Democrats’ response to Republican claims that Hunter Biden got a “sweetheart deal” has been to note that then-President Donald Trump appointed U.S. Attorney David Weiss – the prosecutor who allowed Biden to plead guilty to misdemeanor tax charges and enter a pretrial diversion program on a gun charge.
Trump has tried to flip the script, saying on social media that Hunter Biden got “a traffic ticket instead of a death sentence,” because “the two Democrat Senators in Delaware … got to choose and/or approve” Weiss.
It’s true that Sens. Tom Carper and Chris Coons, both Democrats, played a part in selecting Weiss, because of a longstanding Senate policy that allows home-state senators to sign off on presidential appointments of U.S. attorneys.
But Weiss is a registered Republican, according to news reports, who was ultimately nominated by Trump and approved unanimously by Democrats and Republicans alike in a voice vote.
Weiss has come under fire from Republicans ever since he announced the agreement on June 20. Hunter Biden agreed to plead guilty to two misdemeanor charges for not paying federal taxes, for which prosecutors would reportedly recommend a sentence of probation. He also agreed to enter into a pretrial diversion program for unlawful possession of a firearm by a user of a controlled substance, which is a felony.
Hunter Biden is scheduled to appear in court on July 26 to enter his guilty plea. The plea deal still has to be approved by a federal district judge, and any penalties would be based on U.S. sentencing guidelines and other factors, Weiss’ office said.
Although the Department of Justice press release noted that the investigation into Hunter Biden is “ongoing,” numerous Republicans derided the agreement as a “sweetheart deal” or a “slap on the wrist” due to the influence of the Biden administration.
The focus on Weiss intensified when two IRS whistleblowers testified before Congress that Hunter Biden had received “preferential treatment” from the DOJ. The two IRS agents said Weiss requested but was denied the authority to act independently as special counsel and that Weiss was prevented from bringing more serious charges against Hunter Biden in Washington, D.C., and California.
In response to an inquiry from Sen. Lindsey Graham about those whistleblower allegations, however, Weiss said they were not true.
“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,” Weiss wrote, adding that he had “never been denied the authority to bring charges in any jurisdiction.”
(Graham also asked about allegations contained in an unverified report from an FBI informant who said a Ukrainian oligarch years ago bribed Hunter and Joe Biden. Weiss declined to comment because he said it was “relate[d] to an ongoing investigation.”)
Commenting on the contradictions between the accounts of the two IRS whistleblower and Weiss, Republican Rep. Jim Jordan made it clear whom he believed.
“Do you trust Biden’s DOJ to tell the truth?” Jordan asked.
Weiss is a member of Biden’s Department of Justice. But he’s a carryover from the previous administration, a Republican who was nominated for the position by Trump and kept by the Biden administration because he was in the midst of the Hunter Biden investigation. So is he a Trump guy? Or the Democrats’ guy? The answer is a little of both.
Weiss’ Appointment
It is typical for new presidents to replace U.S. attorneys appointed by their predecessor. For some administrations, the transition has been more immediate than others.
While Presidents George W. Bush and Barack Obama gradually replaced U.S. attorneys appointed by their predecessors, Trump’s first attorney general, Jeff Sessions, in early March 2017 asked all 46 of the remaining Obama-appointed U.S. attorneys to immediately submit their resignations.
One of them was Charles Oberly, the U.S. attorney for Delaware, a Democrat who was nominated by Obama and confirmed by the Senate in 2010.
Oberly complied with the request for his resignation, allowing Trump to appoint a successor. The U.S. Code states clearly that the “President shall appoint, by and with the advice and consent of the Senate, a United States attorney for each judicial district.”
Due to the Senate advice and consent authority, “Senators can make recommendations,” Brandon Garrett, a professor at Duke University School of Law, told us via email. “But it is a presidential appointment, under the Constitution.”
However, Senate tradition put the Democratic senators from Delaware in a position to influence Trump’s selection.
“There is an old Senate tradition going back to when George Washington was president called ‘senatorial courtesy,’ in which home state senators get a virtual veto over executive appointees with jobs that exist entirely within their home state,” Ian Ostrander, a political science professor at Michigan State University, told us via email. “Senatorial courtesy is the tradition that led to the more familiar blue slips process for court appointments in the Senate Judiciary Committee.”
Under the so-called blue-slip policy, in order to be presented to the Senate for a vote, a judge or U.S. attorney nominated by the president must get the signoff, or blue-slip approval, from home-state senators.
“Given the tradition, Trump is right that the two home state senators had a say in the approval of the US Attorney for Delaware in that the senators’ refusal to accept the nominee would have ended the nomination,” Ostrander said. “Knowing this, presidents (or more accurately their staff) will consult the relevant home state senators before making a nomination. Sometimes this leads to a suggestion from the senators that is accepted and nominated by a president.”
