A judge in California has rejected Hunter Biden’s bid to dismiss a tax evasion indictment on the grounds that Special Counsel David Weiss was unconstitutionally appointed by Attorney General Garland in 2023. The same argument, made by President Trump, was accepted by a Florida judge, who dismissed the classified documents indictment against the former president on July 15. 

The legal filing was made public late on Monday, as an emotional Hunter Biden was onstage with the rest of the Biden clan at the Democratic National Convention at Chicago. Judge Mark Scarsi — appointed to the bench by Trump in 2022 — said Biden’s motion for dismissal was improper, though the jurist did not rule on the merits of his argument. Judge Scarsi wrote that while Biden’s attorneys made untrue statements in their motion for dismissal that were later remedied, the push for dismissal was still improper on procedural grounds.

“Mr. Biden does not provide any law or argument that even remotely suggests an Appropriations Clause violation raises jurisdictional concerns,” Judge Scarsi writes. “Nor does he offer, and nor has the Court found, any authority for the proposition that an Appointments Clause violation is a defect of jurisdictional significance.”

Biden’s lawyers had argued that the appointment of Mr. Weiss violated the Appointments Clause — which governs Senate approval of executive branch appointments — and the Appropriations Clause — which deals with funding for executive functions — were violated by Mr. Weiss and the first son’s own father’s administration. 

In a dissenting opinion from the Supreme Court, Justice Clarence Thomas had argued that the prosecutor in the case against Trump — Special Counsel Jack Smith — had also been illegally appointed on the same unconstitutional grounds as Mr. Weiss. Mr. Smith’s appointment, Justice Thomas argued, violated the constitutional scheme of presidential appointments and congressional funding. 

That dissenting opinion in Trump v. United States was exercised in force by Judge Aileen Cannon, the South Florida jurist who has been overseeing Trump’s prosecution in the classified documents case. Judge Cannon ruled that Mr. Smith was improperly appointed, thus tossing the indictment altogether. 

Mr. Smith has appealed her decision, which was denounced by Mr. Garland. 

Biden is set to face a jury beginning on September 9 for avoiding paying income taxes on more than $8 million in income from his overseas lobbying and consulting businesses between 2016 and 2019, when he was allegedly trading on his father’s name to make money from foreign entities in Ukraine and Communist China, among other counties. For weeks leading up to the trial, Biden’s attorneys and Mr. Weiss’s prosecutors have been filing competing motions on evidence and testimony admissions. The prosecution wants to draw a simple line from Biden’s profligate spending on drugs and personal expenses to failing to pay his taxes.

In a court filing sent to Judge Scarsi, Mr. Weiss’s lead prosecutors — Leo Wise and Derek Hines — argued that the defense should not be allowed to mention what could be considered sob stories about Biden’s battle with addiction. 

“Nowhere … does he argue that the government’s evidence of the defendant’s partying and drug use while incurring expenses that he later falsely claimed as ‘business’ expenses is inadmissible,” Messrs. Wise and Hines write. “Instead, he argues that the psychological origins of the defendant’s dependency will help de- stigmatize him and asks the Court to adopt an incorrect reading of the ‘rule of completeness’ that would allow him to circumvent the prohibition against hearsay.”

Prosecutors appear to be  worried that the defense will paint a broad picture of Biden’s life as a tragic story, from his mother’s and sister’s deaths in a car crash in 1972 (in which a two year old Biden was gravely injured) to his elder brother’s death from brain cancer in 2015. 

“An opening statement regarding an incident that occurred when the defendant was a toddler which the defense claims caused his addiction more than four decades later would be wholly inappropriate because (as in the firearms trial in Delaware earlier this summer, in which Biden was convicted of lying about his drug use to buy a gun), no witness could testify to it,” the prosecution writes. 

A controversial but widely held theory in behavioral healthcare is that an adult’s addiction has its roots in childhood trauma. Biden’s attorneys could call expert witnesses to make the case that his spiral into drug and alcohol abuse as an adult was rooted in that 1972 car crash that left him motherless, and reignited by the premature, 2015 death of his brother. 

Messrs. Wise and Hines complain vociferously in the filing that Biden’s attorney, Abbe Lowell, had made mention of Biden’s traumatic background in both opening and closing statements at his recent Delaware firearms trial — facts that the presiding judge ruled were irrelevant to the case. 

“The bell simply cannot be un-rung. Defense counsel chose not to introduce any personal history evidence (let alone addiction causation evidence), for instance by not calling James Biden, despite representing he would do so. Indeed, James Biden was sitting in the courtroom during the defense case, but defense counsel never called him,” the prosecutors write of their successful effort to convict the first son. 

James Biden, the president’s younger brother, played a key role in helping the family heal after the car crash. The president’s younger sister, Valerie Biden Owens, who played a similar role, was also present at the gun trial and was also not called as a witness.

Prosecutors added that, “Defense counsel also referenced events in his opening that could never be introduced in evidence, such as the ‘fact’ that the auto accident that killed the defendant’s mother caused his drug use four decades later.”  

If convicted, Biden faces up to 17 years in prison and a hefty fine. He already faces a possible prison sentence in the gun case.