A new letter sent by Delaware U.S. Attorney David Weiss to the House Judiciary Committee suggests Attorney General Merrick Garland lied to Congress when he testified that Weiss “has full authority” to charge Hunter Biden in “other jurisdictions.” Whether Garland committed perjury will all come down to the meaning of the word “has.”
Late Friday, just as Americans unplugged for the long Independence Day weekend, Weiss confirmed he didn’t really have “ultimate authority” over the Hunter Biden criminal investigation. In his letter, Weiss gave away the deceptive word game he has been playing with Congress — and Garland has been playing with America. More significantly, the letter suggests Biden’s attorney general lied to Congress and that everything the IRS whistleblower has said is true.
What the Whistleblower Said
Weiss’s letter followed the House Ways and Means Committee’s release of IRS Criminal Supervisory Special Agent Gary Shapley’s testimony and related exhibits concerning the Hunter Biden investigation headed out of the Delaware U.S. attorney’s office. The transcript of Shapley’s May 26, 2023, closed-door testimony revealed the IRS agent had told the House committee that during an Oct. 7, 2022 meeting between Weiss and senior-level managers, Weiss allegedly said, “I am not the deciding person on whether charges are filed.”
According to Shapley’s testimony, Weiss then explained that the Biden-appointed U.S. attorney for the District of Columbia, Matthew Graves, refused to allow Weiss to charge Hunter Biden in the D.C. district — the necessary venue for certain charges 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 sent Weiss through another Biden-appointed U.S. attorney, for other potential criminal charges based in California.
Without the cooperation of Biden-appointed U.S. attorneys, Shapley told the House committee, Weiss was unable to bring charges outside his Delaware district. And Weiss’s lack of authority led to the statute of limitations expiring on felony tax charges against the president’s son for the 2014 and 2015 tax years.
To corroborate his testimony, Shapley provided the House Ways and Means Committee with an email he had sent a colleague soon after the meeting summarizing the key points. That Oct. 7 email recounted the details to which Shapley had testified and, significantly, Shapley copied the special agent in charge of criminal investigations of the IRS D.C. field office, Darrell J. Waldon, who had also attended the Oct. 7 meeting. Waldon would then reply to Shapley’s email summary, “Thanks Gary. You covered it all,” indicating Shapley had accurately recounted Weiss’s representation that he is “not the deciding person on whether charges are filed.”
The release of Shapley’s testimony and the collaborating email was huge because it indicated both Weiss and Garland had deceived Congress. Weiss for his part had sent a letter to the House Judiciary Committee on June 7, 2023, stating:
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.
Weiss’s Friday letter was in response to questions House Judiciary Chair Jim Jordan posed to the Delaware U.S. attorney about his claim “to have been granted ultimate authority” over the Hunter Biden investigation.
In his pre-Fourth of July weekend epistle, the Delaware U.S. attorney said he stood by what he wrote in the June 7, 2023 letter. He added, however, that he wished to expand on what he meant. Weiss then acknowledged that as the U.S. attorney for the District of Delaware, his charging authority is geographically limited to his home district.
“If venue for a case lies elsewhere, common Departmental practice is to contact the United States Attorney’s Office for the district in question and determine whether it wants to partner on the case,” the letter noted. “If not, I may request Special Attorney status from the Attorney General pursuant to 28 U.S.C. § 515.” Weiss concluded by stressing that he had “been assured that, if necessary after the above process,” he “would be granted § 515 Authority in the District of Columbia, the Central District of California, or any other district where charges could be brought in this matter.”
There was no reason Weiss could not have provided this explanation earlier — or at least no good reason: The Delaware U.S. attorney clearly intended to convey to Congress the false impression that he had “ultimate authority” to charge Hunter Biden, which would in turn suggest the IRS whistleblower’s claims to the contrary were false.
But Weiss’s clarification confirms he lacked “ultimate authority,” which is entirely consistent with Shapley’s testimony. In fact, had Shapley falsely summarized the statements Weiss made during the Oct. 7, 2022 meeting, Weiss could have easily said so. That he didn’t speaks volumes.
Lies, Lies, Lies
While Weiss’s clarification from late last week is technically consistent with what he told Congress in his June 7, 2022 letter, the same cannot be said for Garland’s earlier testimony to the Senate Judiciary Committee.
On March 1, 2023, Sen. Chuck Grassley, R-Iowa, asked Garland whether Weiss had “independent charging authority over certain criminal allegations against the President’s son outside the District of Delaware.” After responding that Weiss “would have to bring the case in another district,” Garland added 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” (emphasis added).
But according to Weiss’s latest letter, he didn’t have “full authority” and still doesn’t. Rather he had been assured, “if necessary,” he “would be granted § 515 Authority in the District of Columbia, the Central District of California, or any other district where charges could be brought in this matter.”
Given Shapley’s testimony, there is a huge difference between Weiss having “full authority” to bring charges in other districts and being promised a grant of such authority. If Weiss had “full authority,” as Garland told Congress, that would mean that either the whistleblower lied to Congress or Weiss lied to his senior team handling the Hunter Biden investigation. It would also clear Garland, the DOJ, and FBI headquarters of interfering in the investigation — a second allegation the whistleblower leveled in his testimony to the House Ways and Means Committee.
With both Weiss and Garland playing word games with Congress, it seems likely Weiss also sought to mislead the House when he stressed that he “had been assured” he “would be granted § 515 Authority in the District of Columbia, the Central District of California, or any other district where charges could be brought in this matter.” That language suggests Weiss always had that assurance, but from the whistleblower’s testimony, it appears Weiss had previously requested such authority and been denied it. (The whistleblower and Waldon likely confused Weiss’s reference to special attorney status with special counsel status.)
A belated promise by Garland to give Weiss special attorney authority under § 515 means nothing, as the statute of limitations has already run out for the felony tax charges. So the question remains: Was Weiss denied such authority, as the whistleblower claims Weiss told him? And when did Garland assure Weiss he would have § 515 authority? For that matter, why wouldn’t Garland have immediately conferred such authority on Weiss?
It seems unlikely Congress or the American public will learn the answers to these questions any time soon. Weiss appears to be coordinating his communications with Garland, as demonstrated by his reference in Friday’s letter to the DOJ’s Department of Legislative Affairs — further proof that Weiss is no more independent from the Biden administration than the rest of the Department of Justice.
This article has been updated since publication.
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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