Judge Noreika Joins Derek Hines in Selective Adherence to the Laws of Physics

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In addition to making false claims about Abbe Lowell’s argument, Derek Hines’ successful reply brief excluding the form gun shop employees doctored to cover up their own potential crime made an argument about physics: Anything that happened after Hunter Biden allegedly checked a box could not be relevant to his actions.

II. StarQuest Employees’ Actions After the Defendant Completed Form 4473 §A Are Not Relevant

The government intends to call Gordon Cleveland to testify because he is the witness from Starquest who observed the defendant fill out Section A of the form 4473 where the defendant identified himself and stated that he was not an unlawful user of or addicted to a controlled substance. The other two individuals the defendant has subpoenaed, Turner and Palimere, cannot testify to that fact. They, and not Cleveland, were involved in adding “DE VEHICLE REGISTRATION” to the form more than two years after the defendant filled it out. Palimere exchanged text messages, again two years after the events that are the subject of the indictment, that indicate a bias against the defendant. The addition of “DE VEHICLE REGISTRATION,” and Palimere’s political views are sideshows that the defendant is attempting to inject into the trial and are irrelevant. The government does not intend to call either Turner or Palimere because they lack first-hand knowledge of the defendant’s actions. Their addition of “DE VEHICLE REGISTRATION” to the form after the defendant filled it out does not have “any tendency to make” those two facts, which are “fact[s] of consequence in determining” the charges—that he filled it out and that he said he wasn’t an unlawful user of or addicted to a controlled substance—more or less probable. F.R.E. 401. Therefore, their testimony on the addition of “DE Vehicle Registration” to the form, years after the defendant’s conduct occurred, is irrelevant and should be excluded.

[snip]

Whatever action was taken after the fact with respect to the form is immaterial.

They adopted exactly the opposite approach with communications regarding drug use. Abbe Lowell had tried to exclude the communications — including those after Keith Ablow’s Ketamine treatment made Hunter’s addiction worse — because they were sent so long after the gun purchase and disposal.

But prosecutors argued that communications (and photos and videos) from months after the gun was disposed are somehow proof about what happened in October.

The defendant objects to the messages in Rows 214-292 in the government’s 1006 Summary Chart as cumulative and occurring subsequent to the defendant’s gun purchase and therefore prejudicial under Rule 403.

The redacted message in Row 215 – “that’s a line brighter than throwing my gun in a full trash can in a busy grocery store and then some kid blows his sisters head off and you go to prison for the rest of your life” – is an admission regarding the gun which was made by the defendant to Witness 3 and therefore admissible under F.R.E. 801(d)(2).

With respect to Row 214 and Rows 216-292, these are admissible under Rules 401 and 402 as probative of his active addiction. In Chapter 11 of his book, the defendant admitted that he was actively addicted to crack cocaine between 2015 and 2019. See Government’s Motion to Admit Portions of Defendant’s Book and Audiobook and Motion in Limine to Exclude use of Self-Serving Statements (ECF 119) and Ex. 1 attached thereto. The messages in Row 214 and 216-292 are are relevant because they show that the defendant’s statement in his book was accurate and indeed his addiction continued into 2019, without disruption. The messages have a tendency to make the fact that he was an addict and user more probable than it would be without the messages. Fed. R. Evid. 401(a), 402. Moreover, the fact that he was addicted to crack between the fall of 2016 and the spring of 2019 is a fact of consequence relevant to all three charges in the indictment. Fed. R. Evid. 401(b); see United States v. Corona, 849 F.2d 562 (11th Cir. 1988) (abrogated on other grounds) (evidence of social use of cocaine and admissions during treatment over 2.5 year period is sufficient to sustain conviction). His admissions in his messages have probative value which is not substantially outweighed by a danger of unfair prejudice or other issues under Fed. R. Evid. 403.

Note, as I said here, I think the government is right about Row 215.

And Judge Noreika bought that argument too, deciding to let prosecutors waste hours of jurors’ time hearing messages about buying drugs that date to long after the time Hunter owned the gun.

THE COURT: Okay. Defendant has objected to a number of the government’s objections, first, rows 214 to 292 of the government’s summary chart, Exhibit 18. Those objections are overruled.

Row 215 is a message from the defendant about the disposal of the gun in a trash can in a grocery store, it is an admission and admissible under Rule 801(d)(2). Rows 214 and 216 through 292 are messages probative of defendant’s drug addiction. Although the messages are dated after the date defendant bought the gun, they are not being offered in isolation but rather with other evidence of his addiction before, during, and after the time he purchased the gun. They are circumstantial evidence as to whether he was an unlawful user of, or addicted to any controlled substance when he purchased and possessed the firearm and so they are admissible under rules 401 and 402.

Next, we have a series of photos or videos marked as Exhibits 18C through F. Those objections are also overruled. The primary objection to those is they are dated after October of 2018, for the same reasons I allowed the text, I will also allow those exhibits. They are circumstantial evidence of defendant’s addiction and relevant and admissible.

As to Exhibit 18C, which defendant also objects to as it shows him unclothed, the clip is redacted so that it only shows him from the chest up, so I will not exclude it on that basis.

Similarly, Judge Noreika sustained the government’s objections to virtually all context Lowell had tried to include from the book.

She also seemingly expanded the scope of her ruling on the gun shop actions, prohibiting Lowell from raising anything the gun shop employees did wrong, which I’ll return to.

Noreika’s waste of jurors time may actually work against the prosecutors: Lowell had just a few moments of cross examination regarding all this evidence at the end of today; he started by pointing out that most of the evidence submitted was long after the alleged crimes. I wonder whether jurors will fail to see some really damning texts from the period he owned the gun for the forest of texts that came long afterwards.

Maryellen Noreika Falls for Derek Hines’ False Claims, Again

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If I were a newish judge like Maryellen Noreika, I’d be a bit wary about accepting the representations of a prosecutor like Derek Hines who once claimed that sawdust was cocaine. Particularly when bowing to his request to exclude the original form from a trial about whether Hunter Biden lied on that form.

My post yesterday describing that Judge Noreika had prohibited Hunter Biden from showing the jury the actual physical form on which he is alleged to have lied was based off Derek Hines’ reply to a supplemental response that Abbe Lowell filed on Saturday — but the supplement was still sealed.

So when I suggested that Noreika may have credited as accurate something Hines said, I was just basing that off the fact that every time Hines wails about Abbe Lowell lying, it has turned out that he was covering something up.

Noreika likely credited something misleading Derek Hines said in a reply posted shortly before her order which cites to it (he has, repeatedly, projected his own inaccurate claims onto Abbe Lowell, and this may be an instance where, at the very least, Hines misunderstood a reference Lowell made).

Hines made a big stink about a bracketed reference to “a second form of identification” that Lowell had included in a quote from a 302 recording either one (if you believe Hines) or two (if you believe Lowell) interviews of Gordon Cleveland, the guy who sold Hunter Biden the gun, in 2021.

Cleveland has been entirely consistent on the issue of identification in the two interviews where it came up. Defendants claims he has offered an “evolving story,” but that characterization is not accurate based on defendant’s own quotes from Cleveland’s Jencks material. Supp. Resp. at 5. The only form of ID Cleveland saw was the passport. He never saw a Delaware vehicle registration and never claimed to. Instead, in both interviews he stated that Turner, who handled the background check, may have, but Cleveland didn’t have first-hand knowledge of whether he did or didn’t. In his first interview on September 27, 2021, Cleveland told investigators:

“He said he would provide the copy of the U.S. Passport and the firearm information on a sheet of paper to the person sending the background check in. Mr. Cleveland said he did not see the document [a second form of identification] with the ATF Form 4473 he was shown [by the Agent on September 27, 2021].” (TAB 3, 10/12/21 ATF EF 3120 at 2, ¶6) (emphasis added). Supp. Resp. at 5 (emphasis added).

The government at this point is obligated to point out that the defendant is again making malpresentations to the Court. In the above quote from his filing, the defendant inserted brackets into a real quote from the September 27, 2021, interview report for Cleveland. The defendant writes in those brackets that “Mr. Cleveland said he did not see the document [a second form of identification] with the ATF Form 4473 he was shown [by the Agent on September 27, 2021]. Supp. Resp. at 5. What defendant inserted into those quotes in brackets isn’t accurate. The ATF never showed Cleveland “a second form of identification.” If you look at the report, which defendant has and attached to his filing, it says that the only documents that were shown to Cleveland, at any point during the interview, were the following:

The ATF did not show Cleveland “a second form of identification,” as the above list of documents make clear. Defense counsel made that up. [Hines’ bold, Lowell’s italics]

Then Derek Hines accused Lowell of deliberately leaving out part of the 302: Cleveland describing that his colleague, Jason Turner, may have gotten a second form of ID.

