The appointment of David Weiss to be Special Counsel in the Hunter Biden investigation has caused outrage in political circles. Democrats scream Republicans got what they asked for, a special counsel. Republicans view his appointment as the continuation of a Department of Justice (“DOJ”) coverup of criminal activity.
This debate is an unnecessary waste of time. The Biden administration detests the Constitution and the rule of law. Appointing a special counsel not eligible to serve under federal regulations or the Delaware Rules of Professional Conduct (“Bar Rules”) is no greater offense to the Constitution than refusing to enforce immigration laws, forgiving student loans by assuming Congressional spending powers, or accepting bribes from foreign nations. It’s all criminal activity harmful to the U.S.
If Mr. Weiss insists on serving as special counsel, he will be another “in-your-face” Biden-supported lawbreaker. He will operate in violation of federal regulations governing special counsels and Bar Rules. He is appointed by an Attorney General (“AG”) who believes he is “The Law.”
The statutes, regulations, and Bar Rules are irrelevant except to law students.
A law student might discuss 28 U.S.C. sections 509, 510, 515, and 533 as granting the AG vast powers to conduct investigations and to appoint so-called “special counsels.” All the AG needs to do is prepare an appointment letter which tells the public little. From that point forward, the public is locked out of the justice system, and the special counsel is free to make any innocent person a criminal or any criminal an innocent person.
The law student would cite 28 C.F.R Part 600 as the regulations governing special counsels. 28 C.F.R. Sec. 600.3 is the key section. It mandates that “the Special Counsel shall be selected from outside the United States Government.” As a U.S. Attorney, David Weiss is disqualified as a government employee. Moreover, that section requires the special counsel to “conduct the investigation ably, expeditiously and thoroughly.” The past performance of Mr. Weiss in the Hunter Biden saga, in which he failed, after four years, to find even publicly available evidence, establishes an embarrassing lack of skills.
Section 28 C.F.R, sec 600.7 requires that a special counsel shall comply with the rules … and policies of the Department of Justice, including being from outside the government. Being in violation of sec. 600.3 qualifies as misconduct. There is no direct language in AG’s Order No. 5730-2023, appointing Weiss, that specifically revokes the prohibition. Using sleight of hand, the AG attempts to unilaterally change federal regulations, without any notice, by requiring Weiss to comply with only a few of the federal regulations, sections 600.4 to 600.10. The AG omits compliance with sec. 600.3, the provision that requires Special Counsels to be outside of government. Fortunately, due to sloppy drafting, sec. 600.7, one of the sections that must be followed, mandates compliance with all policies and regulations of the DOJ. Since sec.600.3 was not revoked, it still applies to Weiss.
This is another example of the lengths the AG will go to break the law just to protect a corrupt administration. He tried a similar scheme in the Hunter Biden plea deal when he hid Hunter Biden’s complete immunity from prosecution in an unrelated section of the documents.
Does the AG have the legal authority to secretly revoke a regulatory requirement without going through the Office of Legal Counsel and taking public comment on the proposed rule? Doubtful, but such deceit is more proof of the Biden Syndicate at work.
Additionally, the AG cannot destroy the rule of law in the states unless the states want to be complicit in its destruction.
Under Bar Rule 1.7, a lawyer may represent a client if there is the existence of a conflict of interest if “the representation is not prohibited by law.” Unfortunately for Mr. Weiss, sec. 600.3 prohibits such representation since regulations are considered laws.
Under Bar Rule 3.3 and in comments, a lawyer owes a duty of candor to the court. By serving as Special Counsel, Mr. Weiss has an affirmative duty to notify the court that he is acting in violation of federal regulations. Under Bar Rule 8.4, Mr. Weiss must inform the court he is intentionally committing misconduct before the court. Acting as Special Counsel in violation of federal law, he violates the Bar Rules by engaging in conduct involving deceit and misrepresentation if he tries to hide his federal employee status and the AG’s attempt to secretly waive federal regulations without the proper notice.
If Weiss ever returns to federal court in Delaware, or anywhere, in the Hunter Biden matter, the judge should ask: “Are you a government employee?” If Weiss answers “yes,” the court should disqualify Weiss. It would be an oxymoronic act for the AG to state his department has a conflict of interest in the Biden investigation and then waive a regulation so he could appoint a special counsel that has the same conflict of interest. It is the duty of all judges to supervise the conduct of prosecutors and to report professional misconduct.
Weiss was appointed special counsel because the Biden administration has public disdain for the rule of law, the Constitution, and Congress. If the judge disqualifies Mr. Weiss from operating as Special Counsel, the public will quickly discover the administration’s disdain for the courts. Paraphrasing President Andrew Jackson, “the judge made her decision, now let her enforce it.”
It is almost impossible for a court to enforce its orders without assistance from the Department of Justice. Unfortunately, most courts, when confronted by a ruthless president, “will hear no evil, see no evil, and speak no evil.”
Historians will write volumes on the most corrupt presidential administration in history. Citizens a century from now will wonder why U.S. law enforcement agencies supported and protected such a corrupt president. The “Books” will range from “We did not know he was a Manchurian President” to “The Deep State was the puppeteer of a mindless old guy.” Unfortunately, the nation will decline as long as the DOJ is the bureaucratic handmaid for corruption.
Future Americans will ponder the imponderable until they realize that no matter how strongly we believe in our Constitution and the rule of law, such beliefs are irrelevant if our leaders are corrupt. Corrupt leaders destroy every nation they rule. In the final analysis, corruption is happening here in the “Good Ol U.S.A.” Corruption is the signature characteristic of the Biden administration.
Thank God for history. It will be the only voice to hold the Biden administration and its corrupt legal system accountable for its misdeeds. History will be brutal.
William L. Kovacs has served as senior vice president for the U.S. Chamber of Commerce, chief counsel to a congressional committee, and a partner in law D.C. law firms. His book Reform the Kakistocracy is the winner of the 2021 Independent Press Award for Political/Social Change. He can be contacted at [email protected]