This issue has been percolating a bit in the background, but there were so many reasons to criticize Merrick Garland’s appointment of David Weiss as Special Counsel in the investigation of Hunter Biden’s numerous crimes that few people have focused on the fact that the appointment doesn’t appear to be consistent with the law authorizing special counsels.
As with everything having to do with the Hunter Biden investigation, it’s a complicated mess. It is messy legally, messy politically, and stinks of corruption.
Alan Dershowitz did a bit of a dive into the legality of the appointment, and it mostly/sorta answers the question regarding whether Weiss’ appointment meets the requirement of the law. In short, it doesn’t.
When Attorney General Merrick Garland announced that he was appointing David Weiss as special counsel, he failed to mention § 600.3(c) of the Code of Federal Regulations entitled “Qualifications of the Special Counsel.” These qualifications include the following: “The special counsel shall be selected from outside the United States government.” (Emphasis added)
This requirement is the law. The regulations were authorized by Congress under 5 U.S.C. 301, 509, 510, 515-519. The attorney general is the chief law enforcement officer of the United States. It is certainly expected that he would obey the law in its entirety.
Not following the law is particularly on brand for this Administration, which likes to high-mindedly declare that “nobody is above the law” in the moments before they run roughshod over it, either in service of doing something illegal or covering up some illegalities committed by a Biden.
There of course was a practical rationale one could use as an excuse for the unusual appointment, and a different practical rationale for why Garland would want Weiss in charge of the investigation.
The first, public rationale is easy to understand: somebody new would have to start over, while Weiss has years invested in this investigation. This has a surface plausibility, although it overplays the role of Weiss in the actual day-to-day work. Weiss is, after all, a US Attorney whose role in the investigation was mostly managerial and a small subset of his larger job. It was his underlings who did the heavy lifting, and replacing Weiss would not have required replacing them.
Abbe Lowell said making of David Weiss a special counsel only changes his title. It clearly does more than that by insulating the DOJ from the congressional investigations. Garland ignored the objections of Weiss’ own team members to his actions. It is like responding to the…
— Jonathan Turley (@JonathanTurley) August 12, 2023
This brings up the second, non-public reason why Garland would want Weiss in charge: as a manager of the investigation he proved himself utterly compromised. It was Weiss who allowed the statute of limitations to expire on some of the most egregious crimes Hunter Biden (and Joe) committed, and Weiss who orchestrated the egregious “get out of jail free” deal that blew up in court and created this mess.
Garland may well say that he had little choice but to pick David Weiss, because Weiss has been conducting this investigation for five years. But that sounds like a good reason for not appointing the man who already agreed to make what many regard as a sweetheart deal, limited to minor tax and gun violations. Whether consciously or unconsciously, Weiss is likely to want to defend that highly criticized decision – a decision that was (as I predicted) rejected by the judge because of its ambiguity.
As to the five years of investigation, they were conducted not by Weiss himself but by his underlings, who could be kept on if a new special counsel were to be appointed. But even if there were persuasive reasons for naming Weiss as special counsel, Garland had an obligation to explain his apparent violation of a binding regulation. He did not do so at his press briefing. He can still do so now. And he should.
The whole point of the special counsel law is to get politics–as much as possible–out of politically-charged cases in order to create both the appearance of and reality of impartiality in legal enforcement. The appearance matters because without it people lose faith in government, and the reality of impartiality is a simple requirement of fairness.
Appointing Weiss does neither. Everybody knows that this was done to protect Joe Biden by giving the MEDIA a fig leaf for defending the investigation (he is an independent Special Counsel!) and to shield Weiss from having to testify before Congress. Weiss has a lot to answer for in that venue, and Garland just shielded him from having to answer questions.
The Biden Administration has been remarkably brazen about its abuses of power and has managed to keep the media on board no matter how abusive their actions have been. Over the past decade or two slid from having an ideological tilt to simply being team mascots for the Left. For all their flaws during the Clinton Administration, when they saw a story in Whitewater or Lewinski they reported it.
No longer. They actively cover up for Democrats now. It started with Obama and has if anything gotten worse under Biden. If that is possible.
All this brings up another point: will the legal infirmity of this appointment undermine any cases that do show up to trial in the Hunter Biden case? If convicted could Biden challenge the appointment?
I have no idea, and I am uncertain if anybody does. It would likely come down to a judge’s decision and at the very least extend the case’s resolution into the distant future as courts untangle the legal ramifications.
None of that would have been the case if Garland simply followed the law as written, but that would be completely out of character under Joe Biden.
If nothing else, it is clear that thanks to Mitch McConnell we dodged a bullet when Garland was kept off the Court. He is a complete hack.
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