Hunter Biden’s prosecutor rejected moves that would have revealed probe earlier

Last summer, federal officials in Delaware investigating Hunter Biden faced a dilemma. The probe had reached a point where prosecutors could have sought search warrants and issued a flurry of grand jury subpoenas. Some officials involved in the case wanted to do just that. Others urged caution. They advised Delaware’s U.S. Attorney, David Weiss, to avoid taking any actions that could alert the public to the existence of the case in the middle of a presidential election.

“To his credit, he listened,” said a person involved in the discussions, reported here for the first time. Weiss decided to wait, averting the possibility that the investigation would become a months-long campaign issue.

Since taking office, President Joe Biden has left Weiss — a Republican appointed by Donald Trump on the recommendation of Delaware’s two Democratic senators — in place. That puts him in one of the most sensitive positions in the Justice Department, deciding how to proceed with an investigation of the president’s son that has proven politically fraught on several fronts.

The probe, which is focused on possible tax law violations, has also examined Hunter Biden’s business dealings with foreign interests — a topic that has animated Biden detractors — and its existence first came to light amid a controversy about the leak of Hunter Biden’s laptop files. Since then, the case has become a political football: Some critics have suggested that the Trump administration’s political agenda influenced a parallel federal probe that scrutinized Hunter Biden in Pittsburgh, while some Republicans have called for the appointment of a special prosecutor to shield Weiss’s investigation from the influence of the Biden administration.

Weiss declined to comment. But as the 65-year-old U.S. attorney navigates this hazardous terrain, interviews with members of Delaware’s small legal community and an examination of his career reveal two salient qualities.

One is a bipartisan reputation for professionalism. One longtime pillar of the Delaware defense bar, Dan Lyons, recounted his sense of relief upon hearing that Weiss was in charge of the Hunter Biden probe. “I remember thinking he’s a straight shooter, and he’s the perfect one to have it,” said Lyons, whose history with the U.S. attorney dates back to the 1980s, when he defended one of the first cases Weiss ever prosecuted. “He would just go where the evidence led him.”

The other is a long track record of taking on the Delaware establishment. While Biden has held up “the Delaware Way,” the nickname for the state’s cozy political culture, as a positive model for bipartisan cooperation, Weiss has spent three decades confronting its excesses.

Early in his career, Weiss served as a special prosecutor during a federal crackdown on bribery and extortion among Delaware politicians of both parties. Later, he helped nab a former Delaware deputy attorney general who murdered his girlfriend. A decade ago, Weiss even investigated Biden’s presidential campaign fundraising, enlisting a beer distributor to wear a wire for the FBI and record conversations with Biden’s associates.

Now, that record may hold clues to Weiss’s approach as he weighs whether to seek charges against a president’s son who has intermingled his business dealings with the Biden family’s political connections. Weiss’s decision to avoid revealing the investigation in a highly charged political atmosphere — a move that might have boosted Donald Trump’s campaign, even at the cost of politicizing the probe — was consistent with his sober-minded approach to his job, said people familiar with Weiss’s career. But so too, they said, is the fact that the probe continues, with most expecting that Weiss will not drop the case until making a full assessment of Hunter Biden’s culpability. 

“He’s got an appreciation,” said a former prosecutor who has worked closely with Weiss, “that there are times when the Delaware Way can turn into something more nefarious.”

Something rotten in Delaware

Weiss grew up in a middle-class home in northeast Philadelphia in the 1960s and went on to attend Washington University in St. Louis. He returned to the Philadelphia area to attend Widener University School of Law, where, in his final year, he met with a round of rejections after applying for jobs at several law firms.

Instead, he got a gig clerking for the Delaware Supreme Court in 1984, then went on to take a job with the U.S. Attorney’s office in Wilmington, Del. One former colleague recalled a joke around the office that Weiss — who played third base for Wash U.’s baseball team — was hired to improve the office softball team. While there, he got his first up-close look at the underbelly of the Delaware Way.

