WASHINGTON — President Joe Biden’s son Hunter asked federal judges on Thursday to dismiss tax and gun cases against him, referring to a Florida verdict this week who rejected a separate prosecution of former President Donald Trump.
The filings in federal court in Delaware and California underscore the potential fallout from U.S. District Judge Aileen Cannon’s dismissal of Trump’s classified documents case on Monday, and the potential for upheaval in the legal landscape surrounding the Justice Department’s special counsel.
Both Hunter Biden and Trump were prosecuted by special counsels appointed by Attorney General Merrick Garland. In dismissing the Trump case, Cannon ruled that the appointment of the special counsel prosecuting Trump, Jack Smith, was unconstitutional because he was appointed to the position directly by Garland rather than nominated by the president and confirmed by the Senate.
Smith’s team has said the Justice Department followed longstanding precedent. For example, the Trump-era appointment of special counsel Robert Mueller to investigate Russian election interference was upheld by the courts. The team has appealed Cannon’s firing to a federal appeals court in Atlanta.
In a pair of documents filed Thursday, lawyers for Hunter Biden said the same logic should apply to his cases and result in the dismissal of a awaiting tax prosecution in Los Angeles — currently set to go to trial in September — and a separate firearms case in Delaware, in which Hunter Biden was convicted in June of three felonies.
Hunter Biden’s team has previously made similar arguments, without success, but they say there is now good reason to reconsider. Both of Hunter Biden’s cases are being overseen by judges nominated by Trump. Cannon, the judge who threw out Trump’s case, was also nominated by the former Republican president.
“Based on these new legal developments, Mr. Biden moves to dismiss the charges against him because the Special Counsel who initiated this prosecution was also appointed in violation of the Appointments Clause,” Hunter Biden’s lawyers wrote. They also cited an opinion this month by Supreme Court Justice Clarence Thomas that questioned the propriety of appointing a Special Counsel.
“The Attorney General invoked the exact same authority to appoint the special counsel in both the Trump and Biden cases, and both appointments are invalid for the same reason,” the lawyers added.
Smith and the special counsel who prosecuted Hunter Biden, David Weiss, differ in that Smith was hired from outside the Justice Department, while Weiss was working as a prosecutor in Delaware at the time of his appointment.
In her ruling, Cannon noted that a special counsel’s powers “are likely broader than those of a traditional U.S. prosecutor, as he may exercise his investigative powers in multiple districts within the same investigation.”
Hunter Biden’s lawyers pointed out on Thursday that that is exactly what has happened in his case, as Weiss, in his role as special counsel, has filed cases against Biden in California and Delaware and separate charges filed against a former FBI informant accused of lying about the Bidens.
“Regular U.S. attorneys do not have that power. Since Congress requires that a U.S. attorney be nominated by the President and confirmed by the Senate, it is preposterous 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.”
Jurors found Hunter Biden guilty in June of lying about his drug use in 2018 on a federal form to purchase a firearm that he had in his possession for about 11 days. The trial put a spotlight about a dark period in Hunter Biden’s life when he became addicted to crack cocaine after the death of his brother Beau in 2015. He says he has been sober since 2019.
Hunter Biden faces up to 25 years in prison if convicted in the gun case by U.S. District Judge Maryellen Noreika, though as a first-time offender he would not face anywhere near the maximum and there is no guarantee the judge would send him to prison. She has not yet set a sentencing date.
The tax case centers on at least $1.4 million in taxes that prosecutors say he failed to pay for four years. The back taxes have since been paid.
The long-term federal investigation The president’s son appeared poised to close with a plea deal last year, but the agreement imploded after a judge raised questions about it. Hunter Biden was subsequently charged in both cases.