Left to Right: Hunter Biden (AP Photo/J. Scott Applewhite), David Weiss (AP Photo/Alex Brandon), Aileen Cannon (U.S. District Court for the Southern District of Florida), Clarence Thomas (YouTube/Library of Congress).
President Joe Biden’s adult son, Hunter Biden, 54, filed motions to dismiss his federal indictments in Delaware and California by citing the recent dismissal of Donald Trump’s federal indictment in Florida.
Attorneys for the convicted, younger Biden filed the motions on Friday in district courts, arguing that special counsel David Weiss lacks the jurisdiction and authority to have brought the cases.
The two motions are substantially similar — diverging only in their slight references to the charges faced in each particular federal district. In June, Hunter Biden was convicted of felony gun crimes in his native Delaware. He faces extant tax crimes in California.
“Mr. Biden previously moved to dismiss the indictment because the Special Counsel was improperly appointed in violation of a Department of Justice regulation and because he relied upon an appropriation that did not apply to the Special Counsel, but the motion he brings now is slightly different and builds on recent legal developments,” the Golden State dismissal filing reads.
Those developments are two successive, high-stakes pro-Trump rulings by the U.S. Supreme Court and the Southern District of Florida. Chief Justice John Roberts issued a broad grant of presidential immunity to the 45th president; U.S. District Judge Aileen Cannon used a concurrence to that opinion by Justice Clarence Thomas to squelch special counsel Jack Smith’s authority, respectively.
The presidential son’s legal team is sanguine about what those two turns of fortune for Trump might mean for their client.
“Guided by Justice Thomas’ opinion, Judge Cannon dismissed an indictment against President Trump earlier this week because the Special Counsel was unconstitutionally appointed,” the First State dismissal filing reads. “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 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.”
On Monday, the first day of the Republican National Convention, Cannon nixed Trump’s first federal indictment by removing the special counsel’s authority based on a novel interpretation of the U.S. Constitution’s Appointments Clause that had previously been floated by the defendants and in several controversial amicus briefs filed by conservative legal activists. That interpretation subsequently found a high court home in the solo Thomas concurrence.
The younger Biden’s attorneys essayed their own version of the Appointments Clause theory in service of dismissing the indictments.
From each of the motions, at length:
The constitutional flaw at the center of the Special Counsel’s appointment is that Congress has not established the office of a Special Counsel. The Appointments Clause requires the President nominate and the Senate confirm principal officials of the United States,1 but the positions of inferior officials “established by Law” may be filled through appointments by the President or the heads of departments. While there is an open question as to whether the Special Counsel is a principal officer who must be nominated by the President and confirmed by the Senate — which is not how David Weiss was appointed Special Counsel — the Attorney General’s appointment of the Special Counsel as an inferior official fails as well because Special Counsel is not a position “established by Law.”
The motions to dismiss go on to repeatedly quote the Thomas concurrence.
“Before the President or a Department Head can appoint any officer, however, the Constitution requires that the underlying office be ‘established by Law,”” one quote from the conservative jurist reads. “[O]ur Constitution leaves it in the hands of the people’s elected representatives to determine whether new executive offices should exist.”
Hunter Biden’s attorneys also argue the Appointments Clause deficiency in Weiss’ jurisdiction necessarily created an Appropriations Clause deficiency in how Weiss’ office is funded. While this tracks with the analysis employed, at length, by Cannon, the Florida judge ultimately declined to rule on the issue because, she found, the appointment itself was violation enough.
The Delaware dismissal motion also parts ways with the California motion by anticipating criticism over timing issues.
“To be sure, Mr. Biden appreciates that it would have been preferable to have brought this motion before trial, rather than after, but the motion is timely,” the document 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.”
The defense paints the after-the-trial nature filing as necessary in light of the Trump decisions — and for justice’s sake.
Again, the filing, at length:
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. 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. The indictment should be dismissed.
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