Back-to-back rulings against Hunter Biden pave way for June gun trial
By Marshall Cohen, CNN
(CNN) — Hunter Biden’s latest attempts to throw out his federal gun case were rejected in back-to-back rulings Thursday, teeing up a high-stakes criminal trial next month in Delaware.
The president’s son had asked the 3rd US Circuit Court of Appeals to dismiss the charges by overturning prior decisions from the trial judge that let the case move forward. But the appellate panel instead rejected Hunter Biden’s appeals, which related to his defunct plea deal and his claims that the case was tainted by political bias.
Hours later, the trial judge, Maryellen Noreika, rejected Hunter Biden’s remaining motion to dismiss the case based on Second Amendment grounds.
The rulings pave the way for the first-ever trial against the child of a sitting US president. They’re also a victory for special counsel David Weiss, who is prosecuting Hunter Biden in two separate criminal cases and is fending off aggressive pushback from his lawyers.
With the gun case intact, Hunter Biden now faces a legally and politically perilous summer, with back-to-back trials while his father focuses on the 2024 campaign. The gun trial is slated to begin in early June unless the parties reach a plea deal or some other agreement to resolve the case, which is always possible. A separate tax trial is scheduled to begin in late June.
“In reviewing the panel’s decision, we believe the issues involved are too important and further review of our request is appropriate,” Biden’s lawyer, Abbe Lowell, said in a statement about the appeals court ruling, suggesting that he may ask the full Philadelphia-based 3rd Circuit to rehear the appeal.
Prosecutors claim Biden illegally purchased and possessed a revolver in 2018, which violated federal law because he was using illicit drugs at the time. He has pleaded not guilty to all three felony counts.
His attorneys have argued that the charges trample his Second Amendment rights and that “possessing an unloaded gun for 11 days was not a threat to public safety.”
Noreika, a Trump appointee who was confirmed with wide bipartisan support in the Senate, refused to dismiss the gun indictment last month. She also previously presided over Hunter Biden’s botched plea deal hearing last summer.
Hunter Biden is also facing a federal tax indictment, and that trial is slated to begin in late June in California. He has pleaded not guilty to all nine charges in that case, which revolves around millions of dollars he made in Ukraine, in China and through other overseas deals.
Appeals court loss
Weiss’ team successfully argued that the appellate court didn’t have jurisdiction to review whether Noreika made any mistakes earlier this year while rejecting Hunter Biden’s motions to dismiss the gun case.
“This appeal is dismissed because the defendant has not shown the District Court’s orders are appealable before final judgment,” the three-judge appellate panel wrote in a four-page ruling.
They turned away his attempts to review lower-court decisions about the legality of Weiss’ appointment and whether last year’s botched plea deal – which would’ve resolved the case – was still active.
In rejecting his appeal Thursday, the 3rd Circuit panel said those types of deals with prosecutors “do not implicate a right not to be tried” and wouldn’t give Hunter Biden additional avenues to pursue appeals.
The decision was unanimous and based on procedural grounds. The three-judge panel included one Republican appointee and two Democratic appointees, including Judge Cindy Chung, who was put on the bench by President Joe Biden.
Further, the ruling could make it harder for Hunter Biden to appeal his loss in the Second Amendment challenge, which Noreika rejected Thursday.
Second Amendment challenge
Hunter Biden’s attorneys argued the three gun charges should be tossed out because the firearm-possession statute used against him violated the Second Amendment of the US Constitution.
The specific statutes involved in the case make it a crime to lie on federal firearm forms about using illicit drugs, and also make it illegal to own a gun while using those drugs.
Hunter Biden’s attorneys, citing a recent decision from the 5th Circuit – which does not cover the state of Delaware, where he was charged – argued that under the Second Amendment, an individual “can no longer be denied gun ownership due simply to past drug use.” But the trial judge disagreed in her ruling Thursday.
“The current state of the law on the facial constitutionality of (the statute) is decidedly not in Defendant’s favor,” Noreika wrote. “No appellate court has agreed with his position, and possibly only one district court has found (the statute) unconstitutional on its face. This Court ultimately sides with the great majority of cases upholding the facial constitutionality of (the statute).”
In the 5th Circuit case, US v. Daniels, the conservative-leaning appeals court said the federal gun law that prohibits users of illegal drugs from possessing firearms was unconstitutional. In reaching that conclusion, the appeals court cited a landmark 2022 Supreme Court decision that changes the framework that lower courts must use when analyzing gun restrictions.
Prosecutors handling Hunter Biden’s case have called the 5th Circuit decision “mistaken.” They also noted Hunter Biden’s own admission to using illicit drugs while he allegedly purchased and possessed a revolver in 2018.
Discovery dispute
Noreika on Thursday also rejected an attempt by Hunter Biden to obtain internal Justice Department documents that could shed light on any attempts by former President Donald Trump and his appointees to interfere with the long-running criminal investigation.
As part of an effort to find evidence that Hunter Biden was being politically targeted, his attorneys asked for any documents about him that involved Trump, former Attorney General Bill Barr, other top Justice Department officials or several US attorneys.
But the judge turned down that request Thursday. She previously rebuffed Hunter Biden’s bid to throw out the case because of the supposed politicization, noting that even though Trump did call for Hunter Biden’s prosecution while he was president, the charges were filed under President Joe Biden’s watch and with oversight from Biden’s appointees.
“Defendant has failed to show how any of the requested communications among former DOJ and Executive Branch officials could constitute exculpatory evidence as applied to him and the three firearm-related offenses being pursued here,” Noreika wrote Thursday.
This headline and story have been updated with additional developments.
CNN’s Holmes Lybrand and Devan Cole contributed to this report.
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