More Reasons Why Hunter Special Counsel Appointment is Wrong and Illegal; Yes, It Can Be Challenged, But What Will Congressional Republican Critics Do Now?
Hunter Special Counsel Appointment Is Illegal
WASHINGTON, D.C. (August 21, 2023) – Several law professors – including Harvard’s Alan Dershowitz and George Washington’s Jonathan Turley and John Banzhaf – have reported that Attorney General [AG] Merrick Garland’s appointment of U.S. Attorney David Weiss as a special counsel for Hunter Biden was illegal because it is expressly prohibited by federal law.
But while many members of Congress have been critical of the appointment – because Weiss did not vigorously investigate and prosecute Hunter Biden for his many admitted crimes, and apparently yielded to political pressure in offering him a no-jail complete-immunity “sweetheart” plea deal – they have so far done nothing to challenge it, perhaps because it has been said to be challengeable legally, and perhaps because they think more evidence is needed.
But they now have at least two new pieces of evidence showing why the appointment was wrongful and well as illegal.
Moreover, since it has also been shown that the appointment can be legally challenged, it’s now up to the Republican critics in Congress to “put up or shut up” by moving to challenge it, says public interest law professor John Banzhaf, who helped scuttle Hunter’s so-called “sweetheart” deal.
FIRST, it has been reported that before the plea deal was offered, Hunter’s longtime attorney Chris Clark had threatened in a 32-page letter that, if Hunter were to be indicted, he would put the president on the stand as a witness for the defense. More specifically, he wrote: “President Biden now unquestionably would be a fact witness for the defense in any criminal trial.”
Ironically, Clark has now resigned as Hunter’s attorney for virtually the same reason; saying that his continued representation of Hunter would be improper because he (Clark) might be called as a witness in any subsequent trial.
But Clark’s resignation in no way removes – indeed, the ironic reason behind it simply illustrates the importance of – the threat that the President is likely to be called as a witness if Hunter is put on trial.
If the possibility that lawyer Clark might be called as a witness creates a conflict of interest sufficient to require him to give up his lucrative relationship with Hunter, the possibility that Hunter’s own father might be called as a witness creates an even clearer and stronger conflict of interest since Hunter’s father and potential witness would then be able, as President, to dictate trial strategy, and even remove the prosecutors if they didn’t follow any orders he might give.
Moreover, as a loving father who has repeatedly expressed his willingness to help his son, it is certainly not unreasonable that he would use his powers as president to help keep his son out of prison.
SECOND, it is also being reported that Weiss had partnered with – and therefore probably established a friendship with – Hunter’s brother, Beau Biden, the then- state’s attorney general; and that “The tensions are heightened by a fact that locals say is inevitable in a place like Delaware: Weiss’ career has often brought him into contact with Biden, his family and his political allies in the state.”
As another prominent Delaware attorney pointed out: “The state is a small town and everybody knows each other . . . [Joe Biden] “has been the most consequential figure since 1972 and I’m sure he and Weiss crossed paths.”
So being friends with the (now deceased) brother of a criminal defendant, and having had numerous contacts with the defendant’s powerful and prominent father and his political allies, would only add to the appearance of impropriety and the conflict of interest if Weiss is now in charge of negotiating another possible “sweetheart deal” with Hunter; especially now where, as special counsel, he has legal authority over any and all crimes Hunter may have committed in states other than Delaware.
The law expressly and unambiguously provides [at 28 CFR 600.3] that “The Special Counsel shall be selected from outside the United States Government.” [emphasis added]
As the long-time and current U.S. Attorney for Delaware, Weiss is not “from outside the United States Government.” Indeed, he has been in that position for over 5 years, and holds it at the pleasure of the defendant’s loving father; subject to being fired for any reason.
Despite claims that the same federal regulations which provide for such appointments also makes [at 28 CFR 600.10] such appointments immune from any law suit, Weiss’s appointment can be legally challenged, explains Banzhaf, who played a major role in obtaining the special prosecutors which forced former president Richard Nixon from office, and obtained a judge’s order requiring the appointment of an independent counsel regarding another matter.
Federal Regulations
Professor Banzhaf says that it is important to note several things about these federal regulations.
First, regulations are legally binding on the federal government and on its various officials, including the AG and his subordinates, unless and until amended or rescinded in accordance with applicable law. These special counsel regulations remain in place, and are binding on the AG. Thus they should be followed by judges in any appropriate legal proceeding.
Second, the use of the mandatory word “shall” in 28 CFR 600.3, rather than “may” or even “should,” means that the “outside the . . government” requirement is clearly mandatory and compulsory, and cannot be avoided, overlooked, or waived by the AG or by judges.
Indeed, what makes a special counsel special is not just the assignment to him by the AG of additional duties or powers, but rather – in order to assure that he will be a truly “independent” counsel – that he must come from outside the government.
Third, the appointment of Weiss was made pursuant to and under these special counsel regulations, although Garland also cited 28 U.S.C §§ 509,510,515, and 533. As the AG said in his statement announcing the Weiss appointment:
“I am here today to announce the appointment of David Weiss as a Special Counsel, consistent with the Department of Justice regulations governing such matters. In keeping with those regulations, I have today notified the designated members of each House . . . Consistent with the Special Counsel regulations, at the conclusion of Mr. Weiss’ work, he will provide me with a report . . .” [emphasis added]
Law professor Jonathan Turley, who like Professor Banzhaf has long argued that the law required the appointment of an special counsel for Hunter, but that the appointment of Weiss was illegal, has also weighed in on this issue:
“Of course, Garland could insist that, although this appointment from inside the Justice Department violates the statute, Special Counsel John Durham was also selected from the department’s ranks. Yet that does not excuse the appointment of a prosecutor who has been accused of conflicts of interest and false statements — the very antithesis of a special counsel who is supposed to have ‘a reputation for integrity and impartial decision-making.’”