What defense counsel chose not to quote from that report was the next sentence: “He said Jason Turner may have gotten the vehicle registration due to the U.S. Passport issue.”

Lowell’s supplemental response got docketed overnight. And it makes clear that (as I predicted), Hines is the one misrepresenting things and leaving pertinent quotations out.

The contested quotation comes in a passage where Lowell lays out inconsistencies in Cleveland’s story.

Cleveland (a government witness) sold Biden the handgun on October 12, 2018 and gave him the 4473 form to fill out. Yet, as to what was and was not on the form, who completed it and when, Cleveland offers divergent explanations at different points in time.

Cleveland was interviewed by ATF Agent Hnat on September 27, 2021, just six days after the actual Form 4473 (with additions) was obtained by ATF, and again on October 7, 2021. The interview notes reflect:

Speaking of his general practice he said, “He then gathers the information provided by the customer for the background check, the customers two forms of identification . . .” (TAB 3, 10/12/21 ATF EF 3120 at 1, ¶2).

With specific reference to Biden, “He said he would provide the copy of the U.S. Passport and the firearm information on a sheet of paper to the person sending the background check in. Mr. Cleveland said he did not see the document [a second form of identification] with the ATF Form 4473 he was shown [by the Agent on September 27, 2021].” (TAB 3, 10/12/21 ATF EF 3120 at 2, ¶6) (emphasis added).

Now being shown the added information, “He said Jason Turner may have gotten the vehicle registration due to the U.S. Passport issue.” (TAB 3, 10/12/21 ATF EF 3120 at 2, ¶6).

Later, under oath before a grand jury in April 2022—months after the altered Form 4473 was obtained and after he was shown it on September 27, 2021—Cleveland was asked no questions about the identification issue, the added registration information, or the two forms. (See TAB 3A).

But after issues concerning the different versions of the form were raised at the May 14, 2024 status conference, the Special Counsel went back to Cleveland and this is what was explained:

When Biden presented his passport as identification, Cleveland went into the back and asked Ronald Palimere and Jason Turner if it could be used. Cleveland recalls going back out to Biden and saying something to the effect that if Biden was going to use a passport, they would need another form of identification. [] Cleveland thinks Biden went outside and got something, but he can not say with certainty. Cleveland would not have paid attention to the paperwork side of the sale because he had already done his part by working with the customer and making the sale. Cleveland does not think they would have competed the sale without the second identification, though. (TAB 3B, 5/17/24 Cleveland FD-302 at 1).

Thus, even with Cleveland’s evolving story, he cannot say that Biden presented the vehicle registration, but simply assumes that someone else at the gun store would have obtained a second form of identification. Biden should be allowed to challenge this assumption that the gun store would have followed the law in obtaining a second form of identification. [Lowell’s italics, my bold]

As a threshold matter, Hines either lied or is painfully sloppy. Lowell did include that quotation about Turner. It’s right there, on the next line, precisely where Hines said it should be!

I asked Weiss’ spox whether Hines’ false accusation was a lie or just sloppiness (I also asked him to clarify whether Hines got the number of Cleveland interviews wrong). He responded, “As this case is before the court, we will decline to comment beyond our filings.”

But what Hines didn’t include is the context (and here, I do fault Lowell for not indicating whether the 302, which he describes as recording two interviews, distinguishes between what Cleveland said on September 27 and what he said on October 7; also he’s the one who put that bracket in the quote that simply reflects a paragraph break).

Line one: What do you normally do? Cleveland: I ask customers for two forms of ID.

Line two: Did you do that with Joe Biden’s kid? Cleveland: Nope. I didn’t see any second form of ID.

Line three: Well then, who added the second ID to the form? Cleveland: I dunno. Maybe Jason did it?

Right there, Cleveland has already undermined his own testimony, making it clear that (he claims) he always gets two IDs, but then admitting he didn’t here.

And in context, that “second form of ID” refers to the previous line (that’s called an antecedent, Mr. Hines, look it up! You’ll be amazed how grammar works!!).

It’s clear to anyone who knows how to read that Lowell was not referring to what the ATF agent showed Cleveland. It refers to what Hunter did or did not show Cleveland back in 2018. But Hines left it off, perhaps because it would undermine his false accusations?

The rest of the story Lowell’s filing tells is just as interesting. He reveals that the cop who first went to the grocery store to search for the gun in 2018, Vincent Clemons, coordinated his story with the gun shop owner.

[T]he government provided WhatsApp communications from October 2020 and February 2021 between Palimere, friends of his, and then-Delaware state trooper Vincent Clemons3 (see TABs 6 – 6C), all of which refer to the form, a plan to send it to others, needing to get their stories straight about what occurred in 2020, and wanting the gun sale issue and the form exposed during the Presidential campaign.

3 Not to be lost is the fact that Clemons was the Delaware State Police officer who first arrived at Janssens’ grocery store on October 23, 2018 when Hallie Biden threw a bag containing the handgun into a trash can in front of the store. It was Clemons who took statements about the handgun from both Hallie and Hunter Biden and was part of filling out an official police report on the issue. Two years later, he is in the communications with Palimere about the Form 4473, one of which states: “Yep your side is simple – Hunter bought a gun from you, he filled out the proper forms and the Feds approved him for a purchase.” (emphasis added). Palimere later responded, “I’ll keep it short and sweet as well: Hunter bought a gun. The police visited me asking for verification of the purchase and that’s all I can recall from that day. It was over 2 years ago.” (TAB 6B, 10/26/20 Palimere-Clemons Texts at 4, 6.) The reference to filling out the “proper forms” is not lost on defense counsel given what transpired thereafter. And, despite the importance of Clemons (e.g., the person who actually took the statements), the Special Counsel is foregoing him as a witness to call two other Delaware officers instead.

[snip]

Moreover, it turns out that profiting off an improper gun sale was not the gun shop’s only motive. The gun shop staff recognized Biden and the newly-disclosed evidence from the Special Counsel shows the store’s owner sought to politicize the sale to influence the election, which provides further evidence of bias.

Hines capitalized on Lowell’s mention of the election and Parlimere’s effort to politicize the purchase by presenting this description of a cop and a gun owner coordinating the story they plan to tell as exclusively political.

Among the items the defendant emailed to the Court on Friday night were proposed exhibits – identified as defense tabs “6,” “6A,” “6B,” and “6C” – which suggest that two witnesses are politically motivated. These selected portions3 of communications by Palimere to two friends and also to Sgt. Clemons – were made two years after the events in question when defendant’s father was a political candidate. The defendant inaccurately summarizes them as referring “to the form, a plan to send it to others, needing to get their stories straight about what occurred in 2020, and wanting the gun sale issue and the form exposed during the Presidential campaign.” Supp. Resp. p. 8 and n. 3. Nevertheless, he clearly wishes to confuse the jury by introducing these spliced, non-relevant communications to incite prejudice and emotion among the jury to distract from the elements of the crimes that were complete years before.

Thanks to this latest filing, the defendant’s strategy is now more apparent. He has returned to a claim that this prosecution was trumped up and politically motivated. But to suggest that the gun store owner’s political opinions, expressed two years after the fact, have bearing on whether or not he lied about his drug use on the form 4473 on Section A is absurd and must be excluded under the rules of evidence. There is no evidence to suggest these communications played any part in the witnesses’ actions or inactions with respect to the defendant. And there is no evidence that the defendant was the target of political animus by either witness.

The fact that witnesses in this case held political beliefs about which they communicated two years after the defendant’s alleged crime cannot possibly have any relevance to any fact at issue. The defendant should therefore not be permitted to present irrelevant, confusing and unduly prejudicial facts regarding witnesses’ political views to the jury. See Fed. R. Evid. 401, 402. Even if the communications were somehow relevant – and they are not – such evidence is unduly prejudicial to the government. Courts have excluded evidence at trial of a witness’s bias under Fed. R. Evid. 403 where admission would confuse the issues before the jury. E.g., Blair v. United States, 401 F.2d 387, 390 (D.C. Cir. 1968) (affirming trial court’s conclusion that the probative effect of the impeaching evidence was far outweighed by the potential prejudice)

That may be enough to get texts showing a cop working on a cover story; Judge Noreika cut and pasted Hines’ language treating these as political, and ruled that Lowell can’t raise politics at all, even though the gun shop owner says he rushed the sale to get Hunter out of the shop because his dad is anti-gun.

