Willfully Blind David Weiss Pinky Promises Political Favoritism Didn’t Affect Hunter Biden Probe
Politics absolutely, positively had no bearing on the Hunter Biden investigation, Delaware U.S. Attorney-turned-Special Counsel David Weiss assured the House Judiciary Committee last week. Yet Weiss also acknowledged it would be a “problem” if someone had warned Joe Biden’s transition team of FBI agents’ impending plan to interview the president-elect’s son, as whistleblowers say occurred. Weiss just didn’t bother to ask anyone about the leak or any other concerns of political favoritism, showing the federal prosecutor has opted for willful blindness over oversight of the Hunter Biden criminal probe — even after his appointment as special counsel.
On Tuesday, Weiss sat for an interview before the House Judiciary Committee. A transcript of Weiss’s testimony, which The Federalist has reviewed, shows the special counsel faced several questions about claims that political favoritism infected the Hunter Biden investigation.
But even before the questioning began, in a brief opening statement, Weiss declared that “political considerations played no part in our decisionmaking.” Rather, the Delaware U.S. attorney, doing double duty as special counsel, assured the committee that “throughout this investigation, career prosecutors on my team and I have made decisions based on the facts and the law.”
Weiss repeated that mantra several times during questioning about specific steps his team took — or didn’t take — in the Hunter Biden investigation. “Again, I’m not going to comment on any aspect of the investigation or a prosecution, and from my perspective, the prosecutors who participated in this case followed the law and the facts. That was the motivation.”
Of course that was Weiss’s “perspective” because, even after the IRS whistleblowers provided concrete examples of the politicization of the Hunter Biden investigation, the U.S. attorney buried his head in the sand rather than inquire about the veracity of the claims. The totality of Weiss’s testimony confirms this reality, but it is best exemplified in an exchange about the warning given to President-elect Joe Biden’s transition team that agents intended to interview Hunter Biden.
IRS whistleblower Gary Shapley had previously testified that the day before their Dec. 8, 2020 “day of action,” when agents planned to interview a host of relevant witnesses, he learned someone had tipped off Joe Biden’s transition team of the plans to interview Hunter Biden and another 10-plus witnesses. “This essentially tipped off a group of people very close to President Biden and Hunter Biden and gave this group an opportunity to obstruct the approach on the witnesses,” Shapley told the House Ways and Means Committee.
The House Judiciary Committee asked Weiss if he knew “who made the decision to tip off the presidential transition team about the day of action, and that the investigators wanted to try to speak with Hunter Biden.” Weiss initially responded that it wouldn’t be appropriate for him to comment on the matter but that he would address the question in his special counsel report.
A Concerning Connection
However, additional questioning soon reviewed a concerning connection between the Delaware U.S. attorney’s office and the Biden transition team, in the person of Alexander Mackler, whom Weiss acknowledged had been one of his assistant U.S. attorneys from 2016 through about mid-2019. According to the committee’s questioning, Mackler had at one point served as Joe Biden’s press secretary, had been Beau Biden’s campaign manager during his reelection campaign, and from 2014-2016 served as deputy counsel to then-Vice President Biden. While Weiss testified he knew Mackler had worked for Biden, he said he didn’t know many of those specifics. However, Weiss acknowledged learning that Mackler had been named to Biden’s transition team, although he said he couldn’t remember when or how he had learned of that fact.
The House Judiciary Committee then pushed Weiss on whether he or anyone else from his office had any communications with Mackler while he was working with the transition team. While Weiss stated he was “very confident” he “had no conversations” with Mackler about the latter’s work on the transition team or about the Hunter Biden case, Weiss said he had “no idea whether anyone else has spoken to Alex Mackler period or about the case.”
