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Lawyers for Josh Duggar seek dismissal of charges on child sexual abuse material

Attorneys for Josh Duggar argue federal investigators failed to preserve potentially exculpatory evidence that could assist his defense.
/ Source: NBC News

Lawyers for former reality TV star Josh Duggar are seeking to have child sex abuse material charges against him dismissed because investigators failed to preserve evidence which could potentially help his defense, court records show.

Duggar, 33, whose family was featured on the TLC reality show "19 Kids and Counting" from 2008 to 2015, was arrested and federally charged in late April with receiving and possessing child sexual abuse material in Arkansas. Some of the alleged possessed material depicted the sexual abuse of children younger than 12, federal officials have said.

Duggar has since pleaded not guilty.

Duggar's lawyers claim in court filings, seen by NBC News, that investigators failed to preserve potentially "exculpatory evidence" and that the two acting secretaries of the U.S. Department of Homeland Security at the time of the Duggar investigation weren’t properly appointed.

Duggar’s attorneys say the charges against him stem from alleged conduct involving a desktop computer from a business Duggar previously owned and operated. That business was a car lot in Springdale, Arkansas, according to the court records, filed Friday in the Western District of Arkansas of U.S. District Court.

In November 2019, investigators with the Department of Homeland Security’s Homeland Security Investigations division, commonly known as HSI, secured a federal search warrant for the lot, court records said. While investigating, authorities searched three witness’ cellphones, one of whom was described as a “person of interest,” court records said. Investigators didn’t find evidence of child pornography on the three phones, the filings said.

"The problem is that HSI may have not identified evidence of child pornography during the field examination of these devices – but failed to preserve other potentially exculpatory evidence," the filing said. “What happened here is as clear as it is troubling, the Government concluded the three devices they searched did not further its case against Duggar and therefore deprived Duggar of the opportunity to access this potentially exculpatory evidence.”

Representatives with the U.S. Department of Justice could not be immediately reached Tuesday for comment.

Duggar's lawyers also argue that, while their client was under investigation, Kevin McAleenan and Chad Wolf were each incorrectly installed as Acting Secretary with the U.S. Department of Homeland Security following the resignation of then-Secretary Kirstjen Nielsen. The unlawful appointments merit dismissal in the case, records said.

In May, Duggar was granted release from federal custody while awaiting trial.

The conditions of his release included banning Duggar from speaking to his children without the supervision of his wife, forbidding the use of electronic devices and electronic monitoring. He must also live in a residence that does not have any children.

Duggar has been confined to the home of family friends who agreed to be his custodian during his release.

If convicted, Duggar could face a fine of $250,000 and a prison sentence of up to 20 years for each count if convicted.

The judge who oversaw terms of Duggar’s release also referenced past allegations against Duggar that he molested his younger siblings when he was a teenager, which originally appeared in a 2015 In Touch magazine report. Duggar released a statement at the time saying he "acted inexcusably" and was "extremely sorry."

The Duggar family appeared to admit to the allegations in an interview with Fox News in 2015, with father Jim Bob Duggar telling Megyn Kelly his son touched the girls over and under their clothing as they slept, and that he was “just curious about girls.”

An Arkansas police report indicated Duggar was investigated in 2006 when he was 18. He was never arrested or charged with any crime over those allegations.

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