Navel-Gazing: The Ethics Problem Caused by Merrick Garland’s Brad Weinsheimer Solution

I want to talk about DOJ’s career Associate Deputy Attorney General position. I think the way Merrick Garland is using that position to supervise Special Counsel investigations has contributed to the ethical lapses we’re seeing from them.

The current occupant of that role, Bradley Weinsheimer, has garnered attention in recent weeks for his role in some letters exchanged between lawyers for President Biden and DOJ. Between Politico, WaPo, and NYT stories on the letters, they describe the following exchanges:

There’s no report that anyone responded to any of Biden’s 2023 letters. Hur published the letter from Ricard Sauber and Bob Bauer letter in the report, without addressing most of his inappropriate statements. But, after Garland apparently referred the February 7 letter from Ed Siskel and Bauer to Weinsheimer, the ADAG responded to that, while referencing the letter to Hur.

Brad Weinsheimer blows off half Biden’s complaints

After describing that he “serve[s] as [DOJ’s] senior career official,” Weinsheimer proceeded to mischaracterize both the February 5 and the February 7 letters by claiming the complaints were “substantially similar.”

The objections you raise in your letter to the Attorney General are substantially similar to the objections you raised in your February 5, 2024 letter to Special Counsel Hur. In both letters, you contend that the report contains statements that violate long-standing Department policy.

That’s incorrect. They’re not substantially similar. The February 5 letter included the following:

  • Bullets one and two (about two pages total) complaining about prejudicial comments
  • Three bullets (three through five) about misrepresentations Hur made to substantiate his Afghanistan narrative, none of which Hur addressed in the report
  • Bullet six discussing the awareness of Biden’s staffers of his diaries
  • Bullet seven that included six other complaints, the last three of which Hur fixed, the first three of which — including the make-believe comment about an attorney-client privileged conversation — he left in

One of those items in bullet seven had to do with Hur’s claim, in the first draft, to have reviewed all the classified information in Reagan’s diaries; he added the word “some” in the final to make it accurate.

The letter to Garland addressed two topics, the second of which was Hur’s use of prejudicial language. Before it addressed Hur’s old geezer comments, though, the letter complained that Hur misrepresented DOJ’s past treatment of presidential and vice presidential diaries, a combination of bullet two, bullet six, and the Reagan diary complaint from the February 5 letter.

Rather than deal with the treatment of diaries, Weinsheimer appears to have just lumped the first part (bullet two in the original) in with the old geezer comments, resulting in Weinsheimer’s mischaracterization of the diaries complaint: Here’s how he described the two complaints.

In particular, you first highlight brief language in the report discussing President Biden’s use of the term “totally irresponsible” to refer to former President Trump’s handling of classified information. Second, you object to the “multiple denigrating statements about President Biden’s memory.”

And based on that mischaracterization, even while claiming to have “carefully considered your arguments,” Weinsheimer issued DOJ’s conclusion that Hur acted within DOJ guidelines.

Having carefully considered your arguments, the Department concludes that the report as submitted to the Attorney General, and its release, are consistent with legal requirements and Department policy. The report will be provided to Congress and released publicly, consistent with Department practice and the Attorney General’s commitment to transparency.

With that characterization, Weinsheimer blew off a number of requested corrections in the letter to Hur — such as the one that Hur invented a hypothetical attorney-client conversation to make the discovery of a box with classified documents in the Wilmington garage more suspicious — and also blew off most of the first half of the letter to Garland, addressing the past treatment of diaries.

The problematic function of the senior Associate Deputy Attorney General

I’m not so much interested in litigating Weinsheimer’s answer: that it was cool for Hur to use prejudicial language, including things like his invented attorney-client conversation. I’m interested in the fact that he claimed to address both the letter to Hur and the letter to Garland and, based on that claim, issued a definitive policy judgment. I’m interested in the function Weinsheimer is playing, because I think it is one thing contributing to the tolerance for ethical lapses among Special Counsels under Merrick Garland.

Politico describes Weinsheimer’s role in making that decision this way:

The next day, Feb. 8, Weinsheimer, the associate deputy attorney general, responded to the letter on behalf of the department. Weinsheimer, a civil servant who has worked at the department for decades, oversees the department’s most politically sensitive matters, including questions on ethics. He has fielded complaints from Hunter Biden’s lawyers about special counsel David Weiss and from Trump’s lawyers about special counsel Jack Smith.

That is, Politico treats Weinsheimer’s role as the traditional role of the career Associate Deputy Attorney General, the guy (if I’m not mistaken, it has always been a guy) one appeals to for ethical review.

That understanding of the role goes back to a guy named David Margolis, who is treated as a saint among DOJers. For 23 years, Margolis served as the guy who’d make the hard decisions — such as what to do with the prosecutors who botched the Ted Stevens prosecution or, worse yet, John Yoo’s permission to torture.

In 1993, he was named associate deputy attorney general. He worked for the deputy attorney general, essentially the chief operating officer of the department. “We would give all the hairballs to [Margolis], all the hardest, most difficult problems, the most politically controversial,” recalled FBI Director James B. Comey, a former deputy attorney general.

Vince Foster’s suicide. Ted Stevens’s botched prosecution for public corruption. The leak of Valerie Plame’s identity. The firings of U.S. attorneys. Margolis was involved — in some way — in them all.

Undoubtedly the most controversial issue he has dealt with came in the early years of the Obama administration. The department’s internal watchdog, the Office of Professional Responsibility, had determined that former Office of Legal Counsel lawyers John Yoo and Jay Bybee had engaged in professional misconduct in writing two memos that gave legal sanction to the use of torture tactics such as waterboarding, as well as wall slamming, extended sleep deprivation and other extreme techniques used by the CIA to interrogate terrorist detainees. Margolis had to decide whether to endorse the OPR’s recommendation that the two lawyers from the Bush administration, who by then had left government, be disciplined.

