When Attorney General Merrick Garland announced that he was appointing David Weiss as special counsel, he failed to mention § 600.3(c) of the Code of Federal Regulations entitled “Qualifications of the Special Counsel.” These qualifications include the following: “The special counsel shall be selected from outside the United States government.” (Emphasis added)

This requirement is the law. The regulations were authorized by Congress under 5 U.S.C. 301, 509, 510, 515-519. The attorney general is the chief law enforcement officer of the United States. It is certainly expected that he would obey the law in its entirety.

If he feels that somehow there is an applicable exception to this requirement, he is obliged to explain why. Particularly when the special counsel is appointed to investigate the son of the incumbent president, who appointed Garland, every T should be crossed and every I should be dotted. Here we have what appears to be a clear rule using the word “shall” rather than a more permissive word such as “may.” The regulation on its face seems mandatory, and not advisory. If it is not, why not?

[There have been exceptions to this, but in both of those, the special counsel ended his employment with the DoJ either at the time or shortly afterward (John Durham). Neither of those exceptions involved making a person who had investigated the issue for years a special counsel, especially not after a botched plea deal by the same person. This smells to high heaven. — Ed]