But it has me wondering something that Lowell apparently is also wondering.

He learned that Cleveland claimed that he always asks for a second ID because Hines just turned over the earlier 302 and Cleveland’s grand jury testimony, from April 2022, as Jencks. It seems that prosecutors may have provided these WhatsApp texts in response to a request for Brady, after Lowell started looking into the altered document.

But they haven’t provided any earlier interview reports from Ronald Palimere or Jason Turner, the latter of whom is the guy who actually altered the gun form.

2 Because the Special Counsel intends to call only Cleveland as a witness, but likely interviewed and has interview memoranda by other law enforcement who interviewed Palimere and Turner, the Special counsel produced only Jencks material for Cleveland (other than the only recently written FBI 302 of Palimere after the issue was raised at the May 14 status conference). Given the issues raised about the form’s accuracy and reliability, defense counsel believes statements byPalimere and Turner (if they exist) would be Brady material and asked again (after the initial discovery requests in October 2023) for Brady and Giglio material after the May 14, 2024 status hearing and again specifically on May 31, 2024. The Special Counsel has not responded.

It is virtually certain there is at least one earlier interview with Palimere, because Derek Hines began the interview by “remind[ing] Palimere of of the provisions of the proffer agreement,” rather than explaining them as if for the first time.

So … it gets worse, probably.

Nevertheless, Judge Noreika not only cut and pasted Hines’ exclusion of all discussion of politics, but she also parroted Hines’ mockery that someone might shade their testimony to protect their own immunity. (This entire footnote will be ripped to shreds if Hunter Biden has to appeal this case.)

The government has stated that it intends to call Gordon Cleveland, a gun shop employee, who will testify that he watched Defendant fill out Section A of the Certified Form and that Defendant checked “no” to question 11e about being an unlawful user or addict. Both the Certified Form and the 2021 Form have the same check mark (“X”) responding “no” to question 11e. The addition of “DE VEHICLE REGISTRATION” to a different section of the 2021 Form after the Defendant filled it out does not have “any tendency to make” those two facts, which are “fact[s] of consequence in determining” the charges – that he filled it out and that he said he wasn’t an unlawful user of or addicted to a controlled substance – more or less probable. F.R.E. 401. The Court also agrees with the government that Defendant’s conspiratorial theory about “doctored” forms and currying favor with the government is unsupported rhetoric, which would be prejudicial and confusing to the jury.

This is not a judgement — that the fact that the gun shop altered a form after the fact to make it look like they had followed the law wouldn’t suggest they might do that more regularly — is not one I’d want to be living down for the rest of my career as a judge. Especially not given that with Hines, there’s usually something worse about to drop.

On Eve of Opening Arguments, WSJ Launders David Weiss’ Russian Disinformation Problem

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WSJ has a weird story that purports to describe Merrick Garland’s oversight of Special Counsels.

It twice suggests only the left has complained about a perception that Garland slow-walked the January 6 investigation.

Garland has also become the subject of ridicule on late-night talk shows, including by comedian Bill Maher, who in May echoed the grievances of many on the left when he referred to Garland as “a purse dog” rather than a pit bull.

[snip]

But many on the left wanted more. Some wanted prosecutors to also pursue an aggressive case against Trump himself, specifically for inciting the mob.

That will come as a surprise to Liz Cheney, who was among those claiming that Garland was working too slowly.

It reveals that Robert Hur was considered for the job given to Jack Smith and confirms my suspicions that the decision to hire him came from Lisa Monaco’s office, not Garland’s.

An aide drafted a secret contingency plan, to assign the Jan. 6 investigation related to Trump to a special counsel. At the top of the list of candidates was Smith, a former U.S. prosecutor who was then the chief prosecutor at The Hague investigating war crimes in Kosovo. The deputy attorney general’s office also considered Hur, who at the time was a defense lawyer in private practice, for the post.

But it makes no mention of how DOJ came to consider Hur for the job after settling Andrew McCabe’s lawsuit because he had been denied due process rights in his firing. Hur was a key player in that process of denying McCabe his due process, and yet Garland hired him to investigate Joe Biden.

It even gets the timeline of Hur’s hiring incorrect, ignoring the months of investigative steps taken by John Lausch before Hur was hired.

It mentions Brad Weinsheimer’s role in allowing Rob Hur to emphasize Biden’s age in his report, rather than the fact that Hur couldn’t even prove the documents that might have been intentionally withheld took the path he imagined they might have.

Biden’s lawyers read it and were aghast, objecting to “certain aspects of his draft report that violate Department of Justice policy and practice by pejoratively characterizing uncharged conduct,” they wrote to Garland. They wanted him to take a firmer hand with the special counsel he appointed and whose report they and some former Justice Department officials saw as gratuitous.

Garland didn’t respond, taking the same approach he had with other special counsels. He wasn’t going to step in to protect his boss. Instead, adhering to the Watergate-era policy he helped enshrine, he left it to the agency’s senior career official, Bradley Weinsheimer, who said the language in the report “fell well within the Department’s standards for public release.” Garland, as promised, released it the following day, Feb. 8.

But it doesn’t talk about how having Weinsheimer serve as supervisor for Special Counsels effectively eliminates any DOJ review of ethical violations, which role Weinsheimer would otherwise play.

Most bizarrely, it makes absolute no mention of John Durham, whose investigation Garland oversaw for over two years. It doesn’t explain, for example, why Durham was permitted to fabricate a conspiracy theory against Hillary Clinton in his report. It doesn’t explain why Durham’s lead prosecutor, Andrew DeFilippis, left with little advance notice, between Durham’s twin failed trials, at a time when many witnesses were making claims of abuse.

In short, whatever else this story is, it is not a story that is remotely useful for understanding Merrick Garland’s oversight of Special Counsels.

And in this story that doesn’t do what it says, on the eve of opening arguments in the Hunter Biden gun case, it launders David Weiss’ Russian disinformation problem.

By 2022, prosecutors and agents had already believed that Hunter Biden committed tax crimes, but Weiss still seemed no closer to charging him or resolving the case. FBI officials asked Garland’s office if he could help move Weiss along.

Garland refused to prod Weiss, saying he had promised him broad independence to pursue the inquiry as he saw fit.

FBI agents drafted a list of final steps to push the probe forward—including to follow up on allegations from an FBI source that tied Hunter Biden’s financial misdeeds directly to his father.

Weiss’s office reached a tentative plea deal with Hunter Biden in June 2023, in an agreement that would likely include no jail time. Republicans in Congress alleged that Hunter Biden was getting a sweetheart deal, which fell apart a month later. In August, Weiss asked Garland to make him a special counsel, pointing to the FBI’s list and asking for independence. Garland agreed, recognizing that he had earlier promised Weiss autonomy and any resources he sought. [my emphasis]

To be sure, this might be one of the only truly interesting pieces of news in the piece.

What WSJ is describing (including a journalist, Sadie Gurman, who has had good access to Bill Barr in the past) is that the FBI, including people senior enough to be able to complain to Garland personally, was demanding that David Weiss follow up on Alexander Smirnov’s attempt to frame Joe Biden.

Indeed, this passage wildly conflicts with what David Weiss claimed in the Smirnov indictment — that the FBI just came along in July 2023 and requested that Weiss help investigate (but we knew that was false in any case).

And it does seem to confirm what has been clear for a while: the reason David Weiss asked to be made Special Counsel is so he could chase Smirnov’s allegations.

But somehow WSJ neglects to mention the issue — the several issues — that go to the core of Garland’s inadequate oversight of Special Counsels. First, how was this allowed to get this far? How were senior FBI people bugging Garland about this allegation when the most basic vetting of travel records debunked it? How was the FBI chasing an allegation from a guy who had recycled debunked Fox News propaganda? How was David Weiss permitted to demand Special Counsel status, and renege on the plea deal he made with Hunter Biden, based on a tip he had been given back in 2020?

How is that not election interference?

