Prosecutors for special counsel David Weiss tore into Hunter Biden in a court response on Monday, accusing the first son of making an untimely request in his tax case that was riddled with misstatements.
The prosecutors said Biden’s request that his case be dismissed was based on “invented deficiencies” with Weiss’s appointment as special counsel and that Judge Mark Scarsi should either deny the request or strike it from the record altogether.
Biden’s defense attorneys had asked Scarsi to reconsider their argument from February that the first son’s nine tax charges should be dropped on the grounds that Weiss was unlawfully appointed to his position. Scarsi denied the request at the time. Weiss argued the new request was “belatedly filed” six months after the deadline.
The defense attorneys claimed that bringing their motion a second time was appropriate in light of a recent concurring opinion from Justice Clarence Thomas about special counsels and Judge Aileen Cannon’s decision to toss former President Donald Trump’s classified documents case on the grounds that special counsel Jack Smith was unlawfully appointed.
Prosecutors countered that Thomas’s concurring opinion questioning special counsel authority and Cannon’s ruling were irrelevant to Biden’s case and that “others have been making these same arguments for years.”
“The government respectfully disagrees with the reasoning in [Thomas’s and Cannon’s] opinions,” prosecutors wrote. “In any event, those cases involved different facts than those here.”
Prosecutors emphasized that, unlike Smith, Weiss was not a private citizen when Attorney General Merrick Garland appointed him as special counsel. Weiss was a Senate-confirmed U.S. attorney, which is a key distinction from Smith, who was never vetted by Congress.
Smith is planning to appeal Cannon’s decision in Florida, and some of the arguments Weiss made in Biden’s case could be similar to what Smith raises despite the Senate confirmation difference.
The prosecutors for Weiss argued that the attorney general has authority under the law to appoint a special counsel.
“The overwhelming majority of courts — including the Supreme Court — have held as much,” prosecutors wrote.
They cited the landmark ruling in United States v. Nixon, in which the Supreme Court held that the attorney general appropriately granted authority to a special prosecutor.
“In Nixon, the Supreme Court recognized that, taken together, these statutory provisions give the Attorney General the power to ‘appoint subordinate officers to assist him in the discharge of his duties,’ including an independent counsel,” prosecutors argued.
When Biden’s defense attorneys made their request, Scarsi identified multiple inaccuracies in it and threatened the attorneys with sanctions if they could not explain the apparent falsehoods and correct their request.
The statements in question involved Biden’s attorneys arguing that Weiss did not attempt to prosecute the first son until after Weiss was appointed special counsel. In reality, Weiss first brought charges against Biden in June 2023, when Weiss was still a U.S. attorney. Because of a collapsed plea deal, Weiss became special counsel in August that year and presented the charges to a grand jury to indict Biden in December.
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Biden’s attorneys said they have “never tried to mislead” about the earlier charges and issued a corrected motion to dismiss, but Weiss said that the revised request still contained “numerous misrepresentations.”
A hearing on Biden’s special counsel argument is set for next week, and the trial is scheduled to begin Sept. 9.