Lawyers for Hunter Biden on Thursday asked federal judges in California and Delaware to dismiss the criminal cases against him, citing the recent dismissal of former President Donald Trump 's classified documents case.
The pair of motions pointed to U.S. District Judge Aileen Cannon's finding that special counsel Jack Smith was improperly appointed by Attorney General Merrick Garland to prosecute the Florida case against Trump. The legal team for President Joe Biden's son argued that U.S. Attorney David Weiss , the special counsel who ultimately filed indictments against the first son on tax and gun-related offenses, is also unconstitutionally appointed.
Hunter Biden's attorney, Abbe Lowell, cited Justice Clarence Thomas's concurring opinion in the Supreme Court's ruling that granted presidents immunity for official acts, as did Cannon in her order dismissing Trump's indictment.
"Guided by Justice Thomas' opinion, Judge Cannon dismissed an indictment against President Trump earlier this week because the Special Counsel was unconstitutionally appointed," Hunter Biden's legal team wrote in court filings.
Cannon's dismissal of Trump's case centered on two violations of constitutional clauses: The Appointments Clause and the Appropriations Clause. Smith on Wednesday appealed her decision to the 11th Circuit, teeing up a new fight to revive the case.
Hunter Biden, 54, was convicted by a Delaware jury in June on three felony counts for lying on a federal firearms form. He has vowed to appeal the conviction and has also sought to challenge the constitutionality of the statutes underlying the case. He is awaiting trial in Los Angeles federal court on federal tax crime charges and is now seeking to dismiss that case through this motion.
Based on the new developments in the classified documents case against Trump, "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," his motion said.
Although Hunter Biden contends that his lawyers unsuccessfully argued that Weiss was improperly appointed earlier in his case, his counsel now says the latest developments from the Supreme Court and Cannon's ruling warrant his cases being thrown out.
In her ruling, Cannon wrote that a special counsel’s powers are "arguably broader than a traditional United States Attorney, as he is permitted to exercise his investigatory powers across multiple districts within the same investigation."
Hunter Biden's lawyers argued that Weiss overextended his power when he filed cases against Biden in California and Delaware and separately brought charges against a former FBI informant for lying about the Bidens.
“Mere U.S. Attorneys do not have that power. Given that Congress requires a U.S. Attorney to be nominated by the President and confirmed by the Senate, it makes no sense to assume that Congress would allow the Attorney General to unilaterally appoint someone as Special Counsel with equal or greater power than a U.S. Attorney,” Hunter Biden’s lawyers wrote. “That is what has been attempted here.”
Still, there likely isn’t a one-to-one comparison between Smith and Weiss because of one key distinction: Congress’s role in appointments and appropriations.
Weiss was already the sitting Senate-confirmed Delaware attorney at the time of his appointment to special counsel status. By contrast, Smith was hired from outside the Justice Department when Garland named him as special counsel in November 2022.
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The first son faces up to 25 years in prison when he is sentenced in the gun case by U.S. District Judge Maryellen Noreika, though he would likely not receive the maximum sentence as a first-time offender. He has not been given a sentencing date.
The tax case focuses on at least $1.4 million taxes prosecutors say he failed to pay over four years. The back taxes have since been paid.
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