Hunter Biden investigation: What's a special counsel, and why did Merrick Garland appoint one?

Attorney General Merrick Garland appointed U.S. Attorney David Weiss as a special counsel to oversee the investigation into Hunter Biden, President Joe Biden’s son.

Garland’s Aug. 11 announcement brings the number of special counsel investigations involving the current president, his son and the former president to four.

Garland said Weiss asked for the change of status because he believed his investigation into Hunter Biden required it to continue.

"This appointment confirms my commitment to provide Mr. Weiss all the resources he requests," Garland told reporters. "It also reaffirms that Mr. Weiss has the authority he needs to conduct a thorough investigation and to continue to take the steps he deems appropriate independently, based only on the facts and the law."

Having multiple special counsel investigations at once is a sign of the highly polarized times, said Kendall Coffey, former U.S. Attorney for the Southern District of Florida.

"There is a sense that special counsels are needed to tell the public that there isn't a political agenda for prosecutions," Coffey said. 

Here is a look at how special counsels work, why Hunter Biden is under investigation, and where this case fits into the presidential race.

The attorney general appoints a special counsel when he or she determines that criminal investigation of a person or matter is warranted and that handling by the Justice Department would present a conflict of interest and that it would be in the public interest, according to the code of federal regulations.

The attorney general establishes the special counsel's jurisdiction and a specific factual statement of the matter to be investigated. The special counsel has the authority to investigate and prosecute federal crimes committed during their investigation including perjury, obstruction of justice, destruction of evidence and intimidation of witnesses.

The special counsel may request Justice Department employees be assigned to help out.

Under the Ethics in Government Act of 1978, Congress authorized the appointment of "special prosecutors," who later were known as "independent counsels." Debate over the scope, cost, and effect of the investigations including the Iran-Contra and the Whitewater investigations resulted in the law’s expiration in 1999. Following the lapse, the Justice Department set regulations to use special counsels for investigations in which they deemed there was a conflict.

Weiss had been investigating Hunter Biden for years, but the appointment gives him more independent authority.

As special counsel, Weiss will continue to oversee the investigation and decide whether to file charges, Garland said.

The special counsel does not receive day-to-day supervision but must still comply with Justice Department policies.

As special counsel, Weiss can now prosecute cases outside the district of Delaware as they relate to Hunter Biden’s case, said Evan Gotlob, a former federal prosecutor and white-collar crime defense attorney.

"It expands his jurisdiction to be able to pursue other charges," Gotlob said.

Weiss, an appointee of former President Donald Trump, was sworn in as U.S. attorney for Delaware on Feb. 22, 2018. Garland said Weiss will continue to serve as U.S. attorney while he works as special counsel.

Weiss has overseen a criminal investigation of Hunter Biden’s conduct and foreign business dealings since 2018.

That inquiry almost resulted in a plea deal in which Hunter Biden would have pleaded guilty to two misdemeanor charges of failing to pay $100,000 in taxes in 2017 and again in 2018. The proposal also included a pre-trial diversion agreement on a separate gun charge of possessing a firearm as a drug user. The plea deal was put on hold by a judge in a July 26 hearing after she raised questions about its terms. Hunter Biden then pleaded not guilty, and the two sides were given 30 days to revisit the arrangement.

The same day Garland appointed Weiss as special counsel, Weiss filed court papers saying the two sides can’t reach an agreement to salvage the plea deal. 

The negotiations "are at an impasse," Weiss wrote. "As a result, the Government respectfully requests that the Court vacate its briefing order since there is no longer a plea agreement or diversion agreement for the Court to consider." 

Biden attorney Chris Clark issued a statement Aug. 11 questioning why Weiss proposed a resolution "if there are other offenses he could have successfully prosecuted."

Gary Shapley and Joseph Ziegler, two IRS whistleblowers who testified before Congress on July 19, said Weiss had previously asked Garland to appoint him as special counsel. Shapley said prosecutors told him they had previously considered filing tax charges for the years Biden lived in California.

Weiss disputed that he had previously asked Garland for special counsel status in a June 7 letter to House Judiciary Chairman Jim Jordan, R-Ohio. Weiss wrote that he had "ultimate authority" over the investigation, "including responsibility for deciding where, when, and whether to file charges."

Garland said Weiss told him Aug. 8 that "his investigation has reached a stage at which he should continue his work as a special counsel." Garland said Weiss’ status applies to the current case, "as well as for any other matters that arose or may arise from that investigation." 

There are now four high-profile and active Justice Department special counsel investigations that are publicly known:

• Weiss’ appointment in the Hunter Biden probe Aug. 11.

• Robert Hur’s appointment in January to oversee the probe into Joe Biden’s classified documents from his tenure as senator and vice president. 

• Jack Smith’s appointment in November to investigate Trump’s handling of classified documents. A grand jury indicted Trump in June.

• Smith’s additional appointment to investigate Trump’s actions after the 2020 presidential election. A grand jury indicted Trump Aug. 1.

Robert Mueller, a former FBI director, served as special counsel of the massive investigation into Russia’s 2016 election interference. The two-year probe culminated in a lengthy report that cleared the Trump campaign of criminally conspiring with Russia.

The FBI’s investigation into Trump sparked another special counsel probe led by John Durham, which wrapped in May 2023.

Researcher Caryn Baird contributed to this article.

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