When Attorney General Merrick Garland announced that he was appointing David Weiss as special counsel, he failed to mention § 600.3(c) of the Code of Federal Regulations entitled “Qualifications of the Special Counsel.” These qualifications include the following: “The special counsel shall be selected from outside the United States government.” (Emphasis added)
This requirement is the law. The regulations were authorized by Congress under 5 U.S.C. 301, 509, 510, 515-519. The attorney general is the chief law enforcement officer of the United States. It is certainly expected that he would obey the law in its entirety.
If he feels that somehow there is an applicable exception to this requirement, he is obliged to explain why. Particularly when the special counsel is appointed to investigate the son of the incumbent president, who appointed Garland, every T should be crossed and every I should be dotted. Here we have what appears to be a clear rule using the word “shall” rather than a more permissive word such as “may.” The regulation on its face seems mandatory, and not advisory. If it is not, why not?
There are good reasons for this requirement. Special counsel is supposed to be independent of the current government, not an employee who serves as U.S. Attorney for Delaware and can be fired from that job by the president. He is supposed to look at the evidence through the eyes of an outsider.
Garland may well say that he had little choice but to pick David Weiss, because Weiss has been conducting this investigation for five years. But that sounds like a good reason for not appointing the man who already agreed to make what many regard as a sweetheart deal, limited to minor tax and gun violations. Whether consciously or unconsciously, Weiss is likely to want to defend that highly criticized decision – a decision that was (as I predicted) rejected by the judge because of its ambiguity.
As to the five years of investigation, they were conducted not by Weiss himself but by his underlings, who could be kept on if a new special counsel were to be appointed. But even if there were persuasive reasons for naming Weiss as special counsel, Garland had an obligation to explain his apparent violation of a binding regulation. He did not do so at his press briefing. He can still do so now. And he should.
Garland’s defenders argue that he may have merely skirted, rather than violated, the law because the appointment was made under his general authority and not expressly under the relevant regulations. This is a stretch especially since he relied on those very regulations to give the special counsel the powers authorized by the regulations. In any event , we rightly expect our attorneys general to comply with both the letter and spirit of the law and not to cut sharp corners.
Democrats frequently say that no one is above the law. Yet they have been silent about Garland apparently placing himself above the law in choosing Weiss in violation of governing legal regulations…
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