Prosecutor overseeing Hunter Biden probe is named special counsel

Attorney General Merrick Garland granted “special counsel” status to David Weiss, the federal prosecutor who has been investigating Hunter Biden for five years.

The move, announced Friday, gives Weiss broader leeway to investigate and bring charges, and it means Weiss will produce a report on his high-profile investigation into the president’s son. Garland said he will make as much of that report public as possible.

In an announcement at Justice Department headquarters, Garland said Weiss asked for special counsel authority Tuesday. “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,” Garland said.

As Garland made the announcement, Weiss filed court papers seeking to move federal tax charges against Hunter Biden out of Delaware. The court papers said negotiations over a plea deal had reached an “impasse” and that the case is now headed toward trial.

Weiss is the U.S. attorney for Delaware and was originally appointed by former President Donald Trump. As special counsel, he has authority to bring criminal charges related to his probe in any part of the country he wishes. Garland had said previously that Weiss already enjoyed that authority, but two IRS agents told Congress that Weiss was blocked from bringing charges in different judicial districts. Weiss has disputed the agents’ accounts and promised to testify to Congress himself.

The developments signal a stunning escalation for a case that just two months ago appeared all but over. In June, prosecutors and Biden’s lawyers revealed the outlines of a plea deal: Biden would plead guilty to misdemeanor tax charges and would enter a “pretrial diversion agreement” to resolve a felony gun charge and likely avoid prison time. As part of the deal, the Justice Department would grant Biden some degree of immunity against more charges. At the time, Biden’s lawyers signaled that they expected the agreement to end the lengthy criminal investigation.

But on July 26, at a hearing at the federal courthouse in Wilmington, Delaware, lawyers for both sides faced probing questions from Judge Maryellen Noreika. She pressed them on how broadly the deal would protect Biden from criminal charges. When a prosecutor said the deal wouldn’t prevent potential future charges related to lobbying, Biden’s lawyers threatened to back out. By the end of the tumultuous hearing, the deal appeared back on track, and the judge ordered both parties to submit briefs about how much discretion she had in approving the deal.

But in the weeks that followed — according to a new court filing from Weiss — the deal talks collapsed.

“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,” Weiss wrote.

In a separate court filing Friday, Weiss moved to dismiss the tax charges against Hunter Biden so they could be re-filed in a different venue either Washington, D.C. or California, where Biden lived when he allegedly failed to pay income tax in 2017 and 2018. That filing reiterated the Justice Department’s plea deal pessimism.

“The parties had previously agreed that the Defendant would waive any challenge to venue and plead guilty in” Delaware, Weiss wrote. “However, during the July 26, 2023, hearing that the Court set on this matter, the Defendant pled not guilty. Since that time, the parties have engaged in further plea negotiations but are at an impasse. The Government now believes that the case will not resolve short of a trial.”

The filing also signaled that federal prosecutors “may elect to bring the same charges” or bring “different ones.” In other words, they could charge the First Son with crimes that are not detailed in the now-defunct plea deal.

Chris Clark, a lawyer for Hunter Biden, called the moves “maneuverings.”

“Whether in Delaware, Washington, D.C. or anywhere else, we expect a fair resolution on behalf of our client — this U.S. attorney has diligently been investigating my client for five years and he had proposed a resolution which we fully intend to pursue in court,” he said in a statement. “It is hard to see why he would have proposed such a resolution if there were other offenses he could have successfully prosecuted, and we are aware of none. We are confident when all of these maneuverings are at an end my client will have resolution and will be moving on with his life successfully.”

The Justice Department faces at least one potential wrinkle as it looks to unwind plea deal talks: Right before the July 26 hearing started, Weiss and Hunter Biden both signed the pretrial diversion agreement, which appeared to guarantee Biden broad immunity from criminal charges. During the hearing, Clark said the diversion agreement — which required Biden to remain drug-free and comply with all laws for two years — was locked in.

“I want to be clear that it is the parties’ position that there is a diversion agreement between the parties which is binding,” he said at the time.

But on Friday, prosecutors said the diversion agreement is gone.

“[T]here is no longer a plea agreement or diversion agreement for the Court to consider,” concluded one of the filings.

The status of the diversion agreement could be a major dispute as proceedings move forward. 

Washington reels

The developments mean the first son’s legal woes could continue deep into the 2024 election season. And it comes less than a month after a congressional hearing featured testimony from the two IRS agents who claimed that Weiss had been hindered in the case. The agents, who worked on the investigation, also said they were blocked from investigating possible connections between President Joe Biden and his son’s alleged financial wrongdoing.

The Weiss appointment drew immediate opprobrium from the House Republicans who conducted that hearing. Many Hill Republicans have long called on Garland to make Weiss a special counsel; almost a year ago, Sen. Mitch McConnell joined 31 other Republican senators in calling for the move. Yet on Friday, their top House colleagues assailed Garland’s announcement as a stonewalling attempt, pointing to the deal Weiss almost inked with Hunter Biden.

“David Weiss can’t be trusted and this is just a new way to whitewash the Biden family’s corruption,” said Russell Dye, a spokesperson for House Judiciary Chair Jim Jordan (R-Ohio), in a statement.

And Rep. James Comer (R-Ky.), the chair of the House Committee on Oversight and Accountability, said his investigation into the First Son’s business dealings would continue.

“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,” he said in a statement.

The White House referred questions to the Justice Department and Hunter Biden's legal team.

Trump, meanwhile, took a characteristically bellicose approach. His campaign spokesperson Steven Cheung issued a statement accusing the Bidens of “selling out the country to foreign enemies for the Biden Cartel’s own financial gain.”

Kyle Cheney contributed to this report.