting as Officers of the United States in violation of both the Appointments Clause and the applicable federal statutory scheme for temporary officeholders, the investigation proceeded without lawful authority,” Duggar lawyer Justin Gelfand wrote in a 14-page motion to dismiss. “Because Appointments Clause violations are structural in nature, Duggar need not show prejudice to obtain relief.”
That is one of gambits floated by Duggar’s defense team in its efforts to scuttle accusations that the embattled reality TV star received and possessed a horrendous collection of dozens of photographs and videos depicting the sexual abuse of children “as young as toddlers.” An HSI agent testified during Duggar’s bond hearing that one of the videos, “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.
Duggar’s defense team floated a number of arguments why some of the proffered evidence in the case should be suppressed.
One memo released on Friday seeks to suppress evidence that HSI Agent Gerald Faulkner obtained from Duggar’s cell phone when authorities went to his car dealership on Nov. 8, 2019.
Duggar claims that Faulkner took that cell phone after he said he wanted to use it to call his lawyer, a point the agent appeared to concede at the bail hearing.
“The agents then conducted a lengthy interrogation of Duggar,” Gelfand wrote. “No attorney was present at any point during Duggar’s questioning when he allegedly made certain statements.”
Though Duggar signed a Miranda warning, his lawyer says this happened later.
“Thus, because Duggar clearly asserted his right to speak with his lawyer, Duggar never should have been questioned without counsel physically present—regardless of whether he allegedly subsequently signed a Miranda waiver form,” Gelfand added, emphasizing the timeline in italics.
Duggar also asked a federal judge to suppress photographs of his hands and feet while in custody and to hold an evidentiary hearing. He also accused the government of failing to hold and preserve what his lawyers claim to be potentially exculpatory evidence from three unidentified witnesses.
Listen to more about the background of Duggar’s case on the Law&Crime podcast “Objections”:
Read the Appointments Clause motion below:
(Photo via mugshot)
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