On July 18, attorneys for Hunter Biden filed a motion to dismiss his federal gun case. They argued that special counsel David Weiss lacked the authority to prosecute. This move comes after a jury found Biden guilty on June 11.
“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.
Before the trial, Mr. Biden had filed a motion to dismiss, claiming that Mr. Weiss was improperly funded. Now, he is also arguing that Weiss was improperly appointed, citing new authority to support his claim.
First, U.S. Supreme Court Justice Clarence Thomas raised questions in a concurring opinion on a presidential immunity appeal brought by former President Donald Trump. He questioned whether special counsels were funded in accordance 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 former President Trump earlier this week, ruling that the special counsel had been 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.”
Attorney General Merrick Garland referenced the same statutes in his appointment orders for both Mr. Weiss and special counsel Jack Smith, who is handling two cases against former President Trump.
Prosecutors defending Mr. Smith’s appointment in federal court cited statutes concerning assistant attorneys, special attorneys, and even independent counsel, a now-defunct office comparable to the current special counsel role.
During oral arguments, Judge Cannon pointed out that the cited statutes did not refer to a “special counsel statute.” In her ruling, she stated that the positions mentioned in these statutes are not comparable to the office of the special counsel.
Attorneys for Mr. Biden argue that Congress has not established “the office of a Special Counsel,” which is required before a president can nominate and the Senate can confirm any special counsel.
The appointments clause also allows Congress to authorize department heads, like the attorney general, to appoint “inferior officers,” but these positions must also be “established by Law.”
Unlike Mr. Smith, Mr. Weiss was nominated and confirmed as U.S. Attorney for the District of Delaware. However, attorneys for Mr. Biden argue that this does not address the issue of his improper appointment as special counsel, comparing it to a “bait-and-switch” tactic.
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