Weiss further testified that he was actually unaware of whether the transition team had been tipped off, as IRS whistleblowers claimed. But if so, Weiss confirmed it would be “a concern” and “a problem” and that “it shouldn’t happen.” Yet when pushed on what he would do to address the problem if he “found out that something like that did occur,” Weiss refused to answer the question, saying it was “a hypothetical” that he would not “speculate on” other than saying that “as a general matter, it’s problematic.”
Willful Blindness
On first blush, Weiss’s nonanswers about the tip-off to the transition team seem like inconsequential, unhelpful responses that merely lead to a dead end. But Weiss’s acknowledged ignorance is explosive news: The man that Attorney General Merrick Garland named as special counsel to supposedly ensure independence in the investigation and prosecution of the president’s son failed to inquire of his team about whether someone had leaked to the transition team details about the impending questioning of Hunter Biden. In fact, according to Weiss, he didn’t even bother to confirm the tip-off had occurred — much less seek to determine who bore responsibility for the leak — even though he knew that a former Delaware assistant U.S. attorney served on the Biden transition team.
Weiss’s failure in this regard was not an aberration. Rather, throughout his House Judiciary Committee testimony last week, Weiss confirmed he has ignored the whistleblowers’ claims of politicization. For instance, when asked whether “any of the attorneys on your team, whether it’s a Special Counsel team or before the Special Counsel team was stood up, have any ties which you would consider close to the Biden family,” Weiss said he doesn’t “delve into those kinds of things,” but that he is “unaware of any such thing.”
Weiss’s failure to inquire about his staff’s relationship with the Biden family may have made sense initially, but given the two whistleblowers’ detailed allegations of political favoritism, not asking some basic questions to ensure an unbiased staff is inexcusable.
Weiss’s failures extend much further, however, with his Tuesday testimony confirming he has not reviewed his staff’s handling of the investigation in light of the whistleblowers’ testimony that there were “politically-motivated decisions made in the Hunter Biden case.” Specifically, while Weiss acknowledged the whistleblowers’ claims, his responses to questions show he disregarded the claims without any inquiry. For instance, when asked, “If an investigator or prosecutor makes what is believed to be a politically-motivated statement or decision, how is that reviewed in your office?” Weiss responded that he was “not aware of such a situation.”
The House committee pushed the special counsel more on this point, asking: “For example, on the Hunter Biden case, if one of your assistant United States attorneys was exhibiting favoritism towards the Biden family or towards Hunter Biden, and that was brought to your attention, what would be the process to sort that out?”
“My office has no process or protocol for dealing with something like that. It’s not something we have engaged in, participated in, or that I have experienced,” Weiss countered. Weiss held firm under additional questioning, stating he was “not aware of any such reviews.”
“I’ve told you. I have no such process. We haven’t experienced it in our office,” Weiss insisted.
Head in the Sand
This testimony establishes that Weiss has done nothing to review his team’s handling of the Hunter Biden investigation for possible political bias, notwithstanding the whistleblowers’ detailed claims of such favoritism. No wonder then that Weiss can say he has confidence in his prosecutors and believes they acted “in a professional and unbiased manner without partisan or political considerations.”
Ironically, if this were a criminal case in which federal prosecutors needed to establish the defendant’s knowledge of some sort of “shady dealings,” the U.S. attorney’s office would seek what is collegially called the “ostrich instruction.” The “ostrich instruction” informs the jury that a deliberate effort “to avoid guilty knowledge is all the guilty knowledge the law requires,” and that a defendant who knows or strongly suspects “he is involved in shady dealings” cannot avoid criminal liability by making sure “he does not acquire full or exact knowledge of the nature and extent of those dealings.”
While there is no suggestion that Weiss is a co-conspirator in some criminal enterprise, he is similarly burying his head in the sand when it comes to the politicization of the Biden investigation exposed by the IRS whistleblowers and congressional oversight committees. Thus, his assurances that “political considerations played no part in our decisionmaking” are meaningless.
Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion (forthcoming), National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prive—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. Cleveland is also of counsel for the New Civil Liberties Alliance. Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.
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