A federal judge in California will soon decide the fate of Special Counsel David Weiss’s prosecution of Hunter Biden for allegedly failing to file and pay his taxes between 2016 and 2019, when he was actively addicted to drugs, cavorting with prostitutes, and raking in millions of dollars from overseas business deals. Biden’s lawyers will face the jurist at Los Angeles on Monday and argue that Mr. Weiss was illegally appointed to his position of special counsel, and has no standing to bring the case against the first son. 

Biden has already been convicted on three charges related to his drug use at the time he bought a gun in 2018 — charges that Mr. Weiss also brought, but in both men’s home state of Delaware. The trial for failing to pay taxes is due to begin in earnest on September 9, though that could change if Judge Mark Scarsi sides with the first son’s lawyers. 

The defense attorneys draw their argument from two deeply conservative jurists on the opposite coast — Justice Clarence Thomas and Judge Aileen Cannon. In the presidential immunity case earlier this month, Justice Thomas raised, in a concurring opinion, the prospect that Special Counsel Jack Smith may have been appointed to his post illegally. Just two weeks later, Judge Cannon — who is overseeing Mr. Smith’s prosecution of President Trump for allegedly improperly retaining classified documents — dismissed the indictment based, in part, on Justice Thomas’s concurring opinion. 

Biden’s attorneys say the same rule should apply to Mr. Weiss and therefore to him. 

“On July 1, 2024, in Trump v. United States, which concerned former President 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,” Biden’s attorney, Mark Geragos, writes in a filing to Judge Scarsi. “Guided by Justice Thomas’ opinion, Judge Cannon dismissed an indictment against Mr. Trump this week because the Special Counsel was unconstitutionally appointed.”

Mr. Geragos argues that the Constitution’s Appointments Clause was violated because Mr. Weiss was summarily appointed to his position by Attorney General Garland. Mr. Weiss had been nominated by Trump and confirmed by the Senate to his position as Delaware’s United States attorney in 2018. 

“The Appointments Clause requires the President nominate and the Senate confirm principal officials of the United States, but the positions of inferior officials ‘established by Law’ may be filled through appointments by the President or the heads of departments,” Mr. Geragos writes, arguing that Mr. Weiss received no such approval from the Senate in becoming special counsel, and that no existing law permits his appointment. 

Mr. Geragos argues that the prosecutor for the district where Biden is being prosecuted, Martin Estrada of the Central District of California, is being supplanted by a hand-picked lawyer from the opposite coast. Mr. Geragos cites that Mr. Estrada himself declined to participate in the prosecution as evidence of the charges not only lacking substantive merit, but standing before a district court judge. 

In response to the motion to dismiss the indictment, Judge Scarsi made no hint as to how he may rule, though he did admonish Biden’s attorneys for “misinterpreting” the history of Biden’s legal troubles with Mr. Weiss. The first son’s attorneys had erroneously stated that he was never charged by the special counsel, though Biden was preparing to plead guilty to two charges before his so-called sweetheart plea deal fell apart in 2023. 

Mr. Geragos clarified his statements in a response filing, saying that he made his argument “inartfully.”

Mr. Weiss’s line prosecutors — Leo Wise and Derek Hines, who also appeared for the government and won the conviction of Biden at the Delaware gun trial — say Judge Scarsi should not accept Biden’s motion to dismiss. They say the defense’s argument contains “numerous misrepresentations” about the case. 

“This Court has already rejected the defendant’s challenge to Special Counsel Weiss’s appointment and funding,” Messrs. Wise and Hines write. “Another district court in the District of Delaware has done the same. The defendant provides no reason why this Court should deviate from its prior ruling, and indeed, there is no basis for doing so.”

In December, Biden was indicted on nine counts of failing to file and failing to pay his taxes. The indictment claims Biden’s gross income was nearly $8 million between 2016 and 2019, when he was working for overseas businesses and individuals clients, and while he was also actively addicted to drugs and alcohol. 

Biden spent more than half of that money on personal expenses, including more than $1.5 million in cash withdrawals at a time when he was addicted to alcohol and crack cocaine. He also spent nearly $700,000 on payments to “various women,” $400,000 on clothing and accessories, and $300,000 on his children’s tuition. Biden dispersed more than $70,000 for rehabilitation and nearly $200,000 on “adult entertainment.”

He faces four misdemeanor charges of failing to pay his taxes, two misdemeanor charges of failing to file, two felony counts of failing to file, and one felony charge of filing a false return. If convicted, Biden faces up to 17 years in federal prison and a hefty fine.