Hunter Biden's Case Gets A Special Counsel? Or More "Special Treatment"?
Merrick Garland Once Again Plays Fast And Loose With The Rules
The recurring theme in nearly all political scandals is best summarized by the aphorism “it’s not the crime, it’s the cover-up”.
Not only do attempts to conceal wrongdoing tend to involve additional wrongdoing, with each instance of misconduct, not only does criminal liability go up, but so does the public’s morbid fascination in the scandal itself.
We have seen this with the unfolding melodrama known as Hunter Biden’s life, steadily revealed in excruciating detail as serial dumpster fires of incontinent levels of hedonistic behavior that would make even Hunter Thompson blush. What was previously dismissed as mere “conspiracy theory” and buried by corporate media has become front page news, as details not just of Hunter’s criminal conduct but of the extent to which the Department of Justice has gone to sweep them under the proverbial rug have emerged.
Thus when Attorney General appoints a Special Counsel to investigate Hunter Biden, we are drawn to take interest. Such an act surely confirms our worst suspicions, that the smokey haze surrounding Hunter Biden is a fog of corruption and chicanery which extends even to President Joe Biden.
Attorney General Merrick Garland announced Friday he has appointed a special counsel in the Hunter Biden probe, deepening the investigation of the president’s son ahead of the 2024 election.
Garland said he was naming David Weiss, the U.S. attorney in Delaware who has been probing the financial and business dealings of President Joe Biden’s son, as the special counsel. It comes as plea deal talks in Hunter Biden’s case hit an impasse.
Yet even in this step, we have to wonder what is truly happening, not just because a special counsel has been appointed, but because said special counsel, David Weiss, is the US Attorney who has already been investigating Hunter Biden, and whose office negotiated the sketchy plea deal that exploded all over Judge Maryellen Norieka’s courtroom late last month.
Even in taking this dramatic step, Merrick Garland and the Department of Justice are once again playing fast and loose with the rules, and apparently giving Hunter Biden (as well as the President) yet another break.
To understand the game Merrick Garland is playing with the rules regarding Special Counsel, we must first understand the regulatory requirements for the appointment of a Special Counsel. These are laid out explicitly in Title 28 of the Code of Federal Regulations1 (emphasis mine).
§ 600.1 Grounds for appointing a Special Counsel.
The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and—
(a) That investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and
(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.
§600.1(a) is telling us that the appointment of Special Counsel means that there is a conflict of interest or other circumstance which prohibits investigation and prosecution of a matter through normal channels.
David Weiss, as US Attorney for Delaware, has been investigating Hunter Biden through those “normal channels” for most of the last five years. It was his investigation that resulted in the now-infamous plea deal over which Judge Norieka had an epic “Whisky Tango Foxtrot” moment.
Now Merrick Garland is telling the world that the Department of Justice cannot properly investigate or prosecute Hunter Biden through those “normal channels”. Merrick Garland is, by direct extension, telling the world that David Weiss has been unable to properly investigate or prosecute Hunter Biden through those normal channels. The regulatory requirement for the appointment of Special Counsel is exactly this determination by the Attorney General.
In that same section of the Code of Federal Regulations, Merrick Garland has an additional problem: The decision he made on Friday was a decision that not only should he have made at the outset of the investigation, it is a decision he was required to make at the outset of the investigation. The regulatory language demands nothing less2.
§ 600.2 Alternatives available to the Attorney General.
When matters are brought to the attention of the Attorney General that might warrant consideration of appointment of a Special Counsel, the Attorney General may:
(a) Appoint a Special Counsel;
(b) Direct that an initial investigation, consisting of such factual inquiry or legal research as the Attorney General deems appropriate, be conducted in order to better inform the decision; or
(c) Conclude that under the circumstances of the matter, the public interest would not be served by removing the investigation from the normal processes of the Department, and that the appropriate component of the Department should handle the matter. If the Attorney General reaches this conclusion, he or she may direct that appropriate steps be taken to mitigate any conflicts of interest, such as recusal of particular officials.
