A panel of judges on the Third Circuit Court of Appeals has allowed the prosecution of Hunter Biden for purchasing and possessing a firearm while actively addicted to drugs to proceed. The first son had asked the appellate court to dismiss charges on the grounds that he was the victim of a vindictive prosecution, among other things. 

Judges D. Brooks Smith, Cindy Chung, and Patty Shwartz — who were appointed to the bench by President George W. Bush, President Biden, and President Obama, respectively — said in a unanimous decision that the first son does not have the right to appeal the orders that denied his motions to dismiss at this time. 

“This appeal is DISMISSED because the defendant has not shown the District Court’s orders are appealable before final judgment,” the three jurists wrote in their opinion released Thursday. 

Mr. Biden had made these three arguments to Judge Maryellen Noreika of the district of Delaware, who is overseeing the gun prosecution brought by Special Counsel David Weiss. Judge Noreika denied all of the motions to dismiss in April. 

 The first son said that a plea agreement he signed with Mr. Weiss was actually still in effect; that he was the victim of vindictive prosecutors and Mr. Weiss was pressured by congressional Republicans; and that Mr. Weiss himself was illegally appointed as special counsel. 

Judge Noreika declined all of those motions to dismiss on the merits. 

“Non-prosecution agreements do not implicate a right not to be tried,” the Third Circuit judges wrote of Mr. Biden’s assertion that he was still immune due to the plea deal. “Therefore, the District Court’s order is not appealable.”

On June 20, 2023, Messrs. Biden and Weiss came to a plea agreement that would have allowed the first son to avoid prison time for failure to make tax filings and tax payments, and that would have put him into a “pretrial diversion” program that would also keep him out of jail for the gun purchase. 

Both Mr. Biden’s lawyers and Mr. Weiss signed the agreement before Judge Noreika herself refused to accept it, saying that it could be “unconstitutional” due to violations of the separations of powers to have the Article III branch enforce an immunity agreement. The parties also could not agree if Mr. Biden was immune from prosecution for violations of the Foreign Agents Registration Act, which led the judge to dismiss the agreement. 

Mr. Biden also argued that he was the victim of a biased and vindictive prosecution because Mr. Weiss — who was appointed as Delaware’s U.S. attorney by President Trump — was simply doing the bidding of anti-Biden congressional Republicans. Mr. Biden went so far as to compare himself to the murdered princes and princesses of Europe. 

“To be sure, children of politically powerful individuals enjoy great privilege, but they often become the targets of animus for that very reason,” Mr. Biden’s attorney, Abbe Lowell, wrote in a January court filing. “History is replete with children of political figures being abducted and assassinated literally (e.g., murder of Romanov children by Russian revolutionaries) or figuratively (e.g., Odysseus murdering the son of Crown Prince Hector when sacking Troy). Regrettably, political attacks on the children of politicians to harm or influence their parents are not uncommon in America either.”

Judge Noreika says she found no evidence of such “vindictiveness” and promptly denied Mr. Biden’s motion to dismiss the gun charges on those grounds. “This Court has been unable to find any instance where a defendant’s familial relationship to a politically-important person on its own gave rise to a claim of selective prosecution,” she writes. “Even if that were a cognizable claim, however, Defendant has failed to come forward with ‘clear evidence’ that similarly situated individuals have not been prosecuted for comparable firearm-related conduct.”

On Thursday, Judge Noreika scheduled Mr. Biden’s gun trial to begin on the morning of June 3.