Just as importantly for the issue of Special Counsel oversight, how can Garland leave Weiss in charge of the Smirnov allegation, when he is a witness to the process — implicating Bill Barr and Scott Brady — that ended up mainstreaming it?

And more importantly, WSJ never mentions that the tip turned out to be a hoax from a guy with close ties to Russian intelligence.

How do you write a piece describing that the FBI was pushing Garland to chase what may be Russian disinformation (and in any case is a hoax from someone with Russian ties), and fail to mention that it was a fabrication?

How, on the eve of opening arguments in the Hunter Biden case, do you launder the fact that David Weiss reneged on Hunter Biden’s plea deal because he was chasing false claims from a guy with close ties to Russian intelligence?

On Eve of Hunter Biden Gun Trial, Judge Maryellen Noreika Covers Up Possible Gun Crime

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Judge Maryellen Noreika has ruled that Hunter Biden cannot present evidence that, to cover up that StarQuest gun shop sold Hunter Biden a gun without requiring him to show an ID with his address on it, the shop owner and one of its employees falsely claimed they had seen such ID three years after the fact on the physical ATF form.

They doctored the form.

More importantly, the gun shop owner testified that he did so because Hunter Biden listed a celebrity address (his father’s), and also because he wanted to get Joe Biden’s kid out of his store as quick as possible.

By his own testimony, the gun shop owner only belatedly complied with the required record-keeping because of who Hunter Biden is.

Now I get that Hunter Biden cannot claim that he cannot be prosecuted because the gun shop owner also committed a potential crime. Judge Noreika is perfectly correct to prevent that kind of argument.

But Hunter Biden has to be able to use the shop’s admitted willingness to skip documentary steps with a celebrity client and doctor the forms after the fact, because it leaves open the possibility they did that with more than the identification.

In ruling against Biden, though, she said that the gun shop’s willingness to doctor the form after the fact on one issue would not have any tendency to make it more likely they did elsewhere on the form.

Indeed, she seems to misunderstand that the gun shop owner appears to have confessed to doctoring the form.

2. The Court finds that the 2021 Form is irrelevant and inadmissible under Federal Rule of Evidence 401 and excludes it at trial.2 Moreover, even if the 2021 Form were admissible, the Court finds that it is excluded under Federal Rule of Evidence 403 because any probative value it arguably has is substantially outweighed by a danger of unfair prejudice, confusion of issues, and misleading the jury.

2 The government has stated that it intends to call Gordon Cleveland, a gun shop employee, who will testify that he watched Defendant fill out Section A of the Certified Form and that Defendant checked “no” to question 11e about being an unlawful user or addict. Both the Certified Form and the 2021 Form have the same check mark (“X”) responding “no” to question 11e. The addition of “DE VEHICLE REGISTRATION” to a different section of the 2021 Form after the Defendant filled it out does not have “any tendency to make” those two facts, which are “fact[s] of consequence in determining” the charges – that he filled it out and that he said he wasn’t an unlawful user of or addicted to a controlled substance – more or less probable. F.R.E. 401. The Court also agrees with the government that Defendant’s conspiratorial theory about “doctored” forms and currying favor with the government is unsupported rhetoric, which would be prejudicial and confusing to the jury.

One reason her logic he is especially problematic is because it’s clear the form wasn’t prepared at once. The multiple colors make it clear that the date on Gordon Cleveland’s signature — the employee on the hook for selling a gun without seeing an ID with an address on it — was added after the fact, and probably by someone else (Cleveland reportedly testified that his colleague wrote everything in red ink).

Noreika likely credited something misleading Derek Hines said in a reply posted shortly before her order which cites to it (he has, repeatedly, projected his own inaccurate claims onto Abbe Lowell, and this may be an instance where, at the very least, Hines misunderstood a reference Lowell made).

Hines took what appears to be a reference to Cleveland saying he never saw a Delaware registration, and instead insinuated that by that reference to “a second form of identification,” Lowell instead referred to what the FBI showed Cleveland, rather than what Hunter did.

Cleveland has been entirely consistent on the issue of identification in the two interviews where it came up. Defendants claims he has offered an “evolving story,” but that characterization is not accurate based on defendant’s own quotes from Cleveland’s Jencks material. Supp. Resp. at 5. The only form of ID Cleveland saw was the passport. He never saw a Delaware vehicle registration and never claimed to. Instead, in both interviews he stated that Turner, who handled the background check, may have, but Cleveland didn’t have first-hand knowledge of whether he did or didn’t. In his first interview on September 27, 2021, Cleveland told investigators:

“He said he would provide the copy of the U.S. Passport and the firearm information on a sheet of paper to the person sending the background check in. Mr. Cleveland said he did not see the document [a second form of identification] with the ATF Form 4473 he was shown [by the Agent on September 27, 2021].” (TAB 3, 10/12/21 ATF EF 3120 at 2, ¶6) (emphasis added). Supp. Resp. at 5 (emphasis added).

The government at this point is obligated to point out that the defendant is again making malpresentations to the Court. In the above quote from his filing, the defendant inserted brackets into a real quote from the September 27, 2021, interview report for Cleveland. The defendant writes in those brackets that “Mr. Cleveland said he did not see the document [a second form of identification] with the ATF Form 4473 he was shown [by the Agent on September 27, 2021]. Supp. Resp. at 5. What defendant inserted into those quotes in brackets isn’t accurate. The ATF never showed Cleveland “a second form of identification.” If you look at the report, which defendant has and attached to his filing, it says that the only documents that were shown to Cleveland, at any point during the interview, were the following:

The ATF did not show Cleveland “a second form of identification,” as the above list of documents make clear. Defense counsel made that up. What defense counsel chose not to quote from that report was the next sentence: “He said Jason Turner may have gotten the vehicle registration due to the U.S. Passport issue.” As defendant noted, Cleveland was not asked any questions about the form of identification that was used in the grand jury so there is nothing inconsistent between his first interview and his grand jury testimony.

Finally, when asked in his second interview on May 17, 2024, about identification he repeated that he only saw the passport and did not see a Delaware vehicle registration:

When Biden presented his passport as identification, Cleveland went into the back and asked Ronald Palimere and Jason Turner if it could be used. Cleveland recalls going back out to Biden and saying something to the effect that if Biden was going to use a passport, they would need another form of identification. [] Cleveland thinks Biden went outside and got something, but he can not say with certainty. Cleveland would not have paid attention to the paperwork side of the sale because he had already done his part by working with the customer and making the sale. Cleveland does not think they would have competed the sale without the second identification, though. (TAB 3B, 5/17/24 Cleveland FD-302 at 1). Supp. Resp. at 5. [Hines’ bracket, which I’ve bolded, only marks paragraph break; my italics]

In every interview Cleveland stated that Turner handled the part of the form that covered forms of identification, Section B, and he, Cleveland, watched the defendant fill out Section A, where the defendant records information about himself and answers the required questions, including the one that is the basis of the charges, namely, whether he was an unlawful user of or addicted to a controlled substance. Here is what Cleveland said in his first interview:

Defendant claims “Palimere was in discussions with Cleveland and Turner on that date about what was and was not on the form and, thereafter, the sale would be made regardless of legal compliance concerns.” Supp. Resp. at 7. That is not true. Defense counsel made that up, too. And the best evidence it is not true is that defendant cites nothing from any grand jury transcript or interview report in support of that assertion in his supplemental response. To be clear, no one has testified or stated in an interview—not Cleveland, not Turner and not Palimere—that they discussed “what was and was not on the form.” All that was discussed was whether a U.S. Passport could be accepted as a form of identification and whether a Delaware vehicle registration was needed as a second form of identification. And no one has testified or stated in an interview—not Cleveland, not Turner and not Palimere—that they discussed “the sale would be made regardless of legal compliance concerns,” because no such discussions occurred. [my italics]

The quote Hines accuses Lowell of excluding — that Jason Turner may have gotten a second form of ID — is utterly consistent with the reading that Lowell was referring to what Hunter showed Cleveland, not what the FBI did.

Even based off what is public, Hines appears to be misreading the rest, too.

Palimere, the gun shop owner, was in discussions with both Cleveland and Turner about what would be used on the form (the passport only). And while inapt, I believe Palimere’s testimony is only consistent with a claim that the sale would be made regardless.

That’s because it was made regardless, after a discussion about whether to get anything more.

