Attorney General Merrick B. Garland’s decision to grant special counsel status to David Weiss, the Trump-appointed U.S. attorney for Delaware leading the investigation into Hunter Biden, raises some interesting points. Both Garland and Weiss have previously stated that the prosecutor had the authority to act independently, which suggests that making him a special counsel might be more of a symbolic move than a substantive change.
The backdrop for this decision is the Republican accusations that Weiss offered a lenient plea deal to Hunter Biden due to political manipulation by Garland or the White House. Granting special counsel status to Weiss may serve as a shield against such accusations. A special counsel has the same powers as a U.S. attorney but is granted more day-to-day independence. Garland emphasized that Weiss was already operating outside the normal system of oversight and control for the Hunter Biden case.
In February 2021, Garland discussed the decision to allow Weiss to continue the investigation into Hunter Biden, stating that Weiss had ultimate authority over the matter. According to Chris Clark, Hunter Biden’s defense attorney, the prosecutor’s new status does not appear to be a substantive change, as Weiss already had more authority than a special counsel and the full authority to negotiate a resolution.
The differences between U.S. attorneys and special counsels mainly lie in the protections intended to ensure they operate free from political interference. Special counsels cannot be fired without cause or arbitrarily, and at the end of the investigation, Congress must be informed of the decision, acting as a deterrent for abusing power. Special counsels are also required to write a report to the attorney general, which can be disclosed if chosen. Garland intends to release as much of Weiss’s report as possible.
The decision not to immediately name Weiss as a special counsel when the Biden administration took office might be due to the regulation’s expectation that special counsels will be individuals brought in from outside the Justice Department. Bestowing this status on a sitting U.S. attorney is unusual, unlike previous special counsels like Robert S. Mueller III, who was a retired FBI director.
Garland pointed out that Weiss had never requested special counsel status but informed him on August 8 that he believed his investigation had reached a stage where he should continue his work as a special counsel. Garland decided it was in the public interest to grant Weiss this status, without specifying what changed.
Recent Republican accusations of political bias in the investigation of Hunter Biden have prompted the grant of formal special counsel status to Weiss, which could undermine such attacks. However, Weiss also revealed a change in the investigation, stating that guilty plea negotiations had collapsed, and he now expects the tax charges against Hunter Biden to go to trial.
Overall, while making Weiss a special counsel might not alter the existing arrangement significantly, it could provide additional protection against accusations of political manipulation and bolster public confidence in the independence of the investigation.