Left: Hunter Biden (AP Photo/J. Scott Applewhite). Right: Special counsel David Weiss (AP Photo/Alex Brandon).
Special counsel David Weiss on Thursday urged the judge overseeing the Delaware-based federal gun case against President Joe Biden’s adult son, Hunter Biden, 54, to reject a recent motion to dismiss.
On July 18, attorneys for the convicted, younger Biden filed the motions in two district courts, arguing special counsel David Weiss lacks the jurisdiction and authority to have brought the cases.
Weiss, in a 24-page response, aimed to thoroughly rubbish those efforts.
In the dismissal bids, Hunter Biden cited two successive, high-stakes pro-Trump rulings by the U.S. Supreme Court and the Southern District of Florida. In turn, Chief Justice John Roberts issued a broad grant of presidential immunity to the 45th president; then U.S. District Judge Aileen Cannon used a concurrence to that opinion by Justice Clarence Thomas to squelch special counsel Jack Smith’s authority.
“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 attorneys argued.
On Thursday, Weiss pointed out that the defendant has already been convicted of a crime in the First State prosecution.
“Even though a jury has already found the defendant guilty of all three counts charged in the indictment, the defendant has belatedly filed a motion to dismiss the indictment,” the filing reads.
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The special counsel notes a recent flap in the Golden State prosecution where defense attorneys were ordered by the judge in that case to explain why their motion to dismiss contained “numerous false statements” about the charges.
“As a threshold matter, the Court should strike the defendant’s motion because it contains multiple misrepresentations of the record,” the special counsel’s filing reads. “The defendant has failed to correct even the blatant false statements that prompted the district court in the Central District of California to issue a Show Cause Order as to why defense counsel should not be sanctioned for making misrepresentations to the Court.”
The motions in question incorrectly claim Weiss “sought Special Counsel status before bringing any charges” against Biden. Several permutations of this ahistorical argument. In June 2023, Biden was charged by a criminal information when Weiss still served as U.S. Attorney for the District of Delaware. Later, when Weiss was appointed special counsel, the charges were leveled by way of a formal indictment.
In a reply to that California contretemps, the defense insisted they did not mean to mislead anyone and, instead offered to change the words “charges” to “indictments.”
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The special counsel bristled at the defense’s suggested fix.
“[T]he statements would still misleadingly suggest that United States Attorney Weiss failed to take action against the defendant until after he became special counsel,” the Thursday motion reads. “That is patently incorrect.”
Weiss, however, is not content to focus on those ancillary issues. The government’s motion also takes stock of the merits.
“This Court has already held that Special Counsel Weiss was lawfully appointed and funded and the defendant does not even attempt to meet the requirements for a motion for reconsideration — which is all this is,” the motion goes on. “In any event, Special Counsel Weiss lawfully initiated this case as the duly appointed United States Attorney in this district — something the defendant does not even dispute — and he plainly had the authority to continue to prosecute the case, even after the Attorney General conferred additional authority upon him as special counsel.”
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Echoing legal arguments that won the day for Trump in Southern Florida, the presidential son’s legal team disputed Weiss’ authority because the “office of a Special Counsel” was not “established by law.”
The special counsel flatly rejects the argument that swayed Judge Cannon — imploring the Delaware judge to reject it as well.
And, Weiss says, the argument is far from novel.
From the motion:
The defendant misleadingly suggests that these arguments were “only recently addressed” by Justice Thomas’s solo concurrence in Trump v. United States, and a Florida district court in United States v. Trump. To the contrary, others have been making these same arguments for years.
If the government wins this battle, that would, in fact, be the second time the court was unmoved by Appointments Clause arguments.
“This overly formalistic argument defies common sense, the plain text of the statutory provisions cited in the Special Counsel’s appointment order, and longstanding precedent,” Weiss argues. “The defendant provides no basis for this Court to deviate from its prior ruling upholding Special Counsel Weiss’s appointment and funding, and it should reaffirm the validity of Special Counsel Weiss’s appointment.”
In June, Hunter Biden was convicted of felony gun crimes in the case out of his native Delaware. He still faces a tax crimes trial in California.
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