David Weiss’s special-counsel appointment has always been a charade, but that doesn’t make it illegal or unconstitutional.
David Weiss’s special-counsel appointment has always been a charade, but that doesn’t make it illegal or unconstitutional.
T his week, a federal judge in Los Angeles rejected a bid by Hunter Biden, the president’s son, to dismiss the tax indictment against him. Judge Mark Scarsi, a Trump appointee, turned aside Hunter’s claim that his indictment was invalid because the special-counsel appointment of the prosecutor, David Weiss, violated the Constitution.
I have noted on several occasions that Weiss’s special-counsel appointment by Attorney General Merrick Garland is a sham. (See, e.g., here, here, here, and here.) Garland and Weiss spent over three years trying to shield the president’s son from prosecution while projecting the illusion that he was being investigated by an independent prosecutor, absent any political interference.
In point of fact, Weiss was never independent. He is a high-ranking Biden–Harris Justice Department official — the U.S. attorney for the district of Delaware. The Biden–Harris DOJ kept close tabs on his investigation of the president’s son. The special-counsel appointment happened only after Weiss’s attempts to make the tax and gun cases against Hunter disappear drew humiliating public attention. Even then, the appointment did not comply with Justice Department special-counsel rules.
Nevertheless, as I’ve also explained, that did not mean that Garland’s assignment of the case to Weiss was illegal. The branding of the assignment as a “special-counsel appointment” was a fraud on the public, but it undermined neither Garland’s broad authority to assign cases to properly credentialed Justice Department lawyers nor Weiss’s broad authority to bring felony charges. It was thus futile for Hunter’s lawyers (Abbe Lowell and the newly arrived Mark Geragos) to analogize Weiss’s appointment to that of Jack Smith — the inadequately credentialed prosecutor whose federal indictment against former president Trump was consequently ruled unconstitutional by Florida federal judge Aileen B. Cannon.
Initially, Garland depicted Weiss as if he were independent because he was appointed by President Trump and ran the Biden investigation — which was, after all, centered in his district — under Trump attorney general Bill Barr. Nevertheless, Weiss had also been the acting U.S. attorney in Delaware during the Obama–Biden administration and remained a top prosecutor in the office for years before being formally appointed by Trump. During that tenure, Weiss enjoyed a cooperative working relationship with Beau Biden, the president’s elder son, who was Delaware’s attorney general prior to his tragic death from cancer in 2015.
Essentially, U.S. attorney appointments are controlled by the senators from the state in which the federal district is located. Under Senate rules, they can block appointees they oppose. I doubt Trump could pick Weiss out of a line-up; he made the nomination on somebody’s advice because Weiss had support from blue Delaware’s two Democratic senators, Chris Coons and Tom Carper, confidants of President Biden (who, of course, was one of Delaware’s senators for 36 years).
Unsurprisingly, Weiss was retained in his coveted position even as the Biden–Harris administration supplanted other Trump-appointed U.S. attorneys with its own appointees. Weiss had the approval of important Democrats, and it was politically useful for Garland to claim that the investigation of Biden’s son was being run by a Trump appointee. In reality, once Biden and Harris were in power, Weiss was just as beholden to their Justice Department supervision as any Biden-appointed U.S. attorney. Moreover, the Hunter Biden investigation was designated a tax case; ergo, under DOJ rules, no prosecutor could indict him in a case that included tax charges without the approval of the Tax Division at Main Justice in Washington. And the Tax Division is run by Biden–Harris political appointees.
As we’ve covered repeatedly, Weiss sat on his hands from the time he got the case in 2018 until 2023 — blocking investigators from pursuing leads (particularly any that might implicate President Biden in “Hunter’s” family business of cashing in on the now-president’s political influence) and failing to file charges (thereby allowing the statute of limitations to lapse on significant crimes, especially those involving Hunter’s influence peddling during the years when Joe Biden was vice president).
Weiss initially tried to make the case vanish without any charges. That became politically untenable when IRS whistleblowers came forward publicly with revelations about the special treatment the president’s son was getting from the Justice Department. Weiss thus pivoted to Plan B: the sweetheart plea deal.
Under its provisions, in exchange for Hunter’s no-jail guilty plea to two puny misdemeanor tax charges, Weiss would make firearms felonies disappear in a “diversion” program and give Hunter a complete immunity bath for any and all crimes arising out of the Biden family influence-peddling scheme from 2014 through 2019.
