Hunter Biden is using a pair of judicial opinions that were favorable to his father's political rival to argue his conviction on gun charges should be tossed out.
In federal court papers filed in Delaware, Hunter Biden’s attorneys asked the judge who oversaw his gun trial to dismiss the case against him because of a federal court ruling in Florida dismissing the classified documents case against former President Donald Trump.
In the ruling Monday, U.S. District Judge Aileen Cannon dismissed Jack Smith’s criminal case against Trump on the grounds that the appointment of and funding for the special counsel were illegal.
President Joe Biden’s son contends that that ruling, plus a concurrence by Justice Clarence Thomas in the Supreme Court’s presidential immunity decision in the federal election interference case against Trump this month, are reasons to dismiss special counsel David Weiss’ case against him.
“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 filing says.
“The Attorney General relied upon the exact same authority to appoint the Special Counsel in both the Trump and Biden matters, and both appointments are invalid for the same reason,” the filing argues.
A spokesperson for Weiss's office said, "We are aware of the filing and will respond in due course."
Hunter Biden was convicted last month of three felony counts tied to possession of a gun while using narcotics. His sentencing date has not yet been set.
Cannon’s decision dismissing the documents case Monday cited Thomas’ July 1 opinion three times. Thomas’ opinion had questioned Smith's appointment as special counsel in the two Trump cases.
“If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution,” Thomas wrote.
Neither opinion is binding on the Delaware case, but Biden’s lawyers argued to U.S. District Judge Maryellen Noreika they were applicable and demonstrate that they are “different defendants but same constitutional flaws.” They urged her to correct the “miscarriage of justice.”
Joe Biden said in an interview with NBC News anchor Lester Holt this week that Cannon’s decision was “specious” and that “I don’t agree with what Clarence Thomas’ dissent and/or the Supreme Court decision on immunity.”
Smith’s office is appealing Cannon’s decision.
“The dismissal of the case deviates from the uniform conclusion of all previous courts to have considered the issue that the Attorney General is statutorily authorized to appoint a Special Counsel,” spokesperson Peter Carr said in a statement.
