David Weiss, Special Counsel
Though not to the same extent as Jack Smith, David Weiss has endured his own political whirlwind. His experience demonstrates the ineffectiveness of special counsel labels.
Justice Briefs is a weekly newsletter devoted to federal criminal prosecution. The federal government’s evolution over the last 230 years has given federal prosecutors significant discretion. Few realize it exists and even fewer know how it is used. Justice Briefs aims to make federal prosecutions and prosecutors more accessible to the general public. Please help me in this endeavor by subscribing and sharing with others.
Justice in Brief
*In the Central District of California, an interpreter for a professional baseball player was charged with bank fraud in connection with the interpreter’s theft of $16 million from the baseball player. The money was used to cover the interpreter’s gambling debts.
*In the Southern District of Ohio, a man was charged with using FanDuel, a sports-betting site, to launder millions of dollars worth of illegally-acquired funds. The man used established accounts, mixing the illegal money with legitimate winnings. H/T to Court Watch
*In the District of Delaware, two women were charged with “sextorting” $1.6 million from 1000s of victims. The women falsely represented their appearance to thousands of men across the world and recorded the men in sexually compromising positions. Then they threatened to expose the men unless they paid.
David Weiss: US Attorney and Special Counsel
While Jack Smith has made headlines due to prosecuting Donald Trump and Robert Hur released his report declining to prosecute Joe Biden, David Weiss continues his work prosecuting the criminal case against Joe Biden’s son, Hunter. Weiss has been investigating and prosecuting the case for several years. His experience, however, is unique from the others. He has served as special counsel while also serving as United States Attorney for the District of Delaware. This unusual path reflects the impact partisan politics has on appointing a special counsel and how virtuous prosecutors can, in some ways, alleviate the need for a special counsel.
Former President Donald Trump quickly made Hunter Biden a target of criminal investigation once former Senator and Vice President Joe Biden emerged as a contender for the 2020 Democratic Presidential nomination. It first generated wide-spread public notice when word of President Trump’s “perfect” phone call with Ukraine’s President Volodymyr Zelenskyy surfaced. During the call, Trump implied that he would withhold aid from Ukraine unless Ukraine launched an investigation into Hunter Biden’s financial dealings in that country. When it became clear there was no criminal conduct, President Trump shifted the focus to China. Eventually the political pressure rose to launch a criminal investigation. As Hunter Biden operated from the Biden family home in Delaware, the investigation fell to David Weiss, Delaware’s United States Attorney.
Weiss assumed the role of Delaware’s United States Attorney in 2018 when he was nominated by President Donald Trump and confirmed by the Senate. Delaware is a small, quiet, unassuming district. Unlike other Trump United States Attorney appointees, Weiss’s selection was not partisan or ideological. Instead, Weiss was, for the most part, a career federal prosecutor.
Following his law school graduation, Weiss clerked for a Justice of Delaware’s Supreme Court and then moved into the United States Attorney’s Office as an AUSA in 1986. He left in 1989 for private practice and remained in commercial litigation until 2007 when Weiss was named First Assistant United States Attorney. This was near the end of the George W. Bush presidency. When the US Attorney resigned in 2009, Weiss was named interim United States Attorney. He served in this role for half of President Obama’s first term, until a Senate-confirmed successor was in place. Once the successor assumed office, Weiss returned to his role as First Assistant United States Attorney. He remained in that role under President Trump nominated him as United States Attorney in 2018. With the Hunter Biden investigation ongoing when Joe Biden assumed the presidency, the Biden Administration thought it best to avoid event he appearance of political manipulation and Weiss remained as United States Attorney and is still in that position. In 2023, he would also be named a “special counsel” for the Hunter Biden case.
Naming Weiss a “special counsel” resulted from three years of political wrangling. In began in the period between the November 2020 election and the inauguration of President Biden. President Trump announced that he believed a special counsel was necessary for the Hunter Biden investigation. Attorney General Bill Barr disagreed and believed that Weiss could handle the investigation. When Joe Biden assumed the presidency and Merrick Garland was selected to become Attorney General, they decided to keep Weiss in his position so that the investigation could continue unimpeded. At this point, the narrative becomes murky. Discussion focused on Weiss becoming a special counsel but who raised it first is disputed. According to Weiss, he discussed the matter with Garland for the sole purpose of allowing Weiss to bring charges in whichever district had proper authority. As U.S. Attorney, Weiss only had authority to file criminal charges in Delaware. Another version posits that Weiss claimed he lacked charging authority, implying that Attorney General Garland wanted final say. Of course, the narrative emerges against the political charged Washington, D.C. environment.
The situation simmered until the summer of 2023. An announcement came that Weiss and Hunter Biden had reached a plea deal on tax and gun charges. Republicans pounced on this claiming that it was evidence that Garland pressured Weiss to resolve the matter leniently. Both Weiss and Garland denied the allegations. The agreement then fell apart at the plea hearing when the judge refused to accept it, stating the parties did not agree on the terms.
All of this culminated in Attorney General Garland naming Weiss special counsel in August 2023. A month later, Weiss again indicted Hunter Biden in Delaware on making false statements in connection with a gun purchase and on evading his income tax liability. Taking a page from the Trump criminal defense handbook, Hunter Biden’s defense has challenged the prosecution on the basis that the gun charge violates the Second Amendment and that the tax prosecution is the result of vindictive and selective prosecution. In the latter motion, the defense alleges that Donald Trump ordered the prosecution. The exact claim Donald Trump has made against Joe Biden in the Washington D.C. case against Trump.
This scenario has pitted many Republicans against one of Donald Trump’s nominees. Weiss is a Republican and has spent most of his prosecutorial career working for Republican presidential administrations. Yet Republicans seem loathe to take Weiss at his word that Attorney General Garland did not exert any pressure or place any limits on Weiss’s authority. Instead, they prefer to use the prosecution as evidence of their particular political perspective.
This is how partisan politics can infect a criminal prosecution. Yet it is also an example of why special counsels, in and of themselves, do not insulate a prosecution from political influence. Garland’s involvement has remained the same regardless of whether Weiss acted as Delaware’s United States Attorney or as “special counsel.” Garland has exercised the virtues of resolution and silence. From all accounts Garland has said nothing nor has he deviated from his promise to not interfere in the case. It is these virtues, more than the label given to Weiss’s role that insulate the Hunter Biden case from partisan interference.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!
Will the case ever end?!!!