Josh Duggar's Lawyers Attempt to Use Donald Trump Loophole to Negate Child Pornography Charges

08/28/2021 11:34 pm EDT

Josh Duggar's legal team has pulled out a new defense weapon in his child pornography case. Duggar's team has attempted to have his charges dismissed since the probe into his car dealership's computers took place under different Department of Homeland Security leadership, which they claim were "unlawfully appointed" by former President Donald Trump.

Secretary Kevin McAleenan was the head of the department when Duggar became the subject of investigation in 2019. The investigation was then turned over to Acting Secretary Chad Wolf, who also took over under Trump. The Government Accountability Office later acknowledged that both appointments were made unlawfully. Federal judges then followed suit and overruled several of the office's actions during their time.

Duggar's attorney Justin Gelfand struck up a 14-page motion for dismissal. "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," he wrote. "Because Appointments Clause violations are structural in nature, Duggar need not show prejudice to obtain relief."

Duggar was arrested and charged with two counts of receiving and possessing child pornography in May of this year. His lawyers are arguing some of the events that took place in the arrest and afterward were unlawful and multiple pieces of evidence should be suppressed in court. Gelfand says while he signed a document that he was Mirandized, that didn't happen at the time of his arrest, but rather later. "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."

"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," he continued. Duggar also asked the judge to suppress photos of his hands and feet while in custody and to hold an evidentiary hearing after sharing that the prosecution wasn't entirely forthcoming with all of the evidence collected.

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