In the case of Biden’s sale, Gordon Cleveland, was the salesman. Palimere was sitting at his desk in the back and Cleveland said something to the effect of, “Hey, Hunter Biden’s here. He wants to use his passport.” Palimere was familiar with Biden’s father’s not being a gun supporter so Palimere thought it would be bad for Palimere’s business to have Hunter Biden seen in his store. Palimere wanted to get the sale completed and get Biden out of the store, so Palimere said yes to using the passport as identification. Palimere never interacted with Biden.

[snip]

Normally, they would call a customer if they found an error/omission and needed to annotate the Form 4473. The ability to annotate the Fom 4473 is allowed by the ATF. For this case, a typical customer would have been called and told they needed to come back in and bring registration to show the residency.

Palimere was not about to call Biden. Palimere felt they could not have him come into the store. Plus, Palimere did not want to contact Biden and tell him he needed to come in and he was being investigated.

We can’t be sure (Lowell submitted his filing under seal because it included grand jury and non-public exhibits), but Hines’ representations seem to take imprecise comments from Lowell and read them in a way that makes no sense.

Noreika’s ruling becomes a problem (and likely will require at least clarification) for two reasons that seep into Hunter Biden’s Sixth Amendment right to impeach the government’s witnesses.

First, in the order, Noreika prohibited all discussion of political bias, which Hines suggested Lowell wanted to present exclusively through Palimere’s efforts to make this public before the 2020 election.

3. Questioning, testimony, evidence or argument, including but not limited to, the additional exhibits designated by the Defendant as tabs “6-6C” to his supplemental submission regarding any witnesses’ political bias are excluded from introduction or admission at trial because such questioning, testimony, evidence or argument is not relevant, is unduly prejudicial and invites nullification.3

3 The Court agrees with the government that the political views expressed in 2020 by the gun shop owner, Palimere (who did not witness Defendant fill out Section A of the Certified Form or check the box for question 11e in 2018), are sideshows aimed at tainting or confusing the jury. [my italics]

But Palimere described that he made an affirmative decision to treat the sale to Hunter Biden differently because of who his father is. Palimere freely confessed that he sold a gun without requiring the proper paperwork because Joe Biden is not a gun supporter.

Palimere was familiar with Biden’s father’s not being a gun supporter so Palimere thought it would be bad for Palimere’s business to have Hunter Biden seen in his store. Palimere wanted to get the sale completed and get Biden out of the store, so Palimere said yes to using the passport as identification.

This is politics. It affected the sale. Noreika doesn’t want that to come in because explaining that the gun store didn’t follow the rules with the sale to Hunter Biden and that they did so because of Joe Biden’s politics would be unduly prejudicial.

That strips Hunter of the ability to present key details about the sale.

And Noreika’s ruling may prevent Hunter from impeaching Cleveland.

A prosecutor can’t simply claim, nope, these statements Cleveland made about the form are not inconsistent. That usurps the role of the jury.

And they are inconsistent. In the first interview, Cleveland said that if a second ID was really requested, Turner handled it (it’s unclear whether Turner ever came to the front room, but since he’s the guy who doctored the form, it would be significant if he did). In the second interview, Cleveland claimed to remember asking for it. If his memory is inconsistent on that point, there’s no reason to credit his memory about how the form was filled out.

That, coupled with Cleveland’s claim he didn’t much care about the paperwork, should be fair game for questions about whether Hunter Biden’s part of the form really was filled out properly. As it is, Cleveland has signed the form even though he didn’t do key parts of it. But Noreika’s exclusion of the form will make it nearly impossible to argue that Cleveland’s testimony about the form is inconsistent.

Judge Maryellen Noreika may think it’s a conspiracy theory that the gun shop doctored the form because they wanted to get Joe Biden’s kid out of the shop quickly. Except it is also precisely what the gun shop owner’s testimony says.

Update: One piece of timing of note. ATF picked up the physical form on September 24, 2021. Cleveland was first interviewed on September 27, 2021. It appears they had to have used the physical form, not the scanned one, not least because the reference to the DE registration only appears on page 2 in the form, not the scan (which has a cover sheet). He was not interviewed again until a grand jury appearance. We know investigators did no basic investigative steps (getting a warrant, sending the pouch to be tested) until after the actual indictment.

Which makes me wonder whether they decided not to pursue charges because of this form and now are just (successfully, so far) bulldozing past this real evidentiary problem.

Update: According to the 302 from Cleveland’s May 2024 interview, he stated that he would not have paid attention to the paperwork side of the sale.

Cleveland thinks Biden went outside and got something, but he can not say with certainty. Cleveland would not have paid attention to the paperwork side of the sale because he had already done his part by working with the customer and making the sale. Cleveland does not think they would have competed the sale without the second identification, though.

This is a stunning comment from someone whose name is on the form transferring the gun. I could certainly see questioning about why he signed off on a form without personally taking responsibility for the paperwork, not least because he recognized the passport was not sufficient. His boss has basically put him in a position where he’s on the hook for a crime.

Now, he may contest this representation — 302s are only used to refresh memory, they never go back to the jury.

But if he does, it would be his word against the FBI agent who’ll submit much of the rest of the case, because they broke FBI protocol by not having a second FBI agent there. So Cleveland may be in the position of having to admit he violated gun purchase laws, knowingly, or trying to undercut another key witness.

Chris Kise Asks Aileen Cannon to Sanction Jack Smith because Chris Kise Doctored a Filing

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After Jay Bratt asked Aileen Cannon to modify Donald Trump’s bail conditions to prevent him from making up claims that the FBI tried to assassinate him, Trump’s team has not responded. Instead, they filed a motion to strike the request and impose sanctions because — they claim — Bratt did not meet and confer before filing the motion.

The motion, like most other ones these guys have filed, is largely manufactured. They’re pissy that Bratt filed this on a Friday before Memorial Day, they’re pissy that Bratt refused to wait until Monday to submit the filing, they’re pissy that Bratt summarized their objection rather than quoting a long complaint verbatim.

There are rules. You guys violated them. I appreciate the attempted explanation, but it does not in any way pacify us. I am beyond amazed that the government would misrepresent facts to the Court about what happened. You did not even bother to inform the Court that you reached out to us for a “meet and confer” at 5:30 p.m. on Friday night of Memorial Day weekend before filing the motion at 8 p.m. I’m confused as to why you think we could not meaningfully meet and confer about a path forward short of a motion. You did not even bother to inform us of the posts/fundraising emails that gave you all concern until 20 minutes before you filed the motion. We would have been more than willing to discuss with you your concerns prior to filing the motion. You had an agenda and you stuck to that agenda. It is not surprising, but still disappointing. The Court may agree with you that the path you chose was the right one. I do not know.

But please do not try to justify a blatant violation of the rules (and beyond the Local Rules, Judge Cannon’s admonition to all of us last summer). You all made a decision tonight to file this motion without complying with the rules (Local Rules and Judge Cannon). That is your decision.

Nowhere do they address the underlying complaint: that Trump was ginning up false claims of assassination attempts based off Trump’s own lawyers doctoring of the Use of Force Form.

They even claim that Trump’s Truth Social claims are alleged, perhaps blaming Natalie Harp again for authoritarian games.

But that, of course, means it’s likely to work perfectly for Judge Cannon, who otherwise was stuck with a choice of preventing Trump from making false claims or being appealed.

Update: Cannon catered to Trump, once again.

