Federal regulation requires 'special counsel' appointees to be 'selected from outside' government—Hunter Biden investigator Weiss is DOJ attorney

On Friday, Attorney General Merrick Garland appointed US Attorney for Delaware David Weiss as special counsel to investigate Hunter Biden. Federal regulations, however, appear to preclude Weiss from appointment.

The Code of Federal Regulations section 600.3 reads, in part: "The Special Counsel shall be selected from outside the United States Government."

Weiss, a US attorney, was appointed as US Attorney for the District of Delaware by former President Trump, and was sworn in on February 22, 2018. Per Garland's Friday announcement, Weiss requested to be special counsel, and will retain his position as US Attorney to Delaware.

Weiss, as well as the other 92 US attorneys across the US and its territories, fall under the US Attorney’s Office, which is an agency under the US Department of Justice, a federal agency.

During his announcement, Garland said "In February 2021, US Attorney Weiss was asked to remain as US Attorney for the District of Delaware and in that capacity to continue to lead the investigation. As I said before Mr. Weiss would be permitted to continue his investigation, take any investigative steps he wanted and make the decision whether to prosecute in any district."

Weiss has been investigating Hunter Biden since 2019.

"Mr. Weiss has told Congress that he has been granted ultimate authority over this matter, including the responsibility for deciding where, when and whether to file charges and for making decisions necessary to preserve the integrity of any prosecution, consistent with federal law, the principles of federal prosecution and departmental policies," said Garland.

"And in July 2023 letter to Congress, Mr. Weiss said that he had not to that point, requested Special Counsel designation. On Tuesday of this week, Mr. Weiss advised me that in his judgment, his investigation had reached the stage at which he could and should continue his work as a special counsel. And he asked to be so appointed upon considering his request, as well."

"As the extraordinary circumstances relating to this matter, I have concluded that it is in the public interest to appoint him as special counsel. This appointment confirms my commitment to provide Mr. Weiss all the resources he requests. It also reaffirms that Mr. Weiss has the authority he needs to conduct a thorough investigation and to continue to take the steps he deems appropriate independently, based only on the facts and the law."

"Mr. Weiss will also continue to serve as US Attorney for the District of Delaware. As special counsel he will continue to have the authority and responsibility that he has previously exercised to oversee the investigation and decide where when and whether to file charges."

"The special counsel will not be subject to the day to day supervision of any official of the department but he must comply with the regulations, procedures and policies of the department. Consistent with the Special Counsel regulations at the conclusion of Mr. Weiss's work, he will provide me with a report explaining the prosecution or declination decisions reached by him as with each special counsel who has served since I've taken office, I am committed to making as much of his report public as possible, consistent with legal requirements and department policy."

Shortly after Weiss’ appointment, social media users were quick to note the discrepancy.

"How can AG Merrick Garland tab USA David Weiss be a special counsel, while Weiss retains his position as USA," RealClearInvestigations editor-at-large Benjamin Weingarten wrote.

"David Weiss appointment as special counsel is illegal," wrote Newsmax host Greg Kelly.

"AG Merrick Garland is NOT allowed to appoint David Weiss as special counsel.  Garland is defying federal regulations," wrote Fox News analyst Gregg Jarrett.

Shortly after Weiss was appointed, he announced that the plea deal that had been in the works with Hunter Biden in Delaware over tax crimes and a gun charge was dropped.

"During the July 26, 2023 hearing that the court set on this matter the defendant, that would be Hunter Biden, pled not guilty. Since that time, the parties have engaged in further negotiations but are at an impasse. The government now believes that the case will not resolve short of a trial," a court document read.

Hunter Biden was facing charges in Delaware for failure to pay taxes as well as a gun charge. A deal was initially struck between the Biden son and prosecutors that would have seen him "take responsibility for two instances of misdemeanor failure to file tax payments when due pursuant to a plea agreement. A firearm charge, which will be subject to a pretrial diversion agreement and will not be the subject of the plea agreement, will also be filed by the Government," his attorney Chris Clark said in June.