Early Friday afternoon Attorney General Merrick Garland announced he has granted U.S. Attorney David Weiss special counsel status to continue his current investigation into Hunter Biden, while officially affording him complete independence. Weiss, appointed as U.S. Attorney for Delaware by then-President Donald Trump, has been investigating the son of U.S. President Joe Biden for several years. President Biden did not replace Weiss when winning the White House to avoid any possible perception of interference in Weiss’ investigation.
Legal experts were quick to weigh in, with reaction mixed. Some support the move as wise to tamp down GOP criticism of Weiss’ investigation, despite him having been appointed by Donald Trump. Some are questioning the move.
Noted national security attorney Brad Moss supports Garland’s move.
“Good. Transparency and accountability regardless of party. I’m fine with it,” Moss writes.
Former Deputy Assistant Attorney General Harry Litman comments on how Garland’s decision should remove misconceptions promoted by the political right.
“Appointment of Weiss as special counsel feels like overindulgence to unjustified criticism to me, but no harm done. He could have had the authority as ‘special attorney’ had he asked; and special counsel appointment just takes away a bogus talking point,” Litman says.
“Recall that whistleblower heard Weiss say ‘Im not a special attorney’ and misinterpreted it as saying he’s not a special counsel,” he continues, “ergo subject to Garland control, which he wasn’t. But this leaves no doubt and quiets the criticism.”
He adds, “and, importantly, Weiss made the request to be elevated, so that basically forced Garland’s hand. Hard to imagine his rebuffing the request under the circumstances even if the DOJ wd staunchly resist the idea that there is a conflict of interest in current investigation of Hunter.”
But former FBI General Counsel Andrew Weissmann notes, “A special counsel is supposed to be from outside the govt (sec 600.3(a)), so how is this consistent with the Special Counsel regulations? Weiss already messed up the Hunter plea greenest to a fate the well – now this.”
Attorney Max Kennerly appears to agree.
“This violates the special counsel regs (28 CFR § 600.3, because Weiss isn’t ‘outside the U.S. government’) and makes no sense anyway. Weiss had years and found only two tax misdemeanors and a gun charge that wouldn’t survive a Bruen challenge. Then he botched the plea deal,” he writes.
“Maybe we’ll get lucky,” Kennerly adds, “and Garland appointing David Weiss special counsel as a prelude to firing him as US Attorney for Delaware. Because it’s ridiculous there’s still a Trump appointee sitting as a US Attorney more than two years after Biden took office.”