“Shoeless Joe” and the Fixing of the Biden Scandal

Below is my column in The Hill on the appointment of David Weiss as special counsel. Despite my enthusiastic support at this nomination, I have come to view Attorney General Merrick Garland as a failure as Attorney General. This decision captures why I have lost faith in his leadership — and why his department is at one of the lowest levels of public trust.

Here is the column:

Roughly 100 years ago, “Shoeless” Joe Jackson admitted that, as a player for the Chicago White Sox, he and seven other teammates had intentionally lost the World Series to the Cincinnati Reds in 1919. When a kid stopped him outside of the grand jury room and asked “It ain’t true, is it, Joe?” Jackson responded “Yes, kid, I’m afraid it is.”

This is not a case of history repeating itself. After being confronted by allegations of a fixed investigation, Attorney General Merrick Garland just sent Shoeless Joe back into the game.

The appointment of Delaware U.S. Attorney David Weiss as the new special counsel to investigate Hunter Biden left many with the same disbelief as that kid in Chicago. This is, after all, the same Weiss who headed an investigation that was trashed by whistleblowers, who alleged that his investigation had been fixed from the outset.

It is the same Weiss who ran an investigation in which agents were allegedly prevented from asking about Joe Biden, obstructed in their efforts to pursue questions and compromised by tip offs to the Biden team on planned searches.

It is also the same Weiss who reportedly allowed the statute of limitations to run out on Hunter’s major tax offenses, even though he had the option to extend it.

It is the same Weiss who did not indict on major tax felonies and cut a plea deal that brushed aside a felony gun charge.

It is the same Weiss who inked a widely panned “sweetheart” deal that caused a federal judge to balk and trash a sweeping immunity grant — language that even the prosecutor admitted he had never previously seen in a plea deal.

That is why many asked Garland to “say it ain’t so.”

The Weiss appointment definitively established Garland as a failure as attorney general. As someone who initially praised Garland’s appointment, I now see that he has repeatedly shown he lacks the strength and leadership to rise to these moments.

This is why the Justice Department is now less trusted by the public than it was under his predecessor, Bill Barr. During Barr’s tenure, Pew found that 54 percent of the public viewed the department favorably, and 70 percent had a favorable view of the FBI. Under Garland, the department’s favorability had declined to 49 percent as of March, before many of the recent failures. The FBI’s favorability has fallen by 18 points to just 52 percent.

Garland’s failure of leadership has undermined key cases. A Harvard-Harris poll this summer showed that 55 percent of the public view the Trump indictment as “politically motivated,” and 56 percent believe that it constitutes election interference.

Garland continues to do little to reverse that public perception, other than repeatedly refer to the motto of the Department. He offered the same mantra for years as some of us called for a special counsel appointment to investigate Biden corruption. The case for such an appointment has long been unassailable, but Garland refused to make the appointment, allowing years to pass with underlying crimes.

The immediate effect of this belated appointment will be to insulate Weiss and the Department from Congress as it prepares to interview Weiss and members of his team.

Yet if that was truly his purpose in doing this, Garland might have been too clever by half. First, since Garland did not appoint someone from outside of the Department (as envisioned under Section 600.3).

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.”

Second, there is the failure to expand Weiss’s mandate. Garland described that mandate as focusing again on Hunter Biden, and the Justice Department refused to respond to questions on the possible inclusion of his father in the investigation.

This was another opportunity to recognize the widespread distrust over the department and expressly allow the special counsel to include the corruption allegations involving both Hunter and the president. That would have supported calls for the House to delay further investigations.

As it stands, Garland has virtually ensured that Congress will pursue an impeachment inquiry as the only body seriously investigating the scandal.

The use of impeachment authority is the only effective way to overcome the roadblocks that the Justice Department is likely to throw up after this new appointment. Impeachment can work as constitutional Kryptonite. No court could seriously question the right and duty of Congress to get to the bottom of corruption allegations against the president without delay. Although Weiss can refuse to answer questions, Congress can use its impeachment authority to demand answers from fact witnesses, including Biden family members.

None of this means that Hunter Biden will be protected by Weiss from additional charges. He will likely pursue long dormant charges, such as Hunter’s being an unregistered foreign agent. He could also pursue felonies on the crimes detailed in the now-defunct plea bargain. In other words, he could show all of the aggression that was lacking in his prior work.

The public, however, doesn’t seem to be buying the special counsel spin. The result is reinforcing rather than resolving the lack of trust in the Justice Department.

