Friday’s news dump featured an announcement by Attorney General Merrick Garland that he had named Delaware U.S. Attorney David Weiss as special counsel to continue the investigation into Hunter Biden “as well as any matters that arose from that investigation or may arise from the Special Counsel’s investigation.”
While the official appointment order barely filled a page and the attorney general’s accompanying comments provided little additional texture, the news is hugely significant. Here’s how.
1. Why Now?
When news broke that Garland had named Weiss as special counsel, Republicans jumped on the appointment as further proof of a cover-up to protect the Biden family. After all, the House had finally succeeded in uncovering and exposing massive evidence of corruption reaching all the way to the Big Guy, and whistleblowers continue to provide Sens. Chuck Grassley and Ron Johnson further material, including evidence that implicates the Department of Justice in obstructing the investigation.
However, court filings in United States v. Biden from Friday indicate the collapse of Weiss’s plea deal with Hunter Biden spurred the request for special counsel status. The president’s son had appeared before Judge Maryellen Noreika on July 26, 2023, ready to enter a guilty plea on two misdemeanor tax counts. But after questioning by the federal judge on the interaction between the plea agreement and a separate pretrial diversion agreement the parties entered on a gun offense, Hunter Biden pled not guilty and the court continued the hearing, ordering the parties to provide supplemental briefing. Noreika was particularly concerned that the pretrial diversion agreement related to the gun offense included a provision granting wide-ranging immunity to Hunter Biden, whereas normally that provision would be included in the plea agreement.
On Friday, the Delaware U.S. attorney’s office filed a motion with Judge Noreika stating that following the late-July hearing, the parties had entered additional plea negotiations but had “reached an impasse” and that the government now believes the case will not resolve short of trial. And because “venue,” meaning the proper location for a trial, does not lie in Delaware but rather Washington, D.C., or the central district of California, Weiss’s office moved to dismiss the charges against Hunter Biden “without prejudice,” meaning charges could be refiled elsewhere. In fact, in his motion, Weiss noted prosecutors are “considering what tax charges to bring in another district…”
While Hunter Biden had agreed to waive any objection to venue in Delaware as part of the plea agreement, once that deal fell apart, Weiss needed authority to bring charges in D.C. or California because as a Delaware U.S. attorney, his power was limited to that federal district. In naming Weiss special counsel, Garland authorized Weiss to bring criminal charges in any federal district court.
These circumstances best explain the timing for the appointment — but they also expose the impropriety of Weiss handling the investigation of Hunter Biden to this point without special counsel status. The regulations governing the appointment of a special counsel provide that the attorney general “will appoint a Special Counsel” if a criminal investigation “is warranted” and the investigation or prosecution “would present a conflict of interest for the Department or other extraordinary circumstances.”
But there was nothing about the collapse of the plea agreement that should have triggered the appointment of a special counsel: It neither created a conflict of interest nor constituted “extraordinary circumstances” because Weiss could have filed charges in D.C. or California by virtue of another federal statute, 28 U.S.C. § 515. In fact, Weiss had previously discussed with Garland obtaining authority under Section 515 to charge Hunter in another district, with Weiss saying he “was assured that [he] would be granted this authority if it proved necessary.”
That Weiss sought, and Garland approved, the special counsel appointment now thus confirms that a conflict of interest animated the U.S. attorney’s investigation into the president’s son. And since nothing new happened to create that conflict (or extraordinary circumstances), it is clear Garland failed to fulfill his duties as attorney general by refusing to grant Weiss that status years ago.
2. A Contradiction in Everything
Garland’s naming of Weiss as special counsel not only contradicts any earlier claims that there was no need for such an appointment, but it also contradicts nearly everything we’ve been told about the investigation and the DOJ’s role. We were told that Weiss was the ultimate decisionmaker — well, except that he obviously wasn’t or he wouldn’t have needed the appointment. We were told he could take any steps and make any investigative decisions, having ultimate authority over this matter — except now we’re told he is no longer subject to the day-to-day supervision of the Department of Justice.
Either Weiss had that power, or he didn’t. Either he was in charge of the investigation, or he wasn’t. Naming Weiss special counsel confirms everything we’ve been told until now was a farce. And it wasn’t just Garland telling us Weiss was totally in charge — it was also Weiss. Weiss even stuck with that story when contradicted by the IRS whistleblowers who had contemporaneous emails confirming the Delaware U.S. attorney had told upper-level managers on the investigation that he was not the ultimate decisionmaker.
