In a letter sent to Sen. Lindsey Graham (R-SC) Monday, U.S. Attorney David Weiss says he never requested Special Counsel authority during his lengthy investigation into Hunter Biden, and that he’s “never been denied the authority to bring charges in any jurisdiction,” a claim that contradicts testimony given to Congress by IRS whistleblower Gary Shapley in May of this year.

After a transcript of Shapley’s testimony (which included exhibits such as emails) was released by the House Ways and Means Committee, over Democrat objections, in late June, Sen. Graham requested “information regarding [the whistleblower’s] allegations” from Weiss.

After stating that he cannot discuss details of the case since it is still active, Weiss wrote:

To clarify an apparent misperception and to avoid future confusion, I wish to make one point clear: in this case, I have not requested Special Counsel designation pursuant to 28 CFR § 600 et seq. Rather, I had discussions with Departmental officials regarding potential appointment under 28 U.S.C. § 515, which would have allowed me to file charges in a district outside my own without the partnership of the local U.S. Attorney. I was assured that I would be granted this authority if it proved necessary. And this assurance came months before the October 7, 2022, meeting referenced throughout the whistleblowers’ allegations. In this case, I’ve followed the process outlined in my June 30 letter and have never been denied the authority to bring charges in any jurisdiction.

(The full letter can be read here.)

Now, we knew that there was a distinction between full Special Counsel designation and Special Attorney appointment that would simply allow him to file charges outside his jurisdiction, since Weiss referenced that in his June 30 letter to Rep. Jim Jordan (R-OH). However, did Weiss make that clear distinction when he was speaking to people like Gary Shapley in meetings, or was he just using “special counsel” as a generic term? If he’s going to claim he was using it as a generic term that’s problematic because these are highly technical processes with legal terminology and terms of art, and unless one is extremely specific and accurate there can be big consequences, or miscommunications at a minimum. Or, was Weiss not being truthful when he said that he’d been denied Special Counsel status?

Weiss again stated that he had been assured he’d be given permission to file “in a district outside his own without the partnership of the local U.S. Attorney” should that become necessary, but it had not become necessary. If that’s true, then Weiss needs to explain why charges weren’t filed in California or D.C., and why he decided to not pursue any charges against Hunter Biden for the 2014 and 2015 tax years.

To end the portion of his letter about the Special Counsel issue, Weiss asserted that he’d followed the process outlined in his June 30 letter, which stated:

As the U.S. Attorney for the District of Delaware, my charging authority is geographically limited to my home district. If venue for a case lies elsewhere, common Departmental practice is to contact the United States Attorney’s Office for the district in question and determine whether it wants to partner on the case. If not, I may request Special Attorney status from the Attorney General pursuant to 28 U.S.C. § 515. Here, I have been assured that, if necessary after the above process, I would be granted § 515 Authority in the District of Columbia, the Central District of California, or any other district where charges could be brought in this matter.

The “follow the process” verbiage was also found in Shapley’s concurrent post-meeting memo, sent at 6:09 PM on October 7, 2022. Shapley’s item 2 states:

Weiss stated that he is not the deciding person on whether charges are filed

• I believe this to be a huge problem – inconsistent with DOJ public position and Merrick Garland testimony

• Process for decision:

  • Needs DOJ tax approval first – stated that DOJ Tax will give “discretion” (We explained what that means and why it is problematic)

  • No venue in Delaware has been known since at least June 2021

  • Went to DC USAO in early summer to request to charge there – Biden’s appointed USA said they could not charge in his district

    • USA Weiss requested Special Counsel when it was sent to DC and Main DOJ denied his request and told him to follow the process

Shapley’s memo went on to note the issues with charging in California and the declaration that “they are not going to charge 2014/2015 tax years” and referenced both IRS-CI and the FBI bringing up “general issues to include: communication issues, update issues,” and that “these issues were surprisingly contentious.”

FBI Special Agent in Charge out of the Washington, D.C. field office, Darrell Waldon, replied to Shapley’s memo by saying, “Thanks, Gary. You covered it all.”

Again, as Empower Oversight’s Tristan Leavitt said, if this is the narrative Weiss is going with, he’s got some ‘splainin to do.

The bottom line is this: if Weiss wants to claim he has "never been denied the authority to bring charges in any jurisdiction," then he also has to explain why he allowed the statute of limitations to expire for the 2014 and 2015 tax charges (including felony charges for 2014). https://t.co/aBaQGZrLpU pic.twitter.com/glmzQchy5W

— Tristan Leavitt (@tristanleavitt) July 10, 2023

The last sentence in Weiss’ letter relates to the FBI FD-1023, and reads:

“Your questions about allegations contained in an FBI FD-1023 Form relate to an ongoing investigation. As such, I cannot comment on them at this time.”

So is Weiss saying he’s actually investigating the allegation that Joe and Hunter Biden were paid millions of dollars in exchange for Joe Biden pressuring the Ukrainian government to fire Viktor Shokin? Or is he simply looking for a reason to not say anything, using that term the same way Karine Jean-Pierre uses “Hatch Act”? Given his performance so far, I’m going with the latter.