Aug 23, 2023

The surprising Hunter Biden special counsel.

Hunter Biden (right) with his father Joe during a campaign event in 2019. Image: Louise Palanker / Flickr
Hunter Biden (right) with his father Joe during a campaign event in 2019. Image: Louise Palanker / Flickr

Plus, what actually happens if Trump is the nominee and gets convicted?

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 12 minutes.

Today, we're breaking down the Hunter Biden special counsel — and why some Republicans don't like it. Plus, what actually happens if Trump is the nominee and gets convicted?

A stunning message.

Yesterday, I asked any readers in Hawaii to write in and let me know how they were doing. A reader from Maui named Eric sent me a message that was so remarkable I asked if I could share it exclusively here in Tangle. Eric wrote this:

"Aloha… The only thing I found in my driveway. Old journal from the last ten years at this magic house... I wish it was contrived... Together. Safe. Present. Grateful. Acceptance."

Courtesy of Eric Poulsen
Courtesy of Eric Poulsen
Courtesy of Eric Poulsen

Quick hits.

  1. Eight Republican candidates will participate in the first GOP primary debate at 9pm EST tonight on Fox News. Former President Trump, the 2024 Republican frontrunner, is skipping the debate and instead sitting for an interview with former Fox News primetime host Tucker Carlson. (The debate)
  2. Republican presidential candidate and North Dakota Gov. Doug Burgum (R) suffered a leg injury playing pick-up basketball on Tuesday night and was rushed to the emergency room. His staff says it is unclear if he will participate in the debate. (The injury)
  3. A key witness charged in Trump's classified documents case "retracted prior false testimony" and hired a new lawyer, and is now implicating former President Trump, Carlos De Oliveira, and aide Walt Nauta. (The flip)
  4. U.S. home sales fell 2.2% in July from June, and are down 16.6% from last July as mortgage rates continue to rise. (The numbers)
  5. UPS employees ratified a new five-year labor contract that covers 340,000 workers and ends the possibility of a strike. (The deal)

Today's topic.

Hunter Biden's special counsel. On August 11, Attorney General Merrick Garland announced he was naming David Weiss, the U.S. attorney in Delaware who had already been leading the probe into Hunter Biden, as a special counsel. The appointment came after the surprising collapse of a plea deal between Hunter Biden and the Justice Department.

With the appointment of a special counsel, Hunter Biden is now more likely to face a trial on tax- and gun-related charges, but the investigation could also expand further into his foreign business dealings that have long drawn scrutiny. The appointment is likely to stretch Hunter's legal troubles well into presidential campaign season, setting up the remarkable scenario where President Joe Biden's Justice Department is simultaneously investigating both his chief political rival — Donald Trump — and his son.

Garland told reporters that Weiss had requested special counsel status given where the investigation had led.

“Upon considering his request, as well as the extraordinary circumstances relating to this matter, I have concluded it is in the public interest to appoint him as special counsel,” Garland said.

Generally speaking, special counsel status gives Weiss more autonomy and a larger budget to pursue the investigation, and allows him to bring federal charges outside his own jurisdiction in Delaware. Special counsels are also expected to produce a report at the end of their investigation explaining decisions they made along the way. However, certain elements of the appointment — like how it could insulate the investigation from congressional oversight — have left Republicans questioning whether this move will protect the Biden family, rather than probe deeper into Hunter Biden's alleged crimes.

Just a few weeks ago, when a plea deal between Biden and the Justice Department was headed to judicial review, it seemed a resolution was imminent. But that agreement, which was criticized by Republicans as a "sweetheart deal," fell apart when U.S. District Court Judge Maryellen Noreika raised several concerns about its details. Among the biggest concerns was a non-prosecution clause for crimes outside of the gun charge — something that would have insulated Hunter Biden from being prosecuted for other federal crimes, and could have shut the door on any further investigations into his business dealings from when his father was vice president.

Since the deal fell apart and Weiss was appointed special counsel, there has been increased scrutiny of Weiss's relationship with the Bidens. The Washington Post reported on a time period in 2010 when Weiss was working alongside Beau Biden, President Biden's eldest son and then-Delaware Attorney General, on the settlement of a major fraud case (Beau Biden died of brain cancer in 2015).

