How To Think About The Hunter Biden Whistleblowers’ Disclosures And The Hunter Biden Plea Agreement. Part I.

There are three key elements to the recent disclosures by IRS Criminal Investigation Division whistleblowers concerning the DOJ’s criminal investigation of Hunter Biden: 1) the false and/or conflicting statements by Delaware U.S. Attorney David Weiss and Attorney General Merrick Garland about the degree of authority and independence conferred upon Weiss by DOJ; 2) the alleged efforts of Delaware AUSAs and DOJ Tax Division prosecutors to slow-walk the case and block or delay avenues of investigation; and 3) the alleged underlying criminal conduct of Hunter Biden.

Part I

Let’s start with the false and/or conflicting statements by Garland and Weiss. AG Garland has repeatedly made public statements, sometimes sworn, indicating that Trump-appointed Delaware U.S. Attorney Weiss had (and still has) complete independence and authority to bring charges against Hunter Biden in any federal district where venue might lie, free of political interference.  Note that there is a difference between being able to run your investigation free of political interference and having the authority to bring charges in a federal district outside of Delaware. You can give Weiss all of the freedom to investigate he wants and still deny him the ability to bring charges in the District of Columbia or the Central District of California. But Garland recently reiterated that Weiss had (and has), “complete authority to make all decisions on his own,” had, “more authority than a special counsel,” and was “authorized to bring a case anywhere he wants in his discretion.” Garland has also stressed that Weiss never came to him asking for special counsel authority.

But here is a key contradictory fact we now know, thanks to the transcribed interview of IRS-CID Supervisory Special Agent (“SSA”) Gary Shapley, a/k/a Whistleblower #1 and the documents Shapley provided. Delaware U.S. Attorney Weiss told a roomful of IRS and FBI special agents and DOJ attorneys, on October 7, 2022, "that he is not the deciding person on whether charges are filed." He then revealed that, months before, he had sought and been denied the authority to bring felony tax evasion charges against Hunter Biden in the District of Columbia by District of Columbia U.S. Attorney Matthew Graves. Weiss further told the agents at the same October 7, 2022, meeting that he had requested special counsel status from Main Justice in order to bring charges in the District of Columbia but had been rebuffed. (Weiss also told the agents and prosecutors in the October meeting that the case was then at the U.S. Attorney’s Office for the Central District of California awaiting its decision on whether to file. He stated that if CDCAL rejected his request he would go to Main Justice again to ask for special counsel status.)

Weiss’s October 7, 2022, statement to the roomful of agents and prosecutors is clearly at odds with Garland’s public comments that Weiss had all the authority he needed to bring charges in any federal district. Garland has not indicated how he conferred this authority on Weiss. Was it reflected in a written authorization giving Weiss special attorney status under 28 USC §515(a)? Was it orally conveyed? If orally conveyed, did Garland merely invite Weiss to ask in the future for any authority he needed? Is this all a shell game in which Weiss asked Deputy Attorney General (“DAG”) Lisa Monaco for special attorney or special counsel status which she rebuffed and never reported to Garland?

Weiss’s June 7, 2023, letter to Congressman Jim Jordan, purported, “to make clear that, as the Attorney General has stated, I have been granted ultimate authority over this matter, including responsibility for deciding where, when, and whether to file charges and for making decisions necessary to preserve the integrity of the prosecution, consistent with federal law, the Principles of Federal Prosecution, and Department regulations.” This statement had to be clarified once the Shapley transcript and supporting documentation were released to the public. So on June 30, 2023, Weiss wrote again to Jordan, setting out his geographically limited charging authority but noting his ability to request special attorney status under 28 U.S.C. § 515 in the event that a U.S. Attorney in another federal district does not want to partner with him on a case. Then the kicker: “Here, I have been assured that, if necessary after the above process, I would be granted § 515 Authority in the District of Columbia, the Central District of California, or any other district where charges could be brought in this matter.” Translation? I never asked Main Justice for special attorney status or authority. But if Weiss was being truthful in his June 30, 2023 letter to Jordan, he certainly lied to federal agents on October 7, 2022 when he told them that he had asked for special counsel authority to bring the Hunter Biden case in the District of Columbia and been denied.

Honest prosecutors running a legitimate criminal investigation do not need to lie to their case agents or prevaricate in their public pronouncements. And Garland surely realizes that his public statements to date, for whatever reason, have left a misleading impression. Yet he has done noting to get to the bottom of what happened. It’s time for him to lance the boil. More to come in Parts II and III.

(wisenberg)