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Attorney General Merrick B. Garland on Friday elevated the federal prosecutor investigating President Biden’s son Hunter to the status of special counsel after negotiations to revive a plea agreement on tax and gun charges foundered.
The move raised the possibility that Mr. Biden could be tried in the politically charged case, which seemed resolved until a few weeks ago.
The prosecutor, David C. Weiss, has since 2018 investigated a wide array of accusations involving Mr. Biden’s business and personal life, including his foreign dealings, drug use and finances. But as special counsel, Mr. Weiss, who is also the U.S. attorney in Delaware, can pursue charges in any jurisdiction he chooses without seeking the cooperation of local federal prosecutors.
The investigation appeared to be near an end in recent months when Mr. Biden agreed to plead guilty to two tax misdemeanors in a deal that would also have allowed him to avoid prosecution on a gun charge. Mr. Weiss, who has been roundly criticized by Republicans over the terms of the deal, asked Mr. Garland on Tuesday to be named special counsel.
Prosecutors for Mr. Weiss’s office also filed court papers on Friday indicating that they had reached an impasse with Mr. Biden’s lawyers over the proposed plea deal, suggesting that he might now be indicted. Up until a few days ago, the two sides had still been hoping to salvage the deal, but that effort snagged on Mr. Biden’s demand for blanket immunity from future prosecution.
The special counsel announcement marked a stunning reversal: Just last month, Mr. Weiss denied a claim that he had asked to be made special counsel. Mr. Garland had also scoffed at the idea, saying Mr. Weiss actually possessed more power as a sitting U.S. attorney than he would as special counsel.
At a news conference on Friday, Mr. Garland said that Mr. Weiss had concluded that the investigation reached a stage in which the powers of a special counsel were necessary. He did not explain what Mr. Weiss meant.
“The appointment of Mr. Weiss reinforces for the American people the department’s commitment to both independence and accountability in particularly sensitive matters,” Mr. Garland said. “I am confident that Mr. Weiss will carry out his responsibility in an evenhanded and urgent manner and in accordance with the highest traditions of this department.”
Mr. Weiss has become the third special counsel appointed since Mr. Garland took office in March 2021, joining Jack Smith, who is overseeing the investigations of former President Donald J. Trump, and Robert K. Hur, who is examining President Biden’s retention of sensitive documents from his tenure as vice president. The appointment also sets up a likely scenario where the election season is shadowed not just by multiple investigations into Mr. Trump, the president’s chief rival in the 2024 campaign, but also by investigations into the president and his son.
While department officials vehemently deny the announcement was motivated by political pressures, the appointment clearly provides Democrats with a counterargument against Republican claims that Mr. Garland has weaponized the special counsel regulations to target Mr. Trump while sparing the Bidens the same level of prosecutorial scrutiny.
Mr. Weiss, a Trump appointee, plans to remain as the top prosecutor in Delaware but could hire additional staff in Delaware, Washington, Los Angeles and in any other jurisdictions that have been central to the investigation, according to two people with knowledge of the matter.
“The main reason Weiss would seek status as special counsel would be to gain authority to file charges in district other than Delaware,” said Barbara L. McQuade, who was the U.S. attorney for the Eastern District of Michigan from 2010 to 2017. “This order suggests Weiss’s investigation exceeds the scope of the tax and gun charges to which Hunter Biden was prepared to plead guilty.”
As special counsel, Mr. Weiss would not be subject to day-to-day supervision by any official at the department, but he would be required to inform Mr. Garland and his team of any major developments and decisions in the matter, according to federal regulations.
Perhaps most important, Mr. Weiss would have to submit a comprehensive report of his findings to Mr. Garland, who said he intended to release as much of that as he could, within the confines of department policy.
Mr. Garland did not take any questions at his news conference. Reporters shouted versions of the same query as he walked away: Did he still have confidence in Mr. Weiss after the failure of the plea agreement, which would likely have resulted in no prison time for the president’s son?
Mr. Biden’s lawyer, Christopher Clark, said he expected “a fair resolution” to the case whether it is charged in Delaware, Washington or elsewhere.
