Hunter Biden asked judges Thursday to dismiss his criminal charges, claiming the special counsel appointed to investigate him was unlawfully appointed and funded.
The requests come just days after a different federal judge found that Attorney General Merrick Garland unlawfully appointed special counsel Jack Smith to investigate former President Trump, dismissing charges against him in his classified documents case.
The special counsel appointed to investigate Hunter Biden — President Biden’s son — is David Weiss, who is also U.S. attorney for Delaware.
“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,” Hunter Biden’s attorney, Abbe Lowell, wrote in the motion involving his federal gun conviction.
The motion asks to set aside a jury’s verdict last month finding Hunter Biden guilty of lying on a federal gun purchase form about his drug use and illegally possessing a firearm. It marked the first criminal conviction of a sitting president’s son.
Just before trial, U.S. District Judge Maryellen Noreika rejected Hunter Biden’s challenge to his special counsel, enabling the case to move forward. Now staring down potential prison time, Biden reupped his request by citing the recent decision in Trump’s case.
Hunter Biden on Thursday filed a similar motion to toss his criminal charges in California, where he is scheduled to stand trial this fall on accusations of filing false tax returns and tax evasion.
Both motions cite the recent decision by U.S. District Judge Aileen Cannon to dismiss Trump’s documents charges in Florida by ruling that his special counsel’s selection “effectively usurps” Congress’s constitutional role in the appointment process. Cannon called it a threat to the “structural liberty inherent in the separation of powers.” Smith has appealed the ruling.
But unlike Smith, who came from outside the Justice Department to investigate Trump, Weiss was confirmed by the Senate to his position as U.S. attorney for Delaware. Hunter Biden’s lawyers, however, said that confirmation doesn’t allow the department to engage in a game of “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 that the nominee should be confirmed to any position,” Hunter Biden’s attorneys wrote in his California case. Like Trump, Hunter Biden’s attorneys also argue his special counsel’s funding was unconstitutional.
Special counsels have been utilized by presidential administrations of both political parties. In addition to special counsels assigned to investigate Trump and Hunter Biden, a special counsel was also recently appointed to investigate President Biden’s handling of classified documents.
“The Special Counsel will no doubt try to avoid the ramifications of the recent court opinions by complaining that Mr. Biden should have brought this motion sooner. Given the evolving state of separation of powers law on this very topic, that is not a fair criticism,” Lowell wrote in court filings. “In any event, it does not deprive Mr. Biden of the right to dismiss an unauthorized prosecution and it does not prevent this court from correcting a miscarriage of justice.”
