On Saturday, the Wall Street Journal reported that relations between President Joe Biden and Attorney General Merrick Garland have reached frostiness of polar proportions.
It apparently arises from a White House perception that Garland’s infatuation with special counsels has gone too far. The Journal reports that Biden aides “see Garland’s handling of the inquiries into the Biden family as driven … by a punctilious desire to give the appearance that sensitive investigations are walled off from political pressure.”
The aides have fresh evidence. On Thursday, newly appointed special counsel David Weiss egregiously overcharged Hunter Biden with gun violations.
These charges hurt the Justice Department, and they hurt all of us by throwing chum to the MAGA feeding frenzy. They are ultimately Garland’s responsibility. One can be sympathetic to each of Garland’s individual decisions; the sum, however, has caused undeniable damage.
Let’s acknowledge that hindsight is 20/20. That’s precisely why it must be faced with brutal honesty. Strong leaders use it in making the tough decisions that lie ahead.
It’s also important to note that chilly White House–Justice Department relations can reflect a healthy independence on the part of attorneys general in calling legal shots.
At the same time, attorneys general can march so far in the direction of proving independence that they prioritize it above vision and their personal responsibility for making the sound call. That seems to be where we are.
Saturday’s Wall Street Journal story identifies two causes for the current chill between Biden and Garland.
First, there was Garland’s January 2023 appointment of a special counsel, the Republican Robert Hur, to investigate whether Joe Biden’s possession of classified documents left over from his time as vice president violated the law. Second, there were Thursday’s unusual charges filed against Hunter Biden. There’s much to unravel with each.
As to Garland appointing Hur, Biden has not publicly contested it, but he certainly has a case to make. In January and February, both Biden and Mike Pence were discovered to have classified documents in their possession from their respective times as vice president.
While on their face these circumstances appeared to parallel the situation that led the Department of Justice to search Trump’s home at Mar-a-Lago and eventually charge him with numerous felonies, they could not be more different. Most notably, in neither case was there the slightest sign of intentionality in including the documents among personal materials taken home after their time in office. Both men quickly returned documents as soon as they were discovered.
Evidence of intentionality or of obstructing government efforts to get the documents returned are, for good reason, what it takes to prosecute former federal officials found to have classified documents in their possession following their time in office. That’s what happened in Trump’s case.
So, why did Garland authorize special counsels to investigate Biden?
Plainly, he wanted to demonstrate his Justice Department’s independence from the White House and offer the appearance that he was treating Trump’s case the same as he treated Biden’s and Pence’s, even though they were nothing alike. This was in keeping with his oversensitivity on the this issue since day one.
Garland didn’t have to go the special counsel route. He could have made the decision over whether or not charges were warranted himself, explaining differences between Trump’s case and that of Biden and Pence.
Garland could have emphasized the powerful evidence that Trump obstructed efforts to have national security secrets returned. For Garland, though, that would have meant taking the heat.
There’s precedent. In 1997, Attorney General Janet Reno refused to appoint an independent prosecutor to investigate Republican allegations of fundraising improprieties in the Bill Clinton White House.
Under pressure from Republicans to make the appointment, she stood firm: “We do not have any specific and credible evidence that any covered official violated the law.” She added: “If I do what I think is right and I don’t have a job, too bad.”
When it comes to the Hunter Biden special counsel saga, however, the plot is even thicker. It starts in 2021, with Garland and President Biden retaining David Weiss, the Trump-appointed U.S. attorney in Delaware, to complete the investigation that he had started in 2019 over allegations of Hunter Biden’s misconduct. Generally, all U.S. attorneys are replaced with appointees of incoming presidents who are of a different party than their predecessors, but that did not happen with Weiss.
Next came the July 2023 failure of the lawyers, including Weiss, to negotiate a sound plea agreement that the federal judge would approve. In retrospect, one is left to wonder if Garland might have better cut his losses at this point.
Weiss had taken four years to come up with an unsuccessful plea agreement. That failure might have been reason to replace him. Instead, Garland promoted him with the special counsel appointment, which put Weiss in a position where he can now only be removed “for cause” rather than at the discretion of the president.
A federal prosecutor’s job is to shut out the political noise and do justice. To any dispassionate observer, it looks as if Weiss lacked earplugs. The same could be said of Garland in his decision to appoint Weiss.
The worst was yet to come. Before bringing the new felony gun charges, special counsel Weiss had to notify Garland of them and get his approval.
Here was another apparent turning point for the attorney general. He would have known that federal indictments for an unlawful gun purchase by a non-felon in the absence of the gun’s use in any subsequent crime are rare to nonexistent.
Yet if Garland disapproved of Weiss’ proposed filing of precisely that kind of indictment of Hunter Biden, the special counsel regulations required the attorney general to notify Congress and explain. Republicans would have a field day with him in hearings if he did the right thing and rejected the charges. Of course, he likely never would have faced such a dilemma had he not gotten on a slippery slope by sticking with Weiss up to this point.
On Thursday, Weiss indicted Hunter Biden on the three gun charges. They include two counts of making false statements in 2018 about his drug use to obtain a weapon and one count of illegally possessing a gun while addicted.
At stake here is the Justice Department’s commitment to apolitical justice for both sides, including that of the administration which appointed him. These charges simply would never have been brought were it not for the political valence of Hunter being Joe Biden’s son.
Indeed, in an interview with Joyce Vance published on Saturday, Charlie Oberly, who preceded Weiss as the U.S. attorney in Delaware, stated bluntly, based on the facts of the Hunter case as he knew them, “I cannot imagine we would attempt to make such an individual a felon.”
None of this is reassuring. It suggests that one can bend over so far backwards to prove impartiality as to break the back of apolitical justice.
Even so, there’s reason to think a decent outcome may yet occur in Hunter Biden’s case. It could take the form of a negotiated settlement. Alternatively, a court, a jury, or both could sort it out in some satisfactory way.
In the meantime, it’s worth keeping in mind a larger picture as we lament the current track we are on and the resulting tension between the Justice Department and the White House.
One might think it a small consolation that the chilliness between today’s attorney general and the White House is much better than the absence of independence and the close alignment between Trump and Attorney General Bill Barr we witnessed for almost all of Barr’s tenure. If Trump wins election again in 2024, however, Garland will be replaced by someone offering far worse than excessive evenhandedness, or even Barr’s toadyism: an attorney general with total fealty to a criminal president.