“This U.S. attorney has diligently been investigating my client for five years, and he had proposed a resolution which we fully intend to pursue in court,” Mr. Clark said in a statement. “It is hard to see why he would have proposed such a resolution if there were other offenses he could have successfully prosecuted, and we are aware of none.”
The White House referred questions to the Justice Department and Mr. Biden’s personal representatives.
In June, Mr. Weiss and Mr. Clark signaled that they had reached a plea deal that suggested the investigation would end. Under the agreement, Mr. Biden would plead guilty to two misdemeanor counts of failing to pay his taxes in 2017 and 2018 on time and enroll in a diversion program for nonviolent gun offenders that would have allowed him to avert prosecution on an unrelated gun charge.
Last month, a federal judge in Wilmington, Del., ripped into the plea deal, exposing conflicting interpretations of the document. Mr. Clark and the prosecutors in the case had distinctly different understandings of a provision in the deal concerning the immunity Hunter Biden would receive.
The effort to revive the deal continued over the past week, even as Mr. Weiss prepared to ask Mr. Garland to be appointed special counsel, according to people familiar with the situation. But a bitter debate over what level of immunity from prosecution the president’s son would receive on a range of conduct scuttled it for good.
Mr. Weiss took the position that although a prosecutor working for him had signed the deal, it was only a draft and could be revised, or even abandoned, depending on the circumstances. It is unusual for the government to renege on an agreement that one of its prosecutors has signed, but there is nothing usual about Mr. Biden’s case.
Mr. Biden’s team strongly objected and demanded that the government abide by the agreement.
Mr. Weiss proposed a new one. His offer preserved the core of the deal hammered out over the past several months, but without the broad immunity guarantee for Mr. Biden, the people familiar with the situation said.
It was a deal breaker.
A spokeswoman for Mr. Weiss had no comment.
House Republicans quickly signaled the special counsel appointment would not alleviate their criticism of the investigation.
“This is just a new way to whitewash the Biden family’s corruption,” said Russell Dye, a spokesman for Representative Jim Jordan, Republican of Ohio and the chairman of the Judiciary Committee. “Weiss has already signed off on a sweetheart plea deal that was so awful and unfair that a federal judge rejected it.”
Speaker Kevin McCarthy said House Republicans’ investigation would continue regardless of what the Justice Department did.
“This action by Biden’s D.O.J. cannot be used to obstruct congressional investigations or whitewash the Biden family corruption,” he wrote on X, formerly known as Twitter. “If Weiss negotiated the sweetheart deal that couldn’t get approved, how can he be trusted as a Special Counsel?”
Since the plea deal was announced, Republicans in Congress have sharply criticized the government, accusing the Justice Department of cutting a lenient deal with the president’s son as they conduct their own investigation in an effort to tie his overseas business dealings to Mr. Biden. They have interviewed Hunter Biden’s former business partner and published summaries of WhatsApp messages and unproven allegations from an informant. They have accused the Justice Department of failing to follow tips that could lead to the president and demanded an accounting of specific steps the agency took — or did not take — in the investigation.
House Republicans have also brought forth two I.R.S. agents who worked on the investigation and claimed that there had been political interference.
Testifying before Congress, the two I.R.S. investigators described how they believed the Justice Department had stymied and delayed their work during the Trump and Biden presidencies.
House Republicans have also issued subpoenas to six banks, detailing millions that were paid to Hunter Biden and his business partners from overseas companies. They also interviewed a former business partner who offered an unflattering portrait of Mr. Biden’s actions.
The business partner, Devon Archer, also suggested questionable judgment on the part of President Biden. As vice president, he repeatedly allowed himself to be in the presence — either physically or by phone — of business associates of his son’s who were apparently seeking connections and influence in government, according to Mr. Archer’s testimony.
Even so, Mr. Archer said he knew of no wrongdoing by the president.
Mr. Archer has already testified before the Delaware grand jury investigating the case and was granted immunity as part of that investigation, his lawyer said.
Chris Cameron and Adam Entous contributed reporting.
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