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Garland names special counsel in Hunter Biden investigation

Anna Moneymaker
Getty Images

Updated August 11, 2023 at 3:33 PM ET

Delaware U.S. Attorney David Weiss, who has been investigating criminal allegations against President Biden's surviving son, Hunter Biden, has been named a special counsel, Attorney General Merrick Garland said Friday. Weiss made the request to be special counsel to Garland on Tuesday of this week.

Weiss, a Trump appointee as U.S. attorney who was retained during the Biden administration, has been investigating Hunter Biden since 2019. He reached a tentative plea deal with Hunter Biden, but it collapsed amid scrutiny recently from a Delaware federal judge.

The order of appointment for Weiss to serve as special counsel authorizes him to "conduct the ongoing investigation described above, as well as any matters that arose from that investigation or may arise."

The order gives Weiss the authority to "prosecute federal crimes in any federal judicial district arising from the investigation of these matters."

Attorney General Garland said Weiss requested the special counsel status earlier this week after determining that "in his judgment, his investigation has reached a stage at which he should continue his work as Special Counsel and he asked to be so appointed."

The scope of the ongoing investigation is not clear and under Justice Department guidelines, prosecutors do not spell out as-yet-uncharged allegations. But the appointment paperwork for Weiss references two criminal matters against Hunter Biden and says he began probing Biden, "among others," several years ago.

Weiss will produce a report at the end of his investigation pursuant to special counsel regulations. Garland said he would make that report public consistent with the law and Justice Department policy.

"This doesn't change our understanding of Mr. Wiess' authority over the 5-year investigation into Mr. Biden," Hunter Biden's counsel, Chris Clark, said in a statement. "For years, both Mr. Weiss and the Department have assured us and the public that Mr. Weiss had more authority than a special counsel and full authority to negotiate a resolution of his investigation – which has been done. Whether in Delaware, Washington, D.C. or anywhere else, we expect a fair resolution not infected by politics and we'll do what is necessary on behalf of Mr. Biden to achieve that."

The development comes just weeks after the judge in the Hunter Biden case said she wasn't ready to accept the plea deal struck between the president's son and the Justice Department, and asked both parties to submit additional briefs and return to the court on a future date.

She demanded that the lawyers from both sides make clear that the deal does not convey broad immunity offered to Biden from prosecution on his business dealings. As a result, Hunter Biden pleaded not guilty to two misdemeanor offenses related to his filing of federal income taxes.

On Friday, the prosecutor in the case said the parties are at an impasse on the plea deal and a trial is in order, according to a court filing.

"Following additional negotiations after the hearing held on July 26, 2023, the parties are at an impasse and are not in agreement on either a plea agreement or a diversion agreement," the Justice Department said in the filing.

It said prosecutors requested Biden's position on Aug. 9 and asked for it by Aug. 11. Biden's lawyers said they needed an extension until Aug. 14, "which the Government declined." Biden had not yet provided his position, the filing said.

"As a result, the Government respectfully requests that the Court vacate its briefing order since there is no longer a plea agreement or diversion agreement for the Court to consider," the filing said.

U.S. District Judge Maryellen Noreika ordered Hunter Biden's lawyers to respond by noon on Monday, Aug. 14.

Earlier this year, Hunter Biden agreed to plead guilty to two misdemeanor offenses related to his filing of federal income taxes. Federal authorities also charged him with a felony firearm offense, for which he agreed to enter a pretrial diversion agreement that allows him to avoid prosecution.

According to Weiss, the Trump-appointed Delaware U.S. attorney, Biden did not pay federal income taxes for either 2017 or 2018, despite owing more than $100,000 in taxes each year. Additionally, in October 2018, Biden possessed a firearm despite knowing he was an unlawful user of and addicted to a controlled substance, Weiss' office said.

Biden faced a maximum penalty of 12 months in prison on each of the tax charges and a maximum penalty of 10 years in prison on the firearm charge, but Weiss' office noted that actual sentences determined by judges are typically less than the maximums. A source familiar with the deal said the Justice Department had agreed to recommend probation on the tax charges but a judge would make the ultimate decision.

Republicans have said the plea deal struck was an example of unfair treatment for Biden soon after former President Donald Trump was arraigned on separate and unrelated federal charges related to his handling of classified documents. Trump was separately charged for his role in the Jan. 6 Capitol riot.

A Trump spokesperson said in a statement: "If this special counsel is truly independent — even though he failed to bring proper charges after a four year investigation and he appears to be trying to move the case to a more Democrat-friendly venue — he will quickly conclude that Joe Biden, his troubled son Hunter, and their enablers, including the media, which colluded with the 51 intelligence officials who knowingly misled the public about Hunter's laptop, should face the required consequences."

Responding to the appointment of the special counsel, Rep. James Comer, R-Ky., who chairs the House Oversight Committee, which is investigating the younger Biden, said: "Let's be clear what today's move is really about. The Biden Justice Department is trying to stonewall congressional oversight as we have presented evidence to the American people about the Biden family's corruption."

Senator Richard Durbin, D-Illinois, who leads the Judiciary Committee, praised the move by Garland as one that would avoid "even the appearance of politicization at the Justice Department."

Durbin added: "U.S. Attorney David Weiss is a distinguished prosecutor, and I trust that the Justice Department's professional, nonpartisan approach will carry on as the Special Counsel continues his investigation."

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Carrie Johnson is a justice correspondent for the Washington Desk.