That was the decision “I agonized over most,” he said. “I knew it would be controversial whichever way it came down.”

In a memo written in January 2010, he conceded that “Yoo’s loyalty to his own ideology and convictions clouded his view” of his professional obligation. But, he concluded, Yoo did not “knowingly” provide inaccurate legal advice and he overturned the OPR recommendation.

That set off a firestorm of criticism from Democratic lawmakers, civil liberties advocates and human rights activists.

“I don’t want to accuse him of bad faith,” said David Luban, a Georgetown University Law Center professor of law and philosophy. “But I will accuse him of bad reasoning.”

But as bmaz wrote on Margolis’ passing, often as not decisions advertised as an ethical decision seemed instead to protect the institution of DOJ.

Sally Yates is spot on when she says Margolis’ “dedication to our [DOJ] mission knew no bounds”. That is not necessarily in a good way though, and Margolis was far from the the “personification of all that is good about the Department of Justice”. Mr. Margolis may have been such internally at the Department, but it is far less than clear he is really all that to the public and citizenry the Department is designed to serve. Indeed there is a pretty long record Mr. Margolis consistently not only frustrated accountability for DOJ malfeasance, but was the hand which guided and ingrained the craven protection of any and all DOJ attorneys for accountability, no matter how deeply they defiled the arc of justice.

After Margolis passed, a guy named Scott Schools played that role for a short period spanning the Obama and Trump years. In such role, in my opinion, he protected the Deputy Attorney General’s office more than DOJ. As one example, Schools was the guy who helped push Andrew McCabe out the door to serve Donald Trump’s whims.

Which is when, in 2018, Jeff Sessions put Weinsheimer, who had played a NatSec role prior to that, in the post.

For the purposes of this post, I’m not really interested in whether Weinsheimer is a good guy or not. There are journalists who are better placed than I am to go chase that down.

I want to talk about how his role on Special Counsels likely ensures an ethical conflict — and all that’s before you consider the extremely likely possibility that he signed off on the McCabe settlement and then was involved in Hur’s selection and supervision, which would be a separate conflict of his own.

Weinsheimer is the supervisor of David Weiss

I don’t dispute Politico’s characterization of how the ADAG position normally works. As laid out in the Margolis bio, the position is supposed to make the difficult decisions and then give such decisions, arguably meant to protect DOJ, the appearance of ethical gravitas. One is supposed to be able to appeal to the ADAG position, in case of ethical problems.

But that depends on the ADAG being outside of potentially unethical decisions in the first place. You can’t review decisions if you were part of them.

At least in the case of David Weiss, Weinsheimer can’t play that role because he is, for all intents and purposes, Weiss’ supervisor — apparently on all matters, not just the Hunter Biden investigation.

In his November testimony to Congress, Weiss described that he has never spoken to his nominal boss, Lisa Monaco, or the person via whom he would normally communicate to his boss, the current Principal Associate Deputy Attorney General, Marshall Miller (as noted below, he described communicating via Miller’s predecessor until 2022, John Carlin).

Q When you have interactions with Justice Department Headquarters or Main Justice, how does that ordinarily happen? Who is your primary point of contact?

A I don’t know that there is an ordinary. I don’t know that I would designate anyone in particular.

Q Under the reporting structure, though, you report up through the Deputy Attorney General. Is that correct?

A That’s correct.

Q And how often do you talk with Ms. Monaco?

A I have never spoken with Ms. Monaco.

Q You’ve never spoken to her?

A Never.

Q Okay. And do you have communications with someone else in the office? Maybe the PADAG?

A I have — my point of contact for the last year, year and a half has been Associate Deputy Attorney General Weinsheimer.

Q Okay. So you’re not in contact on a regular basis with the PADAG, Mr. Miller?

A I am not.

Q Have you ever had communications with him?

A I have not.

Q Okay. So you’ve never had any communications with Marshall Miller or Lisa Monaco?

A I have not.

By his description, he speaks to Weinsheimer regularly, about once a month, and those communications primarily pertain to the President’s son.

Q Okay. And how often do you have communications with Mr. Weinsheimer?

A It varies depending upon what’s going on. But I would say we’ve spoken, before August of 2023, approximately once a month, sometimes more frequently.

Q And was it related to the Hunter Biden case, or was it related to your ordinary duties?

A Generally, it was related to the Hunter Biden case investigation.

That same pace has continued during the period since he had been named Special Counsel.

Chairman Jordan. Have you kept up the rhythm? You said earlier today that you had monthly contacts with the key people at the Justice Department. Have you kept up that same protocol? Has it increased or decreased as Special Counsel?

Mr. Weiss. I guess it’s been, I guess, 3 months. I don’t know that there is much of a practice or that I could say, you know, circumstances. You know, I’ve had several conversations in the last 3 months with Mr. Weinsheimer. I can say that.

Chairman Jordan. So it’s picked up?

Mr. Weiss. It’s — I’ve had probably — yes, several conversations. Whether that will continue or it was unique to the initial stages of the project, I really can’t speak to.

When Weinsheimer reached out to the then-PADAG, Carlin — again, the normal person he would report to — Carlin involved Weinsheimer in all discussions about how to get Special Attorney (not Special Counsel) status to charge the case in a different District with Weiss.

Q Okay. And when did Mr. Weinsheimer first start having communications with you about the Hunter Biden case?

A I think we first spoke about the case in the spring of 2022.

Q And, to the extent you can tell us, what were the nature of those discussions?

A In 2022?

Q Yeah.

