On Thursday, Hunter Biden, son of U.S. President Joe Biden, moved to dismiss his criminal conviction on gun charges and a separate tax evasion case, arguing that the special counsel prosecuting him was unlawfully appointed. Biden’s lawyers cited a federal judge’s decision on Monday to dismiss the criminal case against former President Donald Trump for allegedly retaining classified documents after leaving office.
Florida-based U.S. District Judge Aileen Cannon ruled that the appointment of the special counsel in Trump’s case, Jack Smith, violated the U.S. Constitution because Congress had not given him the authority to pursue the case. Smith’s office is appealing the decision. Biden’s lawyers argued in a court filing that “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.”
David Weiss, a different special counsel, secured Hunter Biden’s conviction last month in Delaware federal court on charges that he lied about his illegal drug use to buy a gun. Weiss is also leading a tax case against Biden, which is scheduled to go to trial in September. Biden has pleaded not guilty in that case. A spokesperson for Weiss did not immediately respond to a request for comment.
Biden’s move highlights the potential ripple effects from Cannon’s decision, which limits the attorney general’s ability to appoint a special counsel for politically sensitive investigations, a practice the U.S. Justice Department has used for decades. It also presents an awkward dynamic, as the president’s son relies on a ruling that benefits Trump, his father’s Republican opponent in the upcoming presidential election on November 5.
Biden is likely to face challenges in contesting the special counsel’s appointment because Cannon’s ruling focused on Smith’s lack of prior government service and Senate confirmation. Before being named special counsel, Weiss was confirmed by the Senate to serve as the top federal prosecutor in Biden’s home state of Delaware during the Trump administration. Biden previously challenged Weiss’s appointment on different grounds, but federal judges rejected those efforts in both cases against him.
Another defendant charged as part of Weiss’s investigation, Alexander Smirnov, also moved to invalidate the special counsel’s appointment after the ruling in Trump’s case. Smirnov has pleaded not guilty to charges that he lied to the FBI about having knowledge of a bribe to Joe Biden.