It could not be worse for the Justice Department as an institution. “Shoeless Joe” Weiss is back in the game, long after the public has left in disgust.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University

203 thoughts on ““Shoeless Joe” and the Fixing of the Biden Scandal”

  1. Attorneys are counsels.

    You are the one pointing out Garland didnot use the Special Counsel legislation. He used the code that keeps Weiss under the thumb of Garland.

    Now you want to use Webster and not federal code, in order to trot out your meaningless pedantry.

  2. Meanwhile, Turley published an early-morning column for Fox — about 2 hours ago — with a video interview at the top of the column, where he AGAIN conflates a “special attorney” with a “Special Counsel.”

    I just posted this comment at that Fox article, which will be shadow-banned by Fox as usual:

    “Weiss is NOT a ‘Special Counsel.’ A 28 U.S. Code § 515 ‘special attorney’ working INSIDE the DOJ is NOT a 28 CFR § 600 ‘Special Counsel’ working OUTSIDE the DOJ, and Garland’s letter specifically appoints Weiss as a 28 U.S. Code § 515 ‘special attorney’ working INSIDE the DOJ.

      1. Of course not. I accumulated over 210,000 “Likes” at the Fox website in under 6 months of commenting at that site under my REAL name+, and then Fox fired Tucker Carlson and went rabid anti-Trump, and simultneously started shadow-banning my comments, and probably shadow-banning the comments of many other Trump supporters or people who just prefer truth to lies.

    1. LOL LOL LOL — That’s total NONSENSE. A “Special Counsel” is a TITLE. It’s a JOB specifically given to a lawyer working OUTSIDE the DOJ, as specified in 28 CFR § 600.1:

      “28 CFR § 600.1 Grounds for appointing a Special Counsel.
      The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and—

      (a) That 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 or other extraordinary circumstances; and

      (b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.”

      Key phrase: “outside Special Counsel”

      Words have meanings, and Garland did NOT appoint Weiss “outside Special Counsel” under 28 CFR § 600.1 — he appointed him as “special attorney” under 28 U.S. Code § 515. Just because both authorities use the word “special” doesn’t make it the same job.

      1. “When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

    2. you clearly did not read the actual appointment order. you have no clue what you are talking about.

      1. meant as sarcastic. the appointment order highlights the misleading wording and intent of the appoinment. Turley should have caught that, as it supports his overall argument.

    3. Ralph,

      If you’re trying to split hairs on “attorney” versus “counsel” then I think you need to take it up with Mr. Garland. Per the release (https://www.justice.gov/media/1309991/dl?inline) her refers to the position as Special Counsel (with caps) and item d on the seconf page references 28 CFR Section 600.

      Would seem to be walking and talking like a duck.

      1. Existing statutes say “ducks” already employed by the US Government can not be given the Title: “Special Counsel”. They can be called, “special attorney ducks”, yes. “Special Counsel”, the Title reserved for someone who does NOT work for the government, No. I didn’t write the statues, but even I can comprehend the differences between them and purposes they serve.

    4. I’m looking at the document headed “APPOINTMENT OF DAVID WEISS AS SPECIAL COUNSEL” and I see “special counsel” as the title of the document AND I see point a) as Weiss is appointed to serve as “Special Counsel for the Department of Justice.” How am I misinterpreting this??

      1. If you’re actually looking at that document and your eyes function and you know how to read, you can CLEARLY see that Garland cites
        28 U.S. Code § 515, which is titled “Authority for legal proceedings; commission, oath, and salary for special attorneys.”

        That is a STATUTE, as opposed to a REGULATION, and that statutes states the following:

        “*** (b) Each attorney specially retained under authority of the Department of Justice shall be commissioned as special assistant to the Attorney General or special attorney …”

        If that STATUTE applied to a Special Counsel, it would say “Special Counsel” (capitalized because it’s a proper noun) which is a TITLE bestowed on a lawyer who is NOT part of the Justice Department but is brought in from OUTSIDE the Justice Department. But what the statute specifies is a “special attorney,” which is a lawyer who works INSIDE the Justice Department.

        If that statute was intended to be used in conjunction with a “Special Counsel,” it would say “Special Counsel,” not “special attorney.”

        Ask an adult to explain it to you.

