Hunter Biden asked a judge on Monday to dismiss the gun-related case against him in Delaware, claiming David Weiss was unlawfully appointed special counsel, among other arguments.
Biden’s defense attorneys also argued in the slate of new filings that the charges against their client were unconstitutional, that Biden was protected by a diversion agreement he signed in the summer, and that the prosecution itself was vindictive.
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The dismissal motions offered the fullest look yet at the defense arguments Biden’s defense team would use to fight the gun-related indictment in court if his case goes to trial. They came just days after Weiss hit Biden with a tax-related indictment in California.
Defense attorneys argued that Weiss, the Delaware U.S. attorney who has been leading the investigation into the first son for five years, is not a legitimately appointed special counsel. They claimed that a DOJ policy requiring special counsels to come from outside the U.S. government “flatly precluded” Weiss from serving in the role because he was the U.S. attorney in Delaware when Attorney General Merrick Garland designated him as a special counsel in August. The Biden defense lawyers also claimed that because Congress has not appropriated funds specifically for Weiss’s role, his special counsel authority is not valid.
In a second motion to dismiss the case, Biden’s attorneys cited the Supreme Court’s decision in New York State Rifle & Pistol Association, Inc. v. Bruen, as well as a case decided by a lower court more recently using the Bruen framework. In their Bruen decision last year, justices laid out a new legal test courts must use to determine the constitutionality of gun laws, requiring any restrictions on Second Amendment rights to fit into the “historical tradition” of firearms laws.
In September, Weiss brought a three-count indictment in Delaware against Biden alleging that in October 2018, the first son lied on a federal gun form by falsely claiming he was not addicted to drugs so that he could purchase a revolver. Biden has pleaded not guilty to the charges.
“Quite simply, asking about Mr. Biden’s status as a user of a controlled status is constitutionally irrelevant to whether he can be denied his Second Amendment right to gun ownership,” defense attorneys wrote in one of the motions to dismiss the charges.
In a third motion, Biden’s defense team also continued to assert its position that a pretrial diversion agreement filed in conjunction with a plea agreement in the summer gave the first son broad immunity protections. U.S. District Judge Maryellen Noreika raised concerns about the plea agreement, leading to its collapse in July.
The diversion agreement allotted a probationary period that would allow Biden to avoid one felony related to the gun purchase, while the plea agreement addressed the unrelated tax portion of Biden’s prosecution.
Noreika did not sign off on the plea agreement, but Biden’s attorneys argued on Monday that the diversion agreement accompanying the plea agreement did not require a judge’s signoff and that because both Biden and Weiss signed it, the diversion agreement effectively addressed Biden’s alleged gun crimes regardless of the fate of the plea deal.
Weiss has argued that the diversion agreement is not in effect because the court did not OK it.
As a fourth matter, defense attorneys argued that the evidence of a vindictive prosecution is so glaring that it is “on steroids.”
Vindictive prosecution motions are rarely granted, but Biden’s defense team argued in a 69-page motion that Weiss made a “high-profile flip-flop” and caved to pressure from Republicans to prosecute Biden, whose father, a Democrat, is president and running for a second term.
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The charges against Biden in Delaware carry a maximum sentence of 25 years in prison, but the penalty if he were convicted would likely be far lower than that based on sentencing standards.
Weiss has until mid-January to respond to the motions to dismiss.