Then, the The New York Times released a deep dive into the collapse of the plea agreement, including details, based on hundreds of pages of communications between Weiss and Hunter Biden's lawyers, revealing that Weiss had initially approved of forgoing any prosecution of Hunter Biden at all, but his position changed after two IRS whistleblowers accused the Justice Department of holding up the investigation. Lawyers for the whistleblowers held this as proof of Weiss’s preferential treatment, claiming that Hunter never would have been charged had it not been for their actions.

Today, we're going to review some reactions to the special counsel — and the collapse of the plea deal – from the right and left. Then my take.

What the right is saying.

  • Many on the right criticize the appointment, arguing that it could be the latest defensive measure from the Biden administration.
  • Some say it came too late, and that Weiss is the wrong person to continue leading the investigation.
  • Others argue it is the latest step in an attempt to cover up Hunter Biden's crimes until after the 2024 election.

The Wall Street Journal editorial board called it a "not-so-special" counsel for Hunter Biden.

The special counsel "may be worse for the President’s son but better for Joe Biden’s re-election campaign," the board said. "Yet there’s reason to doubt that this special counsel decision will end up reassuring anybody about equal justice. Mr. Weiss is the same prosecutor who cut the discredited plea deal with Hunter Biden... The whistleblowers claim Mr. Weiss failed to follow the trail of foreign money that flowed to Hunter. They say he had previously sought special-counsel status from Justice but was denied. The whistleblowers also say Mr. Weiss asked to bring charges in California and Washington, D.C., but was blocked there too."

Even as a special counsel, "keep in mind he isn’t 'independent' in any legal sense and still must report to, and have his prosecutions approved by, Mr. Garland," the board wrote. "Special-counsel status is also politically convenient for Messrs. Weiss and Garland because it means both men can use the excuse of an ‘ongoing investigation’ to refuse to answer questions from Congress." Weiss is "running up against the statute of limitations on tax and gun charges" and "if he wants to, he could draw out other matters all the way through the November 2024 election. Hunter Biden’s many shell companies, President Biden’s role, and other matters may vanish into the special counsel’s secret investigation."

In Spectator, Charles Lipson wrote that the new special counsel also needs to be investigated.

"[Weiss's] appointment makes sense in one way: any other choice would have added years to the investigation. Weiss is already up to speed. The question is whether he is speeding down the right road," Lipson said. "Shockingly, the Biden administration did not want to appoint a special counsel to investigate itself or the president’s family. The new attorney general could have given Weiss those additional powers two years ago but declined... Important as this new appointment is, it also raises some very troubling issues. One is that it gives the Department of Justice an additional tool to block investigations by House Republicans, who are conducting several serious inquiries into Biden family corruption.

"The second issue is even more troubling: Weiss’s own office needs investigating... Multiple witnesses have told Congress that Weiss’s office refused to investigate the full extent of the Biden family’s overseas business operations and the income received from them. Several experienced, non-partisan IRS investigators (all of whom were later taken off the case by Garland’s Department of Justice) have said that Weiss’s top aide, Assistant US Attorney Lesley Wolf, explicitly told them their office would not pursue any investigative threads that might lead to President Biden... All that testimony was given under oath. Weiss’s office has not challenged it."

In The Washington Examiner, Conn Carroll said Attorney General Garland is just continuing the cover-up.

"If Attorney General Merrick Garland thought he could restore trust in President Joe Biden’s Justice Department by appointing a special counsel to investigate Hunter Biden, he should have chosen a special counsel who didn’t try and let Hunter Biden off scot-free just two weeks ago," Carroll wrote. "While Weiss is a Republican who was appointed by former President Donald Trump, Republicans have every reason to be suspicious of his motives since it was just two weeks ago that Weiss tried to close out his investigation of Hunter Biden with a plea deal that was rejected by a federal judge because of its unprecedented nature."

"The Justice Department still has never made the terms of that deal public, and it is only because of a leak to the press that anyone outside of Hunter Biden’s lawyers, the court, and the DOJ has seen it." It's obvious why the DOJ wanted to keep it a secret: "As the federal judge who rejected the deal pointed out in court, the scope of immunity being offered to Hunter Biden by the plain language of the document was unprecedented. She literally asked the DOJ lawyer if there was any precedent for the breadth of the agreement not to prosecute and the DOJ lawyer said 'no.' And Weiss is the man who signed off on that deal."

What the left is saying.

