Should the DOJ rethink its special counsel strategy?

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The Hunter Biden plea deal and Republican reactions to it raise important questions for the Department of Justice and the public: Is the appointment of a special counsel worth it? Is the DOJ really getting enough out of delegating its investigations?

In what is presumably an effort to ensure the Hunter Biden probe is apolitical in both appearance and reality, Attorney General Merrick Garland has essentially offloaded his responsibilities in the case. He’s done the same for three other high-profile Justice Department investigations: the two probes related to Joe Biden’s and Donald Trump’s respective handling of government documents, and the one into Trump’s actions surrounding the Jan. 6 insurrection.

For a deeper dive into Donald Trump’s ongoing legal battles, check out “Prosecuting Donald Trump,” an MSNBC original podcast hosted by veteran prosecutors Andrew Weissmann and Mary McCord. Listen wherever you get your podcasts.

U.S. Attorney David Weiss, the top federal prosecutor in the state of Delaware is handling the Hunter Biden case. Weiss is a Trump administration holdover, who could have been replaced once Biden took over the White House. But Garland decided to keep him on, surely in an effort to garner public acceptance of whatever the case’s outcome might be. Weiss reminded Congress of his independence in a letter earlier this month, in which he referenced his “ultimate authority“ over the case.

Similarly, Garland appointed Robert Hur as the special counsel overseeing the Joe Biden investigation. Hur is another former Trump political appointee. And special counsel Jack Smith is overseeing the two Trump probes.

Many people ignore the fact that Weiss — and not Garland or the White House — ultimately decided if and how to charge Hunter Biden.

But what do you really get from removing career DOJ prosecutors from cases and appointing special counsels or holdovers from a different party to take them over? I’m not really sure these procedural protections put in place by the DOJ are effectively buying public acceptance, at least not with a substantial portion of the electorate.

These appointments didn’t stop certain Republicans from attacking Weiss’ charging decision in the Hunter Biden case. It doesn’t stop the attack on Smith’s classified documents case, and it won’t stop an attack on Hur if he declines to prosecute Joe Biden.

Many people ignore the fact that Weiss — and not Garland or the White House — ultimately decided if and how to charge Hunter Biden. They claim the president’s son received a “sweetheart” deal — but ignore that a Trump appointee was behind it. Some will claim Weiss isn’t a true Trumper at heart — the same type of attack made against special counsel Robert Mueller (for whom I worked), even though he is a lifelong Republican. And others simply do not believe Garland and/or the White House were not involved in the decision, even without any supporting proof.

What’s maybe more pernicious is that these appointments undermine the notion that career prosecutors at the DOJ can make apolitical decisions in high-profile matters or suggest they need to be protected from tough, controversial cases. Such appointments buy into the wrongheaded notion that only a person with the same political loyalties as the target of an investigation should ever be assigned to a case.

So, why buy into the view that prosecutors and investigators do not act out of principle? The DOJ should not be trying to convince people who are inclined to cry bias whenever in their view the “wrong” prosecutorial decision is reached.

Why not simply have DOJ personnel do their jobs, make the tough decisions, and explain why those decisions are consistent with DOJ precedent and a just course?

One has to wonder if that would not serve us better.

Andrew Weissmann

Andrew Weissmann is an MSNBC legal analyst and a co-host of MSNBC’s “Prosecuting Donald Trump” podcast.

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