That Weiss gave Garland cover, allowed the DOJ to apparently interfere in the investigation, entered a sweetheart deal with Hunter Biden, and removed the IRS whistleblowers from the investigation renders him incapable of serving as an independent special counsel. The regulations themselves so provide, stating that the “individual named as Special Counsel shall be a lawyer with a reputation for integrity and impartial decisionmaking.” The regulations also provide that the special counsel shall be selected from outside the United States government, although there is no enforcement mechanism and John Durham was also appointed special counsel from within the government.
So while Garland touted the appointment of a special counsel as providing Americans confidence in the integrity of the investigation into Hunter Biden, putting Weiss in that role contradicted every assurance of independence he gave.
3. Weiss Is Just Part of the Problem
Weiss, however, is but part of the problem, as he wasn’t alone in slow-walking the investigation: According to the whistleblowers, others in the office impeded the normal investigative techniques, prevented them from interviewing witnesses and executing search warrants, kept them from asking pertinent questions, and did many other things to interfere in the probe of the president’s son. Weiss also axed the whistleblowers and their elite team of experts who specialized in international money laundering and tax evasion investigations, likely leaving inexperienced or less experienced agents in their place.
So Weiss being in charge is but part of the problem: Also concerning is who is still on his team and who isn’t. That Weiss is continuing to serve as the U.S. attorney for Delaware also suggests he isn’t intending to ramp up the investigation. But even if Weiss plans to move forward with a real investigation, the complexity of the Biden family corruption investigation is likely far beyond his and his local team’s skill set.
Moreover, even under the special counsel regulations, the bottom line is that Weiss still reports to Garland, and Garland’s boss is Joe Biden. Department regulations, which Garland made clear during Friday’s press conference still apply to the special counsel, also prohibit Weiss from investigating a presidential candidate (i.e., Joe Biden) without permission. Under these circumstances, even if Weiss has decided to dust off his reputation, there is no reason to believe he will be free to follow the facts where they lead — since they likely lead to the Big Guy.
4. Impeachment Inquiries Are More Vital Than Ever
Weiss’s appointment as special counsel quickly forced Democrats to change their narrative from “nothing to see here” to “this is all about Hunter Biden and we need to let the process play out.” House Republicans, however, promised to push forward with their investigations and framed the appointment as a delay tactic and a cover-up.
Complaining won’t move the needle, however, and neither will continuing the present investigative trajectory. Rather, the clear conflict of interest prevents the executive branch, even under the title of special counsel, from properly investigating Joe Biden. And the evidence of the president’s complicity in his son’s selling of access overwhelmingly supports an investigation into him. Further, the scandal isn’t just about the Biden family but about the DOJ and FBI and their obstruction of the investigation.
The House needs to launch an impeachment inquiry immediately for Joe Biden, Merrick Garland, and Christopher Wray. There’s a reason the Founding Fathers separated power among the three branches of government, and it’s time the legislative branch flexes its impeachment muscle to undercover the truth.
5. Kudos to Judge Maryellen Noreika
Speaking of the three branches of government, the judicial branch and specifically Judge Noreika deserves accolades for her handling of last month’s plea hearing. If not for Noreika, who was rumored to be on a short list to be named a circuit court judge by President Biden, the Hunter Biden sweetheart plea agreement might have already been a done deal.
Instead of rubberstamping the agreement, however, she quizzed both sides on some of the puzzling aspects of it, such as why the pretrial diversion agreement included the promise of immunity and why she didn’t need to approve the plea agreement. In doing so, however, she never prejudged the case or stated her intent; rather, she asked pointed questions to ensure Hunter Biden was getting the deal he thought he was, and that the government was proceeding appropriately.
That her questions caused the plea deal to blow up suggests there was something amiss, and while the U.S. attorney’s office had no problem trying to push through the agreement, Noreika was a vital check on the executive branch. She may be regretting her approach, though, as she now has a mare’s nest, with Hunter Biden arguing the pretrial diversion agreement remains binding on the government and Noreika forced to wade through some legal issues of first impression.
Her integrity, however, deserves recognition.
6. A Pox on the Legacy Press’s House
On the other hand, the legacy press, which ignored the Biden family scandal for the last three years, merits ridicule. No matter how much evidence the House provided, no matter how many whistleblower complaints Grassley revealed, the corrupt media refused to cover the scandal, other than to spin it as a Republican hoax.
Even now, the press is providing an assist to the president and Democrats by spinning the special counsel appointment as sufficient and the investigation only about Hunter Biden.
Weiss’s appointment is not sufficient, though, although he may very well be only investigating Hunter Biden. It is just further reason for the House to launch its impeachment inquiries stat.