Hunter Biden wants gun and tax cases tossed, citing Trump dismissal challenged by President Biden's DOJ

Hunter Biden has asked for criminal cases against him in Delaware and California to be thrown out of court, citing the dismissal of a case involving former President Trump and arguing that Special Counsel David Weiss was illegally appointed.

Biden's lawyers are requesting that both federal cases be thrown out. He was convicted last month on three felony charges related to a handgun purchase in 2018, and a case in California about alleged federal tax crimes is ongoing. 

Biden’s attorneys are arguing that Special Counsel David Weiss was illegally appointed because he was not Senate-confirmed as special counsel. This is the same issue that resulted in the case against Trump over the handling of classified documents thrown out. Both men were prosecuted by special counsel appointed by Attorney General Merrick Garland.

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In the Trump case, Judge Aileen Cannon found that the appointment of Special Counsel Jack Smith was unconstitutional because he was appointed by Garland and not confirmed by the Senate, violating the Constitution’s Appointments Clause. The Department of Justice said this week it is appealing that ruling. A spokesperson for Smith had previously said that "the dismissal of the case deviates from the uniform conclusion of all previous courts to have considered the issue that the Attorney General is statutorily authorized to appoint a Special Counsel," and that the Justice Department has authorized the Special Counsel to appeal the court’s order.

In the Hunter Biden case, circumstances are different because Weiss was Senate confirmed as U.S. attorney in Delaware, but Biden’s attorneys are arguing that since Trump’s case was dismissed, so should theirs.

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"Based on these new legal developments, Mr. Biden moves to dismiss the indictment because the Special Counsel who initiated this prosecution was appointed in violation of the Appointments Clause as well," the request says.

"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 said.

It means that President Biden’s son is trying to get cases thrown out using a ruling that helped Biden’s presidential rival, and a ruling that is currently being challenged by the Department of Justice.

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While the recent decision from Cannon in the Trump case may be persuasive, it is also not binding because it took place in a different federal jurisdiction. But if the motion to dismiss is decided in Biden’s favor, it also benefits Trump, as his team will have another argument to make as they make the case that the Smith appointment was unlawful.

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Biden’s team has requested an Aug. 5 hearing for the motion.

Fox News' Bill Mears, Lee Ross, David Spunt, Jake Gibson, Brooke Singman and the Associated Press contributed to this report.