PAPERLESS ORDER denying without prejudice for lack of meaningful conferral 581 the Special Counsel’s Motion to Modify Conditions of Release. Upon review of the Motion 581 [581-1], Defendant Trump’s procedural opposition 583, and the attached email correspondence between counsel [583-1], the Court finds the Special Counsel’s pro forma “conferral” to be wholly lacking in substance and professional courtesy. It should go without saying that meaningful conferral is not a perfunctory exercise. Sufficient time needs to be afforded to permit reasonable evaluation of the requested relief by opposing counsel and to allow for adequate follow-up discussion as necessary about the specific factual and legal basis underlying the motion. This is so even when a party “assume[s]” the opposing party will oppose the proposed motion [583-1], and it applies with additional force when the relief sought — at issue for the first time in this proceeding and raised in a procedurally distinct manner than in cited cases — implicates substantive and/or Constitutional questions. Because the filing of the Special Counsel’s Motion did not adhere to these basic requirements, it is due to be denied without prejudice. Any future, non-emergency motion brought in this case — whether on the topic of release conditions or anything else — shall not be filed absent meaningful, timely, and professional conferral. S.D. Fla. L.R. 88.9, 7.1(a)(3); see ECF No. 28 p. 2; ECF No. 82. Moreover, all certificates of conference going forward shall (1) appear in a separate section at the end of the motion, not embedded in editorialized footnotes; (2) specify, in objective terms, the exact timing, method, and substance of the conferral conducted; and (3) include, if requested by opposing counsel, no more than 200 words verbatim from the opposing side on the subject of conferral, again in objective terms. Failure to comply with these requirements may result in sanctions. In light of this Order, the Court determines to deny without prejudice Defendant Trump’s Motion to Strike and for Sanctions 583 . Signed by Judge Aileen M. Cannon on 5/28/2024. (jf01) (Entered: 05/28/2024)

Jack Smith Invites Aileen Cannon to Protect the Country Rather than Just Donald Trump

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Jack Smith has asked Judge Aileen Cannon to prevent Trump from lying about a plot to assassinate him, as he has done since propagandist Julie Kelly made a stink about a routine Use of Force form Trump himself released and misrepresented and created a false scandal. But there’s a detail about how he asked the deserves attention.

The motion describes how Trump filed that routine form, without tying to his demand for suppression, and then started lying about it, only to have other propagandists (it includes an example from Steve Bannon’s show) join in.

On February 22, 2024, Trump filed under seal a motion to suppress evidence obtained through the search of Mar-a-Lago. See ECF No. 566. In setting forth what he described as the relevant facts, Trump stated that the Operations Form “contained a ‘Policy Statement’ regarding ‘Use Of Deadly Force,’ which stated, for example, ‘Law enforcement officers of the Department of Justice may use deadly force when necessary [sic] . . . .’” Id. at 4. Although Trump included the warrant and Operations Form as exhibits to his motion, the motion misquoted the Operations Form by omitting the crucial word “only” before “when necessary,” without any ellipsis reflecting the omission. The motion also left out language explaining that deadly force is necessary only “when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or to another person.” Compare ECF No. 566-3 at 11 with ECF No. 566 at 6. Notwithstanding the misleading characterization of the use-of-force provision when describing the search, the motion did not seek suppression based on the policy, claim that the agents had acted inappropriately in following that standard protocol, or otherwise rely on the policy as part of the argument. See ECF No. 566 at 12-13.

On May 21, 2024, Trump filed a redacted version of his suppression motion and exhibits on the public docket. See ECF No. 566. The next day, Trump publicly claimed that he was just “shown Reports that Crooked Joe Biden’s DOJ, in their illegal and UnConstitutional Raid of Mara-Lago, AUTHORIZED THE FBI TO USE DEADLY (LETHAL) FORCE.” Exhibit 1. Trump also sent an email stating that the government “WAS AUTHORIZED TO SHOOT ME,” was “just itching to do the unthinkable,” and was “locked & loaded ready to take me out & put my family in danger.” Exhibit 2. Trump also publicly claimed that, “[s]hockingly,” the Department of Justice “authorized the use of ‘deadly force’ in their Illegal, UnConstitutional, and Un-American RAID of Mar-a-Lago, and that would include against our Great Secret Service, who they thought might be ‘in the line of fire.’” Exhibit 3. Predictably and as he certainly intended, others have amplified Trump’s misleading statements, falsely characterizing the inclusion of the entirely standard useof-force policy as an effort to “assassinate” Trump. See Exhibit 4. [my emphasis]

Now, that could have been all that Smith needed to do. As he lays out, Judge Cannon has the authority under the Bail Reform Act to modify Trump’s release conditions to protect the safety of the community.

Under the Bail Reform Act, a “judicial officer shall issue an order that, pending trial, the [defendant] be” either released on personal recognizance or an unsecured bond, 18 U.S.C. § 3142(a)(1), released “on a condition or combination of conditions under subsection (c),” id. § 3142(a)(2), temporarily detained pending revocation, deportation, or exclusion, id. § 3142(a)(3), or detained, id. § 3142(a)(4). Here, Trump was released on conditions under subsection (c). ECF No. 17.

Subsection (c) provides that, if a person is released on conditions, the “judicial officer shall order the pretrial release of the person” subject to (1) “the condition that the person not commit a Federal, State, or local crime during the period of release,” and (2) “the least restrictive further condition, or combination of conditions that such judicial officer determines will reasonably assure the appearance of the person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(c)(1)(A), (B). The statute then lists several “further condition[s]” that the release order “may include.” As relevant here, those further conditions include that the defendant “satisfy any other condition that is reasonably necessary to assure the appearance of the person as required and to assure the safety of any other person and the community,” id. § 3142(c)(1)(B)(xiv). Subsection (c) further provides that “[t]he judicial officer may at any time amend the order to impose additional or different conditions of release.” Id. § 3142(c)(3).

The Court should exercise its authority to impose a condition that Trump may not make public statements that pose a significant, imminent, and foreseeable danger to the law enforcement agents participating in the investigation and prosecution of this case

But Smith didn’t stop there. Even before that, Smith invoked an argument Judge Cannon made herself last year, when choosing to stick her nose into the public reports that Jay Bratt was mean to Stan Woodward.

The Court has an “independent obligation to protect the integrity of this judicial proceeding,” ECF No. 101, and should take steps immediately to halt this dangerous campaign to smear law enforcement.

This is, at the very least, a subtle dig. Cannon has gone out of her way (with the original search, and then on two of these such occasions) at least three times to protect Trump.

But she has done nothing as Trump, “irresponsibly put a target on the backs of the FBI agents involved in this case,” as the filing describes.

At least one attorney has suggested that Cannon could ding Chris Kise for leaving out the limitations and thereby giving the Use of Force policy the opposite meaning than it really has (bolded above), setting up this propaganda attack.

Instead, Smith has used it as an opportunity to either force Cannon to rein Trump in — or to demonstrate that her bias in this case is contributing to a very dangerous situation.

Derek Hines’ Disappearing [Three Colors of] Ink

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In his bid to prevent Abbe Lowell from telling jurors about how the gun shop at which Hunter Biden bought a gun doctored the form on which he is accused of lying, Derek Hines told Judge Maryellen Noreika that Lowell had “inaccurately” claimed there were three or four differences between the original purchase record emailed to ATF and one altered three years later.

[A]t the hearing on May 14, 2024, the defendant inaccurately stated, “There are three or four changes on that form.” Hrg. Trans. at 39:13. That claim is incorrect. As described above, there were only two additions to the Certified Form 4473 after it was filled out on October 12, 2018. [my emphasis]

Hines restated Lowell’s description — “changes” — to address “additions,” and then accused Lowell of inaccuracy.

But he’s covering up that on top of two additions — one an attempt to make it look like the shop had not unlawfully sold Hunter Biden a gun using only his passport as ID — the purported physical copy was instead some kind of scan that hid the fact that the guy who sold Hunter the gun used three different colored inks: Black when he (or someone else) sold Hunter Biden a gun without viewing ID with his address on it.

 

 

Red when he recorded the NCIS background check.

 

 

And blue when he signed it, possibly without a date.

 

 

As Lowell noted in his response revealing the multiple colors, at the status hearing where he first raised this, Hines told Judge Noreika that the doctored form — the one he wants to exclude — had more evidentiary value than the original one, because it reflected Hunter showing a second form of ID.

MR. LOWELL: In terms of form, on Friday, the Government explained to us something that we asked them about that was in their discovery, but I did not understand the ramifications until Friday.

The 4473 form that is the subject of one of the counts, the Government produced two versions of that to us. One, they indicated a week or so ago that they are going to seek into evidence for it being the contemporaneous filing of the form in October of 2018.

On Friday, they informed us that the second form that was in discovery came to them in 2021, I believe. And we didn’t know that. And it’s a different form. I mean, it’s the same form. It has different material on it. And when that was put on and who put it on, we asked them on Friday, and they said they do not know.

So, consequently, that becomes a subject of importance to us as to how the actual form that will be the one that they’re not putting into evidence — by that, I mean the physical form that they obtained from the gun shop in 2021 is the form.

What they are seeking to put into evidence is a faxed or PDF’ed copy of that from October. The actual form has new handwriting on it, which is why we’re looking into that issue as well. And I didn’t know that until Friday.