    5. That jumps out to me as well: Turley referring to the “statute.” It’s not a statute Professor, it’s a DOJ created regulation. And I say ‘created’ because there is a profound argument that the regulations were not authorized by statute. See history of special/independent counsel statutes (allowed by congress to expire). When Judge Ellis had that issue in the dock in the Manafort prosecution, he did not rise to the occasion (did he say it would be addressed on appeal?) whereas, if he had pulled the regulation up by the roots at least we would have (by now) a SCOTUS opinion in the matter. And, of course, had Ellis pulled the root, we would not be seeing the weeds spreading all of the place – special this and that – this air of special independence and authority – which is not the case. Indeed, the regulation itself ultimately must fail – unless the power of the special whatever – is coming directly from the AG – because otherwise the ‘special counsel’ is ultra virus as there is no statutory grant of authority for said special whatever.

  3. “The immediate effect of this belated appointment will be to insulate Weiss and the Department from Congress . . .” (JT)

    So we have a cover-up to mask a cover-up. If nothing else, the Left is good at covering up.

  4. But, but, but Mr. Turley, you are a democrat and this is exactly the kind of BS you support now and always have because you vote for these POS, no integrity humans who should be put in prison. Stop with the whining about it now.

  5. “Merrick Garland runs nothing, Lisa Monaco runs Justice and Obama runs her.”

    – Napoleon Trombonaparte, August 13, 2023 at 4:28 PM

    1. Let’s see which runs the 2000 code case outa Marion. Slapp. No feds to the defense as the spies scramble? That be SOS too bad for them. Today. The way it goes.

    2. That is almost certainly far more accurate than inaccurate. Everybody right now is agog at the article in Tablet magazine (where the two also casually discuss and agree Trump is a racist and neo-Nazi). But right from the first time the list of appointments made by Bribery Biden were announced with people like Susan Rice and Lisa Monaco on that list, many observers have said the people are now in place for Obama’s Third Term.

  6. Now you got it!

    You go, boy!

    Spread the news.

    The other Lisa:

    “[Obama] wants to know everything we’re doing.”

    – Lisa Page to FBI paramour Peter Strzok

    “It’s the [Obama], stupid!”

    – James Carville

  7. I’m gonna basically repost a reply here that I provided to an earlier comment of one of the “Anonymous” trolls, because this is a very important issue related to a fraud that AG Garland appears to be perpetrating by conflating the function and authority of a “special attorney” acting under the authority of 28 U.S.C. § 515 with the SEPARATE function and authority of a “Special Counsel” acting under the authority of CFR § 600.1:

    “Anonymous” asserted at 4:51pm that AG Garland hadn’t appointed Weiss under the Federal Regulation applicable to appointing a Special Counsel, 28 CFR § 600.1, and according to the appointment letter cited, he is correct — that Weiss was actually appointed under 28 U.S.C. § 509, 510, 515, and 533, which refer to actions by a “special attorney” NOT a “Special Counsel.”

    As I noted in response to that information provided by “Anonymous,” the authorities he/she cited — specifically 28 U.S. Code § 515 — refer to the function and authority of a “special attorney,” NOT a “Special Counsel.” Notice the different words and capitalized spelling of “Special Counsel,” which is a title OUTSIDE the DOJ, not a function of anyone acting INSIDE the DOJ.

    It was a good catch by “Anonymous” (whether intentional or not), because what he/she unwittingly demonstrated is that AG Garland is playing fast and loose with language, titles, legal authorities, and the LAW.

    A 28 U.S. Code § 515 “special attorney” is NOT a 28 CFR § 600 “Special Counsel,” and Garland is perpetrating a FRAUD by calling Weiss an outside “Special Counsel” if IN FACT he is merely a 28 U.S. Code § 515 “special attorney” acting INSIDE the DOJ:

    28 CFR § 600.1 “Grounds for appointing a Special Counsel” CLEARLY states the following:

    “The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and —
    (a) That 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 or other extraordinary circumstances; and
    (b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.”

    Key phrase: “an OUTSIDE Special Counsel” (emphasis added), NOT a “special attorney” INSIDE the DOJ.

    By intentionally conflating the two different functions, titles, and legal authorities, AG Garland is engaged in HIGHLY QUESTIONABLE conduct, certainlly unethical, and in my opinion rising to the level of FRAUD.
    That’s the sort of thing that I would have expected Turley SHOULD have caught and brought to readers’ attention, because it’s the sort of thing that a legal expert SHOULD have noted, just as the NITWITS in Congress — Democrats and Republicans alike — many of whom are laywers themselves — SHOULD have pointed it out while shooting their ignorant, lying mouths off in the media all weekend.