  • Many on the left support the appointment, arguing that the collapse of Hunter Biden's plea deal meant a special counsel was necessary.
  • Some criticize Republicans for getting exactly what they asked for but continuing to cry foul.
  • Others argue that a special counsel is no longer sufficient for investigations like this.

The Washington Post editorial board said "this was the right move" and Hunter Biden shouldn't get special treatment.

"It should encourage Americans that the process will be independent and transparent and, therefore, that it is more likely to be fair," the board said. "Such assurances might not have been necessary at the beginning of the Justice Department’s Hunter Biden probe, but they became important after a plea agreement between Mr. Weiss and Mr. Biden’s attorneys fell apart under judicial scrutiny. Initially appearing reasonable, the deal turned out to include peculiar details suggesting critics might have been justified to suspect that Mr. Biden was being given special treatment."

"Special counsels should not be appointed lightly. They have tended to overspend and overreach. One temptation in the Hunter Biden case might be to investigate the president himself, as many of his critics wish. So far, the record suggests President Biden’s behavior was not spotless — but also not criminal," the board said. "Nevertheless, Mr. Garland’s move was justified. Under the special counsel regulations, Mr. Weiss will not only be clearly authorized but also required to produce a report, almost certain to be made public, on his investigation. The report will allow Mr. Weiss to explain the prosecutorial choices he has and will make. The fact that he has to write one will also give him a greater incentive to proceed by the book."

In Rolling Stone, Ryan Bort said Republicans wanted a special counsel deal and now they're upset they actually got one.

"Trump nominated Weiss to serve as a federal prosecutor in 2017, with the Republican-controlled Senate confirming him a year later. Nevertheless, conservatives are pissed," Bort said. "The lesson, of course, is that nothing will satisfy Republicans short of Garland appointing Trump himself to investigate Biden. Rep. Jim Jordan (R-Ohio) whined in February about the Justice Department’s failure to appoint a special counsel, before Fox News reported on Friday that he’s among those upset that it actually did, claiming Weiss isn’t the right man for the job. Sen. Graham was pushing for Weiss to become a special counsel as recently as last month."

"Trump and his Republican allies have been raging at what they allege is favorable treatment from the Justice Department, despite the fact that Trump appointed the prosecutor responsible," Bort said. "Republicans in Congress reacted similarly as they have been desperately working to dredge up evidence that Biden and his father were engaged in a bribery scheme. They’ve been teasing evidence of such a scheme for months, but so far have produced nothing. Rep. Nick Langworthy (R-N.Y.) on Thursday basically admitted that they don’t have anything incriminating against Biden, alleging on Fox News that he and his colleagues never claimed money went directly to the president."

In Bloomberg, Noah Feldman said "we need a better system" and suggests bringing back independent counsels.

"To be sure, the prosecutors seem to be doing everything by the book. Yet the fact remains that, in a democracy, one candidate shouldn’t be able to prosecute another. And no one should ever be in the chain of command for the prosecution of their own child,” Feldman said. “There is a cure, one adopted by Congress after Richard Nixon ordered the firing of special prosecutor Archibald Cox during Watergate: Congress can pass a law creating a genuinely independent counsel, one who cannot be fired by the president. This would create a legitimate distance between the president and the prosecutions and approximate the norm that exists in most countries."

The law existed from 1978 to 1999, but was allowed to sunset after people thought Kenneth Starr overreached in his investigation of Bill Clinton. "Let me be extremely clear: Acknowledging the need for a renewed independent counsel law is not a criticism of how the Biden administration has been acting under the existing special counsel rules. To the contrary, the system as it presently exists is working as well as it possibly can," Feldman wrote. "Joe Biden appointed an attorney general of unquestioned probity and has left Merrick Garland alone to do his job as he sees fit... Garland, Smith and Weiss are making the best of a bad situation. But it isn’t enough."

My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.

  • From the moment the plea deal came down, I had concerns about the testimony of the IRS whistleblowers.
  • A special counsel is good, but it shouldn't be Weiss, and one should have been appointed a long time ago
  • Everything we've learned since the plea deal fell apart makes me deeply suspicious of Weiss and his investigation.

It's worth briefly recapping my positions here. 

I've long supported an investigation of Hunter Biden, and been very critical of the way “the laptop story” was throttled by social media and handled by the press. Something about his work was so obviously shady and corrupt that it felt worth looking into from the start. The tax and gun crimes he committed, which he was ready to cop to in a plea deal, were worth prosecuting on their own. While it is clear Hunter has long been trying to profit off the family name, it remains unclear exactly why he was being sent millions of dollars, where that money was coming from, and where exactly it was going.

