Judge Cannon’s ruling that Special Counsel Jack Smith’s appointment is unconstitutional could soon have an unexpected beneficiary  — the first son, Hunter Biden. 

Biden’s lawyers yesterday filed a motion in xDelaware District qCourt to dismiss the indictment against their client on the grounds that the special counsel there, David Weiss, is unconstitutionally appointed. Biden carries three convictions relating to the purchase of a revolver in 2018. Biden also faces tax charges in California. 

Now comes Biden to build his own case for dismissal on two unlikely legal authorities — Judge Cannon and Justice Clarence Thomas. The latter, writes Biden’s attorney, Abbe Lowell, raised the “fundamental antecedent question of whether the Special Counsel,” Jack Smith, “was validly appointed.” That surfaced during oral arguments in the case involving presidential presidential immunity, Trump v. United States.

Mr. Lowell explains that “guided by Justice Thomas’ opinion, Judge Cannon dismissed an indictment against President Trump earlier this week because the Special Counsel was unconstitutionally appointed.” Judge Cannon does reference Justice Thomas in her opinion, which found that Mr. Smith, who lacked Senate confirmation or congressional authorization, was invalid.

Biden’s team cite these “new legal developments” to throw into sharp relief Attorney General Garland’s reliance on the “exact same authority to appoint the Special Counsel in both the Trump and Biden matters, and both appointments are invalid for the same reason.” Mr. Weiss was named special counsel in August 2023, the month after a plea agreement before Biden and the government broke down after questioning from Judge Maryellen Noreika.

Messrs. Smith and Weiss, though, are not exactly similarly situated. Mr. Smith, who was prosecuting war crimes at the Hague when he was named special counsel by Mr. Garland, never earned confirmation by the Senate. Mr. Weiss was nominated by Trump and confirmed by the Senate as United States Attorney for Delaware before he took on the role of special counsel. 

Biden, though, contends that Mr. Weiss’s confirmation as a member of the Department of Justice is irrelevant to his position as special counsel. That is because the Appointments Clause ordains that “Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

Justice Thomas suggested, and Judge Cannon ruled, that there is no such “Law” that authorizes the attorney general to appoint a special counsel. Judge Cannon explains that “there can be no valid officer without a valid office.” Mr. Smith argued, unsuccessfully, that a battery of statutes and Supreme Court precedent that appears to suggest the attorney general can appoint subordinate prosecutors provides ample ballast for his assumption of the position. 

Mr. Smith will next make those arguments to the United States Court of Appeals for the 11th Circuit, but in the meanwhile his case is dismissed. Now, Biden hopes for a similar outcome. He observes that Congress has, in the past, provided for special counsels, as when one was appointed to investigate the Teapot Dome scandal under President Harding. Independent counsels were provided for between 1978 and 1999. 

As special counsels, Messrs. Smith and Weiss share a significant advantage of garden variety United States attorneys — they can charge across multiple jurisdictions. And both have done so, with Mr. Smith aiming to try Trump in Florida and the District of Columbia, and Mr. Weiss charging Biden fils of crimes in Delaware and California. Judge Cannon rejected that expansion of power without corresponding statutory authority 

Mr. Lowell contends that it “makes no sense to assume that Congress would allow the Attorney General to unilaterally appoint someone as Special Counsel with equal or greater power” than a United States Attorney. He also follows Judge Cannon’s ruling in asserting that the appointment of an unauthorized special counsel violates not only the Appointments Clause, but also the Appropriations Clause.

That passage ordains that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Congress provided the DOJ with funds for “independent counsels,” but Mr. Lowell maintains that Mr. Weiss lacks independence in two senses. First, when named special counsel he was already a member of the Justice Department — the brief calls him an “insider.” 

Mr. Lowell also argues that because Mr. Weiss’s appointment was defective, he can’t be lawfully funded. Mr. Smith, though, contended  that “independent” in the appropriation merely means possessing the independent judgment required of all prosecutors. That did not persuade Judge Cannon.

Biden’s motion could ultimately be decided not on the merits, but on the basis of timing. The first son has already been convicted in this case. Mr. Lowell acknowledges that it would have been “preferable” to file this motion sooner, but he cites the “evolving state of separation of powers law on this very topic.” He also notes that the “defects raised here were only recently addressed by Justice Thomas … and by Judge Cannon.”