Hunter Biden’s legal team filed a motion on Thursday to dismiss cases brought by special counsel David Weiss against the president’s son, citing a recent opinion authored by Supreme Court Justice Clarence Thomas.
Biden’s lawyers pointed to Judge Aileen Cannon’s recent dismissal of the classified documents case against former President Donald Trump, where she declared special counsel Jack Smith’s appointment unconstitutional, citing a concurring opinion from Thomas in the Supreme Court’s ruling granting Trump immunity from prosecution for all official acts he carried out while in office, according to a court filing. Thomas had questioned the appointment of Smith to prosecute Trump, arguing that it may “violate our constitutional structure” because Smith was a private citizen who had not been confirmed by Congress or had an office created through legislation.
Biden’s legal team argues in their motion 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.” (RELATED: Judge Dismisses Trump’s Classified Documents Case Based On Jack Smith’s Unlawful Appointment)
Weiss, unlike Smith, was nominated by a president and confirmed by the Senate as a U.S. attorney. Biden’s lawyers argue that the difference between the two is irrelevant.
“The constitutional flaw at the center of the Special Counsel’s appointment is that Congress has not established the office of a Special Counsel,” according to Biden’s legal team.
“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,” the lawyers wrote. “That is what has been attempted here.”
Hunter Biden, son of U.S. President Joe Biden, departs from the J. Caleb Boggs Federal Building on June 10, 2024 in Wilmington, Delaware. (Photo by Anna Moneymaker/Getty Images)
Thomas and Cannon, however, wrote in their opinions that appointment by the Senate is a key consideration when investigating the constitutionality of a special counsel appointment.
“The Appointments Clause sets as a default rule that all ‘Officers of the United States’ — whether ‘inferior’ or ‘principal’ — must be appointed by the President and confirmed by the Senate,” Cannon wrote in her ruling dismissing the charges against Trump. “Upon careful study of the foundational challenges raised in the Motion, the Court is convinced that Special Counsel’s Smith’s prosecution of this action breaches two structural cornerstones of our constitutional scheme — the role of Congress in the appointment of constitutional officers, and the role of Congress in authorizing expenditures by law,” she continued.
Thomas, meanwhile, asserted in his opinion that “a private citizen cannot criminally prosecute anyone, let alone a former President.”
A federal court in Delaware convicted Biden of three felony counts related to his purchase of a handgun while using illicit substances in June. He is also awaiting trial in a federal court in Los Angeles for federal tax crime charges.
Biden’s lawyers are seeking to have his convictions overturned and both cases dismissed, per the court filing.
Biden’s legal team did not immediately respond to the Daily Caller News Foundation’s request for comment.
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