A Actually, more accurately, February of 2022, I think, was the first time we spoke. And I would have reached out because we were looking to bring certain portions of our investigation to either D.C. or L.A. At that time, D.C.

Q Okay. Did you call him, or did he call you?

A I reached out by email to the Principal Deputy Attorney General at that time, John Carlin.

Q Okay. So he was the PADAG before Mr. Barr [sic]?

A Correct.

Q And how often had you spoken with Mr. Carlin?

A Before this? Never.

Q Okay. So you initiated email contact with Mr. Carlin, and he referred you to Mr. Weinsheimer?

A I initiated email contact with Mr. Carlin, and I subsequently had a conversation with John Carlin, and I believe Brad Weinsheimer was on the call.

Q Okay. And what did they tell you about bringing the case in D.C. or different jurisdictions from yours?

A We discussed the fact that I would — they wanted me to proceed in the way it would typically be done, and that would involve ultimately reaching out to the U.S. Attorney in the District of Columbia. I raised the idea of 515 authority at that time because I had been handling the investigation for some period of time. And, as I said, they suggested let’s go through the typical process and reach out to D.C. and see if D.C. would be interested in joining or otherwise participating in the investigation.

So Weinsheimer was the primary supervisor of David Weiss on the Hunter Biden case.

That makes the meeting with Hunter Biden’s previous attorneys with Weinsheimer — which is fairly routine but was billed as a huge scandal by right wing nutjobs — something else entirely. As Politico described, after months of asking the people who should have had some supervisory role in the investigation, Clark finally emailed Weinsheimer asking whether he could appeal to him.

From the fall of 2022 through the spring of 2023, Clark sought meetings with people at the highest levels of the Justice Department — almost entirely without success. In multiple emails, he asked to meet with the head of the Criminal Division, the head of the Tax Division, the Office of Legal Counsel, the Office of the Solicitor General, Deputy Attorney General Lisa Monaco and the attorney general himself. On Feb. 21, 2023, Clark’s team reached out to multiple officials at Main Justice, who passed his request from one person to the next.

The search ended when Clark sent Associate Deputy Attorney General Bradley Weinsheimer an exasperated email, saying he had asked the government over and over to tell him who at headquarters they could appeal to if Weiss decided to charge their client.

“To date we have heard nothing in this regard,” he added.

“Please advise whether you would be the appropriate person to hear our client’s appeal, in the event that the U.S. Attorney’s Office decides to charge Mr. Biden,” he wrote.

Weinsheimer was indeed the right guy, and he met with Clark and Weiss on April 26.

As Weiss confirmed in his testimony, he attended that meeting with Weinsheimer.

Q Did Mr. Weinsheimer ever tell you that he met with Chris Clark?

A He — if — no. If he met with Chris Clark, I would have been at that meeting.

Q Okay. So there were no one-on-one meetings or telephone calls between Mr. Clark and Brad Weinsheimer?

A I am unaware of any such meeting, and I don’t think any such meeting would have occurred.

Of course Weinsheimer wasn’t going to accede to any of Clark’s requests, or even grant an independent review of some of the shitty things that had already gone on in the case. Presumably unbeknownst to Clark, Weinsheimer was signing off on Weiss’ actions all along.

And he didn’t. Two weeks after they met with Clark, Weinsheimer sent Clark a letter, “referring you back to” Weiss, saying that Weiss had full authority to charge the case wherever he wanted. It’s not clear that Weinsheimer ever revealed that he had assumed a supervisory role on the case a year earlier.

If Weinsheimer played a similar role with Robert Hur, the same would be true. Of course Weinsheimer wouldn’t, in that case, take action after Hur violated DOJ policy by smearing the President. That’s because Weinsheimer would have been in on it, part of the smear.

Except for the Special Counsel appointment

As David Weiss told it, there was an important exception that may have, may still, exacerbate all this.

He did not go through Weinsheimer when requesting Special Counsel authority.

Q And, when you submitted the request, was that through Mr. Weinsheimer?

A No. No, it wasn’t.

Q Did you have communications with Mr. Weinsheimer before you submitted the request?

A I did not have communications with Mr. Weinsheimer about the request before I submitted it.

Q Okay. You just went right to the Attorney General?

A I submitted the request on my own initiative, and, otherwise, I really can’t get into the particulars at all.

Q Right. Have you had subsequent conversations with Mr. Weinsheimer? Is he the individual that you reported to, or —

A After I was appointed?

Q Correct.

A Yes. I continue to discuss the matter with Mr. Weinsheimer.

Q So he’s your primary point of contact still?

A He continues to be my primary point of contact, yes.

And that communication with Merrick Garland was, at least at the time of Weiss’ testimony on November 7 (and so just over a week before Abbe Lowell started asking for discovery and subpoenas on the side channel and the Smirnov FD-1023), the only time he had ever communicated, in any form, with the Attorney General.

Q So the Attorney General has had a couple of silent appearances where this topic has come up, and I guess the question is, did you have direct communications with the Attorney General?

A I’ve never had any direct communications with the Attorney General, save my communication in requesting Special Counsel authority in August of 2023.

Q When you did request Special Counsel authority in August of 2023, how did you request it? Was it in writing or on the telephone?

A It was in writing, and that’s about all I’m going to say about that process.

Q Okay. Did you reach out directly to the Attorney General, or did you go through Mr. Weinsheimer?

A I’m not going to get into anything further. I requested it, and it was granted.

Q Okay.

I started writing this post before the arrest of Alexander Smirnov. At the time, I thought that Weiss might have gone directly to Garland only because Garland had promised the Senate he’d give Weiss Special Counsel authority if ever he asked it. That is, before the Smirnov arrest, it looked only like Weiss collecting on Garland’s promises.

No longer.

