The Heritage Foundation is seeking emergency relief from an appellate court to obtain a narrow set of documents relating to U.S. Attorney David Weiss and “special counsel status” from the Department of Justice ahead of Hunter Biden’s plea hearing next week.
The conservative group asked the court to enforce a Freedom of Information Act request from the DOJ for all communications that “reflect, memorialize, or explain any decision on a request for regulatory or statutory Special Counsel Status” by Weiss, the lead prosecutor in the case against President Joe Biden‘s son.
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“They go directly to resolving contradictions between the Attorney General, a U.S. Attorney, and Whistleblowers over the conduct of the investigation of Robert Hunter Biden,” Heritage wrote in its motion, adding that the communications would lose “substantial value” if received after Wednesday’s plea hearing.
The request comes after two IRS criminal investigators testified to Congress that Weiss had asked the DOJ for special counsel status in the investigation and was denied. The IRS investigators, who had worked on the Hunter Biden case for years, also said Weiss was blocked from bringing charges against the younger Biden in California and Washington, D.C., before he filed charges in Delaware.
Weiss, however, told Congress in early June that he had “ultimate authority” over the case and added later that month that although he was “geographically limited” to Delaware, he was told he could request “special attorney” status from Attorney General Merrick Garland to bring charges in an outside jurisdiction if he needed to.
The appeal comes after U.S. District Judge Dabney Friedrich denied Heritage’s request for a broader set of documents that included all communications from Weiss’s office relating to “special counsel status” and all communications Weiss’s office may have had with other U.S. attorneys’ offices “with venue to bring charges against Hunter Biden.”
The DOJ had opposed the request, noting the department could not meet such a timeline because it had more than 2,500 “potentially responsive records” to review that would meet Heritage’s request criteria as well as more than a dozen other requests for expedited FOIA processing on U.S. attorney-related matters.
Friedrich, in her order denying Heritage’s initial request, determined the group had not established the necessary urgency.
“The public debate inside and outside of Congress over Hunter Biden’s actions, his criminal prosecution, and any involvement therein by the President of the United States will not end on July 26, 2023,” the judge wrote. “Indeed, the issue may become even more salient over time as relevant investigations continue.”
She added, “The plaintiffs have provided no reason to think that the court in Hunter Biden’s case is incapable of deciding for itself whether it has sufficient information to determine whether to accept the plea or whether it must demand more.”
Mike Howell, a director at Heritage overseeing the case, said the group is seeking the documents for transparency purposes.
“The country deserves to see whether Weiss had the independence that Garland said he did,” Howell said.
He noted the group plans to file an amicus brief ahead of Hunter Biden’s hearing next week to discourage Weiss from moving forward with it.
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In response to Heritage’s new request for emergency relief, the D.C. Circuit Court of Appeals asked on Friday that the DOJ file its response by Sunday evening.
Hunter Biden is scheduled to enter a plea deal in court on Wednesday with Weiss. The terms of the deal include Hunter Biden pleading guilty to two misdemeanor tax charges and entering a pretrial diversion agreement for a felony gun charge.