Professor Alan Dershowitz agrees, speaking out perhaps even more forcefully than Profs Turley or Banzhaf:
“It’s illegal. The regulation provides clearly that special counsel have to come from outside the government for good reason. What’s so special about a special counsel is that he doesn’t have to answer to the present administration, he’s independent . . . “But if you have somebody who serves at the pleasure of the attorney general, and obviously as the U.S. attorney serves his pleasures [as] part of the administration, that person shouldn’t be serving . . . It’s in clear violation of the regulation itself.”
Prof Banzhaf notes that this “outside the United States government” requirement was included in the regulations because the drafters realized that any person not coming from outside the federal government would be subject to strong if not overwhelming political pressure since they could in most cases be fired directly or indirectly (e.g. though a subordinate) by the president and/or by a cabinet secretary such as the attorney general. As the regulations [28 CFR 600.00] made clear, otherwise the:
“investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department . . .” [emphasis added]
In other words, the mere fact that the person overseeing the investigation was of a different political party than the suspect – the excuse Garland used for failing to appoint a special counsel for Hunter much earlier when the conflict of interest first became clear – does not guarantee that Weiss will have the independence required to insure that he will be impartial, and immune from political pressure in so far as possible.
So, while those who may claim that Weiss is unfit to be special counsel because he does not meet other general qualifications specified in the regulations – e.g. “a lawyer with a reputation for integrity and impartial decisionmaking” – cannot challenge the appointment on those grounds because qualities such as “integrity” are matters of judgment, it is clear beyond any possible doubt or argument that Weiss does not meet the crucial and unambiguous requirement of being “from outside the United States government.”
It appears that members of Congress and others most strongly objecting to the appointment of Weiss do not plan a legal challenge because of arguments based upon 600.10 of the regulations which provides:
“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.”
But the Weiss appointment probably could be challenged if one thinks creatively, says Banzhaf, the law professor who used unusual outside-the-box litigation strategies to force McDonald’s to pay over $12 million for truthful but misleading statements, Spiro Agnew to disgorge the money he took in bribes, and the nation’s railroads to stop overcharging for transporting recyclable goods, among others.
For his involvement in other unusual but successful litigation, he’s been called “The Law Professor Who Masterminded Litigation Against the Tobacco Industry,” and “a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars.”
Although 600.10 states that the regulations do not create any new right – i.e., a legal obligation A may sue B to enforce – it does not mean that the express limitations they include cannot ever be enforced.
As only one example, Prof Banzhaf notes that he once convinced a federal judge that although federal regulations designed to protect federal workers from exposure to certain toxic substances do not authorize them to sue for violations (i.e., did not create a new legal right), the regulations can still be enforced indirectly in ancillary legal proceedings.
For example, if Hunter is charged with crimes in venues other than Delaware, but declines to raise the issue of an improperly-appointed special counsel (perhaps as part of a further coverup or other sweetheart deal), the illegality of Weiss’ appointment as special counsel could be brought (preferably again by a powerful member of Congress) to the attention of the judge (similar to the legal objections filed by Banzhaf and others to the Hunter plea deal).
The judge presumably would then have to refuse to permit the proceeding to move forward, although neither those making the filing nor the judge has or needs “any rights, substantive or procedural, enforceable at law or equity” in order to insure that proceedings already under a judge’s control control are not conducted in violation of any statute or federal regulation.
Similarly, if a subpoena is issued to a person outside Delaware by and/or on behalf of a grand jury sitting in a state other than Delaware, the recipient presumably would be able to challenge it in court since an illegally-appointed special counsel would have no authority outside his home state.
And, in view of Judge Maryellen Noreika’s decision rejecting the first plea agreement, any subsequent plea deal based upon crimes where the proper venue is other than Delaware might be challenged because an appointment of this special counsel – which, among other things, gives him authority in other jurisdictions – is illegal since Weiss is not from “outside the United States Government.”
Indeed, such a challenge, including possible appeals if necessary, might prevent any approvals of any new “sweetheart” plea deal, even if its terms might seem more reasonable.
There probably are additional ways in which the unlawfulness of this appointment can be raised, even if no new legal “rights” (i.e. claims by A which can be legally enforced against B) have been created by 28 CFR 600.
Indeed, any suggestion that there could be regulations which create, establish, and and contain express limitations and requirements, but which then also provide that there is no way in which the express limitations and requirements can ever be enforced, is illogical, and therefore these special counsel regulations should not be construed by any judge so as to preclude any possible legal challenges.
Otherwise, says Banzhaf, it would be as illogical as postulating an all-powerful entity who can make a stone so big that he cannot roll it, or the sentence “This sentence is false.”
At the very least, such legal challenges – perhaps supported and/or funded by those opposed to Weiss’s appointment as special counsel – would help to focus public attention on the questionable legality (if not clear illegality) of the ploy, and delay with appeals any results tainted by the clear conflict of interest created when the investigator is subject to being fired by the father of the criminal suspect being investigated, argues Banzhaf.
