Harvard Law Professor Emeritus Alan Dershowitz is making the case that the special counsel investigating Hunter Biden was appointed illegally.  Dershowitz cited the qualifications listed in U.S. Code Title 28, Chapter 6 which state: “The Special Counsel shall be selected from outside the United States Government.”

“There are good reasons for this requirement. Special counsel is supposed to be independent of the current government, not an employee who serves as U.S. attorney for Delaware and can be fired from that job by the president. He is supposed to look at the evidence through the eyes of an outsider,” Dershowitz wrote. 

Attorney General Merrick Garland appointed U.S. Attorney David Weiss as special counsel so he could complete his investigation into Hunter Biden’s taxes.

The investigation began in 2018 and led to a plea deal that fell apart in federal court. The prosecutors and defense team went back to the drawing board but apparently reached an impasse. Weiss asked Garland for special counsel status Tuesday, Aug. 8. 

“Mr. Weiss advised me that in his judgment, his investigation has reached a stage at which he should continue his work as a Special Counsel, and he asked to be so appointed,” Garland said in his announcement. “As Special Counsel, he will continue to have the authority and responsibility that he has previously exercised to oversee the investigation and decide where, when, and whether to file charges.” 

Dershowitz contends that Congress could summon Garland to explain his reasoning for ignoring the federal regulation. 

“If [Garland] feels that somehow there is an applicable exception to this requirement, he is obliged to explain why. Particularly when the special counsel is appointed to investigate the son of the incumbent president, who appointed Garland, every T should be crossed and every I should be dotted.” 

Similar questions were raised when Robert Mueller was appointed to lead the Trump-Russia investigation. The regulations state the attorney general can remove a special counsel if there’s a conflict of interest. Critics argued that Mueller had a conflict with former FBI Director James Comey, who leaked a memo to The New York Times hoping it would lead to the appointment of a special counsel.

Mueller and Comey had a long professional relationship. When Mueller was FBI director, he worked closely with Comey who was deputy attorney general. Comey then succeeded Mueller as FBI director. 

In the end, Mueller stayed on the job for nearly two years. His team’s work led to 37 indictments and seven guilty pleas or convictions.