Emails obtained by the Heritage Foundation following a Freedom of Information Act (FOIA) lawsuit, and shared exclusively with The Federalist, reveal a glaring gap in the documentation maintained by the Delaware U.S. attorney’s office: There is nothing memorializing the authority Attorney General Merrick Garland claims he gave U.S. Attorney David Weiss for the Hunter Biden investigation.
For more than a year, Garland represented to Congress that Weiss held ultimate authority over the Hunter Biden investigation — which the eventual appointment of Weiss as special counsel contradicted. But now there is more evidence — or rather a lack of evidence — indicating the claimed authority was always a charade.
The Friday before the long holiday weekend, the DOJ provided the Heritage Foundation with the second batch of documents it was ordered by a federal court to produce in response to Heritage’s FOIA lawsuit. This installment concluded the DOJ’s production of the non-exempt documents in Weiss’s custody which concerned his authority for investigating Hunter Biden. But none of the documents produced addressed Weiss’s authority or any authority promised by Garland.
Mike Howell, the director of the Heritage Oversight Project and a co-plaintiff in the FOIA lawsuit against the DOJ, stressed the significance of this omission to The Federalist.
“The DOJ lives on paper.” Anything as important as granting Weiss ultimate authority over an investigation or promising to give him authority to bring charges in another venue, if necessary, “would have been written down,” Howell explained. To Howell, this last batch of documents constitutes an admission by Garland that “there was nothing written down at the DOJ and sent to Weiss, indicating Weiss had any of the authority that Garland claimed he did.”
“We’re beginning to understand why Biden’s DOJ is throwing everything and the kitchen sink at us to fight the release of these records in federal court, all paid for by the taxpayers of course,” Howell told The Federalist.
While the DOJ withheld some documents from the production, claiming various exemptions from FOIA, it is difficult to fathom what FOIA exemption would permit the DOJ to withhold a communication granting Weiss the authority Garland publicly discussed on multiple occasions. When asked why Garland had not memorialized his supposed grant of ultimate authority to Weiss, the DOJ did not respond to The Federalist’s inquiry.
The lack of any materials documenting such authority raises more questions about the statements both Garland and Weiss made to Congress. As far back as April 26, 2022, the attorney general told Tennessee Sen. Bill Hagerty that the “Hunter Biden’s investigation … is being run by and supervised by the United States attorney for the District of Delaware,” and that Weiss “is in charge of that investigation.”
Then on March 1, 2023, Garland unequivocally testified before the Senate Judiciary Committee, in response to questioning by Iowa Sen. Chuck Grassley, that “the U.S. attorney in Delaware has been advised that he has full authority … to bring cases in other jurisdictions if he feels it’s necessary.”
Garland maintained that position even after IRS whistleblower Gary Shapley testified that during an Oct. 7, 2022, meeting, “Weiss stated that he is not the deciding person on whether charges are filed.” Specifically, after news broke of the whistleblower’s testimony, Garland said during a press conference that Weiss was assured he could “make a decision to prosecute any way in which he wanted to and in any district in which he wanted to.”
Weiss would later write to Congress to confirm Garland’s position, stating:
I want to make clear that, as the Attorney General has stated, I have been granted ultimate authority over this matter, including responsibility for deciding where, when, and whether to file charges and for making decisions necessary to preserve the integrity of the prosecution, consistent with federal law, the Principles of Federal Prosecution, and Departmental regulations.
After the transcript of Shapley’s testimony was released, however, Weiss would walk back his claims by clarifying that what he meant was that Garland had promised him that he would be granted ultimate authority to make charging decisions — not quite the same thing as having that ultimate authority.
Either way, one would presume that if Garland had granted Weiss full authority over the Hunter Biden investigation and promised to authorize him to file charges in other venues, there’d be some documentation to back up the claim. But there was none in the FOIA production.
Of course, after the sweetheart plea deal — footsied out between one of Weiss’s top assistant U.S. attorneys, Lesley Wolf, and Hunter’s attorneys — imploded, Garland named Weiss special counsel. So the federal prosecutor now has the requisite authority to charge the president’s son in whatever district he wants.
But that belated appointment isn’t a grant of absolution for misleading Congress, which is precisely what appears to have happened. And the documents that weren’t suggest as much.