Weiss’s big break came when Louis Capano Jr., a member of a family of prominent Delaware developers, brought a complaint to the state’s then-attorney general, Charles Oberly, as the two watched a Little League game. Capano was being forced to pay protection money to a member of the New Castle County Council, the body that oversees the Wilmington area and on which Biden had begun his political career.

Oberly referred Capano to the U.S. Attorney’s Office. With Weiss’s participation the Justice Department set up a sting targeting the councilman, Democrat Ronald Aiello.

In June of 1989, Weiss resigned his post as an assistant U.S. Attorney and was appointed special prosecutor to oversee Aiello’s case. Aiello went on to plead guilty to extortion.

Weiss entered private practice at the firm Duane Morris, one of the places he had applied to out of law school, where he worked primarily on commercial litigation. In his office there, he displayed the years-old letter rejecting him from the firm, framed alongside the announcement of his elevation to partner.

The Aiello case, meanwhile, spurred the FBI to pursue an expansive probe of political corruption in Delaware, Operation New Clean. It relied on an undercover FBI agent and the cooperation of Louis Capano’s cousin, Mario Capano, according to the Delaware New Journal.

The investigation ensnared the state transportation secretary, Republican Kermit Justice, in another sting, in which he sought to solicit bribes from the undercover FBI agent.

In 1992, Justice, whose family has long been close with the Bidens, hired Weiss as his defense attorney. But Weiss was disqualified from the case on account of his previous government work on the corruption probe, and Justice was convicted of extortion.

A sensational murder

Weiss was drawn back into the world of Delaware’s leading families in 1996, when Anne Marie Fahey, a young secretary in the office of Delaware's then-governor, Tom Carper, went missing.

Fahey’s brother, Robert Fahey, hired Weiss to help her family get to the bottom of her fate. Weiss convinced his former colleagues at the U.S. Attorney’s office to investigate the disappearance aggressively.

The trail soon led to Thomas Capano, the state’s former deputy attorney general and the brother of Louis Capano. Though married, he had been dating Fahey, and he was enraged when he discovered she had found a younger boyfriend.

But investigators were unable to find a body, and the investigation dragged on for months without a conclusion. Eventually, the feds leaned on a third Capano brother, Gerry Capano, who had helped dispose of Fahey’s body. He turned state’s evidence, and Thomas Capano was convicted of murder. It was the most sensational trial in the state in living memory, spawning several books and a made-for-television movie.

Tom Ostrander, the Duane Morris partner who hired Weiss and introduced him to Fahey’s family, credits Weiss with the success of the prosecution.

Ostrander argued that if it were not for Weiss’s intervention, the investigation of Fahey’s disappearance would have fallen to Delaware authorities, who, he said, did not have the same capabilities as federal investigators to pursue difficult cases.

“I don’t think the state had the resources to do the investigation of a very powerful family,” Ostrander said. “If David Weiss had not pressed the U.S. Attorney’s office to investigate, Thomas Capano would have literally gotten away with murder.”

Speaking 25 years to the day after he first contacted Weiss about his sister’s disappearance, Robert Fahey said that the Capano case demonstrated the prosecutor’s willingness to stand up to the handful of closely intertwined families that dominate the small state’s affairs. “I don't think he would buy into the notion that these dozen families can get away with anything,” Robert Fahey said.

A Biden bundler

In 2007, Weiss left private practice to work under George W. Bush’s U.S. attorney Colm Connolly.

In contrast to Weiss, Connolly had earned a reputation for having a conservative agenda in addition to being an aggressive prosecutor. “Colm was a little more outspoken about things,” said Oberly, the former Delaware attorney general, who was later appointed by Barack Obama to succeed Connolly as U.S. attorney.

Connolly also clashed with Biden, who as a senator effectively blocked the prosecutor from a federal judgeship when Bush nominated him in 2008. Instead, in 2009, Connolly entered private practice, and Weiss stepped in as acting U.S. attorney. Connolly, who is now a federal judge for the District of Delaware after being renominated by Trump, did not respond to a request for comment left with his chambers.