The significance of this has been missed. The FD-1023 assessment number, 58A-PG-3250958, cited Executive Branch public corruption. The only way the FD-1023 could be basis for ongoing criminal investigation is if Joe Biden were a subject of the investigation as well. That would make the Special Counsel request not a request for authority to charge in other Districts.

It would arise from the conflict of investigating the President.

Before even interviewing the informant’s handler — to say nothing of Smirnov himself — David Weiss got himself Special Counsel authority.

Few agree with me. But I think Weiss has walked himself into a shitshow. Even assuming that none of Abbe Lowell’s bids to throw out the indictments in Delaware and Los Angeles succeed — and the Smirnov indictment would seem to raise still more questions about why Weiss reneged on the plea deal — there’s good reason to believe the motion to suppress evidence from the laptop will surprise a good number of people, including the prosecutors. Consider what it means that attorneys for John Paul Mac Isaac abandoned their argument that the blind computer repairman had legal authority to snoop through and disseminate data he claims to believe belonged to Hunter Biden, focusing seemingly exclusively on a claim that Delaware’s two year statute of limitations for complaint from Hunter has expired: Judge Robert Robinson may not rule on that question, but that legal challenge may have confirmed that JPMI did not own the data he shared with the FBI after the FBI told his father he might not own it. The implications of that are fairly staggering, though I’ll wait before I lay them out explicitly.

And that’s before Smirnov — a 14-year source for the FBI, whose charged report was championed by Attorney General Bill Barr after Scott Brady claimed to have vetted it — starts challenging his own indictment. That’s before either Smirnov or Abbe Lowell raises Weiss’ conflict in charging it. I don’t think David Weiss has the team to pull that prosecution off without major blowback.

If there were a figure like Weinsheimer outside of this investigation to step in, to call a halt to this shitshow, now would be the time to do it. But as I understand it, Weinsheimer can’t do that, because — apparently aside from the Special Counsel request — he has been part of the process every step of the way.

I get why Merrick Garland would have chosen to do it this way: having a career ADAG oversee Special Counsels rather than the PADAG (in which role Hur supervised Mueller). But in SCO investigation after SCO investigation, it has turned the supervisory role into navel-gazing. And the attempt to ensure a higher level of independence has led to grave ethical problems.

78 replies
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  2. danield_seattle says:

    I wonder how the 100,000+ rank and file of the DOJ feels about Hur’s report. Wouldn’t it be wise for Garland to codify rules, explain them to the public, then note, as an example, why the Hur report doesn’t follow those rules?

    • timbozone says:

      Yeah, that would be the day, wouldn’t it? Unfortunately, so far Garland has not been much on point when it comes to all the SCs running around. At this point, one has to wonder what Jack Smith is hearing from the Weinsheimer’s office…

  3. Upisdown says:

    There are so many complaints about the DOJ, from both sides, that it makes me question if anyone is actively monitoring their performance. The multiple special counsel complaints; Chris Wray targeting whoever; various highly questionable “whistleblowers”; and now the actions of Barr and Brady at the end of the last administration surrounding Giuliani and the Hunter Biden investigation.

    Not all of the concerns voiced by Repubs and Dems in oversight hearings are partisan. There appear to be serious divisions within and between branches that folks in leadership are not controlling very well. Particularly when it comes to Russian interference.

    It makes me ask: Where is Horowitz?

      • Upisdown says:

        Over the current “everything is FUBAR” DOJ? Sure.

        Chaos and distrust in our institutions only benefits the folks on the right.

        • timbozone says:

          Huh. I wouldn’t believe it if someone said it, basically. These are all large bureaucracies here that are not going to be doing fine everywhere.

  4. WilliamOckham says:

    Thank you for this. Even in my most pessimistic moments, I can envision your work serving as an important source for some future historian trying to untangle this country’s descent into authoritarian chaos. In my less pessimistic moments, I see the possibility that your work will help inform a movement that creates a path that avoids the worst possible outcomes. And, because I don’t do optimism, I have an even greater appreciation for your commitment to continuing to do the work.

  5. David F. Snyder says:

    Great digging here, Marcy. Much appreciated.

    It’s possible that there’s no paper trail for Weiss talking to Wernsheimer about applying for SC status, but then that doesn’t mean there wasn’t a quiet after-meeting aside between Wernsheimer and Weiss (in the scenario where Wernsheimer really is a bad guy).

    One thing about choosing a career staffer that bosses can be blind to is that career staffers may protect their career more than the ethical integrity of the organization they purport to protect. How close to retirement is Wernsheimer anyway? And Wernsheiner can still delude himself into thinking he’s doing the right thing.

    In any event, Garland (one hopes, as he clearly cares about the integrity of the DOJ) realizes the damage done and that Wernsheimer needs to be moved aside.

    • emptywheel says:

      There’s a non-zero chance that Weinsheimer knew well enough to tell Weiss not to chase that lead — he likely knew of some of the pushback from 2020, when he was in that same position — only to have Weiss bypass him on the SCO appointment.

      I can’t really express how furious some in the FBI must be about this. And what a catastrophe the Smirnov prosecution might be, even if the Hunter Biden one doesn’t blow up.

        • Ginevra diBenci says:

          I’m wondering if Weiss charged Smirnov as a way of blowing up the whole “shitshow,” as EW calls it. Weiss knows more than anyone, except maybe Lowell and his client, how riddled with potentially fatal flaws his cases have become as they were driven by political actors off the evidentiary cliff.

          Charging Smirnov is a way of blowing the whistle on the entire charade. EW demonstrates in this brilliant post that the charade includes forces within DOJ who might have been motivated more by concern for their own reputations than by the pursuit of…well, justice.

          The question I’m left with is how high the institutionalist CYA-first mindset goes.

