US attorney leading Hunter Biden criminal probe is now a special counsel after plea talks break down and a trial looms

By Marshall Cohen, Hannah Rabinowitz and Devan Cole, CNN

Washington (CNN) — The Trump-appointed US attorney who is investigating Hunter Biden has been given special counsel status after plea talks between the Justice Department and the president’s son fell apart.

The prosecutor, David Weiss, asked Attorney General Merrick Garland for the new authority after plea talks to resolve tax and gun charges fell apart, with a trial now likely.

Garland’s decision, which he announced Friday, gives Weiss more powers than a typical US attorney and puts the nation in uncharted territory, with three special counsels at the Justice Department currently investigating the sitting president, his son and the previous president.

It’s the latest dramatic turn in the long-running criminal investigation of Hunter Biden that’s impacted President Joe Biden’s White House and has been a priority of congressional Republicans.

The probe appeared to reach its conclusion when a plea deal was announced in June. In a two-pronged agreement, Hunter Biden planned to plead guilty to two tax misdemeanors and prosecutors would drop a separate felony gun charge in two years if he stayed out of legal trouble and passed drug tests.

Federal prosecutors also agreed to recommend probation, and no jail time, for Hunter Biden.

The GOP had criticized the plea deal, accusing Weiss of giving Hunter Biden preferential treatment.

But at a stunning three-hour court hearing last month, the deal nearly collapsed under scrutiny from the federal judge overseeing the case. District Judge Maryellen Noreika said the intertwined deals to resolve the tax and gun charges were “confusing,” “not straightforward,” “atypical” and “unprecedented.” At the end of that hearing, she ordered the Justice Department and Hunter Biden’s lawyers to file additional legal briefs defending the constitutionality of the agreement.

Friday, Weiss said talks had failed.

“After the hearing, the parties continued negotiating but reached an impasse,” prosecutors wrote. “A trial is therefore in order.”

By naming Weiss as a special counsel, Garland gave him further independence from the Justice Department as he embarks on an unprecedented trial against the son of the sitting president, and as Republicans claim the department is politicized.

The White House and Hunter Biden’s legal team were not informed beforehand of the decision to appoint a special counsel, according to a senior Justice Department official.

Hunter Biden’s lawyer Abbe Lowell told CNN’s Kaitlan Collins on “The Source” Friday that although Weiss’s title had changed, the facts of the case hadn’t. He claimed the five-year probe was one of the most thorough in history and said he hopes the investigation will reach “the same conclusion” that it was headed to several weeks ago — misdemeanor tax charges and a diversion agreement to resolve the felony gun charge.

GOP criticism of investigation

Calls for a special counsel have intensified in recent months, with leading Republicans claiming Hunter Biden got a “sweetheart deal,” and IRS whistleblowers alleging that Weiss and the Justice Department gave him preferential treatment in the plea deal.

Two career IRS agents who worked on the Hunter Biden probe went public as whistleblowers, claiming there was political meddling in the probe.

House Judiciary Chairman Jim Jordan, an Ohio Republican, had asked for Weiss to testify before his committee about the Hunter Biden probe, and Weiss had offered to appear before the panel in the fall.

“David Weiss can’t be trusted and this is just a new way to whitewash the Biden family’s corruption,” Jordan spokesman Russell Dye said in a statement. “Weiss has already signed off on a sweetheart plea deal that was so awful and unfair that a federal judge rejected it.”

House Oversight Committee chairman James Comer of Kentucky was also unhappy, calling it a “Biden family coverup.”

Federal prosecutors have spent five years investigating Hunter Biden for potential felony tax evasion, illegal foreign lobbying, money laundering and other possible crimes.

Gary Shapley — an IRS veteran and one of the whistleblowers — shared House GOP members’ distrust of Weiss, telling CNN Friday evening that investigative steps were “stymied” under his leadership.

“The American people have to have confidence that this investigation is fair,” Shapley told Collins on “The Source.” “I don’t know how now we can have any confidence that Weiss is now going to go and look at this independently.”

Shapley also echoed GOP claims that Weiss “provided preferential treatment” to Hunter Biden.

Trials could occur in DC or California

Weiss and prosecutors Friday asked a judge to dismiss the tax charges filed in Delaware federal court as part of the plea deal in anticipation of possibly bringing future tax charges in California or Washington, DC.

“Venue for these offenses does not lie in Delaware,” prosecutors wrote. “Rather, venue for these offenses and any other related tax offenses lies either in the Central District of California or in the District of Columbia.”

The parties previously agreed that the plea agreement would be handled in Delaware federal court. But now that the plea deal is off, prosecutors say that venue is no longer appropriate.

Hunter Biden’s attorney Chris Clark said in a statement shortly after the filing was made that “whether in Delaware, Washington, D.C. or anywhere else, we expect a fair resolution on behalf of our client.”

“This US attorney has diligently been investigating my client for five years and he had proposed a resolution which we fully intend to pursue in court,” he said, adding: “We are confident when all of these maneuverings are at an end my client will have resolution and will be moving on with his life successfully.”

‘Extraordinary circumstances’

In a brief speech, Garland said Friday that “extraordinary circumstances” surrounding the federal criminal investigation into Hunter Biden contributed to his decision to give the top prosecutor in the probe special counsel status.

Garland’s order appointing Weiss said he is authorized to “conduct the ongoing investigation … as well as any matters that arose from that investigation or may arise” as the probe continues.

A senior Justice Department official said Weiss will write a report, which the attorney general is expected to publicly release when the probe is over. This has been the common practice of special counsels in recent years, like Robert Mueller and John Durham.

“I am confident that Mr. Weiss will carry out his responsibility in an evenhanded and urgent manner and in accordance with the highest traditions of this department,” Garland added.

Garland said that Weiss will continue to serve as the US attorney for the District of Delaware as he takes on this new post. And he noted that in the special counsel position, Weiss will “not be subject to the day-to-day supervision of any official of the department.”

He said Weiss “must comply with the regulations, procedures, and policies of the department.”

This story has been updated with additional details and developments.

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