OPINION: This article may contain commentary which reflects the author’s opinion.
Attorney General Merrick Garland’s choice of a special counsel to continue investigating first son Hunter Biden was likely a violation of the Justice Department’s own rules in the selection of such counsels, legal experts said.
Earlier in the day, Garland appointed U.S. Attorney David Weiss of Delaware, the federal prosecutor who had been at the forefront of the Hunter Biden probes for years. Garland, at a press conference, explained that Weiss would “continue to have the authority and the responsibility that he has previously exercised” and said he requested the appointment earlier in the week.
The Justice Department regulation, which outlines the authority and prerequisites of a special counsel, was similarly employed to critique the 2020 designation of John Durham as a special counsel. His appointment by then-U.S. Attorney General William Barr involved an investigation into the origins of the Trump-Russia probe, a move that took place during his tenure as U.S. attorney for the District of Connecticut.
Fox’s News’ legal analyst, Andrew McCarthy, himself a former U.S. attorney, sharply criticized the decision and questioned the appointment based on established department guidelines.
During his on-air remarks, McCarthy called the appointment a “sham” and highlighted the fundamental aspect of appointing a special counsel, stressing the importance of selecting an individual who is external not only to the DOJ but also to the entire governmental framework.
“This is a sham. There is no special counsel investigation. There is no Biden investigation,” he began.
“What makes a special counsel special is that you’re a lawyer who’s brought in from outside the United States government,” McCarthy continued. Contrary to that foundational idea, he pointed out that Weiss, despite his new title, is still very much a part of the Biden administration, being “a top official in the Biden Justice Department.”
“This is the Biden Justice Department’s vehicle for maintaining control of an investigation that they are not pursuing,” he continued. “They’ve had the case for five years. They’ve never indicted it. They’re strategically allowing the statute of limitations to run to the point that the 2014 and 2015 conduct, which covers most of the $21 million that the congressional investigation report showed this week, that’s already time-barred.”
Former assistant US attorney Andy McCarthy: “This is a sham. There is no special counsel investigation. There is no Biden investigation. ” pic.twitter.com/2waKsYsqAE
— The Post Millennial (@TPostMillennial) August 11, 2023
In addition, another Fox News legal analyst and former defense attorney, Gregg Jarrett, tweeted that Garland is “defying federal regulations.” He also echoed McCarthy’s assessment.
AG Merrick Garland is NOT allowed to appoint David Weiss as special counsel. Garland is defying federal regulations. He only can name someone “outside the United States government” (28 CFR 600.03).
So, the fix is in. Weiss will continue the obstruction & Biden protection.
— Gregg Jarrett (@GreggJarrett) August 11, 2023
“So, the fix is in,” he added. “Weiss will continue the obstruction & Biden protection.”
Judicial Watch President Tom Fitton noted that Weiss is “ineligible even under DOJ’s constitutionally deficient special counsel” regulations.
Neal K. Katyal, a former acting Solicitor General and current Georgetown law professor, played a role in formulating the special counsel regulations during his time as a Justice Department staff member in 1999. He had previously argued in The New York Times that John Durham’s appointment as a special counsel was in contravention of these established rules.
The difference is, however, that Durham resigned his position as a U.S. attorney when he was made special counsel; Garland announced Friday that Weiss would continue to serve as one.
Republicans also slammed the appointment as all political and devoid of seriousness and substance.
House Oversight Committee Chairman James Comer, R-Ky., said that Garland’s announcement was “part of the Justice Department’s efforts to attempt a Biden family coverup in light of House Oversight Republicans’ mounting evidence of President Biden’s role in his family’s schemes selling ‘the brand’ for millions of dollars to foreign nationals.”
“The Justice Department’s misconduct and politicization in the Biden criminal investigation already allowed the statute of limitations to run with respect to egregious felonies committed by Hunter Biden,” Comer continued. “Justice Department officials refused to follow evidence that could have led to Joe Biden, tipped off the Biden transition team and Hunter Biden’s lawyers about planned interviews and searches and attempted to sneakily place Hunter Biden on the path to a sweetheart plea deal.”
“This action by Biden’s DOJ cannot be used to obstruct congressional investigations or whitewash the Biden family corruption,” House Speaker Kevin McCarthy, R-Calif., tweeted Friday.
“If Weiss negotiated the sweetheart deal that couldn’t get approved, how can he be trusted as a Special Counsel?” McCarthy added. “House Republicans will continue to pursue the facts for the American people.”
House Judiciary Committee Chairman Jim Jordan, R-Ohio, added on “X”: “First, David Weiss said he didn’t have the power he needed and wanted special counsel status.
“Then, he said he had all the power he needs. Now, he gets special counsel status because he didn’t really have the power he needs? Something’s not right.”