The non-denial denial: David Weiss and America’s first nihilist prosecutor

The philosopher Friedrich Nietzsche once said that all things are matters of mere interpretation and “whichever interpretation prevails at a given time is a function of power and not truth.”

One has to understand Nietzsche and his nihilistic rejection of meaning to fully appreciate this week’s interview with special counsel David Weiss. Indeed, Weiss may be the first openly nihilistic prosecutor, who views justice itself as a mere matter of interpretation.

Weiss appeared before the House Judiciary Committee, which is looking into the handling of the investigation into Hunter Biden’s alleged criminal conduct. The one thing that both Republican and Democratic members appear to agree upon is that the Weiss investigation was an unmitigated mess — years of delay and internal dissension over the indictment of the president’s son. 

Indeed, after years of denial, some Democratic members and the journalists are now admitting that Hunter Biden clearly broke the law. The Weiss investigation, however, languished for years even as some of us were pointing out that the statute of limitations was about to pass on felonies.

At the same time, Attorney General Merrick Garland steadfastly refused to appoint a special counsel into the expanding corruption scandal involving Hunter and other Biden family members selling influence and access.

Congress was scheduled to hear from Weiss when Garland suddenly made him a special counsel, though the attorney general did not expressly extend his mandate to cover the corruption allegations. That allowed Weiss to delay any appearance. He would bring gun charges against Hunter, but he has inexplicably still not brought the tax charges that he did not previously allow to expire or charges under laws like the Foreign Agents Registration Act. 

Weiss has shown no signs of movement as evidence has piled up. Most recently, Hunter’s own tax accountant gave incriminating evidence on his former client claiming the payment of prostitutes as “a business expense” to allegedly misrepresenting payments as “loans.”

As expected, Weiss continued to refuse to answer questions about his lackadaisical approach. That includes obvious questions like why, when whistleblowers said the defense had agreed to an extension of the statute of limitations, Weiss let felonies expire. Those crimes included some of the most serious allegations of influence peddling and corruption facing the Biden family.

There was one area where the “ongoing investigation” mantra would not work. Garland repeatedly testified that Weiss had total authority to pursue any charges in any district. That was directly contradicted by the whistleblowers, who heard Weiss say that he lacked such authority to pursue charges — a statement that Gary Shapley included in a memo sent to his superiors without any later contradiction or correction.

The account of the whistleblowers — that Weiss was turned down in efforts to bring charges against Hunter in California and Washington, D.C. — were confirmed by those U.S. Attorneys — E. Martin Estrada (California) and Matthew Graves (D.C.). They also declined to explain why they refused to assist in prosecuting the son of the president.

Weiss has taken years and has brought only a couple of gun charges. Indeed, his billet could be described accurately as a systematic effort to avoid recognizing an array of evidence of other criminal acts.

The Justice Department was faced with a field littered with influence peddling and corrupt practices, including acts that may implicate the president himself. There are actual photos and videotapes of drug use, prostitution and luxury gifts tied to shady foreign sources. And then there are the millions of dollars of transfers from those foreign sources, and emails both promising access to Joe Biden and threatening his wrath if there are failures to pay. 

In his House interview, Weiss continued to insist that he did indeed have full authority to bring any prosecution anywhere. When confronted by the fact that Estrada and Graves refused to cooperate, he admitted that he had asked for a special status to allow him to move forward on the cases under what is called “515 Special Attorney authority.”

However, a house investigator stated the obvious: “But [515 authority] wasn’t granted, right?”

“Yes,” Weiss replied. “We have been over this. It wasn’t granted. They said follow the process. I followed the process…I asked for something, and in that conversation, they didn’t give it to me.” 

The investigators then pressed again with the obvious: “When you ask for something and they didn’t give it to you, what is that?”

That is when Weiss went full Nietzsche. 

Weiss responded, “I’m not — you want me to say it’s a denial, but it’s not. Not when I know that, weeks later, I was specifically told, ‘You can proceed.'”

Weiss insisted that he was asked to “proceed with this process. We’re asking you to go through this process. From my mind, it’s a sequencing event. It’s not a denial in any way, shape or form.”

That is when he added “That’s the way I interpreted it.” 

It is that easy. Even a denial is not really a denial. As Nietzsche said, it is all “a function of power and not truth.” For Garland and Weiss, blind justice itself becomes a matter of interpretation.

Jonathan Turley is the J.B. and Maurice C. Shapiro professor of Public Interest Law at the George Washington University Law School.