Hunter Biden Files to Dismiss Gun Charges, Arguing ‘Vindictive Prosecution’ in One of 4 Motions

Hunter Biden arrives at the J. Caleb Boggs Federal Courthouse in Wilmington, Del., on Oct. 3, 2023. Madalina Vasiliu/The Epoch Times

Hunter Biden, son of President Joe Biden, filed four separate motions on Monday to dismiss a case charging him with three gun-related crimes.

Attorneys for Mr. Biden are arguing that the now-defunct plea bargain presented this summer nulled his gun charges in exchange for a guilty plea on tax misdemeanors, that special counsel David Weiss was “unlawfully appointed“ to his position, and that the gun charges are unconstitutional. Lastly, he argued to dismiss on the basis of a “selective and vindictive prosecution.”

The defense also filed a motion for a hearing for discovery, to argue some of these issues.

In addition to the three gun crimes, Mr. Biden has been charged with nine tax crimes in California.

Plea Deal

Earlier on Monday, Abbe David Lowell, legal counsel for Mr. Biden, told MSNBC he believes the prosecution was politically motivated.

“Are you asking whether he should have accountability for the mistakes he made while he was addicted? Sure he should. And if the U.S. attorney had followed through, and continued on what was supposed to happen in June, there would have been accountability,” Mr. Lowell said.

He said Mr. Weiss should have accepted the plea deal.

“Hunter was in court that day to have accountability and to show remorse and to take responsibility for his conduct,” Mr. Lowell said, accusing the prosecutors of backtracking “after seeing the criticism.”

The plea bargain had been widely panned as a sweetheart deal by House Republicans, including several overseeing investigations into the Biden family’s financial dealings. During Mr. Biden’s initial arraignment in Delaware, the federal judge had questioned both parties about the terms, and the deal fell apart within minutes.

Mr. Weiss has since pulled the case and deal, which Mr. Lowell argues is a violation.

“In exchange for Mr. Biden giving up various rights—including his Fifth Amendment right to remain silent by agreeing to the Statement of Facts drafted by the prosecution and numerous restrictions on his liberty—the prosecution agreed to provide him immunity for any offense concerning his purchase of a firearm (among other offenses),” the first motion to dismiss reads.

Mr. Weiss had argued that the deal was never formally entered into and no longer holds.

On MSNBC, Mr. Lowell did not refute the tax evasion allegations, nor his client’s drug addiction during the period when he bought and owned a gun.

Special Counsel Status

Defense attorneys are also arguing that because Congress has not appropriated funds for Mr. Weiss as special counsel, he was “unlawfully appointed.”

During U.S. Attorney General Merrick Garland’s announcement of Mr. Weiss’s special counsel status, he said Mr. Weiss would “also continue to serve as U.S. Attorney for the District of Delaware.”

This additionally violates Department of Justice (DOJ) regulations that require special counsels to be selected from outside the U.S. government, Mr. Biden’s attorneys argue, adding that “the Attorney General did not even select a Special Counsel from outside his own agency.”

“Accordingly, the Indictment should be dismissed as without proper authority to have been sought and brought,” the motion reads.

Mr. Weiss’s authority in the case has been under scrutiny, as whistleblowers told Congress earlier this year that the DOJ had slow-walked the investigation into Mr. Biden for political reasons, including not granting Mr. Weiss special counsel status.

In Mr. Weiss’s own testimony before Congress, he confirmed that he did not have the authority needed to bring charges against Mr. Biden in California or Washington, D.C., only Delaware, but not that there had been an incident where he requested special counsel status and was refused.

“Whatever caused Special Counsel Weiss to renege on the agreement he reached in this case and to then bring charges beyond the agreement, he filed this Indictment as an improperly appointed and funded Special Counsel,” the new motion reads.

Unconstitutional?

Mr. Lowell previously stated that he believed the gun case could be won on the merits, because a court has already found similar statutes unconstitutional.

In the new motion to dismiss, defense attorneys argue the government is using “a rarely used statute,” one that prohibits “an unlawful user of a controlled substance” from owning a firearm, which was struck down earlier this year in the Fifth Circuit.

Therefore, the charge is “baseless,” and moots another charge against Mr. Biden for saying he was not a drug user on a form he filled out when purchasing the gun.

“Because persons protected by the Second Amendment can no longer be denied gun ownership due simply to past drug use—a practice inconsistent with this nation’s historical tradition on firearm regulation—any false statement by Mr. Biden concerning his status as having used a controlled substance no longer concerns ‘any fact material to the lawfulness of the sale’ of a firearm,” the motion reads.

The decision referenced found barring drug users from being able to own a firearm a violation of the Second Amendment.

Certain behaviors while intoxicated could be prohibited by laws, such as drunk driving and assault, but the framers of the Second Amendment were “well aware of the problems caused by intoxication” and left no historical precedent favoring the prohibition of gun ownership by those with “any history of ingesting intoxication substances,” like alcoholics.

After the Fifth Circuit’s decision, another federal district court, the Third Circuit, issued a similar ruling, striking down a statute that prohibited anyone with a felony conviction from owning a firearm.

Defense attorneys argue “there is no reason to believe” and no historical precedent to show that the Supreme Court will find the statute used to charge Mr. Biden “constitutional.”

‘Foil’ to Trump Investigation

In a lengthy filing, defense attorneys accused the prosecution of bias against Mr. Biden.

“This Indictment reflects a selective and vindictive prosecution of Mr. Biden and a breach of separation of powers,” the motion reads, arguing that the “evidence is on steroids.”

They argued that Mr. Weiss “waited until after five years of a thorough and what was and must continue to be a very expensive” investigation that resulted in a plea deal reneged on the deal because he “drew a sharp rebuke from former President Trump (who appointed Mr. Weiss), extremist House Republicans, and the far-right media.”

“They made it clear that they wanted Mr. Weiss to keep this litigation alive through the presidential election (regardless of merit) and for him to bring more serious charges as a foil for the investigations and prosecutions of former President Trump,” the motion reads.

Attorneys for Mr. Biden have been sticking to the defense that the past plea bargain grants him immunity that still stands, and efforts to dismiss that are politically motivated.

The facts did not change, they argued, only the political circumstances. Mr. Biden was previously charged with two misdemeanors, and is now facing 12 counts, misdemeanors and felonies both.

The defense has also called for a hearing during which they plan to present evidence that the prosecution is politically motivated.