    By definition, function, and statutes specifically cited by AG Garland, Weiss is NOT a “Special Counsel,” and it’s a FRAUD to knowingly and intentionally refer to him as a “Special Counsel,” which is a very specific title with specific authority to act INDEPENDENTLY of the DOJ, when Weiss is actually acting as a “special attorney,” which is a FUNCTION, not a title, of a lawyer that is NOT acting independently of the DOJ.

    1. I agree that not all appointments of special attorneys under 515 are Special Counsels under 600.

      1. NONE of them are. One is either a “special attorney” OR a “Special Counsel.” A lawyer can’t be working inside AND outside the DOJ.

        1. I don’t think that’s right. A special attorney can be appointed from outside DOJ in circumstances where he is not a special counsel. Foreign lawyers to appear in foreign courts are among the examples. There need be no conflict of interest to appoint an outside special attorney.

  8. The doj, judiciary, fbi, wall street,DC irs,fed….are 100% corrupt for democrats

    Cut 50% federal spending

  9. Rep. Harriet Hageman: David Weiss’s Special Counsel Appointment ‘Epitomizes the Level of Corruption’ in Biden Administration

    “This is the same guy that gave the sweetheart deal. This is the guy who tried to get Hunter Biden immunity from future prosecutions for violating the law. And the only reason that he was stopped was because the judge smelled the rat and started asking some questions,”

    “This is the same guy who took so long to charge Hunter Biden with anything. In the most important tax aspects of the case against him, he allowed the statute of limitations to run. Now he’s either incompetent or he’s in on the deal. There’s no other explanation for it. Under no circumstances should he be the person investigating this,” Hageman added.


  10. Yes, Bill Barr also violated the Special Counsel requirements with his appointment of John Durham as “special counsel.” And to call Durham a Special Counsel was false and misleading.

    What Barr might have contemplated was applying 28 CFR § 600.2(c) (under “Alternatives available to the Attorney General”): “Conclude that under the circumstances of the matter, the public interest would not be served by removing the investigation from the normal processes of the Department, and that the appropriate component of the Department should handle the matter. If the Attorney General reaches this conclusion, he or she may direct that appropriate steps be taken to mitigate any conflicts of interest, such as recusal of particular officials.”

    This is one of the alternatives to appointing a Special Counsel. But it’s not a substitute for a genuine Special Counsel and the independence that goes along with it when 28 CFR § 600.3 is actually followed.

    Durham was still under Barr’s thumb. And that was a problem running counter to any effective investigation, especially since Barr has proven himself to be more interested in protecting criminality within the Government than exposing and prosecuting it. The fact that John Durham wasn’t a genuine Special Counsel as defined by the law explains, in substantial part, why he failed to prosecute any of the many criminals involved in his case.

    Rep. Matt Gaetz had an excellent metaphor for explaining what Durham’s real role was. Gaetz said that Durham was like the Washington Generals. The Washington Generals were a vital part of the Harlem Globetrotters’ act, serving as skilled stooges for the Globetrotters. The Generals’ games involved playing genuine basketball at times, but taking care not to interfere in the Globetrotters’ tricks. Virtually every game ended in a resounding win for the Globetrotters. In other words, Durham–like the Washington Generals–was paid to fail.

    US Attorney David Weiss promises to deliver a less skillful version of Durham’s Washington Generals performance as he runs out the clock while losing according to plan.

    1. New Orleans District Attorney Jim Garrison might have been effective in John “Dudley Do-Right” Durham’s stead.

      It seemed that he wasn’t a dutiful soldier, and he actually pursued the cold, hard truth doggedly and objectively.

      Of course, he is long since deceased.

  11. David Weiss, you have one chance here to do the right thing or forever be branded laughing stock. Don’t do it and history will have no mercy on you. Resign.

    1. The habit of Dan Bongino to brand the politicians and their political apparatchiks from the Soviet Democrats as “embarrassing themselves”, “branded a laughing stock”, etc is really coming into favor.

      YOU might think of them that way, probably because it makes you feel better. The Soviet Democrats, their apparatchiks, and their followers that still support and will again vote for them in the next election do not see them that way. They see them as loyal politicians and civil servants.

      They laugh at people like Dan Bongino and you instead.

