IRS Whistleblower Emails Suggest David Weiss Misled Congress In Letter Claiming Charging Authority
Delaware U.S. Attorney David Weiss told the House Judiciary Committee he had “been granted ultimate authority” over prosecutorial decisions related to the criminal investigation into Hunter Biden in a June 7, 2023, letter obtained by The Federalist. However, Weiss’s letter to Congress — and Attorney General Merrick Garland’s earlier testimony to the Senate Judiciary Committee that Weiss had “full authority” to charge Hunter Biden — directly conflicts with statements Weiss made to senior members of the team investigating the Biden son.
So either Weiss lied to his top investigators, or Weiss and Garland deceived Congress. There’s no other way around it.
Something Doesn’t Add Up
The House Ways and Means Committee’s release of IRS Criminal Supervisory Special Agent Gary Shapley’s testimony and related exhibits last week created a serious conflict.
Shapley, the IRS whistleblower who came forward earlier this year with claims of political bias and breaches of protocols in a high-profile investigation, testified before the House Ways and Means Committee during a closed-door session on May 26, 2023. The House’s release of the transcript of Shapley’s testimony provided the first official confirmation that Hunter Biden was the subject of the investigation.
During his hours-long testimony, Shapley told congressional investigators that a meeting on Oct. 7, 2022, with Weiss and senior-level managers from the IRS, FBI, and U.S. attorney’s office, was his “red-line” meeting. According to the whistleblower, Weiss was present for the meeting and surprised the team by stating, “I am not the deciding person on whether charges are filed.”
Shapley said Weiss further explained that the Biden-appointed U.S. attorney for the District of Columbia, Matthew Graves, would not allow Weiss to charge Hunter Biden in the D.C. district, where certain of the alleged crimes needed to be filed based on Hunter Biden’s residency during the relevant time. Shapley noted, “Weiss stated that he subsequently asked for special counsel authority from Main DOJ at that time and was denied that authority.” “Instead,” Shapley recounted, Weiss “was told to follow the process, which was known to send U.S. Attorney Weiss through another President Biden-appointed U.S. Attorney,” that one in California, the second locale relevant to the proposed criminal charges.
Without the cooperation of Biden-appointed U.S. attorneys, Shapley explained, Weiss made clear he could not bring charges outside the Delaware district. Consequently, the statute of limitations on felony tax charges against the president’s son for the 2014 and 2015 tax years expired.
The IRS whistleblower then shared with the House committee an email thread Shapley initiated following the meeting with Weiss. In his email on Oct. 7, 2022, Shapley summarized the substance of the meeting: “Weiss stated that he is not the deciding person on whether charges are filed” (bold in original). Shapley then commented that he “believe[s] this to be a huge problem—inconsistent with DOJ public position and Merrick Garland testimony.”
The email then recounted that Weiss said he had gone to the U.S. attorney in D.C. “in early summer to request charge there,” but the Biden-appointed U.S. attorney “said they could not charge in his district.” Weiss then said he “requested Special counsel authority when it was sent to D.C.,” but “Main DOJ” denied the request.
The special agent in charge of the FBI D.C. field office, Darrell J. Waldon, who had been present during the Oct. 7 meeting, responded to the email summary, stating: “Thanks Gary. You covered it all.”
Merrick Garland’s Denial
During a Friday press conference, Garland contradicted Shapley’s testimony, stating: “As I said at the outset, Mr. Weiss was appointed by President Trump as the U.S. Attorney in Delaware and assigned this matter during the previous administration and would be permitted to continue his investigation and to make a decision to prosecute any way in which he wanted to and in any district in which he wanted to.”
This statement tracks with Garland’s earlier unequivocal testimony before the Senate Judiciary Committee on March 1, 2023, when Iowa Sen. Chuck Grassley asked for clarification on whether Weiss had authority to bring charges outside the Delaware district.
“The U.S. Attorney in Delaware has been advised that he has full authority … to bring cases in other jurisdictions if he feels it’s necessary,” the attorney general replied, stressing that he would ensure Weiss would be able to do that.
Garland reiterated that point when Grassley inquired whether Weiss had “independent charging authority over certain criminal allegations against the President’s son outside the district of Delaware.”
“He would have to bring the case in another district,” Garland replied, but added, “But as I said, I promised to ensure that he is able to carry out his investigation and that he be able to run it and if he needs to bring it in another jurisdiction, he will have full authority to do that.”