When the plea deal was initially agreed to, I started "my take" by making two big caveats to everything I was about to say: There were major questions about the integrity of this investigation, and the plea deal shouldn't end the conversation (or investigation) into Hunter Biden's business dealings. My hesitation was mostly due to the IRS whistleblowers, who seemed like legitimate, nonpartisan actors trying to warn Americans that something about this whole thing wasn't up to snuff. I went on to say the plea deal didn't seem out of the ordinary given the charges in question — but I'm very glad I centered my two caveats at the beginning of the piece.

In July, those whistleblowers delivered testimony to Congress. When we covered that, I inched out even further, writing that their testimony "was not encouraging." The whistleblowers were clear: They were prevented from taking normal steps to uncover new evidence in their investigation, and disagreed strongly with the pending outcome of the plea agreement. They clarified that they were not accusing Hunter Biden or the president of serious crimes, only that they were prevented from taking rational investigatory steps. It was sober and convincing testimony. I argued Attorney General Merrick Garland and David Weiss should testify under oath, and said we can't move forward without hearing from them in such a setting.

Then the plea bargain fell apart, and the special counsel was appointed. Since then, we've gotten damning reporting — mostly from The New York Times, but also from The Washington Post — about exactly how that happened.  

Weiss was prepared to let Hunter Biden off without charging him and with sweeping immunity for all other past crimes, which was an unknown detail when we initially covered the plea deal. If The Times reporting is accurate, which it appears to be given their access to internal communications between Weiss and the Justice Department, the only reason the deal ended up including guilty pleas and a limited immunity offer was the testimony from the IRS whistleblowers. Had they not come forward, Hunter Biden's deal may not have included any guilty pleas at all, and sweeping immunity from federal prosecution in the future might have been granted.

That Weiss was prepared to let Hunter Biden go with little to no consequences is, actually, scandalous. Even after the IRS whistleblowers came forward and the deal was adjusted, it was still so convoluted and unprecedented that Judge Noreika shut it down. And, clearly, she was right to. A special counsel investigating Hunter in response to the deal falling apart is good. But it’s clear now that an appointment should have been made a long time ago, and the idea that Weiss should get that appointment — given everything we just learned — should be unacceptable. The best case for keeping Weiss on is that he has been on the investigation for five years and bringing in a new special counsel would restart the clock, putting off any conclusion to it. Which isn’t to excuse the Justice Department — if they didn’t want the investigation to drag on for another five years, they shouldn’t have mishandled it so badly.

And after reading about how Weiss led this investigation, how can anyone blame Republicans for not trusting him as special counsel? Even the reliably left leaning Washington Post editorial board — the same one that rubber-stamped the plea deal in June — conceded (under "What the left is saying") that "the deal turned out to include peculiar details suggesting critics might have been justified to suspect that Mr. Biden was being given special treatment." That’s an awfully nice way of saying this was absolutely a sweetheart deal that stinks to high heaven. Kudos to them for openly changing their position, but the change of tune is understated given what we now know.

So, now what? I'm really not sure. Feldman’s suggestion (under “What the left is saying”) that special counsels are not sufficient in scenarios like this, which he wrote over a week ago, is especially prescient now. Weiss seems locked in, meaning we're all just going to be left with growing suspicions. The most confounding part, of course, is that Hunter Biden may actually not be guilty of any serious criminal activity (outside of the charges we know about). 

But if that’s true, it will be hard for Weiss to prove it, since the appearance of a cover-up is setting in. I don't blame anyone for feeling deeply suspicious — I'm starting to feel that way myself. 

Your questions, answered.

Q: If Trump is the Republican nominee AND is convicted, then what? Legally, the conviction wouldn't bar him from running, being elected, or being sworn in. Could/would the RNC replace him? Would it make enough of a difference to not win the election?

— Mike from Odenton, Maryland

Tangle: If he were to be the nominee and get convicted, I think what the GOP would do depends largely on what exactly Trump is convicted of (and where). So let's flesh this scenario out bit by bit.

First, I think it's worth pointing out that there is a robust legal debate happening already about whether Trump can serve as president. Some very conservative legal scholars argue that the Constitution already bars Trump from holding office ever again. But that is debatable, and many don't agree.