        • timbozone says:

          Unlikely. Weiss could have gone ahead with Biden’s plea deal from last June and then done what he is doing now with Smirnov…what’s happening here is likely a counter-intel investigation into Smirnov getting in the way of Weiss’s prosecution of Hunter. This is politically an embarassment to Weiss pretty much. He should have caught this sooner, as should most of the people involved here at DOJ.

          Where the counter-intel folks dropped the ball early on here is also likely being heavily investigated too; FBI and DOJ appearing to be willing dupes too often is what is likely all driving what’s happening now.

        • Shadowalker says:

          I think Weiss is in way over his head, and has been since 2018 with the alleged gun crime. He had to bring charges against Smirnov even if there was no reason to protect Barr, et al. simply because Smirnov continued passing the Russian disinformation in both the August and September interviews last year. September was a wild one when he claimed Hunter stayed at the Premier Hotel in Kyiv while he was on the Burisma board. Hunter has never been to Ukraine, and the few board meetings he physically attended were held outside the country. If he hadn’t charged Smirnov and that was handed over for discovery, that would give an even stronger case of selective prosecution.

        • wetzel-rhymes-with says:

          What would it take for a counter-intelligence investigator to force exculpatory evidence to be provided to the defense in a prosecution occurring somewhere else in the DOJ. You can look at different states and you can see an unsettled ethical terrain. Some states seem to have a “requirement” for prosecutors to provide exculpatory evidence upon a motion of the defendant. Some have an “obligation” to provide exculpatory information automatically. I think it’s very difficult for a prosecutor themselves to understand how far the “rules” and “code of conduct” extend across their own desk, let alone to the cases of another prosecutor in their office, much less across the street.

          Anyway, I can’t see where there would be much of a professional incentive for a counter-intelligence investigator to force another prosecutor at the DOJ to prosecute their own witness. It’s just bad for morale to discover that Russian intelligence is driving the investigation of the President’s son, and so the facts might transcend the “public reputation”. There might have been “agitation” out of counter-intelligence about Smirnov, and this might have been like a stopped up steam kettle with everyone in the bug Smirnov office genuflecting on their disgrace together in 2’s or 3’s at O’Malley’s, but maybe nobody would ever have “done” anything unless Abbe Lowell hadn’t forced Weiss to prosecute Smirnov. Isn’t it just easier to wait it out? Everything would have washed away with the next administration.

        • Shadowalker says:

          I’m not sure counter-intel was involved, at least not at the beginning(s), either in 2020 or 2023 when they refocused their attentions on the garbage he was passing. It’s likely Weiss forgot about Smirnov, or only delayed looking into what he stated in 2020 as a future predicate for bringing FARA charges. That requires getting a subpoena to NARA for Biden’s Vice-Presidential records for any documented evidence that Hunter met or called his father for the purposes of lobbying on behalf of Burisma. There’s also the problem of DOJ’s own rule about not conducting an investigation of a candidate that may impact an election, which Barr extended the time frame, which rules out Joe since he was a candidate. And Hunter? Well to get anywhere with FARA charges requires investigating his father’s time in the Vice-President’s office. They can wait till Trump wins reelection. Ummmm, oops.

        • timbozone says:

          Weiss appears to have tried to conveniently neglect to even look at photographic evidence carefully, didn’t check evidence lockers until after he had an indictment in hand, etc. His was a discovery trove waiting to happen for Hunter’s counsel. The list of missteps by Weiss isn’t only one or two steps up a ladder…it’s like a two or more stories up a ladder. Now he’s in CYA mode…as the ladder starts to tilt groundward. Smirnov is indicted to cover the fall.

        • Ginevra diBenci says:

          Who’s to say Weiss did *not* catch Smirnov’s deceptions earlier–say last year when he was getting GOP political pressure to renege on the plea deal? Weiss’s window into Smirnov’s fabulations would’ve been superior to ours, and possibly less clouded by Trumpian cultishness than others involved in handling Smirnov.

          Weiss may have conceived a long game–that’s my speculation. He realized his own case(s) would unravel eventually anyway. Might as well get some value out of his SC position.

        • Shadowalker says:

          It’s in the Smirnov indictment. The FBI looked closer into the FB-1023 from 2020 after congress critters demanded to see it. The FBI then requested Weiss get involved in July 2023 because he was already investigating and prosecuting Businessperson-1 as the Federal Prosecutor for Delaware. Weiss was appointed to SCO the following month. Since the deal fell apart in late July, it’s possible Weiss received the FBI request just before they were to get court approval on the deal. It wasn’t until they interviewed Smirnov both in August and September did it become clear that this was the product of a foreign intelligence agency. When Smirnov claimed Hunter was staying in the Premier Hotel he suggested they check Hunter’s phone records in that time period because that hotel was full of Russian surveillance assets.

        • earthworm says:

          check HB’s phone records for *planted calls* from the Premier Palace?
          as in, self-fulfilling prophesy?

        • Ginevra diBenci says:

          Smirnov’s $5M bribe claims about Hunter and Joe were checkable, in addition to seeming pretty ridiculous to anyone not drunk on MAGA kool-aid. Leo Wise seems partisan in ways Weiss doesn’t, but Wise wasn’t acting on his own when he reneged on the deal.

          Weiss may simply be a go along to get along type, conflict-averse and inclined to the least immediately menacing option. It makes perverse sense that Smirnov backed him into a corner by tripling down on the lies, to the point where Weiss was forced to take a very dramatic action indeed.

      • vigetnovus says:

        Is the FBI pissed because Weiss burned a source they were still using? I would’ve thought Smirnov was burned years ago when he started lying to his handler.

        The right thing to do here is for Weiss to hand this off to the SDCA USAO, or another special counsel.

