Who is Lying? Merrick Garland or the Whistleblowers?

by | Jun 26, 2023


Below is my column in the Hill on the growing controversy surrounding the investigation of Hunter Biden. I previously wrote on the failure of Attorney General Merrick Garland to restore public trust in his department. This is far more serious. Someone is lying. The allegations raised against the Department now have potentially criminal and impeachable elements. As such, the authority of Congress to investigate is at its apex. If US Attorney General David Weiss was denied the ability to bring charges in two other jurisdictions and was denied a request for special counsel status, Garland’s past statements to Congress stand contradicted. Alternatively, these whistleblowers (who offered detailed accounts, including the names of other witnesses) have lied to Congress. Despite the unanimous vote opposition of Democratic members on the Committee, the House must move forward and demand answers from Garland, Weiss, and others. It should also finally call in Hunter Biden, if necessary under compulsion, to end the obfuscation over these messages. The solution to what I have called the “seven-percent solution” is a congressional subpoena.

Here is the column:

“I’m not the deciding official.”

Those five words, allegedly from Delaware US Attorney David Weiss, shocked IRS and FBI investigators in a meeting on October 22, 2022. This is because, in refusing to appoint a special counsel, Attorney Garland Merrick Garland had repeatedly assured the public and Congress that Weiss had total authority over his investigation.

IRS supervisory agent Gary A. Shapley Jr. told Congress he was so dismayed by Weiss’s statement and other admissions that he memorialized them in a communication to other team members.

Shapley and another whistleblower detail what they describe as a pattern of interference with their investigation of Hunter Biden, including the denial of searches, lines of questioning, and even attempted indictments.

The only thing abundantly clear is that someone is lying. Either these whistleblowers are lying to Congress, or these Justice Department officials (including Garland) are lying.

The response from both Hunter Biden’s counsel and the attorney general himself only deepened the concerns.

Christopher Clark, an attorney for Hunter Biden, responded to a shocking Whatsapp message that the president’s son had allegedly sent to a Chinese official with foreign intelligence contacts who was funneling millions to him.

“I am sitting here with my father,” the younger Biden wrote, “and we would like to understand why the commitment made has not been fulfilled. Tell the director that I would like to resolve this now before it gets out of hand, and now means tonight. And, Z, if I get a call or text from anyone involved in this other than you, Zhang, or the chairman, I will make certain that between the man sitting next to me and every person he knows and my ability to forever hold a grudge that you will regret not following my direction. I am sitting here waiting for the call with my father.”

President Biden has repeatedly told the public that he had no knowledge or involvement in his son’s dealings. He maintained the denial despite audiotapes of him referring to business dealings, photos and meetings with his son’s business associates, as well as an eyewitness account of an in-person meeting.

Clark did not deny that the above-quoted message had been sent. He only said that it was “illegal” to release the text (he did not explain why) and then added that “[a]ny verifiable words or actions of my client in the midst of a horrible addiction are solely his own and have no connection to anyone in his family.”

Most of us expected a simple denial. Yet, after five years, Hunter has never even denied that the laptop was his. His team has continued with the same non-denial denials.

The transcript also details how investigators wanted to confirm the authenticity of the Whatsapp message through the company. The Justice Department reportedly shut down that effort.

If Hunter Biden was evasive, Garland was irate. He denounced the allegations as “an attack on an institution that is essential to American democracy, and essential to the safety of the American people.”

The statement bordered on delusion. Polls show that a majority of the public now views the Justice Department as politically compromised and even engaged in election interference. The level of trust in the department under Garland is now lower than it was under his predecessor, Bill Barr.

These questions are not an attack on the institution, but on what some are doing with it. Garland’s reaction is akin to doctors responding to malpractice lawsuits as attacks on medicine itself.

As in the past, Garland continued to insist that the public must trust him and his department, because “You’ve all heard me say many times that we make our cases based on the facts and the law.” Once again, he reminded citizens that “these are not just words. These are what we live by.”

For those us who once supported Garland’s nomination as Attorney General, it was another maddening moment. Garland has done little to change the view of his department or to address the political bias that has plagued it and the FBI for years. That record has resulted in blistering reports from the Inspector General and most recently Special Counsel John Durham.

Garland does have a motto. Yet, as these allegations pile up it is becoming more and more of a meaningless mantra.

The attorney general has a growing problem. For years, many of us have criticized him for his inexplicable refusal to appoint a Special Counsel on the Biden influence peddling scandal. Indeed, I have written over a dozen columns on why such an appointment seemed unavoidable, given the references to the president under various code names as a possible recipient of money and other benefits from foreign deals.

Even after a respected FBI source detailed allegations of a bribery scheme involving Ukrainian figures, Garland still refused to make the appointment. Such an appointment would not only expose Joe Biden to high-risk interviews, but would also allow the Special Counsel to issue a report on influence peddling by his family.

Garland was willing to appoint a Special Counsel to look into classified records found in Biden’s various offices, yet he continues to bar an appointment on major corruption allegations implicating the president.

It was impossible to investigate these matters without tripping over the president and other family members. The whistleblowers detailed repeated occasions in which they were told to back off.

Even the narrow tax issues addressed in Hunter’s recent plea bargain relate to those broader issues, given the source of these funds. Influence peddling may be lawful, but it is also corrupt. Indeed, it is the favorite form of corruption in Washington and a virtual family legacy of the Bidens.

It is the concealment of the corruption that often results in crimes, from false statements to tax evasion to unlawful financial transactions to unlawful work as an unregistered foreign agent.

The whistleblowers allege that the Justice Department consistently cut them off in seeking searches or answers related to President Biden. However, the line that stood out the most was this: “US Attorney Weiss stated that he subsequently asked for special counsel authority from Main DOJ at that time and was denied that authority.”

If true, that means that Garland was not just hearing from experts and members of Congress calling for an appointment, but that Weiss himself also saw the need for such an appointment. Moreover, the report indicates that others in the investigation believed that there was a need to create such separation from the Justice Department in light of what they viewed as the special treatment given the president’s son.

These accounts could explain why the Justice Department took five years to secure a guilty plea to two misdemeanors that could have been established in the first month of the investigation.

It would explain why there is no evidence of serious investigation into the influence peddling or a charge under FARA. It would explain why Hunter’s lawyer cannot recall ever being asked about the laptop.

It would explain why the problem is not the Justice Department’s motto, but the man who is tasked with fulfilling it.

Reprinted with permission from JonathanTurley.org.


  • Jonathan Turley

    Professor Jonathan Turley is a nationally recognized legal scholar who has written extensively in areas ranging from constitutional law to legal theory to tort law. He has written over three dozen academic articles that have appeared in a variety of leading law journals at Cornell, Duke, Georgetown, Harvard, Northwestern, University of Chicago, and other schools.

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