IRS Whistleblowers Aren’t Under Investigation, So Why Did Weiss Suggest They Were?

IRS Whistleblowers Aren’t Under Investigation, So Why Did Weiss Suggest They Were?

The IRS agents who blew the whistle on the Delaware U.S. Attorney’s Office for protecting President Joe Biden’s son are not under investigation, but those who allegedly retaliated against the whistleblowers are. This shocking revelation follows court filings by Delaware U.S. Attorney-cum-Special Prosecutor David Weiss which indicated the whistleblowers’ “conduct” was the subject of a possible investigation.

On Tuesday, the legal team for IRS whistleblowers Gary Shapley and Joseph Ziegler sent a letter to the Department of Justice’s Inspector General and the Office of Professional Responsibility, requesting they investigate Special Counsel Weiss’s office “for falsely suggest[ing] to the public that some unnamed agency was investigating the conduct of the whistleblowers” when in fact, it was the individuals who allegedly retaliated against the whistleblowers that are the target of the investigation. 

Accompanying the referral to the DOJ IG and Office of Professional Responsibility, was a five-page letter that detailed the context of Weiss’s alleged deception. That five-page letter was sent by Shapley and Ziegler’s lawyers to the entity investigating the whistleblowers’ claims of retaliation, namely the U.S. Office of Special Counsel, or “OSC” — a separate office charged with investigating retaliation claims, not to be confused with Weiss’ Office of Special Counsel. 

As the letter to the OSC detailed, in a response to a motion filed by Hunter Biden in his pending criminal tax fraud case, Special Counsel Weiss wrote that “IRS agents, Gary Shapley and Joseph Ziegler, . . . . have made unsubstantiated claims that prosecutors’ decision-making in this investigation was infected by politics.” The response filed by the Special Counsel’s office in the Biden criminal case continued: “[A]s described in the attached declaration, Exhibit 2 (filed under seal), the IRS has taken responsible steps to address Shapley’s and Ziegler’s conduct.” (Emphasis added.)

The accompanying motion to seal Exhibit 2 and two other exhibits explained that the public filing included “a partially redacted paragraph that references a potential ongoing investigation(s).”

“Three exhibits (Exhibits 2, 4, and 5) reference a potential ongoing investigation(s),” Special Counsel Weiss further explained, adding:

The government was advised by the Office of IRS Chief Counsel that the investigating entity referenced in each of Exhibits 2, 4, and 5 agreed that the documents could be provided to the government and used in a filing with the court provided that the government asked the court to seal these exhibits and certain references to those exhibits in order to protect the integrity of the potential ongoing investigation(s).

Special Counsel Weiss’s legal team added that “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).” Prosecutors then stressed: “To be clear, the aforementioned potential ongoing investigations are not references to any investigation of the defendant conducted by the U.S. Department of Justice.”

Given that Special Counsel Weiss argued “the attached declaration, Exhibit 2 (filed under seal),” established “the IRS has taken responsible steps to address Shapley’s and Ziegler’s conduct,” the clear implication was that Shapely and Ziegler were the target of a potential investigation. But on Monday, attorneys for the whistleblowers learned that OSC was the “investigating agency” that had “specifically requested that the government request that the court seal the exhibits . . . in order to protect the integrity of the potential ongoing investigation(s).”

In other words, and as the whistleblowers’ Empower Oversight legal team stressed in its letter to OSC — calling the information “shocking” — that means the IRS and Special Counsel Weiss’s office “hid and twisted” the fact that the OSC’s was investigating “the whistleblowers’ own allegations” of retaliation, to create the false impression that the whistleblowers were under investigation for potential wrongdoing.

Empower Oversight asked the OSC to correct the record and make clear that the referenced investigation was of the whistleblowers’ claims of retaliation and not of the whistleblowers for any supposed misconduct. The Empower Oversight legal team also suggested that Special Counsel Weiss’s efforts “to generate a false public relations narrative” i.e., that Shapley and Ziegler were under investigation, was “further reprisal” for their protected whistleblower disclosures.

The false impression the special counsel’s office created that Shapley and Ziegler were under investigation didn’t merely affect the whistleblowers, however. Rather, with the misleading court filings, the special counsel’s office potentially impacted the criminal case against Hunter Biden.

The entire reason Weiss referenced the sealed documents and the potential “investigation” was to counter Hunter Biden’s claim that the government had done nothing in response to whistleblowers’ alleged misconduct. Weiss should have refuted Hunter Biden’s charges on the merits, by stressing Shapley and Ziegler had only engaged in protected whistleblower activities. But Weiss apparently couldn’t bring himself to do that, leaving the special counsel’s office to instead suggest the duo were under investigation.

The question remains whether Hunter Biden knew of Weiss’ ploy or was blindsided by today’s revelations that the investigation mentioned by Special Counsel Weiss in the court filing was not an investigation of the whistleblowers, but those who had allegedly retaliated against Shapley and Ziegler. If the latter, expect Hunter Biden’s legal team to renew their attack on Weiss’ team based on prosecutorial misconduct — but this time they would be right, although dismissal of the indictment would still not be appropriate.

Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion, National Review Online,, the Daily Signal, USA Today, and the Detroit Free Press.

She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals.

Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance.

Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.

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