        Better for him to do this voluntarily, but Garland should not be afraid to step in if need be.

        • Theodora30 says:

          I find it disturbing that we apparently are supposed to believe that Smirnov only started spreading Russian disinformation in recent years instead of assuming he has been doing that since first becoming an FBI informant back in 2010, well before Trump, Hunter Biden in Ukraine, etc. Putting that together with the Charles McGonigal debacle and the NY FBI agents helping Trump get elected makes me seriously wonder if the FBI has a serious Russia problem.

        • wetzel-rhymes-with says:

          A Russia problem could operate down vertical lines of authority at the DOJ. Those lines aren’t necessarily crooked. Weiss might even have forgotten about Smirnov like Shadowalker suggested above. People are siloe’d in their roles. Smirnov’s evidence was needed to do a job on Weiss and the American people. I think it is apparent that Weinsheimer directed Weiss to open the channel with Smirnov’s evidence that scuttled Hunter Biden’s diversionary agreement, where “directed” is doing a lot of work. Weinsheimer himself may not have been conscious. Smirnov had been handled at a higher level, and so Smirnov was passing on evidence Weinsheimer had been given to accept.

          From the AP story on June 2022 Jan 6 hearing, “In one phone conversation, according to handwritten notes taken by Donoghue and highlighted at Thursday’s hearing, Trump directed Rosen to “Just say the election was corrupt and leave the rest to me and the R. Congressmen,” so I think Smirnov’s evidence had done its job for Hunter Biden, and was meant to stay in the propaganda plane in an impeachment inquiry where the Democrats would be wrong-footed by the DOJ’s certification of Smirnov’s good character and a majority vote is needed for a subpoena.

        • timbozone says:

          Go further back… to 2002… the big question why is this guy doing what he’s doing. Is it money? Is it idealism? Is it for a particular nation/state? Is it just that he likes being wined and dined and given money by various intelligence services; spy glamor? It’s likely some combination, right? But what is the rationale by which he is allegedly passing infos between and for various intelligence services, oligarchs, politicians, etc?

      • emptywheel says:

        That’s actually the right decision. He was trying to preserve ongoing investigations. He has done the same on testimony to the House for the same reason.

        He was also involved in figuring out how to solve the Executive Privilege problem, basically by having J6C ask for materials that Biden could waive privilege on, then to be shared w/criminal investigators.

        • Savage Librarian says:

          Am I correct in thinking Weiss may have made a kind of Jeffrey Clark move, going over his supervisor’s head? And, in addition to that, there are serious conflicts of interest by both Weiss and Weinsheimer?

        • timbozone says:

          Spies aren’t into clearing these sorts of things up unless there’s some perceived advantage in doing so.

      • WilliamOckham says:

        I’ll suggest that the focus on good guys and bad guys is unhelpful. Identifying heroes and villains blinds us to the importance of structures, movements, organizational cultures, and ideologies in driving these events. I would rather try to understand the forces at play rather than try to tease out the “goodness” of an individual based on one incident in a long career.

        • Rayne says:

          Exactly. Better to look at specific actions and motivations because at any given time, depending on the observer’s perspective, one can be:

          Hero: does good thing for the right reasons

          Anti-hero: does bad thing for the right reasons

          Anti-villain: does good thing for the wrong reasons

          Villain: does bad thing for the wrong reasons

          There are a lot of deeds which fall in the grey area done by equally grey persons.

        • timbozone says:

          Ethics is hard in bureaucracies. It’s amazing that EW has been able to piece out some of what’s going on from the DOJ/SC’s “ethics advisor” given the layers of nonsensical investigative steps undertaken in the Hunter Biden case.

        • Rayne says:

          No, ethics is not hard in bureaucracies, no more so than in conglomerates. It’s political will which is challenging, and by that I mean the electorate must be as demanding as those they elect to legislate ethics and establish ethical organizations.

          Much of this is on us. Think back to Enron: most people observing from the outside wanted to duplicate their financial success because it was miraculous. They didn’t question the “miracle.”

          Can’t help think of the folk tale, the Emperor’s New Clothes — it’s right there in plain sight, we just don’t want to admit it to ourselves we have a problem with truth.

        • timbozone says:

          I’m referring to bureaucrats whose personal baseline goals are to just own a house and/or take care of their family members, etc, save for retirement, have some holiday cheer at least once a year, etc, regardless of the ethical effects their actions may have on the rest of us. Sure, there’s often a veneer of idealism… but it generally boils down to maintaining a planned steady income and career trajectory. These are most of the folks who don’t resign, don’t run screaming to the press, etc, do not exit the room even when they know they probably should. A new, anti-corruption administration would be dependent on many of these folks just to keep government functioning…it’s not easy to change directions on these scales without a lot of economic and political turmoil.

          Certainly Trump wants this to head in a new direction, one of less ethics, more feudalistic and authoritarian…with less actual respect for rules and laws. He scares many of the bureaucrats, not due to their own idealogical bent but because they threaten their steady incomes and career paths. In this, I support them not supporting him as best they can.

        • Rayne says:

          I guess one could use those labels. Think about how often we see lawful evil and chaotic good and how little separates them — and how little we talk about the intentions which separate those categories.

  6. Peterr says:

    The excerpt from bmaz about Margolis speaks volumes, especially that first sentence. The line “dedication to our [DOJ] mission” is at the heart of the navel-gazing outlined in the rest of the post.

    Per the DOJ’s website, this is their mission: “The mission of the Department of Justice (DOJ) is to uphold the rule of law, to keep our country safe, and to protect civil rights.” It’s hard to see how giving those who provide legal cover to those who torture in the name of the US is consistent with any of those three missions. It may protect the DOJ, but not the rule of law, the country, or civil rights — indeed, it damages all three.

