In the dispute between an IRS agent and the U.S. attorney in Delaware over the handling of the Hunter Biden investigation, which one is telling the truth? Probably both.
On Monday, Delaware U.S. Attorney David C. Weiss sent a letter to Senate Judiciary Committee Chair Lindsey Graham, R-S.C., “to clarify an apparent misperception” by stating unequivocally that he “has never been denied the authority to bring charges in any jurisdiction.” Weiss was addressing testimony by former IRS agent Gary Shapley, who placed himself at the center of an ongoing controversy over the federal criminal investigation into the president’s son. Calling himself a whistleblower, Shapley has been critical of the handling of the case.
Congressional Republicans like House Oversight Committee Chairman James Comer and House Judiciary Committee Chairman Jim Jordan have billed Shapley as a star witness.
Congressional Republicans like House Oversight Committee Chairman James Comer and House Judiciary Committee Chairman Jim Jordan have billed Shapley as a star witness with evidence that the Justice Department somehow slow-walked or downplayed its investigation of Biden.
To date, that investigation has resulted in an agreement by Biden to plead guilty to two misdemeanor tax charges and participate in a two-year diversion program to resolve allegations that he possessed a gun while using illegal drugs. Weiss has said the investigation is ongoing.
In particular, Shapley testified that at a “very contentious” October meeting between agents and prosecutors, Weiss said he had sought and been denied special counsel status to pursue charges in districts outside Delaware. Attorney General Merrick Garland has forcefully denied those claims, stating in June that Weiss “was given complete authority to make all decisions on his own.”
Weiss was appointed U.S. attorney in Delaware in 2018 by President Donald Trump and was permitted to remain in office while his colleagues were replaced by appointees of President Joe Biden to continue the investigation of the president’s son without any appearance of political favoritism.
Weiss’ recent letter was a follow-up to a June 7 letter, in which he assured Jordan and the House Judiciary Committee that he had been “granted ultimate authority over this matter, including responsibility for deciding where, when and whether to file charges.” In other words, Weiss is refuting the claims by Shapley and Republicans that anyone sought to hamstring his investigation.
In Monday’s letter, Weiss explained one reason for the possible disconnect between what Shapley said he heard: a misunderstanding between two different types of prosecutors — a “special counsel,” which is an attorney appointed under one set of regulations, and a “special attorney,” which is an attorney appointed under a different set of regulations. According to Weiss, he never asked to be appointed a special counsel, which would have given the attorney general the power to overrule charging decisions.
Instead, Weiss says, he discussed with Justice Department officials the possibility of being appointed a special attorney, which would have allowed him to continue to act as a U.S. attorney but file charges in any district “without the partnership of the local U.S. Attorney.” Weiss said he was “assured” he “would be granted this authority if it proved necessary.” Based on Garland’s and Weiss’ representation of “complete” and “ultimate” authority, serving as a special attorney would actually have given Weiss more power than serving as a special counsel.
And so it seems to me entirely possible that Weiss and Shapley were talking past each other — that Weiss was telling Shapley, correctly, that he would not be appointed a special counsel and that the agent interpreted that statement, incorrectly, to mean Weiss could not bring charges outside Delaware.
It seems to me entirely possible that Weiss and Shapley were talking past each other.
We have all been in rooms where different people hear different things. It is even possible that Weiss falsely blamed higher-ups at the Justice Department just to get Shapley off his back. If so, I don’t condone that type of fact-dodging, but it would help explain how Shapley was led to believe facts that have been vehemently denied by Weiss, Garland and a spokesperson for the U.S. attorney’s office in Washington, D.C.
I have also been in rooms where agents wanted to proceed in cases far more aggressively than the prosecutors, who must decide not only whether the evidence is sufficient to obtain and sustain a conviction, but also whether charges are an appropriate exercise of discretion in light of the Justice Department’s Principles of Federal Prosecution, a series of considerations with which agents are unfamiliar. Under these principles, prosecutors must consider the nature and seriousness of the offense, the deterrence effect of prosecution, the culpability and personal circumstances of the subject and several other factors. In addition, prosecutors must also ensure even-handed treatment of like cases without regard to a defendant’s political associations. As a result of their different roles, prosecutors and agents sometimes clash over the appropriate charges in and disposition of cases. But it is the prosecutor who must stand before a jury and ask it to decide guilt unanimously beyond a reasonable doubt, and so it is the prosecutor who gets the final say. Some Republicans have referred to Biden’s plea agreement as a “sweetheart deal.” Perhaps Shapley agrees. But based on information in the public domain, his charges strike me as harsh, not lenient. In my experience, prosecutors seldom use scarce resources to charge misdemeanor tax offenses. Instead, such cases are usually resolved civilly with requirements to pay back taxes, interest and penalties. The charge of possessing a gun while using illegal drugs was one that we prosecuted only rarely in my former office, usually only against someone whom we perceived to be a serious threat to public safety. There are no public facts to suggest that Hunter Biden was such a threat. According to Weiss, the investigation is ongoing, which creates an asymmetry of information that critics can exploit. As Weiss stated in Monday’s letter, while a case is pending, he may not ethically reveal confidential information about it or disclose deliberative communications. He wrote that he would “respond to these claims in more detail at the appropriate future time.” In the meantime, critics can have a field day, and Weiss will be limited in his ability to respond. If congressional leaders are genuinely concerned about Justice Department oversight, rather than hope to score political points against the president and his family, they should accept Weiss’ invitation to answer questions at the conclusion of the investigation. And in the meantime, they should stop providing further grist for the conspiracy theory content mills.
Barbara McQuade is a former Michigan U.S. attorney and legal analyst. 
