Weiss appointment as Hunter Biden special counsel violates DOJ regulations, experts warn

Weiss, the sitting U.S. Attorney for Delaware, has been pursuing an investigation into Hunter Biden for years.

Published: August 12, 2023 6:57am

Updated: August 14, 2023 1:28am

Attorney General Merrick Garland's appointment of Delaware U.S. Attorney David Weiss to serve as special counsel in the Hunter Biden criminal probe is raising alarm with some legal experts who say it explicitly violates the Justice Department's regulations requiring such appointments come from outside the agency.

That regulation states: "An individual named as Special Counsel shall be a lawyer with a reputation for integrity and impartial decisionmaking, and with appropriate experience to ensure both that the investigation will be conducted ably, expeditiously and thoroughly, and that investigative and prosecutorial decisions will be supported by an informed understanding of the criminal law and Department of Justice policies. The Special Counsel shall be selected from outside the United States Government."

Harvard law professor emeritus Alan Dershowitz told the Just the News, No Noise television show Friday night he believed it was a mistake for Garland to name the current Delaware U.S. attorney, both because he was from inside the government and had approved an earlier plea deal for Hunter Biden that spared the first son from prison but was rejected by the trial judge and panned by many as too lenient.

"Someone else, without a doubt, would have followed the regulations of the department, which [is to] say that the person has to be from outside the government," Dershowitz said. "I surely wouldn't have appointed a man from Delaware, where there's a lot of homecooking that goes on -- the Bidens live in Delaware -- who made a sweetheart deal that I predicted on your show would not be accepted. And he's going to want to justify that sweetheart deal. So he's not going to want to admit that he did anything wrong."

Others agreed.

"I see this as a farce, more cover up and corruption by Merrick Garland, and he's covering his own behind," Fox News legal analyst Gregg Jarrett said on The Sean Hannity Show. "I mean, the Attorney General is not allowed to appoint David Weiss as Special Counsel under federal regulations, and I have them right here in front of me, CFR 600.3. The Attorney General can only appoint somebody, quote, 'outside' the government."

Weiss, the U.S. Attorney for the District of Delaware, has been pursuing an investigation into Hunter Biden for four years, according to the orders released Friday night that appointed him. His probe has allegedly been hindered by political interference, according to two IRS agents who came forward as whistleblowers. Supervisory Special Agent Gary Shapley and Special Agent Joseph Ziegler testified that Weiss was hamstrung from bringing charges against the first son due to the interference of two U.S. attorneys where he sought to bring the charges.

The whistleblowers contended that Washington D.C. U.S. Attorney Matthew Graves's opposition to the charges prevented Weiss from being able to bring charges before the statute of limitations expired. Weiss, they say, subsequently sought special counsel status to bring the charges anyway, but Garland allegedly rejected that request. In recent letters to Congress, Weiss has disputed that testimony, which undercut Garland's claims the Delaware prosecutor had the power to bring any changes anywhere he wanted.

"If it's in another district, he would have to bring the case in another district," Garland said in a June Senate hearing in response to questions about Weiss's charging authority. "But as I said, I promise to ensure that he's able to carry out his investigation and that he'd be able to run it. And if he needs to bring it in another jurisdiction, he will have full authority to do that."

Former federal prosecutor and Trump adviser Kash Patel said on "Just the News, No Noise" Friday that "[T]he Special Counsel is supposed to be an outsider, not brought in from within DOJ, and especially not the guy who has a conflict of interest in investigating the target, Hunter Biden, when he gave him an illegal, unconstitutional plea deal... How can that man be conflict-free, which is what the regulation requires at DOJ? They've put a conflict czar in there to cover up [FBI Director Christopher] Wray and Garland's unlawful activities."

Weiss's appointment marks the second possible violation of this guideline in recent years. In October 2020, then-Attorney General William Barr tapped then-Connecticut U.S. Attorney John Durham to serve as special counsel while investigating the origins of the now-debunked Trump-Russia collusion narrative.

Former U.S. Attorney for the Eastern District of Arkansas Bud Cummins told Just the News on Friday, "The requirement to appoint an attorney from outside of government appears so clear that one must suppose DOJ has conjured some way to work around it in the cases of both Durham and Weiss."

"It really looks like an assignment under 600.2(c) where you really don't appoint an independent special counsel, you use the same players but just make a few internal adjustments about supervision and reporting ('appropriate steps be taken to mitigate any conflicts of interest, such as recusal of particular officials.') If that's the case, calling him a 'Special Counsel' is inaccurate and deceptive," Cummins added.

Cummins also described the Weiss appointment as "Lipstick on a pig. Weiss is a politicized prosecutor who has already demonstrated he is a disgrace to the authorities entrusted to him. Suggesting he has magically been transformed into an independent actor is a ridiculous sham. He is literally the reason a Special Counsel should have been assigned years ago. At this point the serious charges cannot be brought due to Weiss's intentional lack of initiative. The only thing gained now by pretending he wears a new hat is to throw a blanket of silence over the whole affair until Thanksgiving 2024."

Natalia Mittelstadt is an enterprise reporter for Just the News. Follow her on Twitter.

Ben Whedon is an editor and reporter for Just the News. Follow him on Twitter.

The Facts Inside Our Reporter's Notebook

Unlock unlimited access

  • No Ads Within Stories
  • No Autoplay Videos
  • VIP access to exclusive Just the News newsmaker events hosted by John Solomon and his team.
  • Support the investigative reporting and honest news presentation you've come to enjoy from Just the News.
  • Just the News Spotlight

    Support Just the News