Attorney general appoints Hunter Biden special counsel

by Emily Brooks, Rebecca Beitsch and Zach Schonfeld - 08/11/23 12:32 PM ET

Attorney General Merrick Garland on Friday appointed David Weiss, the Delaware federal prosecutor who has led the investigation into Hunter Biden, as a special counsel overseeing the investigation.

The move comes as a pending plea deal involving Biden, the president’s son, appears to be unwinding.

Garland said he made the decision in the politically explosive case after Weiss asked for the appointment.

“On Tuesday of this week, Mr. Weiss advised me that in his judgment, his investigation had reached a stage at which he should continue his work as a special counsel, and he asked to be so appointed,” Garland said in a statement to the press Friday.

“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.”

Attorney General Merrick Garland announces the appointment of David C. Weiss, the U.S. attorney in Delaware, as Special Counsel in Hunter Biden Inquiry at the Justice Department in Washington D.C., on August 11, 2023.

Republicans have sharply criticized how the tax probe into Biden was handled, citing claims from two IRS whistleblowers that Weiss was blocked from seeking special counsel status — a claim Weiss and the DOJ have consistently denied.

The whistleblowers, IRS investigators Gary Shapley and Joseph Ziegler, also claimed that the Justice Department slow-walked the case, gave Biden preferential treatment, and declined to pursue charges in other jurisdictions with stronger evidence.

Speaker Kevin McCarthy (R-Calif.) has indicated it could be a ground for a possible impeachment of Garland, noting differences between the whistleblowers’ testimony and Weiss and Garland’s recap of the prosecutor’s authority.

Garland on Friday reiterated his prior claims that Weiss, even without special counsel status, had the authority to see prosecution for Biden in any district, a claim that the IRS investigators disputed.

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“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,” Garland said.

Weiss last month denied again that he ever sought special counsel status.

Chris Clark, counsel for Hunter Biden, said in a statement that Garland’s announcement “doesn’t change our understanding of Mr. Wiess’ authority over the 5-year investigation into Mr. Biden.”

“For years, both Mr. Weiss and the Department have assured us and the public that Mr. Weiss had more authority than a special counsel and full authority to negotiate a resolution of his investigation – which has been done,” Clark said. “Whether in Delaware, Washington, D.C. or anywhere else, we expect a fair resolution not infected by politics and we’ll do what is necessary on behalf of Mr. Biden to achieve that.”

There are two statutes on the books governing such appointments and the powers associated with them, Weiss noted, including a status allowing him to file charges outside his district of Delaware.

“To clarify an apparent misperception and to avoid future confusion, I wish to make one point clear: in this case, I have not requested Special Counsel designation pursuant to 28 CFR § 600 et seq. Rather, I had discussions with Departmental officials regarding potential appointment under 28 U.S.C. § 515, which would have allowed me to file charges in a district outside my own without the partnership of the local U.S. Attorney,” Weiss wrote in a July 10 letter.

“I was assured that I would be granted this authority if it proved necessary.”

Garland said Friday the change came at Weiss’s request, echoing his earlier testimony before Congress that Weiss would be granted any change in authority he saw necessary.

“This appointment confirms my commitment to provide Mr. Weiss all the resources he requests. It also reaffirms that Mr. Weiss has the authority he needs to conduct a thorough investigation and to continue to take the steps he deems appropriate independently based only on the facts and the law,” Garland said.

“As special counsel he will continue to have the authority and responsibility that he has previously exercised to oversee the investigation and decide where, when, and whether to file charges.”

Meanwhile, in a court filing just moments after Garland’s announcement, the Justice Department indicated the parties had come to an impasse on reaching a plea agreement in Biden’s case.

“The Government now believes that the case will not resolve short of a trial,” prosecutors wrote in court filings Friday.

Biden’s plea deal had come under scrutiny both in Congress and in court.

U.S. District Judge Maryellen Noreika put on hold Biden’s proposed plea agreement during a whirlwind hearing last month, telling prosecutors and Biden’s attorneys to submit in writing their responses to various concerns the judge posed.

The proposed agreement was twofold. Biden would agree to plead guilty to two tax offenses while also entering a pretrial diversion program on a gun charge, which would allow the president’s son to avoid a formal charge if he follows certain conditions.

But in a court filing Friday, the Justice Department urged the judge to set aside the written briefing deadlines.

“The Court’s briefing order is premised on the idea that the parties intend to continue towards a guilty plea in Criminal Action No. 23-mj-00274 and diversion in Criminal Action No. 23-cr-00061,” prosecutors wrote.

“But that is no longer the case,” they continued. “Following additional negotiations after the hearing held on July 26, 2023, the parties are at an impasse and are not in agreement on either a plea agreement or a diversion agreement. Therefore, the Government believes the Court’s briefing order should be vacated.”

The judge ordered Biden’s attorneys to respond to the request by Monday.

Prosecutors also asked that the tax charge agreement be dismissed so the Justice Department can instead bring the charges in Washington, D.C., or California, where the venue would be proper for a trial.

That detail nods to testimony from the IRS whistleblowers, who said some of the strongest evidence in the case was gathered in those two locations, rather than in Delaware.

Weiss’s elevation to special counsel is likely to fuel probes from House Republican into the foreign business dealings of President Biden’s family members. Republicans have aimed to put scrutiny on the president himself as they reveal more details of foreign payments to Hunter Biden and his associates, with McCarthy even floating an impeachment inquiry into the president surrounding issues with their investigation.

On Friday, however, top Republicans in the House portrayed Weiss’s new special counsel status as a negative development.

House Oversight and Accountability Chairman James Comer (R-Ky.) said the move was a Justice Department attempt to “stonewall congressional oversight,” while a spokesperson for House Judiciary Chair Jim Jordan (R-Ohio) said the special counsel “can’t be trusted.”

McCarthy said House Republicans “continue to pursue the facts for the American people.”

“This action by Biden’s DOJ cannot be used to obstruct congressional investigations or whitewash the Biden family corruption,” he wrote on X, the platform formerly known as Twitter. “If Weiss negotiated the sweetheart deal that couldn’t get approved, how can he be trusted as a Special Counsel?”

Updated at 2:20 p.m.