In other words, when this investigation first commenced—in this instance, when Merrick Garland became Attorney General, appointed by Hunter Biden’s father—if Garland did not immediately appoint Special Counsel, we are forced to conclude that Merrick Garland made the decision not to remove the investigation from the “normal processes of the Department.” This was not a decision that he “ought” to have made, but one that he absolutely had to have made.
We have confirmation that in fact Garland did make such a decision in 2021 when he assumed office, based on his remarks Friday on naming David Weiss Special Counsel:
In February 2021, U.S. Attorney Weiss was asked to remain as U.S. Attorney for the District of Delaware and, in that capacity, to continue to lead the investigation.
As I said before, Mr. Weiss would be permitted to continue his investigation, take any investigative steps he wanted, and make the decision whether to prosecute in any district.
Mr. Weiss has told Congress that he has been granted ultimate authority over this matter, including the responsibility for deciding where, when, and whether to file charges and for making decisions necessary to preserve the integrity of any prosecution, consistent with federal law, the Principles of Federal Prosecution, and Departmental policies.
For Merrick Garland to revisit that decision at this late hour requires us to ask one very simple question: “What changed?” What is the new circumstance that now the “normal processes of the Department” are no longer adequate to the investigation of Hunter Biden?
Unfortunately for us, Garland does not say. All he tells us is that David Weiss asked to be named a Special Counsel.
In a July 2023 letter to Congress, Mr. Weiss said that he had not to that point requested Special Counsel designation.
On Tuesday of this week, Mr. Weiss advised me that in his judgment, his investigation has reached a stage at which he should continue his work as a Special Counsel, and he asked to be so appointed.
Upon considering his request, as well as the extraordinary circumstances relating to this matter, I have concluded that it is in the public interest to appoint him as Special Counsel.
Note the language: “extraordinary circumstances relating to this matter”. If there have been “extraordinary circumstances” surrounding the investigation of Hunter Biden (to be clear, Hunter Biden being the President’s son is all by itself a most extraordinary “circumstance”), then Merrick Garland should have named David Weiss Special Counsel long ago—in February 2021, when Garland became Attorney General. The regulatory language makes that crystal clear.
David Weiss has told Garland that his investigation has “reached a stage” where a Special Counsel is necessary. Absent a clear description of the new or changed circumstance which leads to that conclusion, there is no basis upon which we may conclude that there is a compelling need for a Special Counsel now while there was not one before. Noting again that any investigation of the relative of a sitting President is literally the epitome of both conflict of interest and “extraordinary circumstance”, unless there is some other circumstance not disclosed by the Department of Justice, we are presented with the reality that Garland is confirming that a Special Counsel was needed all along.
This presents a problem for both David Weiss and Merrick Garland in appointing David Weiss Special Counsel to take over his own investigation: both Weiss and Garland apparently disregarded the regulatory requirements for Special Counsel for over two years. Straight away, Weiss’ investigation of Hunter Biden is tainted, although not in a way that taints or precludes the use at trial of any evidences compiled by David Weiss against Hunter Biden. Fundamentally, David Weiss botched the investigation—which is a fair conclusion to reach just on the basis of the aborted plea agreement.
In Merrick Garland’s public remarks we have an implicit admission that David Weiss botched the investigation, and, depending on what was in Weiss’ letter, an admission from Weiss himself that he botched the investigation.
Special Counsel is absolutely indicated for the Hunter Biden investigation—and David Weiss is absolutely the wrong prosecutor to be so named.
If the regulatory language itself was not damning enough, events subsequent to Judge Norieka’s demolition of the plea deal confirm that David Weiss has been less than a good steward of the case.
Hunter Biden agreed to plead guilty to misdemeanor charges related to his failure to pay income taxes earlier this year. But while standing in court last month waiting to enter the plea, the agreement fell apart over confusion about a separate gun charge.