That’s apparently what happened with Oberly’s replacement, David Weiss, who once served as the acting and interim United States attorney for the District of Delaware.
According to the Associated Press, Carper and Coons in November 2017 “recommended Weiss to the White House for the job.” Carper at the time released a statement calling Weiss “an excellent choice for U.S. Attorney for the District of Delaware,” noting Weiss’ 16 years in the office. Weiss, Carper said, “is highly respected in the law enforcement community, and I hope we can swiftly confirm him in the Senate.” Coons praised Weiss as “a career prosecutor and dedicated public servant, longtime Delawarean, and valued member of our law enforcement community. I want to thank the White House for working with Sen. Carper and me to present an excellent nominee for U.S. attorney.”
And, as a result, some Republicans have begun to portray Weiss as a Biden guy.
We reached out to both senators’ press offices for clarification on the role they played in selecting Weiss, but neither provided any public response.
On Fox Business on June 20, Mike Davis, founder of the conservative legal group The Article III Project, accused the DOJ, and Weiss specifically, of “covering up” Joe and Hunter Biden’s misdeeds.
“They say that this David Weiss was a Trump appointee,” Davis said. “I was the chief counsel for nominations when he went through the Senate process. Democrat home-state senators pick their U.S. Attorney in Delaware. They picked this guy, they enthusiastically supported this guy and it’s very clear why they did this.”
And as we said earlier, Trump also posted on social media that Carper and Coons “got to choose and/or approve” Weiss.
However, while Carper and Coons played a role in Weiss’ selection, it was Trump who ultimately nominated Weiss. Trump’s nomination announcement stated that Weiss, and seven other nominees, “share the President’s vision for ‘Making America Safe Again.’”
Ostrander said that while Trump is “partially correct” that Carper and Coons “had a say” in Weiss’ selection, “I would not go so far as to say that this provides home state senators with both the choice and approval of the nominee.”
“Presidents don’t have to accept the senators’ suggestions as only the President has nominating power,” Ostrander said. “If Trump did not approve of David Weiss as U.S. Attorney, then he could simply have refused to nominate him. He could then have worked with the Delaware Senate delegation on finding a compromise candidate. U.S. Attorneys also serve at the pleasure of the president, which means that Trump could have demanded David Weiss’s resignation while he was still in office.”
Weiss’ investigation of Hunter Biden began in 2018 during Trump’s presidency. When Biden took office, the Biden administration asked for the resignation of all the U.S. attorneys appointed by Trump — except two.
One holdover was Connecticut U.S. Attorney John Durham, who was tapped by Trump’s then-Attorney General Bill Barr as a special counsel to look into the FBI’s handling of the Trump-Russia investigation. That investigation was ongoing when Trump left office, and Durham released his final report on May 12.
The other U.S. attorney kept by the Biden administration was Weiss, who was in the midst of the federal investigation of Hunter Biden.
During a Senate hearing on April 26, 2022, Republican Sen. Bill Hagerty asked U.S. Attorney General Merrick Garland how the public could be confident the DOJ was conducting “serious investigation” of the president’s son.
“Because we put the investigation in the hands of a Trump appointee from the previous administration, who’s the United States attorney for the District of Delaware,” Garland said, “and because you have me as the attorney general, who is committed to the independence of the Justice Department from any influence from the White House in criminal matters.”
Garland assured Hagerty that there would “not be interference of any political or improper kind” regarding Weiss’ investigation. In a press conference on June 23, Garland reiterated that Weiss was given complete authority “to make a decision to prosecute any way in which he wanted to and in any district in which he wanted to.”
Democratic Rep. Ro Khanna echoed those sentiments on ABC News’ “This Week” on July 2, saying, “I mean, let’s just review the facts here. You had President Trump appoint a U.S. attorney in Delaware. And President Biden had the ability to fire that U.S. attorney if he wanted, as is customary, that new president comes in they remove all the U.S. attorneys. President Biden didn’t fire the U.S. attorney, he had his past opponent’s appointee have total power over making a decision on Hunter Biden.”
The fact is that Carper, Coons and Trump had a hand in the selection of Weiss. It’s misleading to portray Weiss entirely as the Democrats’ choice — presumably they would have preferred a Democrat. But the blue-slip process does allow home-state senators to exert some influence on a president’s selection. Nonetheless, the president — according to the Constitution — ultimately decides whom to appoint.
Clarification, July 14: We changed the wording in the first paragraph to be clear that Trump had appointed Weiss when Trump was president.
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