  12. So you go out for a night at the poker table and even though you’re told that the dealer stacks the deck you play anyway because you love to lose. The American people know when the deck is being stacked and they don’t like it. Then again, they think that you’re stupid and won’t notice when Garland is dealing from the bottom of the deck. After all, they know your just a bunch of country bumkins.

  13. This is Garland helping Hunter avoid a trial on tax evasion, money laundering and weapons law violations that became imminent 2 weeks ago. Nothing is imminent when you have friends in high places.

  14. The chances of Leftists politicians (aka Marxists) reversing a history of crime in an organization or geographic locations, are as likely as a George Soros funded prosecutor pressing charges against violent offenders in a black locale in order to protect said black residents. Not going to happen. Washington DC is exploding like a hell hole with black violent crime >30% YTD 2023 compared to 2022. And this from a Black mayor, Leftist. Of course.

    Likewise, Orlando/Orange County, Florida has seen a spike in violent crime while a George Soros funded prosecutor, State Attorney Monique Worrell, elected by residents of that region, turned her back on black voters and unleashed violent criminals to murder the very voters who placed her in office. Thankfully Governor Ron DeSantis, an experienced prosecutor himself, had the power under the State Constitution of Florida, to fire the George Soros prosecutor for enabling violent criminals to murder black Floridians.

    Merrick Garland will enable the Biden Crime Syndicate to do what Joe Biden has always done: grift.
    George Soros funded prosecutors = Merrick Garland appointed prosecutors. Cut from the same red cloth

    Worrell’s Misconduct Enabled Murder of Young Women and Children, Governor’s Office Says

    ORLANDO, FLORIDA — The governor’s office has provided details on ten cases that motivated Worrell’s suspension. Several of them detail tragic consequences of dangerous criminals being allowed to roam free despite prior felonies, only to cause more murder and mayhem.

    Two of the most heinous crimes that the perpetrators were able to commit as a direct result of Worrell’s failure to prosecute involve young men murdering their partners.

    1. “Leftist politicians (aka Marxists)” and “Biden Crime Syndicate”? This ‘reply’ under the guise of lauding DeSantis for firing a “George Soros prosecutor for enabling violent criminals to murder black Floridians[]” is suggestive of a BOT post. As if you, Turley, give a Sh-t!

      1. George Soros is not a Marxist. He is a Nazi. And your complaining is that of a Fascist. Say it proudly, Fascist

        1. Fascist is the flip side of socialist. The man who was the first Fascist (capital “f”) was booted from his country’s socialist party after being a proud member–in the footsteps of his father–and even the editor of their publication. Pity that you don’t see that Biden and his puppeteers with their corporatism are quite a bit like Mussolini’s Fascists, more than the most recent past president. Perhaps they are inventing a new form of authoritarian government. Sidebar: I’m no Trump supporter, but for now he is the best garbage can in the alley.

    1. … and only 2+ years too late when it comes to finally recognizing that AG Garland is AND ALWAYS HAS BEEN a corrupt political operative that, through the grace of God and/or intervention of clear thinkers, was kept off of the Supreme Court and SHOULD have been prevented from becoming Attorney General.

  15. 1
    Don’t forget that David Weiss was appointed US attorney for Delaware by President Obama in 2009 and was reappointed by President Trump in 2018 at the request of and on the recommendation of Delaware’s two Democrat US Senators.

    Therefore, David Weiss served 13 years as a DEMOCRAT appointee (2009-2017 and 2021-present) and served only 3 years as a Republican appointee (2018-2020). MSM and Biden Administration should quit referring to this “Democrat” attorney as a Trump appointee to try and cover what I believe is his bias, prejudice and malfeasance!

    I thought David Weiss told Congress in multiple letters in May and June that he had “ultimate” authority to charge in Hunter Biden case. I guess he DID NOT have ultimate authority if he just requested Special Counsel status. I guess he LIED to Congress in his letters. Also, under the Special Counsel statute, is he even eligible to be appointed Special Counsel. We need an Independent Counsel!!!

    I believe that USAG Garland made this appointment to OBSTRUCT the House investigations.

    David Weiss is NOT eligible to be appointed as a Special Counsel since the statute requires someone from OUTSIDE the government to be appointed.

  16. Dear Prof Turley,

    There is no joy in Mudville. Mighty Garland has appointed the fox to guard the Biden Brand hen house.

    We shall assume SC Weiss will not, after all, be available for questions/ from congress anytime soon. If it took five years for Weiss to get two (2) tax misdemeanors and a firearm diversion program in the plea with Hunter Biden, charging felonies could take forever. .. and that’s a long time.