The judge asked the parties to hammer out the agreement and return later, leaving Hunter Biden to enter a not-guilty plea while it's litigated.
Lawyers for Hunter Biden had also indicated they believed that the plea agreement would settle all matters facing the president's son, but prosecutors said that other investigations continued.
"After the hearing, the parties continued negotiating but reached an impasse. A trial is therefore in order," prosecutors said in their Friday filing.
With Hunter’s lawyers and the Department of Justice unable to craft a new plea arrangement, and the old arrangement soundly rejected by the court, what other conclusion can there be but that David Weiss botched the case?
US Attorneys are not prosecutorial naifs. They are familiar not only with the intricacies of US statutory and regulatory law, but they know their way around a courtroom. They know—or should know—if a particular plea arrangement is going to set off alarm bells with the court, and they should know that such plea deals stand a good chance of being tossed out. Somehow, Weiss either failed to measure up to either aspect of his job. We do not need to speculate whether his error was the product of stupidity or malice; we need only realize that, in that plea deal, there was a major unforced error.
In other words, David Weiss botched the case. Now, because he is Special Counsel, David Weiss is charged with taking to trial the case he himself screwed up—a case he himself has all but told the world he does not want to take to trial.
These are not good recommendations for naming David Weiss to continue as Special Counsel the investigation he started as US Attorney.
Had Garland so appointed him back in 2021, before the chicanery of the plea deal even happened, we would not have these arguments against Hunter Biden to present now. Garland did not appoint David Weiss Special Counsel in 2021. For that reason alone, it is a mistake for Garland to appoint David Weiss Special Counsel in 2023.
It is hardly surprising, therefore, that Kevin McCarthy and the Republicans in the House of Representatives are unimpressed by David Weiss’ appointment.
House Oversight Committee Chairman James Comer was even more direct, calling the maneuver a “Biden family coverup”.
While as a rule I am loathe to give credence or credibility to the hyperbole that politicians are prone to tweet out, in this matter I have to concede that Kevin McCarthy is asking the right question: How are we supposed to trust the man who already demonstrably bungled the investigation once? Keep in mind calling the aborted plea deal “bungling” is the charitable interpretation.
Given the many ways Dementia Joe is directly tied to Hunter Biden’s schemes, and the significant evidences which suggest that he, while Vice President, accepted significant bribes arranged by Hunter Biden, it is hard if not impossible not to see this action as a coverup. It is hard if not impossible not to view Merrick Garland appointing a tainted prosecutor as Special Counsel, and to question his reasoning for doing so.
For Merrick Garland to act as if he is unaware of these things, he is either disingenuous and deceptive, or he is simply stupid. Neither is acceptable in the Attorney General of the United States.
Garland’s error in naming David Weiss Special Counsel is made even more grievous by the Star Chamber inquisitions mounted against Donald Trump by Special Counsel and Democrat Gauleiter Jack Smith. Having named Jack Smith Special Counsel, Garland has demonstrated that he is in fact aware of the requirements and standards for Special Counsel appointments. That Garland is quick to appoint Special Counsel to hound Donald Trump but loathe to appoint Special Counsel to pursue charges against Hunter Biden is the sort of partial, unequal, unjust application of the law which the Fourteenth Amendment expressly forbids.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Even worse, Garland has previously demonstrated awareness of the requirements of Title 28, when he appointed Special Counsel to investigate Dementia Joe’s mishandling of classified documents (the same thing for which Jack Smith has indicted Donald Trump). He specifically referenced the protocols for Special Counsel appointment when he named Robert Hur as Special Counsel (emphasis mine).
On the evening of November 4, 2022, the National Archives Office of Inspector General contacted a prosecutor at the Department of Justice. It informed him that the White House [Counsel] had notified the Archives that documents bearing classification markings were identified at the office of the Penn Biden Center for Diplomacy and Global Engagement, located in Washington, D.C. That office was not authorized for storage of classified documents. The prosecutor was also advised that those documents had been secured in an Archives facility.
