Hunter Biden's legal team filed a motion Thursday using Judge Aileen Cannon's recent ruling in Donald Trump's documents case.
On Monday, Cannon agreed to dismiss Trump's case in Florida over the theft of classified documents and other related charges under the guise that special counsel Jack Smith's appointment was unconstitutional. The whole case was dismissed because the special counsel funding was unconstitutional, the judge held.
Legal analysts warned that the decision was likely a gift to Hunter Biden when it was filed.
"I'm sure a lot of viewers are going, but what are you talking about? Special counsel Mueller was a special counsel, and that was upheld. Special counsel Rob Hur, who investigated the current sitting president, Joe Biden. He was able to do that. There is a current special counsel who has prosecuted Hunter Biden and is still prosecuting Hunter Biden," said former Justice Department prosecutor Andrew Weissmann.
Weissmann served on Mueller's team during the Russia probe.
Hur was appointed special counsel and funded in the same way as Smith.
"Mr. Biden brings this motion for lack of jurisdiction to challenge as unconstitutional the appointment and subsequent unlawful funding of these cases," the new filing from Biden says.
The legal team specifically mentions U.S. Supreme Court Justice Clarence Thomas and Trump's motion to dismiss in the filing.
"Before trial, Mr. Biden moved to dismiss the indictment because the Special Counsel was improperly appointed in violation of a Department of Justice regulation and because he relied upon an appropriation that did not apply to the Special Counsel, but the motion Mr. Biden brings now is different and builds on recent legal developments," the Biden legal team continued.
"On July 1, 2024, in Trump v. United States, which concerned former President Donald Trump's immunity claims with respect to an indictment brought by a different special counsel, Justice Thomas filed a concurring opinion raising a more fundamental antecedent question of whether the special counsel was validly appointed under the Appropriations Clause," said the filing. "Guided by Justice Thomas' opinion, Judge Cannon dismissed an indictment against President Trump earlier this week because the special counsel was unconstitutionally appointed."
Thomas' concurrence didn't have any additional signers other than himself, but it was enough that Cannon cited it three times in her ruling to dismiss the Trump case.
Smith has already filed an appeal of the decision to the 11th Circuit Court of Appeals and it's unknown if Biden would do the same to the court overseeing his district. If the two districts disagree, the case could be sent to the Supreme Court, but it likely won't be heard for some time.
