ATLANTA — President Joe Biden’s son, Hunter, is asking federal judges to dismiss the tax and gun cases against him following the ruling this week that threw out former President Donald Trump’s document case in Florida.
U.S. District Judge Aileen Cannon’s dismissed the classified documents case against Trump on Monday and that decision could possibly upend 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.
Special Council Jack Smith has appealed that ruling. The appeal will now be heard in front of the 11th Circuit Court of Appeals here in Atlanta.
So far, no hearings have been scheduled in the appeals case.
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.
In a pair of filings Thursday, lawyers for Hunter 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 Hunter Biden was convicted in June of three felony charges.
Hunter Biden’s team had raised similar arguments before, unsuccessfully, but they say there’s no good reason to reconsider them. Both of Hunter Biden’s cases are being overseen by judges nominated by Trump. Cannon, the judge who threw out Trump’s case, was also nominated by the former Republican president.
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“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,” Hunter Biden’s lawyers wrote.
They also cited 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 Hunter 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.
A spokesperson for Weiss said they are aware of the filings from Hunter Biden’s legal team and “will respond in due course.”
Hunter Biden faces up to 25 years in prison when he is sentenced in the gun case by U.S. District Judge Maryellen Noreika, though as a first-time offender, he would not get anywhere near the maximum, and there’s no guarantee the judge would send him to prison. She has not set a sentencing date.
The tax case centers on at least $1.4 million in taxes prosecutors say he failed to pay over four years. The back taxes have since been paid.
The long-running federal investigation into the president’s son had looked ready to wrap up with a plea deal last year, but the agreement imploded after a judge raised questions about it. Hunter Biden was subsequently indicted in both cases.
It is unclear with Smith’s appeal moving ahead in the 11th Circuit if it will impact Hunter Biden’s chances of his cases being dropped.
The Associated Press contributed to this article.
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