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).
Ever since Justice Clarence Thomas wrote a solo concurrence in the Trump v. United States immunity case and inspired Judge Aileen Cannon to throw out Donald Trump’s Mar-a-Lago indictment on Appointments Clause grounds, Hunter Biden’s defense has embraced the rationale to challenge the validity of special counsel David Weiss’ cases against him, whether the California tax case that has yet to go to trial or the Delaware felony gun case that is in post-conviction status.
On Tuesday, Biden’s lawyers once again lauded the argument that “nothing” special counsel David Weiss has done in that “capacity” is “valid,” urging U.S. District Judge Maryellen Noreika to decide on the merits whether she agrees with Thomas and Cannon — and dismisses the gun indictment for lack of jurisdiction — or whether she agrees with Weiss and allows the case to proceed toward sentencing in November.
The defense began by accusing Weiss and prosecutors on his team of “bend[ing] over backward” in a “telling” way to argue against Noreika’s consideration of the issue of the special counsel’s authority.
Last week, Weiss asserted that Biden’s motion was not only belated, considering that a jury of his peers has already found President Joe Biden’s son guilty in June of felony gun acquisition and possession charges, but should also be stricken for containing the same “misrepresentations of the record” and “blatant false statements” about the charging history of the case that incited the ire of the tax case judge in recent weeks.
The Biden motions said Weiss “sought Special Counsel status before bringing any charges” against Biden.
U.S. Attorney General Merrick Garland appointed Weiss as special counsel after U.S. Attorney Weiss charged Biden by information in Delaware with misdemeanor tax offenses and for possessing a gun while being an unlawful user of or addicted to drugs, as part of a plea and diversion agreement. After the agreement fell apart, Biden was indicted on the West and East Coasts by special counsel Weiss. While Biden went on to be convicted of felony charges in the gun case after a trial in Delaware, the tax prosecution has yet to reach trial California.
That aside, Weiss reminded Noreika that she already held he was “lawfully appointed and funded” as special counsel.
More Law&Crime coverage: Special counsel urges judge to reject Hunter Biden’s ‘misleading’ motion to dismiss that aims to piggyback on Trump’s recent victory in Mar-a-Lago case
Biden’s defense has now countered that Weiss’ resistance to a merits decision “signals to the Court that his position lacks merit” and ignores “literally true” other claims that “political pressure” was what led to scuttled agreement and the ensuing indictments.
The defense maintains that Biden has “good cause” to make the post-conviction challenge of the special counsel’s authority “based on the recent opinions by Justice Thomas and Judge Cannon.”
“The Special Counsel has little to say in response, beyond that the arguments that those judges found persuasive had been raised in other cases years earlier,” the filing said, arguing that Weiss cannot argue Biden belatedly made this Appointments Clause argument since the Thomas and Cannon opinion came after the jury verdicts.
“Mr. Biden did not raise this argument before because it appeared foreclosed by the very prior decisions the Special Counsel cites, but Justice Thomas’s recent opinion explained how the claim is viable now that the law has evolved and Judge Cannon agreed,” the reply said. “The fact that Mr. Biden could have seen that the argument had been raised—and rejected—before trial is hardly a reason why he should have repeated a rejected argument then.”
More Law&Crime coverage: Hunter Biden says special counsel is taking ‘unnecessary detour’ to create ‘mini-trial’ echoing ‘false allegations of foreign wrongdoing’
“It is only the recent opinions explaining why the argument has vitality under more modern conceptions of the Appointments Clause that we now see why those prior precedents are wrong. That is what provides good cause to raise the argument now,” the defense continued. “As with other issues, Appointments Clause law is evolving, and the Court should weigh in on the changes.”
Biden’s lawyers said it’s “quite simply up to” Noreika to decide if “the office of Special Counsel must be established by Congress before the Attorney General can appoint anyone to fill it,” writing that Cannon “properly” rejected special counsel Jack Smith’s arguments against the Trump case dismissal.
“Mr. Weiss can have two hats, but the one he wore when he sought and filed the Indictment in this case says ‘Special Counsel,”” the defense said, agreeing with Thomas and Cannon’s logic that because Congress “never authorized the creation” of the Special Counsel’s Office, “nothing Mr. Weiss did in that capacity was valid.”
In addition to the above, the defense insisted that their description of the charging history of the case was “literally true.”
“[T]he Special Counsel is incorrect in claiming Mr. Biden made a false statement in his motion by stating: ‘This prosecution (and another in California) did not occur until after unprecedented political pressure was brought to forego an agreed-upon resolution of a four-year investigation,’” the filing said. “The statement is literally true. A prosecution does not begin until an indictment is filed, and the Indictments against Mr. Biden were all filed by the Special Counsel and only after ‘unprecedented political pressure’ was indeed brought.”
Colin Kalmbacher contributed to this report.
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