    Now that SC Weiss has complete authority on ‘where, when and whether’ to bring charges, the only question is why did it take Garland so long?


  17. These biased, unfair, politically driven decisions plague our nation while China sports the world’s largest Navy, having stolen stolen and paid democrats for strategic rocket and satellite technology while Clinton ignores Hillary like he ignored the butchering of bodies in Rwanda.

    One million slain in R Wanda
    We’re finally on our own
    Big Bill and Joe do nothing
    One million gone in R Wanda

  18. Meanwhile, our thoroughly corrupt Big Media cannot begin to fathom why so many millions of Americans despise them. Hey BM, wake up. If Trump’s side did what Biden’s is doing, you would lead an attack that would make Jan 6 look like a sleepover party.

    1. “Meanwhile, our thoroughly corrupt Big Media cannot begin to fathom why so many millions of Americans despise them.”

      They fathom, Bonnie, they really do. They simply don’t care.

    2. Joel Pollak

      The Biden crimes are real and the Trump crimes are illusory. The problem is the dysfunctional media who pretend the opposite. Fix that and democracy is fine.

      1. “Fix that and democracy is fine.”

        Will it be? There are so many other variables undermining self-governance Dysfunctional media is one area.

        Dishonest media.
        Deepfakes etc.
        Ignorant and/or apathetic citizenry who may also be dishonest or prideful themselves or accepting of tomfoolery and perfidy
        Inappropriate connections between politicians and corporate leadership

        Should I be so cynical to say this country needs an enema?

        Maybe it’d be less traumatic if we started really paying attention and asking questions and speaking our minds and reinforcing what is right.

        Not sure what to do about the issue of Deepfakes and AI and how those and the like can be used manipulatively to undermine self-governance. Bernays with just newspapers and the radio was bad enough.

  19. As I’ve pointed out in comments to one of Professor Turley’s earlier articles, 28 CFR § 600.3–Qualifications of the Special Counsel–specifies in pertinent part that “The Special Counsel shall be selected from outside the United States Government.” [Emphasis added.] Some legal experts hae expressed the opinion that this regulation is not enforeceable. However, the CFRs–or the Code of Federal Regulations–are considered legally binding just as any statute.

    That said, the following Congressional Research Report explains, in effect, that the DOJ has failed to consistently follow this regulation: https://crsreports.congress.gov/product/pdf/R/R44857 See, in particular, pages 8-9 and 11.

    But following a pattern of violating the law does not make the practice lawful by repetition. The fact is Bill Barr as well as Merrick Garland violated the Code of Federal Regulations with their respective Special Counsel appointments of John Durham and David Weiss since neither came from outside the US Government. As US Attorneys, they are under the thumb of the AG. And the DOJ has been making a mockery of the name “Special Counsel” and of the law itself.

    Furthermore, the law requires that the Special Counsel be appointed by Deputy AG Lisa O. Monaco, not AG Merrick Garland. In the event that the Attorney General has recused himself from a particular matter upon which a special counsel appointment might be appropriate, the regulations contemplate that the Acting Attorney General will take responsibility for the appointment process. 28 U.S.C. § 508 provides that the Deputy Attorney General would serve as the Acting Attorney General. [See also Executive Order 13,787, 3 C.F.R. § 16,723 (Mar. 31, 2017), identifying the order of succession within DOJ if the Attorney General or other senior officials are unable to serve.]

    But even 28 CFR § 600.3 isn’t particularly well written or thought out. It’s not enough to say that the Special Counsel “shall be selected from outside the United States Government.” What about a US Attorney that worked his or her entire life in the US Government, but resigned a week before being appointed Special Counsel? Technically, that person would be “outside the United State Government” at the time of the appoinment. But it would be ludicrous to argue that this individual suddenly became independent during the week “outside” the Government. Much better language would incorporate a minimum time period that the individual selected must be “outside” the US Govenment, such as five years.

    1. There is more than one law under which an AG can appoint a Special Counsel.

      IF the Special Counsel is appointed under 28 CFR Chapter VI, THEN the AG must follow 28 CFR 600.3.

      However, IF the Special Counsel is appointed under other legislation (e.g., in THIS case, appointed under 28 U.S.C. §§ 509, 510, 515, and 533), THEN the AG does NOT have to follow 28 CFR 600.3.

