Hunter Biden Special Counsel Illegal, And Can Be Challenged; Many Are Complaining Bitterly, But Will They Take Action?
Special Counsel In Hunter Biden Case Is A Violation Of Federal Law
WASHINGTON, D.C. (August 14, 2023) – Despite many pieces of evidence strongly suggesting that U.S. Attorney David Weiss did not vigorously investigate and prosecute Hunter Biden for his many admitted crimes, and may even have yielded to political pressure in offering him a no-jail complete-immunity “sweetheart” plea deal, Attorney General [AG] Merrick Garland has just appointed him to serve as “special counsel” to continue overseeing the investigation and prosecution – and any possible plea deal – involving the President’s son.
But far more important than mere objections about his lack of prosecutorial zeal, and to his possibly yielding to political pressure, the appointment of Weiss is a clear violation of federal law.
Moreover, despite claims that the same law makes such appointments immune from any law suit, Weiss’s appointment can be legally challenged, explains public interest law professor John 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.
Although no current federal statute now provides for the appointment of a special counsel (or “special prosecutor” or “independent counsel” as they were once known), federal regulations [28 CFR 600] do provide for such appointments, and expressly and unambiguously provide [at 600.3] that “The Special Counsel shall be selected from outside the United States Government.” [emphasis added]
Professor Banzhaf says that it is important to note several things about these federal regulations.
First, regulations are legally binding on the government and on its various officials, including the AG and his subordinates, unless and until amended or rescinded in accordance with applicable law.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 appropriate proceedings.
Second, the use of the mandatory word “shall” in the regulations, rather than “may” or even “should,” means that the requirement is clearly compulsory, and cannot be avoided or overlooked 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 will 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]
Outside The United States Government Requirement
Law professor Jonathan Turley, who like Professor Banzhaf has long argued that the law required the appointment of an special counsel for Hunter, 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.’”
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 [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 much earlier when the conflict of interest first became clear – does not guarantee him 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 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.
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.
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, 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 deal), the illegality of Weiss’ appointment as special counsel could of course be brought (preferably again by a powerful member of Congress) to the attention of the judge (similar to 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 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.
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 another “sweetheart” plea deal.
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 and contain express limitations and requirements, but which 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 like 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 – 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.
