Hunter Biden claims judge's screw-up should lead to gun trial do-over, says Supreme Court ruling will save him and repeats argument that 1 charge was a 'non-crime'

President Joe Biden talks with his son Hunter Biden as he arrives Delaware Air National Guard Base in New Castle, Del., Tuesday, June 11, 2024. (AP Photo/Manuel Balce Ceneta)

Lawyers for convicted felon Hunter Biden asserted Monday that their client is a deserving of a new gun trial in Delaware federal court because the judge improperly proceeded to jury selection, claiming that a technically pending appeal of the jurist’s pretrial denials of his motions to dismiss necessarily divested her of jurisdiction. Beyond that, the defense for President Joe Biden’s son, embracing the Second Amendment, argued that a post-verdict acquittal is warranted, given that the U.S. Supreme Court’s ruling just last week in U.S. v. Rahimi “made equally clear” that the statute under which Hunter Biden was convicted, U.S.C. § 922(g) , will eventually be found “unconstitutional.”

The defendant, convicted by a jury of his peers of all three charges on June 11 , first argues that his trial should not have started when it did, and for that reason alone he should receive a new one. Though the U.S. Court of Appeals for the Third Circuit previously rejected an 11th hour-style bid to appeal U.S. District Judge Maryellen Noreika’s resounding rejections of his immunity-based protestations, Biden’s lawyers maintain that the judge had no authority to keep the trial on the tracks — based on a technicality.

“Mr. Biden filed two notices of appeal in this case to the Third Circuit raising claims on appeal that would prevent a trial on any count in this case—a first notice on April 17, 2024 and a second notice on May 20, 2024. The Third Circuit entered an order dismissing the first appeal on May 9, 2024, but the issuance of the mandate was delayed while the Third Circuit considered Mr. Biden’s petition for rehearing and rehearing en banc,” the defense explained its view. “The Third Circuit entered an order dismissing Mr. Biden’s second appeal on May 28, 2024, and denied Mr. Biden’s rehearing petition on the first appeal on May 31, 2024. The Third Circuit, however, did not then and has not yet issued its mandate as to the orders dismissing either appeal. Thus, when this Court empaneled the jury on June 3, 2024 and proceeded to trial, it was without jurisdiction to do so.”

Special counsel David Weiss had earlier slammed the defense’s appellate efforts as a “frivolous” delay tactic and his team went on to successfully persuade jurors that convicting Biden of lying about his crack use and addiction to illegally purchase and possess a revolver in October 2018 was the only real option .

But while the defense is once again using that jurisdictional tactic to try and upend the guilty verdicts, it’s not the only avenue Biden’s lawyers are exploring.

Take, for example, the resurfaced claim that count three of the indictment, the count that charged Biden with illegally possessing a Colt Cobra 38SPL revolver between Oct. 12, 2018 to Oct. 23, 2018 while “knowing” that he was an unlawful user of or addicted to drugs, was actually a “non-crime” considering that Congress “amended” relevant “statutory language” in 2022.

More Law&Crime coverage: What’s next after Hunter Biden’s felony gun conviction?

The defense has said, and reiterated Monday, that 18 U.S.C. § 922(g) is “no longer criminally enforceable under Section 924(a)(2).”

“The fact that Mr. Biden has been convicted of a non-crime on Count 3 is clear because the very statute the Special Counsel charged is no longer in effect, and courts must apply the law as it now exists,” Biden’s lawyers said.

Even more noticeable was the defense’s pro-Second Amendment take that the Supreme Court tipped its hand in U.S. v. Rahimi, when ruling that accused domestic abusers subject to court orders could be temporarily disarmed without running afoul of the Constitution, upholding 18 U.S.C. § 922(g)(8). Only Justice Clarence Thomas dissented .

More Law&Crime coverage: Hunter Biden uses Justice Thomas’ major Second Amendment decision to attack special counsel’s gun indictment

For the defense, the high court’s ruling on a different part of the same statute under which Biden was convicted only signaled a future win in challenging the constitutionality of 18 U.S.C. § 922(g) [some citations removed for ease of reading]:

The Supreme Court’s decision last Friday in United States v. Rahimi, upheld 18 U.S.C. § 922(g)(8) against a Second Amendment challenge, but its analysis made equally clear that Section 922(g)(3) of the same statute is unconstitutional. The Supreme Court again emphasized that firearm possession is presumptively a constitutional right and the only valid exceptions must be analogous to a historical exception that existed when the Second Amendment was adopted. Rahimi upheld Section 922(g)(8) because it is analogous to Founding Era surety laws—which nobody argues are analogous to Section 922(g)(3)—but more importantly, for our purposes, the Supreme Court emphatically and unanimously rejected the government’s other defense of the statute that rested on the claim that Congress can disarm people who it presumes to be dangerous or not responsible. Each of the justifications the Special Counsel raises in defense of Section 922(g)(3) fall under this rejected rubric. Each count of conviction necessarily falls.

Read the new trial bid here , the Second Amendment argument here , and the “non-crime” document here .

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