Some say David Weiss' special counsel appointment is a violation of federal code

Attorney General Merrick Garland shocked the news cycle this week after his appointment of U.S. Attorney David Weiss of Delaware as Special Counsel to oversee an investigation into Hunter Biden.

While many laughed at the idea of Weiss conducting an impartial investigation into President Joe Biden's son, Breitbart's Joel Pollak revealed that the appointment could technically be illegal, given that special counsels should work outside of the government.

Weiss is a presidential appointee working in the U.S. government. His appointment comes on the heels of previous special counsels who were appointed but also worked in government.

Title 28 of the Code of Federal Regulations spells out how a special counsel should be appointed and who might qualify for the rare position.

The federal code reads clear.

"An individual named as Special Counsel shall be a lawyer with a reputation for integrity and impartial decisionmaking, and with appropriate experience to ensure both that the investigation will be conducted ably, expeditiously and thoroughly, and that investigative and prosecutorial decisions will be supported by an informed understanding of the criminal law and Department of Justice policies."

It adds, "The Special Counsel shall be selected from outside the United States Government. Special Counsels shall agree that their responsibilities as Special Counsel shall take first precedence in their professional lives, and that it may be necessary to devote their full time to the investigation, depending on its complexity and the stage of the investigation."

Republican presidential candidate Vivek Ramaswamy weighed in on Weiss' appointment.

"The Hunter Biden Special Counsel is just a fig leaf designed to distract. David Weiss is the *same* person who negotiated the farcical Hunter Biden “plea deal” that a federal judge rejected handedly. Don’t buy the deflection, it’s just a smokescreen," Ramaswamy wrote. 

The Hunter Biden Special Counsel is just a fig leaf designed to distract. David Weiss is the *same* person who negotiated the farcical Hunter Biden “plea deal” that a federal judge rejected handedly. Don’t buy the deflection, it’s just a smokescreen. pic.twitter.com/wKPWyahv3b

— Vivek Ramaswamy (@VivekGRamaswamy) August 12, 2023

Breitbart noted:

However, as the Congressional Research Service (CRS) has noted, others have been appointed Special Counsel despite being U.S. Attorneys. (CRS quotes the regulations as saying the Attorney General “may,” not “shall,” choose from outside the government.)

Garland clearly ignored the federal code, and even reaffirmed in a brief statement this week that Weiss "will continue to serve as U.S. Attorney for the District of Delaware."

The appointment of a special counsel comes in the wake of Hunter Biden's plea deal falling apart in court earlier this month.

Only time will tell if Weiss brings new charges to the table, but one wouldn't be advised to bet on that.