WASHINGTON — President Joe Biden’s son, Hunter, asked a federal judge Thursday to dismiss tax and gun cases against him, citing a ruling in Florida this week that threw out a separate prosecution of former President Donald Trump.
The requests in federal court in Delaware and California underscore the potential ramifications of U.S. District Judge Aileen Cannon’s dismissal Monday of the classified documents case against Trump and the possibility that it could unsettle the legal landscape surrounding Justice Department special counsels.
Both Hunter Biden and Trump were prosecuted by special counsels appointed by Attorney General Merrick Garland. In dismissing the Trump case, Cannon ruled that the appointment of the special counsel who prosecuted Trump, Jack Smith, violated the Constitution because he was appointed directly to the position by Garland instead of being nominated by the president and confirmed by the Senate.
Smith’s team has said the Justice Department followed long-establishment precedent — for instance, the Trump-era appointment of special counsel Robert Mueller to investigate Russian election interference was upheld by courts — and has appealed Cannon’s dismissal to a federal appeals court in Atlanta.
In a pair of filings Thursday, lawyers for Biden said the same logic should apply in his cases and should result in the dismissal of a pending tax prosecution in Los Angeles — currently set for trial in September — and a separate firearm case in Delaware, in which Biden was convicted in June of three felony charges.
The Biden team had raised similar arguments before, unsuccessfully, but they say there’s now good reason to reconsider them.
“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,” Biden’s lawyers wrote, also citing an opinion this month by Supreme Court Justice Clarence Thomas that questioned the propriety of a special counsel appointment.
“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,” the lawyers added.
Smith and the special counsel who prosecuted Biden, David Weiss, are different in that Smith was hired from outside the Justice Department while Weiss was working as the U.S. Attorney in Delaware at the time of his appointment.
In her ruling, Cannon noted that a special counsel’s powers are “arguably broader than a traditional United States Attorney , as he is permitted to exercise his investigatory powers across multiple districts within the same investigation.”
Biden’s lawyers pointed out Thursday that that’s exactly what happened in his case, as Weiss in his role as special counsel filed cases against Biden in California and Delaware and separately brought charges against a former FBI informant charged with lying about the Bidens.
“Mere U.S. Attorneys do not have that power. Given that Congress requires a U.S. Attorney to be nominated by the President and confirmed by the Senate, it makes no sense to assume that Congress would allow the Attorney General to unilaterally appoint someone as Special Counsel with equal or greater power than a U.S. Attorney,” Biden’s lawyers wrote. “That is what has been attempted here.”