Weiss and Connolly remain close. One Wilmington lawyer spotted them having drinks together at Tonic, a restaurant in downtown Wilmington, earlier this year.

While acting as the interim head of the Justice Department’s Delaware office, Weiss oversaw the prosecution of Christopher Tigani.

Tigani, whose family owns a valuable beer distributorship in the state and maintained longstanding ties to the Bidens, served as a bundler for Biden’s presidential primary campaign in 2007, soliciting contributions from his employees and their partners and delivering the checks in bulk to campaign staff. In the course of his bundling, he engaged in a “straw donor” scheme, reimbursing employees for their contributions as a way of evading the cap on how much he could personally give.

After the FBI confronted Tigani with evidence of his illegal contributions in 2010, Weiss recruited the beer distributor to cooperate in a wide-ranging probe of Delaware’s politics.

As POLITICO first reported last summer, Tigani, under Weiss’s supervision, wore a wire and recorded conversations with Biden’s former finance chief as well as a former Biden Senate staffer and a Delaware businessman close to Biden.

Tigani said that at the beginning of his attempted cooperation, he met with Weiss and several other officials. He said that Weiss laid out the government’s theory that politicians in Delaware were complicit in straw donor schemes.

The investigation found no evidence of wrongdoing by the Bidens, and, in the end, only Tigani was indicted on federal charges, to which he pleaded guilty. Tigani also later pleaded guilty to state charges of making straw-donor contributions to the campaigns of several Delaware politicians, including Beau Biden.

Looking back on his downfall, Tigani holds grudges against just about everybody involved, from the Bidens, to the News Journal, which first brought attention to his political influence, to the federal judge who oversaw his case, to his own father, with whom he remains embroiled in long-running litigation related to the family business. The rare exception is Weiss. “He was a straight shooter,” Tigani said of the man who sent him to prison.

When Tigani’s case became public a decade ago, it set off a wave of hand-wringing about the state’s political culture. Biden has nonetheless continued to tout the Delaware Way as an approach worth emulating. “We need a little more of the Delaware way,” he said just before launching his 2020 campaign. “We got to make it more the American way and it’s lost. Our politics has become so mean, so petty, so vicious that we can’t govern ourselves, in many cases, even talk to one another.”

In a filing in Tigani’s case, Weiss and a deputy, Robert “Rocky” Kravetz, took a darker view of the Delaware Way. They defined it as “a form of soft corruption, intersecting business and political interests, which has existed in this state for years.”

The president’s son

For his part, Weiss delights in following the machinations of the state’s power players, according to longtime friend William Manning, a partner at the Wilmington office at the law firm of Saul Ewing Arnstein & Lehr. “He loves knowing everything,” and “who’s doing what to whom,” Manning said.

But Weiss has mostly stayed clear of participating in the Delaware scene himself. For much of the time that he has worked as a federal prosecutor in Delaware, he actually lived in nearby Pennsylvania, only moving into the tiny state in 2016.

“It’s very difficult to be a high-quality prosecutor and at the same time have clubby relationships with virtually everybody in town,” Manning said. “There’s a detachment to the job that suits David just fine.”

“He’s a very private person,” Oberly said. Friends and colleagues describe him as devoted to his wife, Deborah, also an attorney, and two adult daughters. He is also a devoted fan of the Grateful Dead and plays golf on occasion (“admittedly poorly,” conceded Kim Reeves, spokeswoman for his office, who declined to make Weiss available for an interview, but agreed to confirm biographical facts about him).

After the Tigani case, Oberly, a political ally of the Bidens, succeeded Weiss as Delaware’s U.S. attorney. But Oberly, who lacked experience trying federal cases, kept Weiss on as his assistant, and praised Weiss’s work in an interview. “He was loyal,” Oberly said. “He did a nice job for me.”

In 2017, Trump nominated Weiss to serve as U.S. attorney on a permanent basis on the recommendation of Delaware’s two Democratic senators, who both praised the choice.

