Hunter Biden Moves to Dismiss Case, Argues Special Counsel Unlawfully Appointed

Hunter Biden and his wife, Melissa Cohen Biden, leave the J. Caleb Boggs Federal Building in Wilmington, Del., on June 7, 2024. (Kevin Dietsch/Getty Images)

Attorneys for Hunter Biden on July 18 moved to dismiss his federal gun case, in which a jury returned a guilty verdict on June 11, arguing that special counsel David Weiss had no jurisdiction to prosecute.

“Mr. Biden brings this motion for lack of jurisdiction to challenge as unconstitutional the appointment and subsequent unlawful funding of these cases,” the motion reads. Defense attorneys are requesting dismissal of the indictment and conviction.

Mr. Biden had previously filed a motion to dismiss before the trial arguing that Mr. Weiss was improperly funded, and is now arguing that he was improperly appointed as well, citing new authority.

First, U.S. Supreme Court Justice Clarence Thomas had questioned, in a concurring opinion in a presidential immunity appeal brought by former President Donald Trump, whether special counsels were funded in line with the appropriations clause of the U.S. Constitution.

Secondly, U.S. District Judge Aileen Cannon in the Southern District of Florida “dismissed an indictment against President Trump earlier this week because the Special Counsel was unconstitutionally appointed.”

“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,” the motion reads.

“Now that the defect has been recognized and used to invalidate an indictment brought by the Special Counsel against former President Trump, the equivalent result should be available to Mr. Biden. Different defendants but same constitutional flaws.”

Special Counsel Appointment

Attorney General Merrick Garland had cited the same statutes in his appointment orders of Mr. Weiss and special counsel Jack Smith, who is prosecuting two cases against former President Trump. Prosecutors defending Mr. Smith’s appointment in federal court relied on statutes dealing with assistant attorneys, special attorneys, and even independent counsel, referring to a now-defunct office similar to the present-day special counsel.

Judge Cannon had noted during oral arguments that they did not refer to a “special counsel statute.” In her ruling, she wrote that the positions listed in the cited statutes are not similar to the office of the special counsel.

Attorneys for Mr. Biden argue that Congress has not established “the office of a Special Counsel,” which it must do before a president can nominate and the Senate can confirm any such special counsel. The appointments clause also allows Congress to empower department heads, such as the attorney general, to appoint “inferior officers,” but these officers must also be “established by Law.”

“It is difficult to see how the Special Counsel has an office ‘established by Law,’ as required by the Constitution,” Justice Thomas wrote.

Unlike Mr. Smith, Mr. Weiss was nominated and confirmed as U.S. Attorney for the District of Delaware, but attorneys for Mr. Biden argue that that is not enough to resolve the issue of an improperly appointed special counsel, likening it to a “bait-and-switch.”

“The President and Senate may agree that one person should be nominated for a particular position, but that does not mean that they would agree the nominee should be confirmed to any position,” the motion reads.

“Presumably, under this view, the Attorney General could assign Mr. Weiss’ authority as U.S. Attorney to someone else entirely, such that his job would be completely different from the one for which he was nominated and confirmed. That cannot be what Congress intended.”