    Allowing Hur to follow Comey’s path and disregard the “file charges or else shut up” DOJ guidelines — without taking steps to rein him in before releasing the report or slapping him down after the fact — is yet another example of “but what will folks think of us if we criticize, let alone sanction, one of our own?” thinking. Sorry, but the stated mission of the DOJ *demands* being willing to criticize your own.

  7. Yogarhythms says:

    Marcy, Rayne,
    Ethics is a long game. Unfortunately recent DOJ SCO’s J. Durham, R. Hur, D.Weiss, have focused on a prosecutorial goal so hard they lost their ethical compass. Marcy is analyzing the legal arguments presented by both DOJ and defendants and holding all parties to ethical account. The weight of evidence presented or a final report reflects all of the ethical challenges encountered by the SCO’s. Three for three so far. Perfect average losers. We are in this together.

    • timbozone says:

      It’s not “recent”. It appears at this point to be endemic to the DOJ for at least the past 20 years or more.

      • Ithaqua0 says:

        More like 30 years, Whitewater was in 1994. A quote from Wikipedia: “The term “Whitewater” is sometimes used to include other controversies from the Bill Clinton administration, such as Travelgate, Filegate, and the circumstances surrounding Vince Foster’s death, that were also investigated by the Whitewater Independent Counsel.” Sounds like, and was, the same sort of permanent investigation of anything that would generate negative press for a Democratic president we see, well, every time there’s a Democratic president.

        • Rayne says:

          Don’t play around in comments here. It’s only partially automated and a human has to step in and manually sort and publish/trash comments which get caught in the filters. Your name is triggering algorithms because there are very similar names on the not-allowed list. Eventually with a large enough body of cleared comments devoid of your tests (which won’t be published) your comments will go through without manual clearance.

          Keep in mind moderation effort is provided by volunteers and it takes away from time spent on other functions like writing posts.

        • Scott_in_MI says:

          Starr wasn’t appointed by the AG, though – he was appointed by a panel of judges selected by the Chief Justice, as required under the Ethics in Government Act.

        • Shadowalker says:

          His predecessor Fiske was, Starr was appointed to replace him after the reenactment of the Independent Counsel law for conflict of interests reasons. The law would be allowed to expire in 1999 primarily because of the abuses and many in congress understood a real threat should such an investigation be started on them. That law essentially created a separate DOJ, answerable to only three judges. Some in congress felt a law needed to replace it and crafted the Special Counsel regs which is really just as easy to abuse as its predecessor.

  8. Savage Librarian says:

    Sometimes I wonder if it would be helpful to have an independent entity called Constituents Court, modeled in some respects after the ICJ (World Court). It could have time limited terms and be mandated to represent the diversity reflected in our society. Maybe this is redundant. I’m not sure…

    Early in my career, I enrolled in management and accounting classes so I could be more effective in my job. I read Deming and Peter Drucker (MBO) and Peter Senge (The Fifth Discipline) and participated in Total Quality Management seminars. I worked with administrators and consultants on staff training and surveys. But after hundreds of thousands of dollars were spent on them, administrators simply chose to ignore it all. They refused to create a highly recommended advisory board composed of staff elected by peers.

    Systemic institutional problems certainly are not unique to DOJ. As I’ve said before, my work experience felt very much like a fractal of what is now happening nationally. I was stymied by the very departments that were supposed to provide assistance. So, I went to two outside, federal agencies where I made some headway. And the rest I accomplished through litigation.

    There is no question that the systemic impacts the individual. And the individual impacts the systemic. It’s just a lot easier for us to focus on individuals. Some are sociopaths, some are scapegoats, some are enablers, some are overly ambitious or reckless, and some actually are devotees of democracy. I’ve been mucked up by some ugly shitshows in my time. But, in the end, it worked out pretty well for democracy. And the agency is what always seemed to survive regardless of any wrongdoing.

  9. wetzel-rhymes-with says:

    There once was a man named Weinsheimer
    Who was Justice’s best publiciser
    By hook or by crook
    He played by the book
    And the public was nowhere the wiser

    • Norskieflamethrower says:

      👍 😂

      [Moderator’s note: please avoid emojis as they can’t be searched for like text. If your comment isn’t worth spending the time to express in text, save it for a microblog platform. /~Rayne]

        • Rayne says:

          It’s really not funny as a moderator because searching comment text is a key tool to confirm a community member’s identity in the event of an attempted identity spoofing.

          For example: guess which community member has written “ROFLMAO” the most often in the history of this site? At (27) times it’s you — identity confirmed.

          I can’t do that with fucking emojis.

  10. Old Rapier says:

    Protecting ones institution is the absolute number one rule of institutions. Be it corporate, government, NGO or any organization one can think of, and the rule is always the same. One can only rise in organizations if ones commitment in that regard seems absolute. Protect your institution. Protect most strongly those who have the most clout. If you have everyone’s back they will have yours. As much as possible of course.

    I’ve marveled over the years how so little of the machinations of the DOJ go totally unremarked by ex DOJ people. Ah, but then I remember. Don’t talk out of school. If your a DOJ member then talking out of school, if your in the Beltway, is punching a ticket to a practice in Duluth. The same applies to any sort of institution. If your seen as a dissident in any venue, say corporate, then no NGO or government institution is going to want you. Your on your own. You’ve stumbled on freedom, but it doesn’t pay.

    I admit the DOJ may be particularly fraught with complications on this talking out of school stuff.

      • oldoilfieldhand says:

        Three rules of survival in a corporation or institution…

        1. Don’t lie to them
        2. Don’t lie about them
        3. Don’t lie for them

    • Chetnolian says:

      You make it sound simpler than it is. There is also the fact that in an organisation you feel a member of a team. Been there, done that, argued the case sometimes. And to respond to Rayne in an earlier comment, no, ethics are often not easy in a conglomerate. If only they were.

