Merrick Garland’s Special Counsel Appointment May Violate DOJ’s Own Rules, Legal Experts Say

U.S. Attorney David Weiss’ appointment Friday as special counsel in the Hunter Biden investigation appears to violate a Department of Justice (DOJ) regulation requiring a special counsel to “be selected from outside the United States Government.”

Attorney General Merrick Garland announced Weiss’ appointment as special counsel Friday, noting he would “continue to have the authority and the responsibility that he has previously exercised” and explaining Weiss had requested to be appointed on Tuesday. The Justice Department regulation, which governs the powers and qualifications of a special counsel, was also used to criticize the 2020 appointment of John Durham as special counsel to investigate the origins of the Trump-Russia probe while he was serving as U.S. attorney for the District of Connecticut.

Former Assistant U.S. Attorney Andrew McCarthy called the appointment of Weiss a “sham” on Fox News, saying “the point of having a special counsel is to bring in someone from outside the government who we can trust to do a credible investigation.”

“What makes a special counsel special is that you’re a lawyer who’s brought in from outside the United States government, not just outside the Justice Department, outside the government,” he said.

“This is the Biden Justice Department’s vehicle for maintaining control of an investigation that they are not pursuing,” he continued. “They’ve had the case for five years. They’ve never indicted it. They’re strategically allowing the statute of limitations to run to the point that the 2014 and 2015 conduct, which covers most of the $21 million that the congressional investigation report showed this week, that’s already time barred.”

Fox News legal analyst and former defense attorney Gregg Jarrett tweeted that Garland is “defying federal regulations.”

“So, the fix is in,” he said. “Weiss will continue the obstruction & Biden protection.”

Judicial Watch President Tom Fitton also said Weiss is “ineligible even under DOJ’s constitutionally deficient special counsel” regulations.

Georgetown law professor and former acting Solicitor General Neal K. Katyal, who helped draft the special counsel rules as a Justice Department staff member in 1999, previously argued in The New York Times that Durham’s appointment as special counsel violated the rules.

Durham resigned from his position as U.S. attorney when he was appointed special counsel. Garland said Friday that Weiss would continue to serve as U.S. attorney for the District of Delaware.

Lawyer and former federal prosecutor Bill Shipley tweeted that the attorney general is “not subject to being disciplined for ignoring a regulation.”

“These are created by the Agencies themselves, not the Congress,” Shipley said. “And the regulations provide there is no right created in anyone to force compliance — in a court or otherwise — with this regulation in the event it is violated.”