Courts & Litigation Criminal Justice & the Rule of Law

Unpacking the Hunter Biden Special Counsel Announcement

Jack Goldsmith
Friday, August 11, 2023, 6:00 PM
The new special counsel appointment will not enhance the legitimacy of David Weiss’s investigation, but does enhance the political dangers for the president.
U.S. Attorney General Merrick Garland delivers remarks to Justice Department employees in Washington, March 11, 2021. (United States Department of Justice, Public Domain)

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Today Attorney General Merrick Garland appointed Delaware U.S. Attorney David Weiss as special counsel in the Hunter Biden matter in response to Weiss’s request for such status. Weiss has been conducting that investigation since 2019, during the Trump administration. Garland stated that Weiss requested the appointment, and that “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.”

We have now reached maximum special counsel bliss: Attorney General Merrick Garland has now appointed a special counsel to investigate President Biden in his classified documents matter; a different Special Counsel to investigate his son Hunter, in connection with various potential crimes; and a different Special Counsel to investigate his likely opponent in the 2024 presidential race, former President Trump, in his classified documents matter and in connection with Jan. 6.

In this brief essay, I assess some elements of the appointment and then consider the larger context. 

How the Special Counsel Regulations Apply 

Section 600.3 of the special counsel regulations specify that the “Special Counsel shall be selected from outside the United States Government,” and Weiss is in the U.S. government. Attorney General Garland skirted this requirement by not appointing Weiss pursuant to the special counsel regulations. This has been the Department’s approach in other special counsel regulations.   

Attorney General Barr did something instructively similar when he appointed U.S. Attorney John Durham as Special Counsel to investigate whether anyone violated federal law in connection with the investigations directed at 2016 presidential campaign activities. Barr’s Order appointing Durham invoked 28 U.S.C. §§ 509, 510, and 515 as the basis for the appointment. These statutes permit the attorney general to authorize an officer of the Department to “conduct any kind of legal proceeding” (Section 505) and to “make such provisions as he considers appropriate authorizing the performance by any other officer” of the Justice Department “of any function of the Attorney General” (Section 510). Barr thus appointed Durham pursuant to his general authorities, and then specified that the core special counsel regulations guaranteeing and specifying independence—"28 C.F.R. §§ 600.4 to 600.10”—are “applicable to the Special Counsel.” Barr thus excluded the applicability by reference of the Section (Section 600.3) that required special counsel to be appointed from outside the Department.  

The Garland Order invoked the same statutory authorities, plus the funding provisions of 28 U.S.C. § 530, to appoint Weiss as special counsel. In other words, following Barr (and earlier special counsel appointments, including Robert Mueller’s), he appears to have appointed Weiss pursuant to his general authorities, not the special counsel regulations. And then he made the core special counsel regulations (absent the Section 600.3 “outside the government” requirement”) applicable by reference.  

Why a Special Counsel?  

Why did Weiss seek special counsel status, and why did Garland grant it?

Weiss has written two letters on this matter to Congress in the last six weeks in connection with Republican agitation there over whistleblower complaints that the case was being slow-walked due to “politics and preferential treatment.” In the first, to Representative Jim Jordan on June 30, explained that he had “ultimate authority” over the Hunter Biden matter and that if venue for any matter lay outside Delaware, where he is U.S. Attorney, he has assurance that he would be granted “Special Attorney” status under 28 U.S.C. § 515, which would allow him to bring charges in any district, but would not grant him formal independence from the attorney general. The June 30 letter did not mention the possibility of seeking Special Counsel status. In the second letter, this one to Sen. Lindsay Graham (R.-S.C.) on July 10, Weiss stated that he had not sought special counsel status but had had discussions with the Justice Department on “potential appointment under 28 U.S.C. § 515,” and was assured he would be granted if requested.

The puzzle is why Weiss sought special counsel status. He has been operating for years on this matter with ordinary U.S. attorney powers, and (in the Department’s eyes) with his detachment and independence assured by the fact that he was appointed by President Trump, opened this matter under President Trump, and received assurances that he could continue his work in the Biden administration without interference. For many years neither Weiss nor the Department thought there was a need for special counsel status, and indeed, as late as a month ago, Weiss mentioned only a Section 515 designation as a possibility he might need to complete his investigation. So what has changed to make this case now one that involves “extraordinary circumstances” such that the appointment of a special counsel is warranted and in “public interest,” as Garland put it in his press conference? 

A possible answer is the plea deal that blew up in court late last month, after which Hunter Biden pled “not guilty” to the two tax charges. Weiss today filed a document in Delaware federal court that stated that venue for the tax offenses lies either in California or Washington, D.C. (Hunter Biden had previously waived venue objections.) The filing further stated since the July 26 hearing, “the parties have engaged in further plea negotiations but are at an impasse,” and that the government “now believes that the case will not resolve short of a trial.” 

Weiss could not have brought charges against Biden in the non-Delaware venues as U.S. Attorney in Delaware. So the new adversarial posture of the case, and the lack of venue in Delaware, necessitated the Department giving him the authority to do so. The question is: Why not just give him that authority under Section 515 instead of by making Weiss a special counsel? Does the fact that the case is now going to trial constitute a new circumstance that requires designation as a special counsel? Why didn’t Weiss need that designation to accept a plea deal that many saw as inadequate, and that did not survive first contact in court? 