On November 9, the FBI commenced an assessment, consistent with standard protocols, to understand whether classified information had been mishandled in violation of federal law.
On November 14, pursuant to Section 600.2(b) of the Special Counsel regulations, I assigned U.S. Attorney Lausch to conduct an initial investigation to inform my decision whether to appoint a Special Counsel.
Presumably, John Lausch, US Attorney for the Northern District of Illinois, conducted a prudent and credible investigation of the matter before recommending to Garland that Special Counsel was necessary. Yet the Special Counsel is Robert Hur, US Attorney for the District of Maryland.
Yet this time we are supposed to believe that David Weiss, US Attorney for Delaware, conducted a prudent and credible investigation of Hunter Biden before recommending to Garland that Special Counsel was necessary, and the Special Counsel named is David Weiss, US Attorney for Delaware?
We are supposed to believe that there is nothing at all shady or inappropriate about such an arrangement?
Robert Hur’s Special Counsel investigation is itself a further reminder of why care is needed to demonstrate maximum independence in matters involving Special Counsel. While that case has largely proceeded outside the corporate media’s span of interest, it is still ongoing, and has reached a point where Hur is having to work through the inevitable legal and political minefields of securing testimony from the President of the United States.
Discussions between Biden’s lawyers and special counsel Robert Hur’s office are focused on how, when and where the interview might take place, as well as the scope of the questions, these people said. They stressed that the negotiations are ongoing and that no agreement has been reached.
The back-and-forth suggests that the probe — now in its eighth month — may not be wrapping up imminently. But an interview with the person at the center of an investigation typically takes place near the end of the process.
That Robert Hur wants to interview Dementia Joe is not by itself an indication that charges will be preferred against him, nor can we plausibly infer any indication of guilt. We can infer, however, that Robert Hur has matters he wishes to discuss with Dementia Joe, which itself suggests that there is at least some legal substance to the matter.
Given the multiple documents and emails attesting to some level of both awareness and engagement by Joe Biden in Hunter Biden’s business activities, which activities are at the center of what David Weiss is now investigating, if David Weiss did not anticipate needing to interview the President with regards to those activities, then we have one more way in which he has mishandled the case, and one more reason why he is not suitable as Special Counsel.
This means we have in turn one more reason why Merrick Garland absolutely must know that David Weiss is not suitable as Special Counsel, given the sensitivity and awareness Garland displayed in the classified documents case. We know Garland knows the nuances of these issues because he has all but said outright and in public that he is fully aware of them, not once but at least twice.
Something has changed in the Hunter Biden case. Either some fact has emerged, or the level of outside scrutiny is more than Garland is willing to tolerate himself, or something else entirely. I do not know—and I do not need to know—what has changed. That David Weiss is transitioning to Special Counsel with respect to Hunter Biden stands by itself as clear and unequivocal proof that something as changed.
Because something has changed, Merrick Garland should have followed the regulations and the protocol and appointed someone else as Special Counsel. Instead, he maintained a tainted prosecutor in the Hunter Biden investigation, renaming David Weiss Special Counsel without addressing the immediate conflicts of interests that automatically follow from such an appointment.
This Merrick Garland chose not to do. Rather, he chose to disregard his own precedent as well as the regulations and the protocols. Merrick Garland could not have taken a step more damaging to the credibility and impartiality of the Hunter Biden investigation if he tried.
Weiss didn’t both the prosecution of Hunter Biden. He botched the plea deal by which he was supposed to allow Hunter Biden to escape felony prosecution. His illegal (per 28 CFR 600.3(a)) appointment as a special prosecutor is naught but a smokescreen behind which to hide the DOJ’s disregard until public interest wanes, at which time they’ll close the investigation without finding any prosecutable felony offenses.
They'll just close out the investigation by claiming that the Republicans have so politicized it that it is the most that they could do render justice to the case.