Garland’s March 1 testimony directly conflicted with what Weiss had told investigators during the meeting on Oct. 7, 2022. And as the email Shapley sent after that meeting indicates, Shapley believed Weiss’s statement that he lacked the authority to file charges against Hunter Biden in another district also conflicted with what Garland had previously told Congress.
Before Grassley quizzed the attorney general on Weiss’s authority, Tennessee Sen. Bill Hagerty had asked Garland during an April 26, 2022, Senate Appropriations Subcommittee on Commerce, Justice, and Science hearing whether Garland had been briefed on the Hunter Biden investigation. In response, the attorney general stated, “Hunter Biden’s investigation … is being run by and supervised by the United States attorney for the District of Delaware.”
“He is supervising the investigation,” and “he is in charge of that investigation,” Garland continued, stressing “there will not be interference of any political or improper kind.”
Shapley’s testimony before the House Ways and Means Committee counters Garland’s claims that there would be no political or improper interference. But more significantly, the whistleblower’s testimony and the email he provided the House cannot be reconciled with Garland’s clarifying testimony to Grassley on March 1, 2023. During that hearing, Garland expressly stated that “the U.S. attorney in Delaware has been advised that he has full authority … to bring cases in other jurisdictions if he feels it’s necessary.”
The Weiss Letter
However, it is not merely the veracity of Garland’s Senate testimony that is in question now. On June 7, 2023, Weiss wrote to the House Judiciary Committee to corroborate Garland’s testimony. In that letter, obtained by The Federalist, Weiss stated:
I want to make clear that, as the Attorney General has stated, I have been granted ultimate authority over this matter, including responsibility for deciding where, when, and whether to file charges and for making decisions necessary to preserve the integrity of the prosecution, consistent with federal law, the Principles of Federal Prosecution, and Departmental regulations.
In signing that letter and dispatching it to the House Judiciary Committee, Weiss has entangled himself in what appears to be Garland’s lie to Congress — that is, unless Weiss had instead deceived the senior-level officials responsible for the Hunter Biden investigation when he told them last Oct. 7 that he was not the “deciding person” on whether charges are filed.
But why would Weiss mislead the senior leadership responsible for the Hunter Biden investigation?
On this point, Shapley has “no insight,” his lawyers noted on Friday, adding: “That Mr. Weiss made these statements is easily corroborated.” Then the whistleblower’s attorneys listed the names of three individuals who, in addition to Shapley and Weiss, had attended the meeting on Oct. 7, 2022: Baltimore FBI Special Agent in Charge Tom Sobocinski and Assistant Special Agent in Charge Ryeshia Holley and IRS Special Agent in Charge Darrell Waldon.
If these individuals confirm the whistleblower’s account — as seems likely given Waldon had previously said, “you covered it all,” in response to Shapley’s email summary of the meeting — Weiss will have some explaining to do. He’ll have to explain his statements during the meeting on Oct. 7, 2022, and the genesis of the June 7, 2023, letter Weiss sent the House Judiciary Committee.
Sources familiar with the letter have suggested it reads as if drafted by someone connected to the Department of Justice’s Office of Legislative Affairs, telling The Federalist a U.S. attorney would be unlikely to know about the so-called Linder letter referenced in a footnote. That possibility raises the further question of whether the DOJ and Garland induced or pressured Weiss to sign the letter.
It is important to remember that Weiss dispatched the letter to the House Judiciary Committee before the Ways and Means Committee released the whistleblower’s testimony, meaning the DOJ and the Delaware U.S. attorney’s office would not have known Shapley had the Oct. 7, 2022, email to corroborate his oral testimony.
The House Judiciary Committee seems similarly concerned about the possibility the Department of Justice and/or Garland pushed Weiss to help mislead Congress, writing to the Delaware U.S. attorney last Thursday about the “unusual nature” of Weiss’s June 7 letter.
That letter, which The Federalist has reviewed, asks the Delaware U.S. attorney to provide “a list of individuals who drafted or assisted in drafting” the June 7 letter. The oversight committee also asked Weiss “who instructed you to sign and send your June 7 letter to the Committee,” and for details on any conversations Weiss had with Garland or others at the DOJ.
These details suggest we have passed the cover-up stage of the Hunter Biden scandal and have now entered the cover-up of the cover-up phase. But unlike the typical case, it cannot be said that the cover-up is worse than the crime — because selling your country out to the Chinese communists with your vice president father is about as bad as it gets.
Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.
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