Left: Hunter Biden (AP Photo/Manuel Balce Ceneta). Center: Alexander Smirnov in a courtroom sketch (William T. Robles via AP). Right: Special counsel David Weiss (AP Photo/Matt Slocum).
The indicted former FBI informant accused of cooking up false bribery allegations against President Joe Biden and Hunter Biden tore a page from the dismissal of Donald Trump’s Mar-a-Lago prosecution to argue that special counsel was unlawfully appointed, and now David Weiss has responded — in much the same way as he did when opposing the arguments of the president’s son.
The defense for Alexander Smirnov, headed up by Robert Durst attorney David Chesnoff, and Hunter Biden both agree that U.S. District Judge Aileen Cannon’s Appointments Clause-based — and Justice Clarence Thomas-inspired — dismissal of Trump’s classified documents case should be fatal to Weiss’ cases, whether the false statements and obstruction case against Smirnov or the tax and felony gun acquisition and possession prosecutions of Biden.
In mid-July, Chesnoff directly cited the Cannon dismissal and the “comparable” Biden cases to argue that Smirnov’s prosecution “is not legally authorized” and violates the Constitution’s Appointments Clause and Appropriations Clause, the latter an unlawful funding claim.
Smirnov is accused of fabricating claims that the Bidens were bribed by executives of the Ukrainian gas company Burisma while Joe Biden was vice president of the United States and Hunter Biden was a member of Burisma’s board to orchestrate the firing of former Ukrainian Prosecutor General Viktor Shokin and stave off a criminal probe.
According to the DOJ indictment, Smirnov “had contact with executives from Burisma in 2017, after the end of the Obama-Biden Administration and after the then-Ukrainian Prosecutor General had been fired in February 2016, in other words, when Public Official 1 [Joe Biden] had no ability to influence U.S. policy and when the Prosecutor General was no longer in office.”
“In short, the Defendant transformed his routine and unextraordinary business contacts with Burisma in 2017 and later into bribery allegations against Public Official 1 [Joe Biden], the presumptive nominee of one of the two major political parties for President, after expressing bias against Public Official 1 and his candidacy,” the indictment continued. “When he was interviewed by FBI agents in September 2023, the Defendant repeated some of his false claims, changed his story as to other of his claims, and promoted a new false narrative after he said he met with Russian officials.”
Weiss on Monday responded to Smirnov’s attempt to dismiss the above allegations by urging U.S. District Judge Otis Wright II to side with the judges in Hunter Biden’s tax and gun cases and uphold the lawfulness of the special counsel’s appointment — because Weiss was confirmed by the U.S. Senate as a U.S. attorney in Delaware, unlike “private citizen” special counsel Jack Smith.
“In upholding Special Counsel Weiss’s authority, two courts, including one in this district, have rejected arguments that Special Counsel Weiss’s appointment violated the Department of Justice’s regulations and that his funding violates the Appropriations Clause,” the filing said. “This Court should do the same. The only new argument not presented to those courts is the defendant’s Appointments Clause challenge, but this argument also fails. As United States Attorney for the District of Delaware, Special Counsel Weiss was nominated by the President and confirmed by the Senate, consistent with constitutional requirements.”
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