AG Garland and the Hunter Biden investigation: 5 things we learned this week

Attorney General Merrick Garland appeared Wednesday before the House Judiciary Committee. The questions from the committee members were, for the most part, good and substantive with a surprising lack of grandstanding.

Here’s what we learned (and did not learn) about the Hunter Biden investigation:

1. On whether Garland considered appointing someone other than David Weiss to special investigate Hunter

Garland said he did not consider appointing someone other than Weiss. The attorney general said he considered what it would mean for the investigation and the "consequences" and stuck with Weiss who he has promised would have all the resources he would need, including becoming special counsel. He also defended Weiss as a person of high integrity. However, when asked about whether he had considered the allegations of incompetence and bias against Weiss, he said he "did not know the facts" of the allegations because he had stayed out of the investigation. 

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2. Why did Garland choose Weiss to be special counsel?

Garland said that he picked Weiss because Weiss asked him to be special counsel.

3. On whether it is DOJ policy to give targets a heads-up before executing a search warrant? 

(Background: The IRS whistleblowers alleged that Hunter Biden had been given a heads-up by the FBI about a forthcoming search, and thus, was able to leave and, according to them, clear away any evidence that may have been pertinent to their investigations).  

Garland said it depends on the circumstances and that the strategy and tactics are left to those handling things on the ground. The attorney general said he did not know what happened in the case of Hunter Biden.

4. On the statute of limitations in the Hunter tax cases and if they had lapsed? 

Attorney General Garland said he didn’t know the answer and that he had stayed out of the case. 

5. On whether Weiss could have charged cases in other districts against Hunter? 

(Background: IRS whistleblowers allege Weiss told them he tried to bring cases in Washington, D.C. and L.A. and was prevented from doing so) Garland repeatedly testified that he had promised Weiss full authority over the probe and that if there were a problem, he would issue a 515 order so that Weiss could bring his case(s). He said Weiss never asked him for that 515 sign-off.

What changed?

This was perhaps the most important question of the hearing that members of the Judiciary Committee kept coming back to: "what changed" from Weiss insisting in letters to Congress that he had full authority over the Hunter Biden probe to asking Garland to make him special counsel, five years into his investigation and right after his team had offered Hunter an unprecedented plea deal that would have prevented Hunter from future prosecution. 

Garland’s default answer on this, and other questions, was that because he had promised to "not interfere" in Weiss’ investigation, he didn’t know, and the public should rely on what Weiss had said in his letters to Congress from several months ago.

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This is a problem for the following two reasons: 

1. By punting, Americans will fill that void themselves by looking at the facts in front of them, concluding that the president’s son got special treatment from DOJ and only when DOJ got caught, did they reverse course – which not only calls into question the Department’s investigation – or lack thereof – into Hunter and his father in the past but also anything going forward. 

2. More importantly, it’s not interfering to inform yourself as attorney general on major investigations – on the contrary, it’s the attorney general’s job. If anything, it’s an abdication of responsibility to not ask the tough questions – especially when it implicates a former president and a current president who are both the front-runners for the presidency in 2024 and half the country is frustrated about a double standard of justice. 

It’s also a short-sighted protective measure because at the end of the day, the buck stops with the attorney general and he or she is going to get blamed anyway. Even if Weiss deserves the blame, the idea that Garland would expect people to be OK with him effectively saying he closed his eyes and shut his ears and told Weiss he could do whatever he wanted to do, is startling. 

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As I have previously written, the attorney general is not afforded the luxury of being a passive observer of his or her department. And given how publicly the DOJ's Hunter plea deal fell apart with Hunter Biden’s lawyers now ironically echoing Republicans’ frustrations about a politicized DOJ, how could Garland say with a straight face he did not know the facts around the skepticism that Weiss might not be up to the task?

It was abundantly clear on Wednesday that Garland wanted Weiss to be answering the questions, not him. According to Chairman Jim Jordan, Weiss is scheduled for a transcribed interview on Oct. 11th. 

Jordan is also pushing for Weiss to publicly testify before his committee on Oct. 18th. In light of Garland’s default Weiss answers on Wednesday, I doubt we will see any complaints from the Justice Department about Jordan’s request.

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I have no doubt that Hunter Biden, and probably his father, have become a thorn in the attorney general’s side. It’s already a thankless job, especially when you throw in investigating your boss and his family. But passivity at a time when polls show that half the country no longer trusts the Department of Justice is the wrong approach and will only cause more harm to the institution and its reputation in the long run. 

The attorney general must restore trust in the Justice Department – and it starts with informing himself about what’s going on by asking tough questions of those working for him on some of the most significant investigations in American history.

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