Hunter Biden Special Counsel Appointment May Violate Law Requiring Impartial Government Outsider: Rep. Sessions

U.S. Attorney General Merrick Garland in Washington on June 23, 2023. Chip Somodevilla/Getty Images

Attorney General Merrick Garland’s appointment of Delaware U.S. Attorney David Weiss as Special Counsel for the Hunter Biden investigation may violate the law that created the position and requires it be filled by an individual who is impartial and from “outside of the government,” according to Rep. Pete Sessions (R-Texas).

“Today, Merrick Garland hired a Special Counsel who he knew would not investigate the President’s illegal behavior while he was Vice President. He is placing the same prosecutor in charge of Hunter Biden’s sweetheart deal. David Weiss has shown himself to not be an impartial decision-maker, and therefore I do not believe he is qualified to be Special Counsel. Lawmakers will not stand idly by and will rigorously seek accountability and transparency in this process,” Mr. Sessions told The Epoch Times.

The Texas Republican is chairman of the House Committee on Oversight and Accountability Subcommittee on Government Operations and the Federal Workforce.

Mr. Sessions’ father was Director of the FBI from 1987 until 1993, when he tangled with then-Attorney General Janet Reno. The senior Sessions had served as a federal judge before President Ronald Reagan’s appointment to the FBI position.

Sen. Lindsay Graham, the Ranking Member of the Senate Judiciary Committee, pointed to the plea deal as “the biggest sweetheart deal in the history of the American legal system. To allow this same team to continue to investigate potential financial crimes involving Hunter Biden and others doesn’t pass the smell test. If the goal of Attorney General Garland’s decision to appoint Mr. Weiss as special counsel in the Hunter Biden investigation was to put this story to bed, he failed miserably.”

Mr. Garland announced his appointment of Mr. Weiss as Special Counsel August 11, saying: “On Tuesday of this week, Mr. Weiss advised me that in his judgment, his investigation has reached a stage at which he should continue his work as a Special Counsel, and he asked to be so appointed.”

U.S. Attorney General Merrick Garland announces the appointment of Attorney David Weiss as special counsel in the ongoing probe of Hunter Biden, the son of President Joe Biden, on Aug. 11, 2023. Drew Angerer/Getty Images

Mr. Weiss has been investigating allegations involving the son of President Joe Biden since 2020. On July 26, U.S. District Court Judge Maryellen Noreika rejected the proposed plea deal negotiated by Mr. Weiss and Hunter Biden’s lawyers that would have granted Biden complete immunity from future prosecution in return for his pleading guilty to two misdemeanor tax evasion charges and accepting probation in a third charge in which he acknowledged lying on a federal firearm purchase form.

Republicans in Congress condemned the proposed Biden deal as “a sweetheart deal,” and almost simultaneously with Garland’s announcement, Mr. Weiss  filed a statement with Judge Noreika saying efforts to agree to a revised plea deal had failed and the case cannot be resolved short of a trial.

“Upon considering his request, as well as the extraordinary circumstances relating to this matter, I have concluded it is in the public interest to appoint him as Special Counsel. 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. He did not respond to shouted questions from reporters assembled for the announcement.

The provision to which Mr. Sessions referred is in the 1999 law that established the Special Counsel position to replace the Independent Counsel position that had previously been used in the Clinton sex scandal investigation, the Iran-Contra probe of 1987 and the Watergate conspiracy investigation.

Section 600.3 provides that “an individual named as Special Counsel shall be a lawyer with a reputation for integrity and impartial decision-making, and with appropriate experience to ensure both that the investigation will be conducted ably, expeditiously and thoroughly, and that investigative and prosecutorial decisions will be supported by an informed understanding of the criminal law and Department of Justice policies.

“The Special Counsel shall be selected from outside the United States government. Special Counsels shall agree that their responsibilities as Special Counsel shall take first precedence in their professional lives, and that it may be necessary to devote their full time to the investigation, depending on its complexity and the stage of the investigation.”

United States Attorney Robert Hur speaks at a news conference at the U.S. Attorney's Office, in Baltimore, Md., on Sept. 19, 2018. Zach Gibson/Getty Images

A Department of Justice (DOJ) spokesman did not respond to The Epoch Times’ request for an explanation of how Mr. Weiss can satisfy the legal requirements for being appointed a Special Counsel. Garland previously appointed Robert Hur as Special Counsel to investigate classified documents in the possession of the president that were found at four separate locations in the District of Columbia and Delaware. Mr. Hur was not a government employee at the time of his appointment as Special Counsel.

Similarly, Garland appointed Jack Smith in 2022 to investigate President Donald Trump’s possession of classified documents at his Mar-a-Logo, Florida, residence. Although a career DOJ attorney, Mr. Smith was working with the Kosovo Specialist Chambers and Specialist Prosecutor’s Office.

Mr. Sessions and other congressional Republicans argue Weiss cannot be impartial, having accepted the plea deal that gave Hunter Biden complete immunity from all future prosecutions.

Conservative legal analysts also blasted the appointment. Article III Founder and President Mike Davis, a former Senate Judiciary Committee staffer, issued a statement calling Weiss a “loyal foot soldier” for the Biden administration.

“When this scandal got exposed by Judge Maryellen Noreika, we now have today’s special counsel appointment. Weiss has proven himself as a loyal political foot soldier for Biden. And Garland’s appointment of Weiss as special counsel, with his ‘ongoing investigation,’ will simply shield Biden from accountability before the 2024 election. Now Garland and Weiss want to move Hunter’s criminal case away from Judge Noreika in Delaware to a more compliant Democrat judge in California or D.C. This is an obvious coverup,” Mr. Davis said.