      Durham wasn’t appointed under 28 CFR 600.3 either.

      1. You are wrong about this. 28 CFR 600 governs the appointment of any special counsel. 600.3 is mandatory, using the word “shall.”

        But I think JFeldman is wrong that Monaco rather than Garland has the power of appointment. Garland has not recused himself, at least to my knowledge.

        1. No, I’m not wrong about it. You can read the appointment letter for yourself (I provided the link in my 4:51 PM comment). You can also read Durham’s appointment letter and see that 600.3 didn’t apply for him either. And you can read the statutes that Garland did list. For example, 28 USC 510: “The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.”

          600.3 is only mandatory if the person is appointed under section 600.

          1. You are simply wrong. If an SC is to be appointed, 600 and all its subsections apply. Where is the law that says an SC can be appointed without regard to 600? And where in 600 does it say that 600.3 is optional? 600 defines what an SC appointment is.

              1. You quote a law, but not the applicable law. You cite 28 USC 510: “The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.” How does this also mean that the AG can make a US Government employee a Special Counsel? It doesn’t in any way present an alternate path to the appointment of a Sepcial Counsel.

                1. Yes, it allows the AG to appoint a government employee as Special Counsel, as also occurred with Durham. It is itself an alternate path.

                  1. You’re free to repeat this falsehood as many times as you like. But that doesn’t make it any less false. You cite no law that offers an alternative path to the appointment of a Special Counsel. You’ve looked into the law and found nothing supporting your statements. You’re merely hoping that maybe the Goebbels “principle” will kick in.

                    1. You’re free to ignore a truth you don’t like. You’re free to believe that both AG Barr and AG Garland have broken the law and not a single person challenged them on it, including people who were charged. Do you seriously believe that if Durham were illegally appointed, Clinesmith and Sussman wouldn’t have challenged his appointment and ability to bring charges? Because if you seriously believe that, you’re even more willing to fool yourself than you’re already demonstrating.

                    2. ” You’re merely hoping that maybe the Goebbels “principle” will kick in.”

                      Without weighing in on the present question, ATS isn’t relying on the Goebbels “principle”. He relies on the Gerbil principle because that is the kind of man he is.

                    3. Clinesmith and Sussman didn’t bother to challenge that Durham didn’t qualify as Special Counsel because they knew, and their attorneys knew, that Durham as just doing his version of the Washington Generals. That is, they knew Durham was paid to lose and the legal proceeding were entirely a sham. Why challenge a sham appointment when Durham made sure they’d receive a kiss on their wrists.

                    4. Anonymous, I’ve got to admire you for standing up for our sacred Banana Republic and our esteemed two-tiered system of justice when they have come under attack, even when, as here, the facts and the law aren’t on your side. You are a person of deep principles.

        2. BTW, unrelated: the other day, you asked the question “has the crime of fraud on the US ever been applied to a challenge to a recorded election result?,” and I responded that I don’t know. But I realized later that the Proud Boys and Oathkeepers have both been charged with — and convicted of — ConFraudUS (18 U.S.C. § 371) related to J6, so that’s a related application.

          1. From what I have read they were convicted of seditious conspiracy and obstructing an official proceeding (not surprising given their physical disruption of the certification process), not fraud on the US. Where did you find their convictions for defrauding the US?

                1. They were convicted of count 1.

                  Moreover, your question was “has the crime of fraud on the US ever been applied to a challenge to a recorded election result?”

        3. Yes, Garland hasn’t recused himself from the Biden investigation. That is precisely the problem and another reason why the appointment of David Weiss as a so-called “special counsel” is a sham. An AG cannot appoint a genuine Special Counsel under 28 CFR § 600.3 without also recusing himself or herself from the legal matter in question. That’s also why Weiss continues to remain under Garland’s thumb.

        4. Daniel, I believe that I’m correct that Deputy AG Monaco would have the power of appointment of Special Counsel if Garland had actually complied with 28 CFR 600.3. And Garland would necessarily have to recuse himself from the investigation.

          For an historical example, consider the case of John Ashcroft, who was AG during the period 2001 to 2005. In 2003, Ashcroft recused himself from an investigation of whether White House or other federal officials unlawfully leaked the identity of a Central Intelligence Agency officer to a reporter. The Deputy AG at the time was James Comey. Deputy AG Comey then had the statutory authority to appoint an attorney from outside the US Government to be Special Counsel. In this particular case, Ashcroft followed the law and recused himself from this specific investigation and the authority for the appointment of Special Counsel fell upon Comey, in accordance with the law.

