Posted on 08/16/2023 9:04:53 PM PDT by SeekAndFind
This issue has been percolating a bit in the background, but there were so many reasons to criticize Merrick Garland’s appointment of David Weiss as Special Counsel in the investigation of Hunter Biden’s numerous crimes that few people have focused on the fact that the appointment doesn’t appear to be consistent with the law authorizing special counsels.
As with everything having to do with the Hunter Biden investigation, it’s a complicated mess. It is messy legally, messy politically, and stinks of corruption.
Alan Dershowitz did a bit of a dive into the legality of the appointment, and it mostly/sorta answers the question regarding whether Weiss’ appointment meets the requirement of the law. In short, it doesn’t.
When Attorney General Merrick Garland announced that he was appointing David Weiss as special counsel, he failed to mention § 600.3(c) of the Code of Federal Regulations entitled “Qualifications of the Special Counsel.” These qualifications include the following: “The special counsel shall be selected from outside the United States government.” (Emphasis added)
This requirement is the law. The regulations were authorized by Congress under 5 U.S.C. 301, 509, 510, 515-519. The attorney general is the chief law enforcement officer of the United States. It is certainly expected that he would obey the law in its entirety.
Not following the law is particularly on brand for this Administration, which likes to high-mindedly declare that “nobody is above the law” in the moments before they run roughshod over it, either in service of doing something illegal or covering up some illegalities committed by a Biden.
There of course was a practical rationale one could use as an excuse for the unusual appointment, and a different practical rationale for why Garland would want Weiss in charge of the investigation.
The first, public rationale is easy to understand: somebody new would have to start over, while Weiss has years invested in this investigation. This has a surface plausibility, although it overplays the role of Weiss in the actual day-to-day work. Weiss is, after all, a US Attorney whose role in the investigation was mostly managerial and a small subset of his larger job. It was his underlings who did the heavy lifting, and replacing Weiss would not have required replacing them.
Abbe Lowell said making of David Weiss a special counsel only changes his title. It clearly does more than that by insulating the DOJ from the congressional investigations. Garland ignored the objections of Weiss' own team members to his actions. It is like responding to the…
— Jonathan Turley (@JonathanTurley) August 12, 2023
This brings up the second, non-public reason why Garland would want Weiss in charge: as a manager of the investigation he proved himself utterly compromised. It was Weiss who allowed the statute of limitations to expire on some of the most egregious crimes Hunter Biden (and Joe) committed, and Weiss who orchestrated the egregious “get out of jail free” deal that blew up in court and created this mess.
Garland may well say that he had little choice but to pick David Weiss, because Weiss has been conducting this investigation for five years. But that sounds like a good reason for not appointing the man who already agreed to make what many regard as a sweetheart deal, limited to minor tax and gun violations. Whether consciously or unconsciously, Weiss is likely to want to defend that highly criticized decision – a decision that was (as I predicted) rejected by the judge because of its ambiguity.
As to the five years of investigation, they were conducted not by Weiss himself but by his underlings, who could be kept on if a new special counsel were to be appointed. But even if there were persuasive reasons for naming Weiss as special counsel, Garland had an obligation to explain his apparent violation of a binding regulation. He did not do so at his press briefing. He can still do so now. And he should.
The whole point of the special counsel law is to get politics–as much as possible–out of politically-charged cases in order to create both the appearance of and reality of impartiality in legal enforcement. The appearance matters because without it people lose faith in government, and the reality of impartiality is a simple requirement of fairness.
Appointing Weiss does neither. Everybody knows that this was done to protect Joe Biden by giving the MEDIA a fig leaf for defending the investigation (he is an independent Special Counsel!) and to shield Weiss from having to testify before Congress. Weiss has a lot to answer for in that venue, and Garland just shielded him from having to answer questions.
The Biden Administration has been remarkably brazen about its abuses of power and has managed to keep the media on board no matter how abusive their actions have been. Over the past decade or two slid from having an ideological tilt to simply being team mascots for the Left. For all their flaws during the Clinton Administration, when they saw a story in Whitewater or Lewinski they reported it.
No longer. They actively cover up for Democrats now. It started with Obama and has if anything gotten worse under Biden. If that is possible.
All this brings up another point: will the legal infirmity of this appointment undermine any cases that do show up to trial in the Hunter Biden case? If convicted could Biden challenge the appointment?
I have no idea, and I am uncertain if anybody does. It would likely come down to a judge’s decision and at the very least extend the case’s resolution into the distant future as courts untangle the legal ramifications.
None of that would have been the case if Garland simply followed the law as written, but that would be completely out of character under Joe Biden.
If nothing else, it is clear that thanks to Mitch McConnell we dodged a bullet when Garland was kept off the Court. He is a complete hack.
Ping to you. A separate thread discussing this very issue we have been talking about in a different thread.
Apparently, Prof. Alan Dershowitz disagrees with you. See here:
https://dersh.substack.com/p/garland-illegally-appointed-weiss
Grand jury time.
To the extent Bureaucratic Rules are Law, no.
To the extent that Bureaucratic Rules are enforced and adjudicated by The Bureaucracy [a one stop shop], yes.
Trump needs to hire Tony Buzbee.
Legally?
Why would they want to go against 0’Biden tradition and start doing that now?
.
Not Legal.
And there’s a much better case Weiss should be charged with crimes in obstructing and conspiring to cover up Biden crimes than the charges brought against Trump
I would ignore the article at the top of this thread, since the author gets some obvious facts wrong. Just two examples:
The regulations were authorized by Congress under 5 U.S.C. 301, 509, 510, 515-519.