So there are some things that I am asking that I have the ability to present in the way of experts, and we’re doing the best we can on that.

[snip]

MR. HINES: With respect to the Form 4473 and the two versions, there are two forms 4473 produced in discovery. This isn’t a nefarious issue.

In October of 2018, the store owner of Starquest e-mailed the form that Hunter Biden had signed, prepared, and was dated on that date, to an ATF agent. That form has been produced in discovery. All of the boxes on that form, with the exception of one box, matched a form that was later turned into the ATF approximately two years later, in, I believe, 2021; although, we’ve given the exact date to defense counsel. And the only difference is in that intervening period, someone had written Delaware Vehicle Registration on one of the lines, as an additional ID that Mr. Biden had presented.

So, frankly, that latter form is, from an evidentiary perspective, more valuable to the Government because it’s one more indicia of identity that Mr. Hunter Biden had given to the Starquest owners and salespersons when he bought that gun. [my emphasis]

Hines went on to explain to Judge Noreika that he thought it was a nonissue that the gun shop was doctoring forms years after the fact, which is a pretty weird claim from prosecutors insisting that Hunter Biden face consequences for allegedly lying on that same form five years ago.

Nonetheless, out of fairness, we have agreed that we should be using the form as it existed in October of 2018 that’s attached to an e-mail and has been authenticated by Starquest so that there’s no ambiguity or uncertainty regarding when the Delaware vehicle registration was written on there because that could have been done years later in advance of turning it into the ATF. We don’t know exactly when or who did that, but we think that this is really a nonissue, nonevent.

THE COURT: In advance of turning it in to the ATF, but the e-mail was turning it in to the ATF already?

MR. HINES: The e-mail was to the ATF. So the AFT [sic] has this e-mail. That’s been produced in discovery. That e-mail attaches the form that existed without that one — it says — I think the line item is like 19, and it says “supplemental identification,” and they had written “Delaware vehicle registration” on the later — on the version that was turned into ATF. But in the e-mail, it’s the form that existed at that time, with that box left blank. So that’s the form we’re going to use for trial because that is exactly what he filled out at that time.

[snip]

MR. LOWELL: The 4473 form is much more complicated than Mr. Hines would indicate. There’s not just one change on that form. There are three or four changes on that form.

There’s a number on the top right for the person who sold the gun’s identification number. There’s another change on it. And the idea that after the fact somebody put car registration, that’s a significant event in terms of Your Honor and the jury’s consideration because the form that they say is the critical aspect of one of the counts in this case that includes the identification being a passport is not an acceptable form of identification. It doesn’t include the person’s address. It should never have been accepted as a piece of identification. And somebody figured that afterwards. And then tried to fix it. And that should be a subject of the value of that piece of evidence in front of this Court and a jury. Those are issues we’re pursuing. And I didn’t know about the last one’s significance of when that came about until Friday.

Of course, that was before the prosecution quickly reinterviewed the gun shop guys, only to discover that their immunized gun shop owner (who, Lowell explained in his response, “drew media attention in October 2020, during the election campaign, and conspired with others shortly before the 2020 election to publicize aspects of Biden’s gun purchase”) tried to make it look like they had complied with the law after the fact.

As Lowell notes, this significantly increases the import of the immunity prosecutors have granted Palimere.

Making changes as Palimere did and submitting those to law enforcement would subject the gun shop to fines, revocation of its license, and possibly criminal penalties for falsifying a federal form.

Palimere gets to stay in business, but Hunter Biden faces prison for owning a gun for 11 days over five years ago.

I had already been wondering whether the dodgy forms explained Lesly Wolf’s decision to resolve the gun charge with a diversion agreement. All the more so given this detail: When prosecutors provided this form in discovery last October, they provided a photocopy, hiding the different color inks.

When the doctored form was reproduced to Biden in discovery, it was a black-and-white photocopy with none of the colors from the original, obscuring who filled out portions of the doctored form.

First Derek Hines hid that from Hunter Biden, and then he tried to hide it from Judge Noreika.

And remarkably, when FBI Special Agent Erika Jensen reinterviewed Gordon Cleveland (by herself) on May 16, she didn’t ask him why he used three different colored inks to fill out one form, purportedly all while Hunter Biden waited.

Timeline

October 12, 2018: Gun purchase

October 23: Hallie throws gun away

October 24: Secret Service and Delaware cops start investigating; ATF Special Agent James Risch advises shop only to hand over copy (which would hide multiple colors)

October 26: Shop sends form to ATF, without serial number

September 23, 2021: Gun shop turns over doctored physical form to ATF

April 16, 2024: On call with Lowell, prosecutors tell him he can inspect physical items; date of 302 including details about form

April 23: Gun shop manager certifies black-scanned form as authentic

April 24: Letter from prosecutors reiterates offer to inspect physical items

May 3: Deadline prosecutors impose for challenges to authenticity

May 10: Lowell asks why there are two versions of the forms

May 14: Lowell describes changes to physical form at status conference

May 16: Erika Jensen reinterviews sales clerk Gordon Cleveland (alone) and shop owner Ronald Palimere (with Hines and pursuant to a proffer)

May 20: Hines moves to exclude the doctored form

May 23: Lowell response includes multi-colored form

Natalie Harp: Gatekeeper to the Reich

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I want to unpack a Marc Caputo story about Natalie Harp, who he says is the person who posted the Reich meme video to Trump’s Truth Social account this week.

Trump’s account posted the Reich video on Monday.

On Tuesday, AP identified a troll (which it describes as a “meme creator”), Ramble_Rants, as the source of the video, and a Wikipedia entry on WWI as the source of the Reich image.

At least one of the headlines flashing in the video appears to be text copied verbatim from a Wikipedia entry on World War I: “German industrial strength and production had significantly increased after 1871, driven by the creation of a unified Reich.”

In one image, the headlines “Border Is Closed” and “15 Million Illegal Aliens Deported” appear above smaller text with the start and end dates of World War I.

The video appears to have been created by a meme creator who goes by the username Ramble_Rants.

The creator, who is part of a group of meme makers that The New York Times reported has previously collaborated with the Trump campaign, posted the video on the social platform X Monday morning.

In a post on X, Ramble_Rants defended the video, arguing it was about “American peace and prosperity.”

Then Media Matters described (as the earlier NYT story also had) that Ramble_Rants is part of a trolling group, led by a guy named Brenden Dilley, that the Trump team has closely integrated with the campaign.

Regardless of the intention behind the video Trump shared, Dilley and his team’s association with the Trump campaign is noteworthy.

Trump and his campaign have repeatedly shared the meme team’s material, and the campaign reportedly “privately communicated with members of the meme team, giving them access and making specific requests for content,” and “in at least one instance … shared behind-the-scenes footage to be used in videos, according to members of the team.” Trump has been photographed with Dilley and reportedly “sent personalized notes to several of the group’s members, thanking them for their work.”

Additionally, Dilley disclosed that the campaign gave him and another member of the meme team a “special” and “exclusive” press credential for the campaign’s Iowa caucuses night, where “you hang out with all these wonderful people, and Don Jr. comes through, and Eric Trump comes through, and pretty much the entire Team Trump comes through.” (Reporting has indicated that several journalists from mainstream publications, including The Washington Post, NBC News, Axios, and Vanity Fair, have been denied press access to Trump’s campaign events.)

What we’re seeing is the War Room in which Douglass Mackey, Microchip, and Don Jr collaborated to hijack mainstream news narratives together in 2016, integrated more closely with the campaign. It’s not surprising Trump did that. Even in 2016, Baked Alaska described a Trump HQ Slack that was “coordinat[ing] efforts.”

Remember: Andrew Auernheimer, better known as Weev, and then still posting under his handle rabite, was a key early player in professionalizing that effort, even as he was serving as Webmaster for the Daily Stormer.

Given that pure Nazi lineage, the Nazi allusions are surely not happenstance.

In a post called Elon Musk’s Machine for Fascism, I described how since 2016, trolls and their overlords have been working to perfect the conditions that allowed such trolls to have a significant influence in the 2016 election and an even bigger influence in Trump’s attempted coup. One of the only things that stopped the trolls, and Trump, from sustaining his coup attempt after January 6 was Twitter suspending Trump’s account. This time around, neither Elon Musk nor Trump’s own social media platform will do that. Nor will Telegram, where the organizing function for all this trolling has moved offshore, away from the easy reach of US legal process, shut anything down.