          However, this isn’t the best example because James Comey then subsequently violated 28 CFR 600.3 because he appointed Patrick Fitzgerald as “special counsel,” even though Fitzgerald was then a US Attorney. That James Comey violated the law by appointing a US Government employee as “special counsel,” should surprise no one remotely familiar with Comey’s long standing preference for violating the law.

    2. JFeldman, thanks for this clear presentation.

      Barr’s appointment of Durham was a misuse of the SC concept. There was no conflict for the Trump DOJ to investigate the origins and perpetuation of the conspiracy against Trump. He elevated Durham solely to insulate him to some degree, as a political matter, from interference by the incoming administration and to ensure a report was written.

      There was also no conflict for Trump’s DOJ to investigate Hunter Biden (or Joe Biden for that matter, which it did not do for some reason, even after Trump asked Zelensky to do so in July 2019 and the Form 1023 was written in June 2020). The conflict would only arise when Biden became president, and Barr may have expected that Biden’s AG would recognise that and appoint an SC from outside government. He did not count on the sleaziness of Merrick Garland and his senior leadership at DOJ.

    3. Much more alarming (to me) is not so much Garland’s appointment of a U.S. Attorney, but that he appointed the U.S. Attorney who has been conducting the investigation of Hunter Biden for the past five years to no avail.

      *even CNN has trouble with that .. .

    4. “…following a pattern of violating the law does not make the practice lawful by repetition. “[T]he DOJ has been making a mockery of the name ‘Special Counsel’ and of the law itself.”

      Hear! Hear!

    5. JFeldman, Daniel, and others:
      Yesterday, I cited the CRS report that you now refer to. I do not disagree with what you say, but respectfully I add the following, with more detail:

      In Dec 2003, following AG Ashcroft’s recusal, Deputy AG James Comey, -with Asst. AG Christopher Wray at his side, appointed USDA Patrick Fitzgerald as Special Counsel, -contrary to 600.3.
      Instead, he ostensibly relied on the general statutory authority of 28 USC 509, 510, and 515.. https://www.justice.gov/archive/osc/documents/2006_03_17_exhibits_a_d.pdf

      He later followed up in a letter to Fitzgerald, dated Feb 2004, EXPRESSLY STATING that, “Further, my conferral on you of the title of ‘Special Counsel’ in this matter should not be misunderstood to suggest that your position and authorities are defined and limited by 28 CFR Part 600.” https://www.justice.gov/archive/osc/documents/2006_03_17_exhibits_a_d.pdf

      Concomitantly, Comey held a press conference, during which he stated
      “I also considered naming a special counsel from outside the government….In short, I have concluded that it is not in the public interest to remove this matter entirely from the Department of Justice, but that certain steps are appropriate to ensure that the
      matter is handled properly and that the public has confidence in the way in which it is handled.”
      (same source, supra, Exhibit D)
      I believe that Fitzgerald did not resign as DA and held both positions (Special Counsel and USDA Chicago) concurrently/simultaneously.

      Likewise, AG Bill Barr cited the same statutory authority for Durham, and expressly incorporated ONLY “600.4 to 600.10,” very openly eliminating 600.3. I believe there is additional Hx within the DOJ. I expect that Garland may do the same.

      My only comment is that, considering this provision (600.3) being largely ignored and appointments being allowed to proceed, -arguably constituting a waiver of enforcement for future application-otherwise recognizing such regulation as de facto discretionary–,
      as RIcky Ricardo would say, somebody’s got a whole lotta “‘splaining” to do…”

      1. Yep — a WHOLE lotta ‘splainin to do.” But surely the lawyers in Congress on BOTH sides of the isle were aware of the differences between “special attorney” and a “Special Counsel” and that Garland is conflating completely different authorities, but so far have said nothing.

    6. The issue of David Weiss’s independence is less that he is a serving officer of the DOJ than that he has been practicing law in Delaware since 1985. To belabor the obvious President Biden is a pretty big deal in Delaware. Weiss may well have hoped for a sinecure in a Delaware law firm when he stepped down as the US Attorney for Delaware. Pursuing Hunter, let alone President Biden, in the aggressive manner displayed by Special Counsel Jack Smith’s pursuit of former President Trump would almost certainly doom those career plans. Attorney General Garland has placed Weiss in an untenable position.

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