HomeUSAAppeals Court Rejects Hunter Biden's Bid to Escape Gun Charges

Appeals Court Rejects Hunter Biden’s Bid to Escape Gun Charges

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A three-judge panel on the Third Circuit Court of Appeals has shot down a longshot bid by Hunter Biden’s attorneys to avoid going to trial on federal gun charges, ruling that the requests to dismiss the charges of possessing a gun as an unlawful user of drugs and lying on the Form 4473 about his drug use when he purchased the pistol are premature. 

Biden’s attorney Abbe Lowell used three different avenues to get the case dismissed. First, he argued that the indictment violated a nonprosecution provision in a “diversion agreement” Biden and the government previously signed; one that was ultimately rejected by the federal judge overseeing the case. Lowell also claimed that Biden is being “vindictively and selectively prosecuted” because he’s the president’s son, and sought dismissal under the separation-of-powers doctrine. Finally, Lowell tried to convince the panel that the appointment of special prosecutor David Weiss violated a federal statute requiring special counsels to be “selected from outside the United States Government”, and that the “Special Counsel improperly used an appropriation established by Congress for independent counsel without the requisite independence”. 

That last two arguments are really just a variation of the “political witchhunt” theory that Lowell and Biden have been using for months. The Third Circuit panel didn’t directly address those contentions. Instead, the judges concluded that the “defendant has not shown the District Court’s orders are appealable before final judgment.” 

In other words, Biden can keep making these arguments after the trial concludes if he’s convicted, but they’re not reason enough to throw out the charges before a trial takes place.

Federal prosecutors, though, disagreed with those contentions in court filings, writing in part, “The charges in this case are not trumped up or because of former President Trump — they are instead a result of the defendant’s own choices and were brought in spite of, not because of, any outside noise made by politicians.” 

Weiss also serves as Delaware’s U.S. attorney, a post to which he was appointed by former President Donald Trump. Attorney General Merrick Garland opted to keep Weiss in that position and later appointed him special counsel to carry out the Hunter Biden probe. 

Biden’s trial is expected to take place next month. Will we see a plea deal take place before then? We’ve already seen one offer tendered to him, but after U.S. District Court Judge Maryellen Noreika expressed her concern over the terms, which included broad immunity for Hunter Biden for other potential crimes, the deal fell apart and the gun charges were once again on the table. 

The vast majority of criminal proceedings in this country are resolved by plea bargains, so I wouldn’t be shocked to see Biden accept a deal before the trial begins, especially if it allows him to avoid spending time in federal prison. Whether Weiss will make that offer remains to be seen, but the evidence against Hunter Biden is substantial. 

Lowell has previously suggested that if the case does end up going to trial, he’ll raise a Second Amendment argument in Biden’s defense; challenging the federal statute that prohibits “unlawful users of drugs” from purchasing or possessing a firearm. The Fifth Circuit has already concluded that the statute doesn’t comport with the text, history, and tradition of the Second Amendment in a case called U.S. v. Daniels, but the Supreme Court has not yet decided whether it will grant cert to the government’s appeal. 

The only avenue still open to get the charges dropped before trial means appealing to the Supreme Court, and I highly doubt that a majority of justices are going to vote to dismiss the case when they have the Daniels case pending in conference. Suppose they end up rejecting the DOJ’s appeal in Daniels and allow the Fifth Circuit decision to stand. In that case, the chances that SCOTUS would dismiss Hunter Biden’s case might improve a little. Still, my guess is that SCOTUS will end up granting review in Daniels, or at least remand the case back to the Fifth Circuit after it issues its decision in U.S. v. Rahimi; another case dealing with prohibited persons that has already been argued before the Court. 

At this point, all signs point to Biden either taking a deal from Weiss or going to trial, in which case we’ll soon be treated to the fascinating sights and sounds of the president’s son (or at least his attorney) arguing that dad’s DOJ policy is violating Hunter’s Second Amendment rights. I wouldn’t pop the popcorn just yet, but we could see a legal blockbuster centered around our right to keep and bear arms play out this summer in a Delaware courtroom. 

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