      • Epicurus says:

        Timing is everything in life. I am reading a biography of William Whyte titled American Urbanist by Richard Rein. Whyte wrote “The Organization Man”. Rein spends a lot of pages addressing the idea of feeling a part of the team and, for that matter, the ethics and issues created by belonging to a “team”/conglomerate. Thanks! You might take a gander at the book or its reviews.

      • wetzel-rhymes-with says:

        A person’s thoughts and behaviors are influenced by the presence of others. From the very beginning even to primary circular interactions meanings derive from social interactions. The others don’t have to be there. As structures or mechanisms of social order, institutions are larger than individual intentions. Our symbolic interactions are in reciprocal determinism with other people.

        I think a social psychologist in the sense of Mead / Dewey might analyze the Department of Justice and make out a kind of illness happening at the institutional systems level. The DOJ is suffering in its “credibility”. It is like the American people having a hallucinatory style of processing of facts about the world. The media won’t know what to make of a DOJ where the vertical transmission of influence allowed any evidence to mean anything, so a DOJ where Russian evidence is coming down from on high to guide decision-making will not be able to socio-psycho-analyze itself. It is a danger to itself and others.

        Broader network effects through power interference by the office of the Attorney General, the former President, and other groups have given DOJ the Hunter Biden investigation. You can see there is Hunter Biden’s scandalous laptop, but there is also the scandal of Hunter Biden’s laptop, a schizophrenic structure. Everyone is in on it. Who at DOJ says, “I am going to investigate!”. The Department of Justice does not have a norm to handle bad evidence coming from “above” in the vertical structure of authority. It’s like questioning the claim when somebody claims Muhammed Ali was a clone of them. The DOJ cannot handle Trump again. It will lose its mind, I think.

    • David F. Snyder says:

      .. Protect most strongly those who have the most clout. …

      In some cases, this isn’t true. And this particular instance may be one of them.

      The climate within the GOP (at least the MAGA core and some halo of it) recently has been that it’s “Biden’s DOJ” persecuting Trump. I could see Weinsheimer pushing back on the WH attorneys, all to ameliorate the GOPublic perception of the DOJ “being Biden’s DOJ”.

      Doing so definitely damaged not just (on the right) Biden but also (on the left) Garland. That said, sometimes you gotta lost a battle to win a war. I still think getting rid of Garland would be a huge mistake on the part of Biden’s team (the names I hear mentioned as potential replacements are very qualified people, but they carry a political odor that feeds into GOPutin’s disinformation campaign). Let’s not ‘throw the baby out with the bathwater.’

  11. originalK says:

    After a few weeks of reading your posts, I’m just starting to be able to make heads or tails of them. So please help a gal out – I would like to understand the context for all the (Nov 7) questions about who Weiss is in contact with within the DOJ. Are your quotes from a hearing transcript? Are all Qs from Jim Jordan? I can find many articles written by those who have “reviewed the transcript” but not the transcript itself.

    • earlofhuntingdon says:

      Happy you’ve joined the group. But the amount of background material you’re asking for from the author, especially on the seventh day, would be better found by your continued reading and searching of other sources besides this one. Key word searches help, even on wikipedia, which has definite limits, but is a good place to start for dates, names and and more key words to search. The information you’re looking for is likely to come in waves, not in one or a few answers.

      • originalK says:

        Thank you – I have only occasional overnights to really devote my time to citizen-concerns (I spent last weekend on Judge Scott McAfee’s YouTube channel, for example.). I found a redacted version of Scott Brady’s transcript, so that has answered some of my questions about questioners, and I also tried to get straight (in my head) all the different AG levels (!) via wikipedia.

    • c-i-v-i-l says:

      Typically, Marcy links to the primary document when gives an extended quote from something, and often she provides a link even if she isn’t quoting. She’s really great that way; often, if I’m looking for an internet copy of some primary document, searching here is the most straightforward way of finding one.

      Weiss was interviewed by the House Judiciary Committee on Nov. 7, unclear to me who was questioning him in the excerpts above. Here’s the column about the interview, but I don’t see a link to the transcript there either:

      I just did an internet search, and like you, I found some news sources saying that they’d reviewed the transcript, but none that made the transcript itself available. Also found a House report that repeatedly refers to the Nov. 7 Weiss transcript, but again, no copy. Sorry not to be able to help.

      • Savage Librarian says:

        I could be wrong, but I thought Marcy told Nicole Sandler that the transcript was not yet publicly available. But I couldn’t swear it was this transcript.

        • c-i-v-i-l says:

          Thanks, I hadn’t listened to their discussion yet. Makes me curious where she’s gotten the quotes from, perhaps someone provided a copy to her with the proviso that she not make the entire transcript public. That seemed to be the case with the other news sources that said they’d reviewed a copy of the transcript, though in my experience they’re much less likely to link to a transcript in the first place.

    • emptywheel says:

      In this instance, except where Jordan is mentioned, it is Steve Castor, Jordan’s lead counsel, former Trump impeachment defense attorney, and far smarter than Jordan.

        • Epicurus says:

          From Robert Frost, thinking of Jim Jordan

          Neither Out Far Nor In Deep

          The people along the sand
          All turn and look one way.
          They turn their back on the land.
          They look at the sea all day.

          As long as it takes to pass
          A ship keeps raising its hull;
          The wetter ground like glass
          Reflects a standing gull.

          The land may vary more;
          But wherever the truth may be—
          The water comes ashore,
          And the people look at the sea.

          They cannot look out far.
          They cannot look in deep.
          But when was that ever a bar
          To any watch they keep?

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