The plea bargain imploded because Judge Maryellen Noreika was taken aback by its hide-the-ball structure, and because Hunter’s then-lawyer failed to grasp that, due to the political damage it would have done to the president, Weiss’s prosecutors could not publicly admit the boundless scope of the immunity term. (Hunter’s legal team should have understood that Weiss and Garland had no intention of charging Hunter with additional crimes, and that by the time the Justice Department could once again return to Republican control in 2025, the statute of limitations would have lapsed on any potential charges. If Hunter and his counsel had just nodded along as prosecutors mouthed a more modest immunity term, the sweetheart deal would probably have worked.)
The implosion of the plea bargain profoundly embarrassed the Biden–Harris administration, Garland, and Weiss. Especially unsavory was the whistleblower disclosure that Weiss had claimed he really wanted to indict Hunter on tax felonies but was being blocked by Biden-appointed U.S. attorneys in the federal districts that had venue over the crimes — Washington, D.C., and Los Angeles. This was an absurd tale. First, Weiss hadn’t even indicted Hunter on the gun crimes that had occurred in his own district — Delaware. Second, in the Justice Department, if one district U.S. attorney refuses to cooperate with another one, the dispute is settled by the attorney general, who orders either that the recalcitrant prosecutor cooperate or that the aggressive prosecutor stand down. The president’s appointees could not have blocked the prosecution of the president’s son unless the president’s attorney general was supporting them, however tacitly.
Since their cover story — viz., that there might have been some misunderstanding about Weiss’s authority — was laughable, Garland and Weiss had to do something. The scandal was becoming worse because Weiss had already let the statute of limitations run on several charges, and without an indictment other SOLs would soon lapse, too — including the slam-dunk gun case. To stop the bleeding, Garland announced that he was appointing Weiss as a special counsel.
This was preposterous. To begin with, from the day the Biden–Harris administration started, there was a blatant conflict of interest in the president’s Justice Department’s being in the position of investigating the president’s son over criminal conduct in which the president was implicated. Therefore, Garland should have appointed a special counsel on his first day as AG. To be sure, as we’ve seen in Trump’s Florida case, there are constitutional problems with DOJ’s special-counsel regulations; but that is of no moment here because (a) Garland rejects the premise that the regs are constitutionally flawed, and (b) the constitutional defect can easily be remedied by having the special counsel report to a district U.S. attorney. Garland did not appoint a special counsel in a patent conflict situation because he was patently conflicted (which is when a measure of independence is most necessary). He prioritized protecting the president and Hunter over the integrity of the criminal investigation.
Furthermore, Weiss was the very prosecutor who had tried to make the Hunter case disappear without charges, and then fashioned the sweetheart plea deal that was so irregular the judge was moved to question it (whereupon it collapsed). Weiss was the very prosecutor who had made important charges impossible to indict by allowing the statute of limitations to run. The purpose of appointing a special counsel is supposed to be to assure the public that exactly the kinds of things Weiss did will not be done. Under the circumstances, he was the last prosecutor in the country who should have been appointed.
Finally, Weiss was not eligible to be a special counsel under the regulations. They explicitly require that “the Special Counsel shall be selected from outside the United States Government” (§600.3). Again, Weiss was not just a high-ranking Biden–Harris DOJ official; he couldn’t be selected from outside the government because he already had control of the case from inside the government.
Tellingly, when Garland announced Weiss’s appointment with great fanfare, he didn’t explain the fine print: In the appointment order, the AG took pains to omit the main conflict-of-interest provisions in the special-counsel regs, §§600.1 through 600.3. These are the sections that call for a special counsel to be named when the Justice Department is conflicted, and that mandate that the special counsel be brought in from outside the government. Garland did make certain, however, to rely expressly on §600.10. That’s the provision that says the regulations create no enforceable rights. Translation: The regs are for show; if the AG ignores them or otherwise picks and chooses which ones he will follow, no defendant or court can do anything about it.
Hence, Weiss’s appointment has always been a charade: a con-job to make it look like Weiss — a Biden–Harris official who had proved himself the antithesis of an independent actor — was an independent actor.
Critically, though, Garland’s caprice does not make the appointment illegal, much less unconstitutional.
To supervise a criminal case, a prosecutor must either qualify as an officer of the United States or work under the direct supervision of such an officer. To qualify as an officer under the Constitution’s appointments clause (art. II, §2, cl. 2), a person must either be nominated by the president and confirmed by the Senate, or be appointed under a congressional statute (i.e., “by Law”).
