The attorney general was duty-bound to appoint a special counsel — he can’t pawn off the responsibility on any subordinate.
The attorney general was duty-bound to appoint a special counsel — he can’t pawn off the responsibility on any subordinate.
I t has been quite something to watch Delaware U.S. attorney David Weiss squirm.
Sweating him on one side are the credible whistleblower allegations by law-enforcement agents: He obviously told them that he was not the deciding official when it came to whether criminal charges should be brought against Hunter Biden. Pressuring him just as hard on the other side is Weiss’s boss, Attorney General Merrick Garland, who in his now-familiar slippery style insists that Weiss was always the deciding official and was instructed that, if he ran into any interference, he needed only to ask Garland for special-counsel authority and he would be permitted to file any charge in any district throughout the country, regardless of whether the Biden-appointed U.S. attorneys in those districts agreed.
The circle can’t be squared, of course, but the spotlight is on the wrong guy.
Weiss is an empty suit. If we’ve seen the type once, we’ve seen it a dozen times: a Trump appointee whom the former president couldn’t pick out of a lineup, given that his priority was to whine about the Justice Department, not put a stamp on it. The latter would be hard work, calling for a vision of law enforcement that transcends “How does this affect Donald Trump?”
In deep-blue states with two Democratic senators, either of whom could block confirmation of Trump appointees, Trump appointed Weiss types — prosecutors who resist angering Democrats while nonetheless brandishing their Republican credentials. These self-styled “nonpartisan public servants” are administrative-state staples, moving from one prestigious title to the next by not making waves. In a case where the investigators are confident they can prove crimes but the Powers That Be do not want crimes to be charged, that involves a lot of telling the investigators, “There’s nothing I can do, my hands are tied,” while hoping that the people who are tying your hands — but need to deny they are doing so — will not feed you to the wolves if the investigators get angry and decide to call BS on the whole thing, in public.
This is what has happened to Weiss. But he’s not the culprit, he’s the careerist caught in the middle. The culprit is Garland.
Think about the nonsensical construct Garland has built around the public question of Who sabotaged the Hunter Biden prosecution? That is, who dragged it out for years, willfully undermining the investigators’ ability to investigate even as we were told that the “ongoing investigation” necessitated resisting any congressional inquiries? Who pulled that off for so long that the statute of limitations lapsed on some of the most revelatory corruption charges? Who choreographed the inevitable sweetheart plea deal?
That wasn’t Weiss. It was Garland.
Garland says that Weiss needed only to ask, and he would have been given limitless special-counsel authority to charge the case as he saw fit. As a result, the feeding frenzy is now focused on (a) whether Weiss really faced resistance from Biden-appointed U.S. attorneys in Washington, D.C., and California over the prospect of indicting Hunter, and (b) whether Weiss formally asked Garland for special-counsel status while he was telling the agents that his hands were tied by the Biden Justice Department.
That’s how Garland wants us to evaluate the matter. And it’s preposterous.
Have a look at the special-counsel regs — they’re short and fairly straightforward. The first thing you may notice, in light of the present circumstances, is that there is no procedure calling for a district U.S. attorney to seek special-counsel status. To the contrary, the rules explicitly provide that a “Special Counsel shall be selected from outside the United States Government” (see § 600.3, emphasis added). If the special-counsel rules were followed — and Garland claims to be a stickler for DOJ rules — a request by Weiss to be appointed as a special counsel would have required his resignation from his plum position inside the United States Government.
But that doesn’t begin to capture Garland’s sleight of hand.
The main reason there is no procedure for a U.S. attorney to request special-counsel status is that the rules commit the decision of whether to appoint a special counsel to the attorney general and require that the decision be based on the attorney general’s own determination of two specific questions (see § 600.1). Not surprisingly, those questions are virtually the antithesis of the nonsensical question Garland would like us to think is dispositive — namely, whether a U.S. attorney (who answers to Garland) was blocked from filing charges by two other U.S. attorneys (who answer to Garland).
Instead the two questions laid out in the rules are commonsense ones, which any ethical attorney general would consider if an investigation or prosecution of a sensitive matter were warranted, to wit: (1) Would the investigation or prosecution of the person involved “present a conflict of interest for the Department [of Justice],” and (2) would it be “in the public interest to appoint an outside Special Counsel to assume responsibility for the matter”? (Emphasis added.)
If there is a viable basis for a criminal investigation or prosecution, it is the attorney general’s obligation to appoint a special counsel, not on request by a Justice Department prosecutor, but if the answers to those two questions are “yes.” That is, a special counsel should be named if a serious conflict of interest vitiates the Justice Department’s capacity to handle the case in the normal manner, and the case is sufficiently important that the public interest supports bringing in a prosecutor from outside the government.
There is no clearer textbook example of such a conflict of interest than when the president’s Justice Department is in the position of having to investigate the president himself or a member of the president’s close family. Here, the Biden Justice Department is in the position of investigating and prosecuting the president’s son for financial crimes, in which the president appears to be implicated, and for a gun crime that is complicated by the president’s incessant rhetoric about ratcheting up federal gun regulations.
It could not conceivably be more obvious that the attorney general was obligated to appoint a special counsel from outside the government the moment he learned about the Biden case and the gargantuan conflict of interest it entails. It was up to Garland to do that, not up to Weiss to ask him to do that. Lawyers do not get to delegate their ethics to subordinates.
Since the need for a special counsel could not be any clearer, the only sensible inference to be drawn is that Garland’s refusal to appoint one meant that he and the president did not want the investigation and prosecution of the Biden case to be pursued. They banked on the regnant double standard under which Republican administrations are subjected to intense media pressure to appoint special counsels even in the absence of evidence of a crime, whereas the press makes nary a peep about a Democratic administration that refuses to appoint a special counsel in the face of a patent conflict.
The president and his attorney general are still banking on that double standard. Since the media did not pummel the White House and Justice Department with daily questions about why no special counsel had been appointed — about why Garland believed it was ethical and credible for the Biden Justice Department to investigate the Bidens — Garland must figure that he’s got this thing wired. With the public uninformed — if not misinformed — about the standard for appointing a special counsel, why shouldn’t Garland calculate that he can make Weiss the fall guy?
But understand: According to the rules that Garland is supposed to enforce, if Weiss had asked to be appointed a special counsel, he would have been calling for his own firing as U.S. attorney. By definition, what makes special counsels special is that they are supposed to be from outside the Justice Department and the administration. That is what insulates them from the Justice Department’s conflicts of interest, which is the whole point. Bob Mueller, for example, was brought in from private practice to be special counsel on the Trump/Russia “collusion” caper now known as Russiagate. John Durham was the Trump-appointed Connecticut U.S. attorney when he was assigned to investigate how Russiagate happened; Durham was designated a special counsel only at the end of the Trump administration, when it was clear that Biden would soon be removing him as Connecticut U.S. attorney in favor of a Biden appointee.
More to the point, Garland was duty-bound to appoint a special counsel because he and the Justice Department are hopelessly conflicted regarding the Biden investigation. It was not up to Weiss to ask; it was up to Garland to follow the rules and take his ethical obligations seriously. The facts that Garland duplicitously imposed on Weiss the burden of asking for special-counsel status, and that Hunter Biden was given an outrageous plea deal, demonstrate the intensity of the conflict that Garland has been studiously derelict in ignoring.