For one thing, I don’t think this was cited correctly. Most of these sections don’t appear in 5 U.S.C., from what I can find. Secondly, the “authorization” from a Congress says nothing about these specific regulations. Congress simply authorizes the DOJ to make regulations in general. These regulations are not statutes. They relate to the internal operations of Federal agencies.
The whole point of the special counsel law is to get politics–as much as possible–out of politically-charged cases in order to create both the appearance of and reality of impartiality in legal enforcement.
I can’t believe anyone writing about this subject would be so wrong about this. There is no special counsel law. The special counsel law passed by Congress in the 1970s was allowed to lapse in 1999. It should have been summarily canceled as unconstitutional anyway.
An individual named as Special Counsel shall be a lawyer with a reputation for integrity and impartial decisionmaking, 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.
However, 28 USC 600.10 says:
The regulations in this part are not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law or equity, by any person or entity, in any matter, civil, criminal, or administrative.
So yes, the Attorney General did not follow the United States Code when he appointed Weiss, but the Attorney General cannot be held accountable for not following the USC.
Neat, huh? A law without any teeth.
“What difference . . . does it make?”
Delaware’s prosecutor Weiss (now special counsel at his request) isnt too bright.
He is the one who concocted the sweetheart plea deal for Hunter,
that was kiboshed after presented for the court’s consideration.
Weiss’ plea deal was so meager that it did not even reach
the level of a ‘limited hangout’ (which seems to be its original intent).
A “limited hangout” is a public relations scam in which a
guilty perp who wants to cover up a major crime will admit
to a very small portion of the crime in order to claim that
the issue has been put to rest.
jonathanturley.org
August 16, 2023
DOJ: Hunter Plea Deal on Gun Charge is Dead
After the collapse of the Hunter Biden plea bargain concocted by Weiss, it was telling that the Biden Team seemed most insistent on one demand: the gun charge agreement was still in full effect.
Many of us noted that Weiss placing Hunter into the pre-trial diversion program not only contradicted the position of his father and the Biden Administration on such charges, but was sharply in contradiction with similar contemporaneous cases.
Perhaps for that reason, the Biden attorneys were apoplectic in maintaining that the gun charge was inked and sealed.
The Justice Department just declared, however, that it is dead as Dillinger. That is the problem when your counsel tells the prosecutor in open court to “just rip up” the plea deal.
In a motion to vacate the prior briefing order, the Justice Department on Tuesday filed a categorical rejection of the Biden claim and told the court “to reiterate, the now-withdrawn diversion agreement, by its own terms, is not in effect.”
The Justice Department pointed out that the Biden argument was manifestly wrong since Margaret M. Bray, the Chief United States Probation Officer for the District of Delaware, never signed off on the agreement.
That means that Biden could be treated like other defendants. Indeed, usually when a plea deal is rejected, the Justice Department will seek maximal charges and sentencing.
A recent decision of the United States Court of Appeals for the Fifth Circuit could present an interesting twist in this ongoing saga. Hunter Biden could oppose the position of the Biden Administration in its tough take on such gun violations — a position repeatedly championed by his father.
In U.S. v. Daniels, the treatment of Patrick Darnell Daniels was starkly different from the President’s son. Daniels was found with a handgun and found to be a regular user of marijuana. He was convicted of the unlawful possession of a firearm due to his drug use and sentenced to four years in prison.
snip
No he was not, so guess who has an out? Hunter just complains to a Judge and poof he’s free of all….
I have not seen more than one or two complaints from congress. The fix is in.
The answer is “no.”
NO!! Nothing that the Dems do is LEGAL or GOOD!
No and pointing to the fact that Durham was not either doesn’t change that fact.
There have been times where I thought it would have been better for Garland to be on SCOTUS. He would be 1 of 9 and if the court maintained its leaning to the Right, even with Roberts, he wouldn’t be able to do as much damage.
I was wrong. Watching some of his confirmation hearing it was hard to see a man as stupid as he is, being considered for the job they wanted him to get.
Being AG, he has a level of insulation that allows him to do what he wants, basically, unless Congress acts. Obviously, the Senate isn’t going to do anything, since the majority like what he’s doing with regards to Pres Trump.
And we all know that deep down, McCarthy is a political, Establishment hack. To think that there were many on here going after the 20 holdouts, last January, thinking that McCarthy would actually do something. He did a lot of things: folded on funding the government, didn’t release the footage like he said he would, is not interested in any impeachment hearings, whatsoever, of anyone.
To date, have the Republicans in the House, Comer or McCarthy said anything about challenging the appointment of Weiss? Or are they going to let it slide, setting a precedent, like the good, establishment POSs they are?
Since there is no law, there is no legality.
The only permanent solution is extreme strong force applied all across the progressive board.
Outstanding analyses.......deserve a repeat.
<><>Watching some of Garland’s USSC confirmation hearing, it was hard to see a man as stupid as he is, being considered for the job they wanted him to get.
<><>Being Biden’s AG, Garland has a level of insulation that allows him to do what he wants, basically, unless Congress acts.
<><>Obviously, the Senate isn’t going to do anything, since the majority like what he’s doing with regards to persecuting Pres Trump.
AND THIS-—have the House Republicans, TV hog Comer or Zero McCarthy said anything about challenging the hideous appointment of Weiss? Or are they going to let it slide, setting a precedent, like the good, establishment POSs they are?
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