Jack Smith, the Trump prosecutor Garland purported to appoint as a special counsel, fulfills neither qualification. He is not a Senate-confirmed presidential appointee; Garland appointed him under the above-described special-counsel regulations, which were promulgated by the Justice Department during the Clinton administration, rather than by congressional statute.
Whatever else one may say about Weiss, he is incontestably a presidentially appointed, Senate-confirmed officer of the United States. And as the Delaware U.S. attorney, he holds a position created by statute (§541 of Title 28, U.S. Code). The attorney general has broad statutory authority to assign any Justice Department officer to any criminal investigation. What the appointments clause does not permit him to do is create officer positions; only Congress has that authority. That is why Weiss qualifies as a prosecutor to oversee Hunter Biden’s case, but Smith does not qualify to oversee Trump’s cases (a flaw that, as I’ve pointed out, Garland could easily cure by assigning Smith to work under the supervision of a district U.S. attorney; Garland, instead, has chosen to appeal Judge Cannon’s ruling).
This distinction in the credentials of Weiss and Smith is all Judge Scarsi really needed to reject Hunter’s motion to dismiss the tax indictment based on Weiss’s appointment. For good measure, though, the judge observed that Judge Cannon’s ruling and Justice Clarence Thomas’s concurring opinion in the Trump immunity case (on which Cannon relied in part) are not binding authority on Scarsi. (Cannon’s court is in the Southern District of Florida in the Eleventh Circuit, while Scarsi sits in the Central District of California in the Ninth Circuit; and Thomas’s concurrence is not an authoritative ruling of the Supreme Court.) I happen to think Cannon and Thomas are right about the appointments clause, but regardless, (a) Weiss is a qualified officer of the United States and, as explained above, (b) Garland’s failure to adhere to the special-counsel regulations is not actionable.
Judge Scarsi was miffed that, as part of their argument, defense lawyers represented that Weiss never sought to charge Hunter until after Weiss’s special-counsel appointment. That wasn’t true. The sweetheart deal involved both the filing of a criminal information pleading misdemeanor tax counts and the designation of firearms charges for diversion treatment. It was a formal filing of charges — notwithstanding that the deal fell through and those charges were eventually replaced by the firearms indictment in Delaware (on which Hunter was found guilty) and the tax indictment in California. Because he believed Hunter’s lawyers lacked candor, Scarsi threatened sanctions. In his ruling this week, however, he climbed down from that threat (noting that the lawyers had amended their argument). Nevertheless, if you’re Hunter’s attorneys, that’s not the side of the judge you want to be on with the trial set to start in a little over a week.
Until a month ago, Joe Biden was the president and Democratic presidential nominee; now, he’s a nominal president who’s been put out to pasture — only after Democrats pushed his incomprehensible convention speech safely out of prime time. Meanwhile, House Republicans have issued a duly scathing 291-page report detailing the unseemliness of the Biden family influence-peddling business — the activity that led to Hunter’s tax charges. Given those developments, the Hunter Biden trial is not apt to garner the public attention anticipated when it was first scheduled to be tried just two months before Election Day.
Still, if there is no pretrial resolution by guilty plea, the trial is sure to get some attention — especially with the Democrats’ anti-Trump lawfare in suspended animation, meaning no more trials and probably no sentencing. That attention to Hunter and the Biden family business would be a grave embarrassment to the White House and, derivatively, to Democrats and Kamala Harris — who is trying to make voters forget that she is a prominent part of the unpopular Biden–Harris administration.
The evidence against the president’s son is overwhelming. Of course, it was overwhelming in the gun case, too, yet Hunter went to trial anyway — and was swiftly found guilty on all counts. Hunter knows that the president, despite his unenforceable insistence to the contrary, can pardon him without political consequence once the election is over. That increases the younger Biden’s incentive to roll the dice at trial. Perhaps he’s planning to do just that, given the combative Geragos’s recent addition to the defense team.
Still, it is hard to believe the president’s son will go through with a weeks-long public airing of damning conduct that would blot his father’s legacy and could hurt Harris’s chances in a tight election. I’m still expecting a guilty plea . . . but admittedly, the window for one is closing. Whether the convictions come by plea or jury verdict, get ready for another nauseating victory lap from David Weiss, the very “special counsel” who did his best to keep Hunter out of legal jeopardy.