Neither the Garland press conference nor the Weiss Order provided answers to the questions, and we will likely never know the deliberations that led us to this point. I expect that the answer is simply that the adversarial trial context made the case politically more volatile, especially after the embarrassing episode in court, and especially since a Garland-appointed special counsel brought charges against president Biden’s probable presidential election opponent, former President Trump, in the interim. In other words, the political situation grew much hotter, as did worries about the appearance of double standards or the Department’s detachment. (Compare Charlie Savage’s take.) And so Garland sought to enhance the legitimacy of the Biden investigation by making Weiss formally independent.  But will it work?  

The Bigger Picture

I have grown skeptical that special counsels and their cousins can achieve their desired legitimacy benefits. But the Weiss special counsel appointment is bad news for President Biden.

In a New York Times op-ed this week I argued:

Watergate deluded us into thinking that independent counsels of various stripes could vindicate the rule of law and bring national closure in response to abuses by senior officials in office. Every relevant experience since then — from the discredited independent counsel era (1978-99) through the controversial and unsatisfactory Mueller investigation — proves otherwise. And national dissensus is more corrosive today than in the 1990s and worse even than when Mr. Mueller was at work. 

In “After Trump,” Bob Bauer and I wrote:

Watergate was in a sense the high-water mark for special counsels. The institution of the special prosecutor asserted and maintained extraordinary independence, even in the aftermath of Nixon’s firing of Cox, and successfully investigated the White House and the president to uncover multiple crimes. It did so, formally, entirely within the structure of the executive branch. But it was aided by several convergent external factors. Various congressional committees investigating aspects of Watergate provided strong support. The press famously uncovered and published accounts of many White House sins. Starting in spring 1973, the American public grew increasingly interested in, and increasingly supportive of, the special prosecutor’s work, and the Nixon-proxy attacks on the special prosecutor faltered due to increasing public evidence of White House complicity and the Saturday Night Massacre. The courts played a crucial supportive role in several respects, most notably in upholding the special prosecutor’s subpoena of the tapes. So too did executive branch officials, in particular Mark Felt (“Deep Throat”).

The lesson of the now-defunct independent counsel statute, we wrote, was:

These cases [under the independent counsel statute] made plain that in high-profile investigations, the desired enhanced credibility of an “independent” counsel is difficult if not impossible to attain. Both Starr and Lawrence Walsh, the special prosecutor in the Iran-Contra case, drew fierce partisan attacks on their credibility, and their alleged partisanship and indiscipline were exacerbated, in the eyes of their critics, precisely because they were acting with minimal political accountability. Stated differently, in high-profile cases under the independent counsel statute, “independence” became synonymous with “rogue” even before the present era of intensified polarization.

We also noted:

There is no perfect arrangement for ensuring investigatory independence, prosecutorial accountability, public confidence, and fairness to the target of the investigation. Trade-offs are inevitable. ... [I]n higher profile investigations, especially ones focusing on the White House, the independent counsel statute did not ameliorate the problem of the politicization of investigations and did not enhance the American people’s confidence in government. If anything, in the high-profile contexts it exacerbated the problems. There were many reasons for this, including the invariably sharp political attacks on the independent counsel mentioned previously. Other reasons included the practical unaccountability of the independent counsel to any branch of the government, which sometimes led to prosecutorial zeal; and the attorney general’s still-controversial residual role in supervising the independent counsel, which often led to actual or perceived conflicts between these two senior officials that did not achieve the statutory objective of bolstered public confidence in the law enforcement process.

The special counsel regulations redressed some of the problems with the independent counsel regime–especially the appointment role of Article III courts. But it really has not worked according to its terms–in nearly every instance of a special counsel pursuant to the 1999 regulations, the Department of Justice has only partially embraced the regulations, and has skirted them in various ways. 

And the regulations left almost all of the other political and legitimacy challenges in place–challenges are now much harder in light of our broken politics that makes 1990s independent counsel controversies seem cordial. And so we have seen Republicans in Congress in open warfare against Hunter Biden and trying very hard to tie his father to Hunter’s fate. We have seen Jack Smith dragged through the mud by Republicans, and David Weiss increasingly so.  And now Weiss can expect vituperation from both parties, depending on how he proceeds. (Special Counsel Robert Hur, pursuing the President Biden documents matter, has amazingly stayed off stage.)  Delegitimation is the name of the game in Washington, and it is doubtful that designating Weiss as special counsel will do much to enhance the legitimacy of his conclusions, one way or the other, compared to the pre-appointment baseline, even if it does take a bit of heat off of the attorney general’s office.   

The main impact of the special counsel appointment will not be to enhance the legitimacy of the Hunter Biden investigation, but rather to enhance the political dangers to the president. As Special Counsel Weiss can, under Section 600.4(b) of the regulations, ask the attorney general for “additional jurisdiction beyond that specified in his or her original jurisdiction [as] necessary in order to fully investigate and resolve the matters assigned, or to investigate new matters that come to light in the course of his or her investigation.” There will now be a full court push by Republicans to pressure Weiss into pursuing related matters that they think implicate the President, and loud claims of illegitimacy if he does not do so. And Weiss will now, as the attorney general stated in his press conference, provide Garland with “a report explaining the prosecution or declination decisions reached by him,” which Garland pledged to make as “public as possible, consistent with legal requirements and Department policy.” The contents of this report, and its timing, will be a huge political headache for the White House during election season. 

I expect that Garland did not inform the White House of his decision before the announcement; and I suspect that the White House was not pleased with the news in his press conference.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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