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 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.”
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 DOJ have consistently denied.
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.
Weiss last month denied again that he ever sought special counsel status.
There are two statutes on the books governing such appointments and the powers associated with them, Weiss notes, 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 Thursday 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 on Friday.
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 two-fold. 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 on 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.”
Prosecutors also asked that the tax charge agreement be dismissed so the Justice Department can instead bring the charges in D.C. or California, where the venue would be proper for a trial.
Updated at 12:57 p.m.
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