Advocates for IRS whistleblowers accuse Special Counsel Weiss of retaliation, misleading: ‘Smear campaign’

Lawyers for two IRS whistleblowers who informed Congress about the Hunter Biden criminal probe are seeking an inspector general investigation into Special Counsel David Weiss, alleging he “hid and twisted” information – prompting more angst on Capitol Hill amid inquiries into Biden family conduct and alleged politicization of the Justice Department.

Empower Oversight, the legal group representing IRS special agents Gary Shapley and Joseph Ziegler, allege that Weiss’ team – in a March 11 federal court filing – deliberately misled the public by suggesting an unnamed federal agency was investigating the two whistleblowers for misconduct. However, the vague reference to the “potential investigation(s)” is a reference to a probe the whistleblowers sought, alleging the Justice Department and IRS were retaliating against them for their disclosures.

Shapley and Ziegler testified last year to Congress alleging political considerations led the Justice Department and the Internal Revenue Service to go soft on its probe of Hunter Biden’s finances. Now, they have taken fire from both the defense and prosecution, noted House Oversight and Accountability Chairman James Comer, R-Ky.

Supervisory IRS Special Agent Gary Shapley, left, and IRS Criminal Investigator Joseph Ziegler are sworn-in as they testify during a House Oversight Committee hearing related to the Justice Department’s investigation of Hunter Biden, on Capitol Hill, July 19, 2023.  (Drew Angerer/Getty Images)

“Gary Shapley and Joseph Ziegler, the two brave IRS whistleblowers who made legally protected disclosures to Congress about misconduct within the Justice Department, have been attacked by Hunter Biden’s legal team,” Comer told Fox News Digital.

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“Special Counsel Weiss has been part of this smear campaign as he misled the public that the IRS whistleblowers were under investigation when in fact they were not,” Comer continued. “Ever since Special Counsel Weiss got caught trying to give Hunter Biden a sweetheart plea deal, he’s been trying to cover his tracks. There must be accountability for this misconduct.”

Empower Oversight wants two Justice Department agencies – the Office of Inspector General and the Office of Professional Responsibility – to investigate the conduct by Weiss’ office.

“David Weiss has been retaliating against Gary Shapley ever since Shapley objected a year and a half ago to letting the statute of limitations lapse on 2014 felony tax charges against Hunter Biden,” Tristan Leavitt, president of Empower Oversight, told Fox News Digital. “Weiss then learned from internal IRS communications that Shapley had been telling his IRS chain of command about Weiss’ office pulling punches in the Hunter Biden probe.”

In a letter this week, representatives for the two whistleblowers also asked the Office of Special Counsel – an independent whistleblower protection agency known as OSC, not to be confused with Weiss’s office – to clarify for the record that the two agents are not under investigation.

“Weiss’ response is exactly why Shapley filed a whistleblower retaliation complaint with OSC in the first place,” Leavitt continued. “DOJ OIG or OPR need to investigate to see whether Weiss’ office intentionally misled the public in order to further retaliate against the IRS whistleblowers.”

Reached by Fox News Digital, Weiss spokesperson Kim Reeves declined to comment for this story.

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In 2023, Hunter Biden entered a plea deal with Delaware U.S. Attorney Weiss’ office. However, Shapley and Ziegler – who worked on the investigation – presented the House Ways and Means Committee and the House Oversight Committee with new information about the case. Shortly thereafter, a federal judge rejected the agreement.

After that, Attorney General Merrick Garland gave Weiss special counsel status, allowing him to bring charges outside his jurisdiction. Weiss secured an indictment on a gun charge in Delaware and a tax evasion case in California.  

In February, Hunter Biden’s lawyers filed a motion to dismiss the tax case in California, arguing in part that Shapley and Ziegler made disclosures that put political pressure on prosecutors.

A sketch shows Hunter Biden with Judge Mark Scarsi in federal court in Los Angeles, Jan. 11, 2024. Biden is being charged with tax crimes out of Special Counsel David Weiss’ investigation. (Mona Edwards)

The March 11 filing by Weiss’ office in federal court in the Central District of California was in opposition to the motion to dismiss the case, and attempted to rebut that claim about the influence of whistleblowers – though in doing so, suggested they were under investigation.

The Weiss response to the motion to dismiss said Shapley and Ziegler “made unsubstantiated claims that prosecutors’ decision-making in this investigation was infected by politics.” It adds the “IRS has taken responsible steps to address Shapley and Ziegler’s conduct.” It directs the court to Exhibit 2, redacted from the public.

The Weiss team explains redactions in Exhibit 2 are because, “Here, the potential investigation(s) may involve allegations of wrongdoing, and the potential investigation(s) could be frustrated, not served, if the public were allowed access to these materials in the midst of the potential investigation(s).”

On May 14, the advocates for the IRS whistleblowers wrote a letter to the Justice Department Inspector General Michael Horowitz and Office of Professional Responsibility Counsel Jeffrey Ragsdale.

“Weiss’ office hid and twisted the significance of OSC’s investigation into the whistleblowers’ own allegations that the IRS and Special Counsel Weiss retaliated against them,” the letter to DOJ internal watchdog officials says. “Rather than acknowledging the truth that OSC is investigating the reprisal against the whistleblowers, the DOJ filing falsely suggested to the public that some unnamed agency was investigating the conduct of the whistleblowers themselves.”

The letter was signed by Leavitt, Empower Oversight founder Jason Foster, as well as attorneys Marke Lytle and Justin Gelfand.

U.S. Attorney for the District of Delaware David C. Weiss (Fox News screenshot)

The same day, the four signed a lengthier letter to the OSC acting principal deputy counsel, Karen Gorman. The letter notes the vague reference to investigations in Exhibit 2 was an OSC probe of the IRS and Justice Department initiated by Shapley and Ziegler. Whereas, the Weiss filing suggested the investigation is targeting Shapley and Ziegler.  

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The letter to Gorman says the OSC should “not allow the Justice Department to mischaracterize your work for the purposes of a retaliatory attack on the reputation of whistleblowers who have done nothing wrong.”

An OSC spokesperson acknowledged receipt of the letter to Fox News Digital, but could not confirm or deny the existence of an open investigation.

The OSC has been under scrutiny for other reasons loosely related to the case involving President Biden’s son. The president appointed Hampton Dellinger, a former colleague of Hunter Biden at a law firm, to run the agency. Dellinger has recused himself from this case.

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“However, it would be entirely improper if the rest of OSC were to stay silent as the Biden Justice Department mischaracterizes OSC’s work probing the reprisal against the IRS whistleblowers in the Hunter Biden case,” the letter to Gorman says. “Accordingly, we respectfully request that you correct the record as soon as possible.”