Second, the broad answer to your questions is that nothing will happen to his candidacy if he is convicted. Felons can run for president, and being convicted of a crime — even being in jail — does not bar you from a nomination. In fact, if Trump were to run for president from jail, he wouldn't even be the first to do so — that award goes to Eugene V. Debs, who received a million votes in 1920 while sitting inside a prison cell.

Third, it still depends on where he is convicted and for what. If he is convicted in the Fulton County, Georgia, case, that would mean mandatory prison time, unpardonable, at the state level. Obviously, running for office from prison would be hard — if not impossible. Being president? I can't think of how it'd work, but maybe I need another coffee. Realistically, I expect the GOP would dump him if he were staring down a five-year prison sentence.

The real question is what happens if he gets elected president; and the real answer is nobody knows. We'd be in totally uncharted territory, and federal judges would hold a great deal of power to decide what to do.

Ultimately though, I think all of this is moot. I'm skeptical the Georgia case will conclude before 2024. A conviction in the classified documents case in Florida is unlikely to carry prison time, and I don't think it would seriously impact the logistics of his candidacy. And while Trump appears to already have the nomination locked up, I think the odds of him winning a general election are still low given how well Democrats have run against him in the last six years and his unpopularity with independent voters

All of that aside, I also don't see him going to jail. As I've said in the past, if he is realistically facing prison time, I think Trump would be very likely to take a plea deal that requires him to end his presidential campaign.

Want to have a question answered in the newsletter? You can reply to this email (it goes straight to my inbox) or fill out this form.

Blindspot report.

Once a week, we present the Blindspot Report from our partners at Ground News, an app that tells you the bias of news coverage and what stories people on each side are missing.

The right missed a story about the wealthiest 10% of households being responsible for 40% of all greenhouse gas emissions.

The left missed a story about the Biden administration allegedly selling millions of dollars of unused border wall through an online marketplace for surplus government materials.


  • Two in five. The number of Americans who said they had heard a great deal or a fair amount about Hunter Biden's plea deal in June, according to a Reuters/Ipsos poll.
  • 50%. The percentage of Americans who said they believe Hunter is receiving favorable treatment because he is Joe Biden's son, according to a Reuters/Ipsos poll.
  • 33%. The percentage of Democrats who said they believe Hunter is receiving favorable treatment because he is Joe Biden's son, according to a Reuters/Ipsos poll.
  • 75%. The percentage of Republicans who said they believe Hunter is receiving favorable treatment because he is Joe Biden's son, according to a Reuters/Ipsos poll.
  • 58%. The percentage of Americans who said Hunter Biden's proposed plea agreement would have no impact on the likelihood of them voting for Joe Biden.

The extras.

  • One year ago today we asked who would win the Senate.
  • The most clicked link in yesterday's newsletter was — yet again — what happens if you don't put your phone on airplane mode.
  • No non-natives: 516 Tangle readers answered our poll asking to rate the factors causing the Maui wildfires, with 'Invasive Grasses' getting the most blame. Rated from 1 to 5, where a higher number means more blame, invasive grasses scored 3.9, power company negligence scored 3.5, government inaction scored 3.3, Maui construction scored 2.6, and climate change scored 1.6. "Also, the specific weather conditions made it much worse, much faster," one respondent said.
  • Nothing to do with politics: The daring rescue of cable car passengers in Pakistan.
  • Take the poll. What do you think about the appointment of David Weiss as special counsel? Let us know!

Have a nice day.

Every two weeks, people participating in a "food prescription" program in Stockton, California, receive a special delivery: a box filled with fruit, vegetables, and other essentials. The boxes are distributed as part of the Stockton Food Bank's Healthy Food RX Program, allowing residents with conditions like diabetes, kidney disease, and high cholesterol access to fresh and healthy ingredients. Twice a month, the food bank offers cooking classes in both English and Spanish so recipients can learn new ways to prepare meals. Another successful program is in Solano County, where a "mobile food pharmacy" delivers crates filled with fruits and vegetables to health clinics. Advocates want to expand programs like these across the state, saying they will improve chronic health conditions, lower health care costs, and reduce hunger. The Mercury News has the story.

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Isaac Saul
I'm a politics reporter who grew up in Bucks County, PA — one of the most politically divided counties in America. I'm trying to fix the way we consume political news.