Hunter Biden seeks dismissal of all charges, claims senate-confirmed US Attorney David Weiss ‘unconstitutionally appointed’ as special counsel

The line of reasoning is similar to that in Trump's now-dismissed classified documents case, where his lawyers successfully argued that special prosecutor Jack Smith had been unconstitutionally appointed. However, as the New York Post points out, while Smith was appointed by Attorney General Merrick Garland before being confirmed by Congress, Weiss had already gone through the process and was serving as US Attorney for Delaware when Garland tapped him to oversee Biden's case. It was the fact that Smith had yet to be confirmed that led Judge Aileen Cannon to rule the way she had.

"Mr. Biden brings this motion for lack of jurisdiction to challenge as unconstitutional the appointment and subsequent unlawful funding of these cases," Biden's lawyers wrote in their motion, per the Post and Axios. "Guided by Justice Thomas' opinion, Judge Cannon dismissed an indictment against President Trump earlier this week because the Special Counsel was unconstitutionally appointed. Based on these new legal developments, Mr. Biden moves to dismiss the indictment brought against him because the Special Counsel who initiated this prosecution was appointed in violation of the Appointments Clause as well."

In his concurring opinion during the Supreme Court's 6-3 immunity ruling, Thomas argued that, "by requiring that Congress create federal office 'by Law,' the Constitution imposes an important check against the President – he cannot create offices at his pleasure. If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution."

Weiss has not yet publicly responded to the filing.