Attorney General Merrick Garland’s appointment of the Biden Justice Department’s Delaware U.S. attorney, David Weiss, as a special counsel is a joke.
To begin with, Weiss is not eligible to be a special counsel under the special-counsel regulations. To be clear, the attorney general has all the authority he needs to assign Weiss to the case (and, indeed, Weiss has been assigned to it throughout Garland’s tenure). But under the regulations that Garland purports to be applying, what makes a special counsel special is that he or she is a lawyer brought in from outside the government, not just outside the Justice Department. As Section 600.3 of the regulations states without ambiguity, “the Special Counsel shall be selected from outside the United States Government.” The point of the exercise is to bring in a scrupulous, experienced former prosecutor who does not work for the incumbent administration, because there is a connection between the president and the investigation that creates a profound conflict of interest for the Justice Department. There could not be a more serious, blatant conflict of interest than a situation in which the president’s Justice Department is conducting an investigation of the president’s son that implicates the president in potentially impeachable conduct.
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