Attorneys representing Hunter Biden have asked a federal judge to dismiss three felony gun charges he faces in Delaware as part of their effort to curb the increasingly fraught legal landscape faced by President Joe Biden’s son.
In a flurry of court papers filed Monday, Abbe Lowell, an attorney for Hunter Biden, offered a series of arguments for dismissing the gun case, claiming that the special counsel was “unlawfully appointed” and therefore lacks the authority to bring charges; that the immunity stipulation in a section of the parties’ ill-fated plea deal remains in effect; and that the gun crimes in question may not be constitutional.
“These charges are unprecedented, unconstitutional and violate the agreement the U.S. Attorney made with Mr. Biden and DOJ’s own regulations,” Lowell said in a statement. “This is not how an independent investigation is supposed to work, and these charges should be dismissed.”
Lowell signaled last week his intention to file a motion to dismiss the gun charges, shortly after special counsel David Weiss brought nine additional tax-related charges against Hunter Biden in California.
Weiss’ office filed the gun-related charges in September, shortly after Attorney General Merrick Garland elevated him to special counsel.
The conduct described in charging documents dates to October of 2018, when Hunter Biden procured a gun despite later acknowledging in his memoir, “Beautiful Things,” that he was addicted to drugs around that time.
According to prosecutors, Biden obtained a Colt Cobra 38SPL revolver and lied on a federal form about his drug use. Biden owned the firearm for eleven days and never fired it, his attorneys noted.
Hunter Biden, son of U.S. President Joe Biden, departs federal court after a plea hearing on two misdemeanor charges of willfully failing to pay income taxes in Wilmington, Delaware, July 26, 2023.
Jonathan Ernst/Reuters
And while the statute cited by prosecutors is clear — it is a crime to lie on a gun application form or to possess a firearm as a drug user — legal experts have said prosecutors could face headwinds. A federal appeals court in New Orleans recently ruled that drug use alone should not automatically prevent someone from obtaining a gun. That ruling is not binding, since the Fifth Circuit does not cover Delaware.
Lowell cited the case in his motion to dismiss on Monday.
“While Congress could criminalize gun possession from someone who was actively intoxicated, or perhaps someone who at least actively had a controlled substance in their body, a prohibition on gun ownership by anyone who had at some time used a controlled substance is constitutionally overbroad,” Lowell wrote.
Weiss, previously a Trump-appointed U.S. attorney in Delaware, brokered a deal over the summer with Hunter Biden that would have allowed the president’s son to avoid prison time in exchange for a guilty plea on misdemeanor tax charges and a diversion agreement on one felony gun charge. But the deal fell apart after a judge took issue with the structure of the arrangement.
Biden’s team on Monday claimed that the new charges “violate” the terms of the diversion agreement, arguing that prosecutors are trying to “backtrack and renege” on their deal.
“No matter how much external criticism the prosecution may face for proposing, drafting and signing this Agreement, it is too late for it to now disclaim its commitments under the Agreement that it struck,” the filing states.
Among the documents filed Monday is a declaration from Christopher Clark, the attorney who negotiated the ill-fated plea deal with Weiss’ office.
In the declaration, Clark described the painstaking negotiations over language in the immunity provision of the deal, saying that prosecutors assured him that there were no other pending probes of Hunter Biden aside from the tax and gun cases.
“[Prosecutors] proposed saying that the investigation would be ‘resolved’ rather than ‘concluded,'” Clark wrote. “I then asked her directly whether there was any other open or pending investigation of Mr. Biden overseen by the Delaware U.S. Attorney’s Office, and she responded there was not another open or pending investigation.”
Clark in his declaration also highlighted the deal’s importance in shielding Hunter Biden from prosecution from a “possible future Trump-led DOJ” — highlighting the possible fear that if Trump were to win back the presidency in 2024, he could seek have Hunter Biden further investigated for the same crimes. As such, Clark said he emphasized that a “critical and essential” aspect of the deal with prosecutors was the “broad immunity provision” that in their view would bring “closure and finality” to the yearslong investigation.
“They did not disagree,” Clark said of the prosecutors regarding that point.
Lowell said Weiss “buckled under political pressure to bring more severe charges,” accusing the special counsel of waging a “selective and vindictive prosecution” by pressing gun charges against the president’s son.
“This is perhaps the clearest of cases of prosecutors making prosecutorial decisions for political reasons, selectively and vindictively prosecuting Mr. Biden based on his familial and political affiliation with his father, the President of the United States,” Lowell wrote.
“Indeed,” Lowell added in a footnote, “if this case is not the one to dismiss for selective and vindictive prosecution and breach of separation of powers, it is unclear what is left of those doctrines.”
Lowell rounded out his arguments by challenging Weiss’ appointment as special counsel, arguing that “Weiss was unlawfully appointed … and Congress has not appropriated funds for the Special Counsel’s investigation or this prosecution,” according to the filing.
“Special Counsel Weiss is not an independent counsel subject to any valid appropriation by Congress,” Lowell wrote. “Accordingly, the Indictment should be dismissed as without proper authority to have been sought and brought.”
Prosecutors have until Jan. 16 to respond to Hunter Biden’s motion to dismiss.
The two cases against Hunter Biden, in Delaware and California, carry penalties that could land him in prison for decades if he is convicted.