After spending a half-decade investigating Hunter Biden, the U.S. Department of Justice has now decided that it needs a special counsel to finish the job. Attorney General Merrick Garland announced Friday that he would name David Weiss, the U.S. Attorney for Delaware, as the special counsel for the prosecution of President Biden’s only surviving son after Weiss requested the appointment and in light of what Garland termed to be the “extraordinary circumstances” of the case which made such an appointment to be in the public interest.
Weiss–originally appointed by former President Trump—first opened the investigation in 2019 and was allowed by the Biden administration to continue on in his position as U.S. Attorney. It is unclear why Weiss and Garland found it necessary after five years to make Weiss special counsel.
Earlier this month, Weiss came tantalizingly close to wrapping up the case with a plea bargain but suffered a spectacular collapse in court when the federal judge overseeing the case refused to approve the deal. Amidst recriminations from both prosecution and defense the case now appears to be headed for a trial after Weiss moved to dismiss the current case in order to bring charges in Washington D.C. or California.
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While some commentators have opined that the need to bring charges outside of Delaware may underlie the decision to give Weiss the special counsel title—he will continue to serve as U.S. Attorney as well—such a rationale would appear unfounded because Attorney General Garland could have given Weiss the authority to prosecute outside of Delaware under 28 U.S.C. section 515. This provision authorizes the Attorney General to give any DOJ attorney extra-territorial authority as a “special attorney.” Moreover, as recently as June, Garland had asserted that Weiss had essentially no limits on his authority.
Weiss himself referenced the special attorney provision when he disputed claims by so-called “whistleblowers” that he had been frustrated in efforts to bring charges in other districts and that Garland had refused to make him a special counsel. In a letter to Sen. Lindsey Graham (R-SC), the ranking Republican on the Senate Judiciary Committee, Weiss wrote that he had never asked to be made a special counsel but had sought to be made a “special attorney” so that he could bring charges in other jurisdictions and that he had been told he would be given that authority “if it proved necessary.”
Moreover, appointing Weiss a special counsel contravenes the stated “Grounds for appointing a Special Counsel” set forth at 28 C.F.R. section 600.1 (a) and (b). That regulation sets forth two necessary elements in determining when a Special Counsel is warranted. The first element—subsection (a) describes situations where the prosecution by a U.S. Attorney’s Office or a division of the DOJ would present a conflict of interest for the DOJ or other extraordinary circumstances and subsection (b) adds that “under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.” Weiss is not an “outside Special Counsel.” Rather, Weiss is the U.S. Attorney for Delaware and will continue to hold that position in addition to being Special Counsel.
This dual role is inherently at odds with the very purpose of the special counsel regulations which is to have a prosecutor, not a member of the DOJ, handle the prosecution to avoid the conflict of interest. Examples of such an appointment would be the appointment of former FBI Director Robert Mueller to lead the Russia probe as a special counsel and the appointment of Robert Hur to be special counsel in the investigation into whether President Biden improperly handled classified documents after his term as Vice-President ended. Both Mueller and Hur were not employees of the DOJ when they were appointed as special counsels.
In contrast, Special Counsel John Durham, who ran the four-year long investigation of the origins of the DOJ’s Russia probe, was the U.S. Attorney for Connecticut when Attorney General Barr appointed him as a special counsel in secret shortly before the presidential election. Thus Barr’s appointment of Durham to be a special counsel contravened the regulations. It should be noted that following the change in administrations, Durham resigned his U.S. Attorney position in 2021 before continuing his special counsel duties for the next two years.
It's more than a little ironic that Merrick Garland is contravening the special counsel regulations in the same way that Bill Bar contravened them. Barr’s motivation, as revealed in a letter he wrote to Congress, was to make it harder for a Biden-appointed attorney general to end Durham’s investigation. By removing Durham from the normal DOJ chain of command he effectively entrenched Durham as a thorn in the side of the Biden administration. But what motivates Garland–an apparent stickler for the rules–to break them?
The public record doesn’t inform us of everything that Garland is privy to and took into consideration. But it does tell us that Garland based his decision in major part on the fact that Weiss asked him for the special counsel title. Given Garland’s previous robust assertions that Weiss had never asked to be made special counsel, it is likely that Garland felt unable to refuse the request once made for fear of looking political. To a large extent this demonstrates Garlands’ desire to be transparent and do the right thing.
But it also demonstrates his Don Quixote tendencies. Don Quixote—the hero of Spanish novelist Miguel de Cervantes’s literary masterpiece–was obsessed with tales of chivalrous knights and set out to imitate their quests on a donkey and dressed in an antique suit of armor. By analogy, Garland’s obsession and quest appears to be ridding the DOJ of political criticism. But his efforts have been futile as evidenced by the renewed volleys of criticism directed at him by Republicans for appointing a special counsel–something Republicans had previously clamored for in the Hunter Biden matter.
There is much to be admired in Garland’s quest just as there is much to be admired in Don Quixote’s quests. But both are doomed to failure.
