Roughly 100 years ago, “Shoeless” Joe Jackson admitted that, as a player for the Chicago White Sox, he and seven other teammates had intentionally lost the World Series to the Cincinnati Reds in 1919. When a kid stopped him outside of the grand jury room and asked “It ain’t true, is it, Joe?” Jackson responded “Yes, kid, I’m afraid it is.”
This is not a case of history repeating itself. After being confronted by allegations of a fixed investigation, Attorney General Merrick Garland just sent Shoeless Joe back into the game.
The appointment of Delaware David Weiss as the new special counsel to investigate Hunter Biden left many with the same disbelief as that kid in Chicago. This is, after all, the same Weiss who headed an investigation that was trashed by whistleblowers, who alleged that his investigation had been fixed from the outset.
It is the same Weiss who ran an investigation in which agents were allegedly prevented from asking about Joe Biden, obstructed in their efforts to pursue questions and compromised by tip offs to the Biden team on planned searches.
It was also the same Weiss who reportedly allowed the statute of limitations to run out on Hunter’s major tax offenses, even though he had the option to extend it.
It was the same Weiss who did not indict on major tax felonies and cut a plea deal that brushed aside a felony gun charge.
It was the same Weiss who inked a widely panned “sweetheart” deal that caused a federal judge to balk and trash a sweeping immunity grant — language that even the prosecutor admitted he had never previously seen in a plea deal.
That is why many asked Garland to “say it ain’t so.”
The Weiss appointment definitively established Garland as a failure as attorney general. As someone who initially praised Garland’s appointment, I now see that he has repeatedly shown he lacks the strength and leadership to rise to these moments.
This is why the Justice Department is now less trusted by the public than it was under his predecessor, Bill Barr. During Barr’s tenure, Pew found that 54 percent of the public viewed the department favorably, and 70 percent had a favorable view of the FBI. Under Garland, the department’s favorability had declined to 49 percent as of March, before many of the recent failures. The FBI’s favorability has fallen by 18 points to just 52 percent.
Garland’s failure of leadership has undermined key cases. A Harvard-Harris poll this summer showed that 55 percent of the public view the Trump indictment as “politically motivated,” and 56 percent believe that it constitutes election interference.
Garland continues to do little to reverse that public perception, other than repeatedly refer to the motto of the Department. He offered the same mantra for years as some of us called for a special counsel appointment to investigate Biden corruption. The case for such an appointment has long been unassailable, but Garland refused to make the appointment, allowing years to pass with underlying crimes.
The immediate effect of this belated appointment will be to insulate Weiss and the Department from Congress as it prepares to interview Weiss and members of his team.
Yet if that was truly his purpose in doing this, Garland might have been too clever by half. First, since Garland did not appoint someone from outside of the Department (as envisioned under Section 600.3 of the statute).
Of course, Garland could insist that, although this appointment from inside the Justice Department violates the statute, Special Counsel John Durham was also selected from the department’s ranks. Yet that does not excuse the appointment of a prosecutor who has been accused of conflicts of interest and false statements — the very antithesis of a special counsel who is supposed to have “a reputation for integrity and impartial decision-making.”
Second, there is the failure to expand Weiss’s mandate. Garland described that mandate as focusing again on Hunter Biden, and the Justice Department refused to respond to questions on the possible inclusion of his father in the investigation.
This was another opportunity to recognize the widespread distrust over the department and expressly allow the special counsel to include the corruption allegations involving both Hunter and the president. That would have supported calls for the House to delay further investigations.
As it stands, Garland has virtually ensured that Congress will pursue an impeachment inquiry as the only body seriously investigating the scandal.
The use of impeachment authority is the only effective way to overcome the roadblocks that the Justice Department is likely to throw up after this new appointment. Impeachment can work as constitutional Kryptonite. No court could seriously question the right and duty of Congress to get to the bottom of corruption allegations against the president without delay. Although Weiss can refuse to answer questions, Congress can use its impeachment authority to demand answers from fact witnesses, including Biden family members.
None of this means that Hunter Biden will be protected by Weiss from additional charges. He will likely pursue long dormant charges, such as Hunter’s being an unregistered foreign agent. He could also purpose felonies on the crimes detailed in the now-defunct plea bargain. In other words, he could show all of the aggression that was lacking in his prior work.
The public, however, doesn’t seem to be buying the special counsel spin. The result is reinforcing rather than resolving the lack of trust in the Justice Department.
It could not be worse for the Justice Department as an institution. “Shoeless Joe” Weiss is back in the game, long after the public has left in disgust.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.