What the special counsel appointment means for the Hunter Biden case

Amna Nawaz:

The long-running federal investigation of President Biden's son Hunter entered a new phase today with Attorney General Merrick Garland's appointment of a special counsel.

John Yang has more.

John Yang:

Amna, the new special counsel is David Weiss. He won't need time to get up to speed, because, as Delaware's U.S. attorney, he's run the investigation from the beginning.

He was a Trump appointee who was held over and given full authority over the case. Now, as special counsel, his independence is guaranteed by law.

Merrick Garland, U.S. Attorney General:

This appointment confirms my commitment to provide Mr. Weiss all the resources he requests. 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.

John Yang:

Later, Weiss said in a court filing that prosecutors and defense attorneys in Hunter Biden's tax and gun case are at an impasse and are not in agreement on either a plea agreement or a diversion agreement.

So, on those charges, Hunter Biden may be headed for trial.

NPR justice correspondent Kerry Johnson was at Garland's announcement.

And, Carrie, the attorney general said that Weiss asked for this. Why would he ask for this? And what change — what happens? What's the change here?

Carrie Johnson, NPR:

Justice Department policy says, don't tell people in the public what you're doing exactly before you decide to file criminal charges.

So, exactly what changed is unclear. But we do know that the attorney general, Merrick Garland, said, David Weiss came to him, called him on the phone on Tuesday, and said he had entered a new stage of this investigation, and he believed it was important to appoint him as special counsel.

Merrick Garland said that was in the public interest., He agreed. And now that has been done as of today. All we know is that, since 2019, Weiss has been investigating Hunter Biden, and, according to the appointment paperwork, others as well, but we don't know who they are. And it may be that this investigation has entered a new phase as to Hunter Biden, and maybe as to unnamed others, including possibly Biden family members.

John Yang:

What do we know about the scope?

I know the order has now been published. What does it say about the scope of what Weiss can do?

Carrie Johnson:

Weiss is basically going to keep charge of this Hunter Biden investigation. And, also, he's able to prosecute other people, including Biden and others potentially, or other crimes he uncovers in the course of his investigation.

Typically, that would mean any kind of obstruction or just destruction of evidence or the like. There's no evidence that it's happened here at all yet.

John Yang:

Since we're getting the special prosecutor now, is it an indication that this investigation is going to go on for a while?

Carrie Johnson:

You know, some people think so. But the attorney general, Merrick Garland, in his announcement today, said he expected Weiss to act with urgency.

He's clearly familiar, as you point out, with the nature of these allegations. He's been looking at them for years and years, since the Trump administration. And we do know that the other special counsels — there are two others on the job, John, including Jack Smith, who's been prosecuting former President Donald Trump.

Jack Smith has been acting with great speed. So it's possible, given Weiss' familiarity, that decisions are made relatively soon.

John Yang:

Hunter Biden's attorney issued a statement saying that this doesn't change anything as far as they're concerned.

But with the prosecution saying they're at an impasse on this plea deal on the other deal — on the other charges, what's that mean going forward? Could he be on trial for some charges while being investigated for other things?

Carrie Johnson:

He absolutely could, John.

And, at this point, given the impasse and what appears to be a rather broad gap between Hunter Biden's lawyers and the Justice Department over whether his initial plea deal conveyed him broad immunity for foreign lobbying activities or other business activities, I don't know how you resolve that gap and the Justice Department does either.

So it's quite possible Hunter Biden winds up going to trial, although his lawyer, Chris Clark, said he expected today a fair resolution, devoid of politics.

John Yang:

So also, today, you were a couple blocks away from the Justice Department at the federal courthouse, a hearing on the order that Jack Smith, the special counsel in the 2020 election case, is asking for to limit what Trump can talk about leading up to the trial.

The defense offered an alternative. And, today, Judge Chutkan tried to reconcile the two. How did she do that?

Carrie Johnson:

Yes, Judge Chutkan, Tanya Chutkan, a former public defender, issued a protective order late in the day today. That paves the way for Donald Trump's lawyers and Trump himself to get over 11 million pages of documents in this case the government has collected.

But what the judge says is that Trump just can't blast out sensitive information about potential witnesses, witness interviews and recordings of witnesses to DOJ made to the public. She says that could intimidate witnesses and also taint this jury pool here in D.C.

So he's going to have to follow certain rules, even though he's the former president. Judge Chutkan said Donald Trump, in some ways, is like any other criminal defendant with a day job. His day job happens to be running for the White House in 2024, though.

John Yang:

From what Judge Chutkan did today, is there any clues or signs she gave about her approach to this case?

Carrie Johnson:

She was quite cordial to both sides, the government lawyers and Trump's main lawyer, John Lauro.

And she said basically to John Lauro, after she heard that there were 11 million pages of documents coming his way: I can't wait to see your trial proposal.

This judge wants this trial to happen soon. The special counsel wants it to start in January of 2024. And John Lauro certainly is going to try to delay. But I think this judge is a no-nonsense judge with a lot of experience. She's going to want to try to bring this case to trial before the election, if she can.

John Yang:

And she's asked the defense to propose their date for the trial late — next Thursday.

You say she wants to go to trial. Do you expect her to — that result show up when she picks the trial date?

Carrie Johnson:

This judge is not messing around, John.

She says to both sides, they're on notice that, on August 28, the day that they have a long hearing scheduled in this case, that she is going to set a trial date. So we may know by the end of the month when Donald Trump is going to face charges in Washington, D.C., related to the Capitol riot and the events before that.

John Yang:

NPR justice correspondent Carrie Johnson, thanks so much.

Carrie Johnson:

Thank you.