Pollak: Appointment of David Weiss as Special Counsel May Be Unlawful, Despite Precedent

Attorney General Merrick Garland’s appointment of U.S. Attorney David Weiss of Delaware as Special Counsel to investigate Hunter Biden contradicts federal regulations requiring that a special counsel be chosen from outside the government.

However, it would not be the first time that an Attorney General had ignored those regulations. In 2003, U.S. Attorney Patrick Fitzgerald was appointed as Special Counsel in the Valerie Plame affair. He was appointed by Deputy Attorney General James Comey, who would later depart from procedure and regulations in announcing that Hillary Clinton would not be prosecuted. In 2020, Attorney General William Barr appointed John H. Durham as Special Counsel to investigate the Russia “collusion” hoax.

Title 28 of the Code of Federal Regulations, which deals with judicial administration, states in section 600.3(a) (emphasis added):

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.

Weiss is currently a presidential appointee working in the U.S. government. Special Counsel Jack Smith, who is leading the investigation of former President Donald Trump, had left the Department of Justice (DOJ) to work as the chief prosecutor for the war crimes tribunal at The Hague. Special Counsel Robert Hur, who is investigating President Joe Biden’s alleged mishandling of classified documents, had also left the DOJ and was working outside government at the time of his appointment last year.

However, as the Congressional Research Service (CRS) has noted, others have been appointed Special Counsel despite being U.S. Attorneys. (CRS quotes the regulations as saying the Attorney General “may,” not “shall,” choose from outside the government.)

In his brief statement on Weiss’s appointment, Garland claimed to have followed relevant regulations. He noted that Weiss “will continue to serve as U.S. Attorney for the District of Delaware.” He did not elaborate on any contrast with DOJ regulations.

Republicans had long urged the appointment of a special counsel due to the evident conflict of interest in investigating the president’s son, who is alleged to have involved his father in his business activities (despite President Joe Biden’s denials).

However, the timing of the appointment drew criticism, as did the choice of Weiss, whose office offered Hunter Biden a plea bargain described by many as a “sweetheart deal” that would have immunized him from future, related prosecutions.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the new biography, Rhoda: ‘Comrade Kadalie, You Are Out of Order’. He is also the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.

This post has been updated to include John H. Durham.