Hunter Biden is seeking to have the charges against him thrown out, asking a higher court to rule that last year’s plea bargain — which Speaker McCarthy called “a sweetheart” deal — be enforced. The deal with federal prosecutors, which would have allowed him to avoid jail time, collapsed under scrutiny, and he was then charged with multiple felonies on both coasts for tax evasion and lying about his drug use in order to buy a gun. 

In a court filing posted Wednesday, Mr. Biden’s attorney, Abbe Lowell, says that the president’s son “appeals to the United States Court of Appeals for the Third Circuit from this Court’s April 12, 2024 Orders denying Mr. Biden’s motion to dismiss the indictment for violating the immunity conferred by the Diversion Agreement.”

Mr. Lowell also asks the court to answer the question of whether Special Counsel David Weiss was legally appointed and whether the prosecution of Mr. Biden violates the separation of powers statute. 

On April 12, the jurist overseeing Mr. Biden’s gun trial, Judge Maryellen Noreika, ruled that the plea agreement the first son reached with Mr. Weiss was irrelevant, given that she dismissed it last summer. 

At the July hearing in question, the judge asked both the defense and the prosecution if Mr. Biden’s plea agreement for tax charges and pretrial diversion agreement for the gun purchase made him immune from all future criminal charges. The prosecution, which had come under intense public pressure in the months following the announcement of the deal, said he was not immune, while the defense insisted they had reached an agreement with Mr. Weiss’s office that the first son would not be prosecuted for any more crimes in his past. 

This would include violations of the Foreign Agents Registration Act related to the younger Mr. Biden’s business affairs, in which he traded off his father’s name to get money from foreign entities in Ukraine and Communist China, among other countries. 

Judge Noreika asked the lawyers to meet privately to find a solution. When they were unable to do so, she allowed the prosecution to withdraw the agreement from the record. 

“Having received contradictory sworn statements about Defendant’s reliance on immunity, the Court proceeded to inquire about the scope of any immunity. At this point, it became apparent that the parties had different views as to the scope of the immunity provision in the Diversion Agreement,” she wrote in her April 12 opinion after Mr. Lowell argued the agreement was still in effect. 

Judge Noreika said in her opinion that the agreement “never went into effect” and is therefore moot. 

Mr. Lowell also asks the Third Circuit to review his argument that Mr. Weiss was illegally appointed because special counsel regulations require that the appointee come from “outside the government.” Mr. Weiss has been the United States Attorney for Delaware since 2018 and has been investigating Mr. Biden since he took office. 

Judge Noreika says Mr. Lowell’s argument that Mr. Weiss was illegally appointed is not an “available argument” to the defense. 

“This is a criminal matter, and Defendant is a person attempting to rely upon the regulations to create an enforceable substantive (and procedural) right,” she writes. “By its clear terms, the DOJ regulations prohibit Defendant from doing so. He is not entitled to dismissal (or any other remedy) in this case even if the DOJ has violated its own DOJ regulations.”

If convicted on the charges of illegally purchasing a gun while addicted to drugs and lying about it to the federal government, Mr. Biden faces up to 10 years in prison and a six-figure fine. His trial is expected to begin in June. 

His other criminal trial for evading taxes is scheduled for later that month in California. If convicted in that case, he faces up to 17 years in prison.