Hunter Biden is hoping to take full advantage of a judge’s ruling this week dismissing the classified-documents case against former president Donald Trump for being brought by an unconstitutional special counsel.
Hunter Biden’s attorneys argued in court filings Thursday afternoon that the indictments in his Delaware gun case and California tax case should be dismissed because special counsel David Weiss’s appointment is unconstitutional.
“Based on these new legal developments, Mr. Biden moves to dismiss the indictment brought against him because the Special Counsel who initiated this prosecution was appointed in violation of the Appointments Clause as well,” Biden’s attorneys argued in a motion to dismiss filed in Delaware. “The Attorney General relied upon the exact same authority to appoint the Special Counsel in both the Trump and Biden matters, and both appointments are invalid for the same reason.
“The invalidity of the Special Counsel appointment also renders this prosecution a violation of the Appropriations Clause, as there is no appropriation by Congress to fund it. Who the individual is who is the subject of investigation by an improperly appointed Special Counsel cannot make a difference in applying the law,” the Delaware motion adds.
In California, Biden’s legal team filed a notice and a motion to dismiss his federal tax case based on the same argument. Next month, Biden’s attorneys plan to raise the matter with California federal judge Mark Scarsi, who previously rejected claims that Weiss was unlawfully appointed.
For both sets of court papers, Biden’s attorneys relied heavily on Judge Aileen Cannon’s dismissal of Trump’s classified-documents case in Florida because Attorney General Merrick Garland’s appointment of special counsel Jack Smith violated the appointments clause.
Cannon determined that Smith was not properly appointed to be an officer of the United States, mirroring Justice Clarence Thomas’s concurring opinion in the Supreme Court’s ruling granting Trump presidential immunity for official acts. Trump’s attorneys raised the immunity issue to contest Smith’s prosecution of Trump in Washington, D.C., for his role in the January 6 Capitol riot.
The Justice Department is appealing Cannon’s ruling and keeping the classified-documents case in Smith’s hands. Her ruling ensures that Smith’s case will not go to trial before the November election, making it a major win for Trump’s legal defense.
Unlike Jack Smith, David Weiss is a sitting U.S. attorney overseeing the district of Delaware, meaning Weiss was appointed an officer of the United States with Senate confirmation. Trump appointed Weiss to his post with bipartisan support, and President Joe Biden’s Justice Department retained him as Delaware U.S. attorney. Weiss presided over the Hunter Biden investigation for years before Garland named him special counsel last summer following credible allegations of misconduct and the collapse of Hunter Biden’s generous guilty-plea deal.
Attorneys for Alexander Smirnov, a former FBI informant whom Weiss is prosecuting for allegedly falsely claiming that Hunter and Joe Biden took bribes from a Ukrainian oligarch, made a similar argument in a motion earlier this week to have his indictment dismissed. Smirnov, who prosecutors believe is linked to Russian intelligence, remains in custody and is set to stand trial later this year.
A Delaware jury convicted Hunter Biden last month on three federal gun charges for lying about his crack cocaine usage on mandatory gun paperwork when he purchased a firearm nearly six years ago and for subsequently possessing that firearm while he was addicted to crack cocaine. Biden’s sentencing is set to take place later this year.
Biden’s attorneys have also argued that the gun charges are unconstitutional under the Second Amendment, citing the Supreme Court’s New York State Rifle & Pistol Association v. Bruen ruling of two years ago, in which Thomas issued a majority opinion mandating that gun regulations be consistent with America’s historical tradition.
In September, Biden is scheduled to stand trial for nine federal tax charges stemming from his alleged failure to pay more than $1.4 million of taxes over a four-year period. He has pleaded not guilty to the tax charges.