After U.S. Attorney for the District of Delaware David Weiss was named special counsel in the Hunter Biden investigation, Harvard Law professor emeritus Alan Dershowitz told Fox News the change-in-venue from Delaware to Los Angeles may be more important than it seems.
Attorney General Merrick Garland named Weiss, a Trump appointee held over by President Biden to eschew concerns of conflict-of-interest, special counsel in the first son’s case last week.
Dershowitz noted the announcement was accompanied by a change-in-venue from the District of Delaware to the Central District of California, where Hunter Biden lives when he is not at his father’s home in Greenville, Del.
“”This is possibly a big deal. It’s not just a technical change because they’ve dropped the current indictment, and they’ve vitiated the plea bargain, which I predicted they would,” Dershowitz said Sunday on “Life, Liberty & Levin” of the appointment of Weiss as special counsel.
“I said right from the beginning, this plea bargain is not going to last. And now they’re moving the case to the Central District of California. That means that the special counsel probably found something: maybe a smoking gun, maybe just a gun.”
Dershowitz told “Life, Liberty & Levin” there had to have been some new information or determination in the case that led it to be moved across the country.
Host Mark Levin further noted however, that it is unusual and potentially legally murky to allow Weiss to continue serving as a federal prosecutor while also being named special counsel.
“People have said that now they can use this to prevent [Kentucky Rep. James] Comer from conducting his investigation,” he said, “Under the government rules you’re not allowed to be both, but government rules are out the window these days.”
Levin argued neither Garland nor Weiss should be able to use the new special counsel assignment as a basis to substantively change Congress’ oversight ability.
In a recent Fox News Opinion column, legal analyst Gregg Jarrett cited federal regulation 28 CFR 600.3, which states a special counsel shall be selected from outside the United States government. Jarrett argued in the column that Weiss’ new appointment is therefore a “farce.”
Recent special counsels and independent counsels have indeed come from outside government, as Robert Hur, the prosecutor investigating President Biden’s alleged mishandling of classified documents, hasn’t been the U.S. attorney in Baltimore since 2021, John Durham and Robert Mueller – of the Russia probes – were no longer Connecticut’s U.S. attorney or FBI director, respectively, and about a year had lapsed between Ken Starr’s stint as U.S. solicitor general and Whitewater-Lewinsky independent counsel.
Dershowitz further said the change in Hunter Biden’s case is a constitutional issue that rightly concerns separation of powers and governmental checks-and-balances, especially pertaining to whether Congress can continue to have the same high level of oversight if Hunter Biden is now subject to special counsel investigation.
He said the fact the feds say they are conducting an investigation is notable, but not “determinative” as to Congress’ prescribed abilities.
“Congress can demand issue subpoenas, hold people in contempt. If they refuse to answer, then the courts will have to decide,” he said.
In a statement following Weiss’ new appointment, Comer accused Garland of committing another “attempt [at] a Biden family coverup in light of the House Oversight Committee’s mounting evidence of President Joe Biden’s role in his family’s schemes selling ‘the brand’ for millions of dollars to foreign nationals.”
Former President Donald Trump, himself under special counsel investigations overseen by former Obama Justice Department Integrity Section chief Jack Smith, has pushed back on citations of Weiss as a “Trump appointee” – arguing the prosecutor can mostly thank the First State’s two Democratic senators for his job.
In July, Trump called Weiss a “coward” and “a smaller version of Bill Barr,” adding that Sens. Chris Coons and Tom Carper, D-Del., “got to choose and/or approve him.”
U.S. attorney nominations are by-law made by the president with the “advice and consent” of the U.S. Senate. Coons and Carper, through the blue-slip tradition, gave the Republican prosecutor their blessing.
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