By late 2018, Weiss’s office was investigating Hunter Biden’s activities in response to a number of leads, including some related to his dealings with Chinese business associates.

While investigators pursued suspicions of possible money laundering and violations of the Foreign Agents Registration Act, the criminal investigation eventually came to focus on whether he had paid taxes on all of his income, according to a person familiar with it. Hunter Biden has maintained that he acted appropriately.

By last summer, the probe had reached a point at which investigators could have issued grand jury subpoenas and sought search warrants that might have revealed its existence at a time when many of then-President Donald Trump’s supporters were seeking to draw attention to Hunter Biden’s actions.

Weiss, however, decided to delay taking any actions that were likely to make the existence of the Hunter Biden probe public. Concerns about affecting the presidential election loomed large when Weiss entertained arguments about advancing the probe, according to the person involved in the discussions. No matter what he did, the decision was sure to come under scrutiny for signs of politicization.

“It was a close call,” said the person, who believes Weiss was right to hold off. “That case has way more credibility now,” the person said.

Following the facts

Even as Weiss took the more cautious route, his office still had to contend with complications posed by parallel investigative efforts being conducted by the U.S. Attorney’s Office for the Western District of Pennsylvania in Pittsburgh.

Trump’s attorney general, William Barr, had tasked the U.S. attorney there, Scott Brady, with vetting information from Trump’s personal lawyer, Rudy Giuliani. Giuliani claimed to have information implicating the Bidens in corruption, but his relationship with Trump and reports that he had met with a Russian agent as he sought dirt on the Bidens, cast doubts on his claims.

Investigators in Delaware worried that the Giuliani material in Pittsburgh could taint their own investigation. It did not help, one person familiar with the investigation said, that Brady’s office seemed intent on taking aggressive steps in pursuit of its inquiry.

“Pittsburgh was out of control,” said the person, who worried that the Western Pennsylvania probe would be seen as politically motivated and would undermine the preexisting Hunter Biden investigation.

A former official involved with the investigative efforts out of Pittsburgh contested that characterization, saying the officials involved acted “scrupulously and with high ethical standards.”

Relatively few details of the Hunter Biden probe leaked ahead of the election, in part because the Delaware U.S. attorney’s office is small, and information is tightly guarded. In the weeks leading up to Election Day, Barr also took steps to prevent its public disclosure, according to the Wall Street Journal.

The probe did not gain widespread attention outside of the conservative media sphere until several weeks after the presidential election, when Hunter Biden released a statement saying Weiss’s office had notified him of it.

Some Republicans called for the appointment of a special prosecutor, but Barr called that step unnecessary.

In December, Hunter Biden hired Chris Clark, a partner at the national firm of Latham & Watkins, as his defense attorney.

In January, upon taking office, Biden appointed Nicholas McQuaid to be the interim head of the Criminal Division of the Justice Department. Until his appointment, McQuaid had also been a partner at Latham, where he had worked on some cases with Clark. Justice Department conflict of interest rules would require McQuaid to receive a waiver to participate in oversight of the Hunter Biden probe. A DOJ spokesman, Joshua Stueve, declined to say whether McQuaid had received a waiver or recused himself from the case. Clark did not respond to a request for comment.

Last month, POLITICO reported that Weiss’s office is also involved in an investigation of Blue Star Strategies, a Democratic lobbying firm, that includes a focus on potential FARA violations. The investigation relates to work Blue Star performed on behalf of the same Ukrainian energy firm, Burisma, that hired Hunter Biden to its board as its founder faced allegations of corruption. Blue Star’s CEO, Karen Tramontano, did not respond to a request for comment.

As the probes continue, Weiss’s handling of them will be closely watched by partisans on both sides. Those who know him argue that his work will stand up to the scrutiny.

“David is the type of lawyer who follows the facts and whatever the facts may lead to,” Ostrander said. “It doesn't matter who the person is he’s looking into.”