All of which is to say, the Reich meme is not some random mistake. Rather, it is the manifestation of a trolling effort with roots in overt Neo-Nazism that goes back to 2015.

Which brings us back to what Caputo did in a story identifying Natalie Harp as the person who posted the Reich meme to Trump’s account.

Caputo is a Florida-based journalist with very extensive sourcing to the far right. He was recently on Roger Stone’s show. His legal instincts — pretty clearly just parroting of what Trumpsters tell him to say — suck ass, but his political instincts are formidable.

About 16 paragraphs into his story, after he presented Harp’s role in printing out content from social media and right wing sources to placate the boss, and after he described Harp’s trajectory from Liberty University to being cured of cancer by a Trump initiative to working for the 2020 campaign to working for OANN to now driving his social media account, Caputo finally got around to identifying Harp as the culprit behind the Reich meme.

Harp also helps manage Trump’s Truth Social media account and has taken over some of the duties from Trump’s former caddy-turned-senior-adviser Dan Scavino.

This can be a taxing job. On Monday, while he was on trial in New York, Trump’s Truth Social media account reposted a video, published first on X by a supporter using the handle @ramble_rants, called “What happens after Trump wins?” The video featured mock old-fashioned newspaper headlines. One of the sepia-toned faux-newspaper stock images included the phrase “Unified Reich.” Maybe not the best look for a candidate who has dined with actual neo-Nazi Nick Fuentes and “joked” that he would like to be a dictator for a day.

After the Associated Press reported about the video, the Trump campaign deleted the Truth Social post and said Trump wasn’t at fault.

“This was not a campaign video, it was created by a random account online and reposted by a junior staffer who clearly did not see the word, while the President was in court,” Trump campaign spokeswoman Karoline Leavitt said in a written statement that accused Democrats of being more antisemitic than Trump. The campaign wouldn’t identify the name of that “junior staffer,” but sources tell The Bulwark it was Harp. Scavino, one of the few others who has access to Trump’s Truth Social account, isn’t a “junior staffer.” Harp couldn’t be reached for comment.

In most outlets, this would be the scoop, in paragraph one and two, rather than buried 16 paragraphs deep. But that’s not the premise of Caputo’s story. That’s not what a political reporter with very good sourcing in the Florida far right focuses on. Caputo is more interested in Harp’s role as a gatekeeper, which he puts in paragraphs four and five.

Perhaps more than anyone else, Harp gatekeeps much of what Trump sees on social media and reads in the news.

“IF YOU WANT THE PRESIDENT TO SEE SOMETHING, the best route is Natalie,” says a knowledgeable source who spoke on condition of anonymity to describe the internal workings of Trump’s inner team and who has passed information to the candidate via Harp. “Don’t underestimate her importance.”

Caputo is not wrong to find this an important point of emphasis (though some people contest it). Dan Scavino has had a near monopoly on Trump’s social media accounts since 2016. Anyone joining him in that role does play an absolutely central role in his means to power. And to the extent that Trump has moved off reading things on his own phone and instead reading what Harp prints out (is Trump’s eyesight getting worse, or is he simply more paranoid?), she does play an absolutely central gatekeeping role.

Dick Cheney’s memoir included a single solitary hint about the lessons he learned, not least as a very young White House Chief of Staff, that allowed him to become the most formidable DC bureaucrat for almost 50 years: to park someone outside the President’s office. Effectively, Harp is the person parked outside Trump’s digital office.

Caputo’s story, then, is that the woman who posted a meme that was interpreted — with good reason — as an intentional allusion to Nazism happens to be the person parked outside Trump’s digital office.

Harp’s key role may be why Caputo described posting that Reich meme as nothing more than, “Maybe not the best look.” Because she’s not going to get fired for doing so.

All the more so for another reason. Around about paragraph 21, Caputo describes that Susie Wiles and Chris LaCivita “don’t directly oversee Harp and … essentially leave her alone.”

“No one spends as much time on this campaign around him as Natalie,” said one insider. “If people think she’s an airhead because of her looks, they don’t understand how smart she is and how much the president relies on her.”

The campaign’s co-managers, Susie Wiles and Chris LaCivita, don’t directly oversee Harp and, the source said, and essentially leave her alone.

“Natalie fills a role and Chris and Susie know that’s what he wants,” the source said, “so they focus on other things.”

Again, if true (it appears to be single sourced), it is a really important insight: Trump’s digital gatekeeper doesn’t work for the ostensible campaign managers. The campaign — which serially offers statements in response to reporting on Project 2025 claiming that unless something comes from the campaign then it is not official policy — does not control Harp.

Caputo’s source claims that the campaign doesn’t control what comes in and out of Trump’s digital persona. Harp does.

And people amenable to fascism know that, and know how to exploit it.

Hunter Biden Prosecutor Leo Wise Aspires to Be the James Comer of John Durhams

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In a filing submitted last week opposing Hunter Biden’s [surely doomed] bid for a continuance of his California trial until September, Leo Wise argued that this is just a garden variety tax case that doesn’t merit any more time to prepare than the week between the Delaware case and the California case.

The defendant claims that he requires only “a small amount of additional time to adequately prepare” ECF 97, p. 5 (emphasis added). However, he asks for this “limited reprieve,” ECF 97, p. 4, of 77 days without providing any details about how those two and half months would be utilized. His filing is simply unclear about what the defendant would actually do with any additional time. His perception of this case as “uniquely challenging and high-profile,” ECF 97, p. 5, is unlikely to change if a continuance is granted. The fact that there may be more press coverage of this trial than others does not affect the preparation required by counsel in any way. This is a straightforward tax case, and the defendant has not alleged otherwise. He is not above the rule of law and should be treated like any other defendant. Every case has pretrial deadlines; the fact that they exist here cannot support a continuance request. Given the complete lack of specificity as to what needs to happen between now and trial (other than compliance with the usual pretrial deadlines which the defendant has known about since January), the factor of usefulness does not support a continuance. [my emphasis]

But a motion in limine filed by Hunter Biden reveals that claim is false.

Wise has no intention of treating this as a straightforward tax case.

After Hunter Biden agreed, in response to Weiss’ own motion in limine, not to mention how Leo Wise had been badly duped by Alexander Smirnov and instead of dropping the case, continued to give Russia what it intended all along, a political hit job on Joe Biden during the 2024 election, Hunter asked David Weiss’ team if they would likewise agree not to make this a trial about influence-peddling.

Weiss refused.

Defendant Robert Hunter Biden, by and through his counsel of record, hereby files this Motion in Limine to exclude from trial reference to any allegation that Mr. Biden (1) acted on behalf of a foreign principal to influence U.S. policy and public opinion, (2) violated FARA, (3) improperly coordinated with the Obama Administration, (4) received direct compensation from any foreign state, (5) received compensation for actions taken by his father that impacted national or international politics, or (6) funneled money to his father or any related alleged corruption (together, allegations of “improper political influence and/or corruption”). This evidence should clearly be excluded under the Federal Rules of Evidence 403 balancing test, as the risk of unfair prejudice is significantly outweighed by any marginal probative value. On May 17, 2024, Mr. Biden’s counsel asked for the Special Counsel’s position on this proposed motion in limine. On May 20, 2024, the Special Counsel indicated that he opposes this motion.

[snip]

Although the Special Counsel’s filed exhibit list (DE 88) contains upwards of forty descriptions that are totally insufficient to identify what document is being referred to (see, e.g., “Text Messages” (#073), “Notes” (#318)), it is clear that many exhibits the Special Counsel intends to introduce relate to allegations of improper political influence and/or corruption that are wholly outside of the scope of the Indictment. See, e.g., “Email from Eric Schwerin to Antony Blinken re: My Remarks In Latvia” (GX-267), “Email from Eric Schwerin to Sally Painter re: Amos Hochstein” (GX-262). Allowing in evidence or testimony related to the unsubstantiated claims of improper political influence and/or corruption run a real risk of the jury convicting Mr. Biden based on facts and allegations outside of the Indictment.

Defense counsel notes that it is ironic that the Special Counsel has filed a motion in limine to exclude evidence “alleging the prosecution of the defendant is somehow due to or part of a Russian malign election influence campaign,” which Mr. Biden did not object to. (DE 92 at 4.) Yet, the Special Counsel opposes the instant motion, which would preclude him from putting forward similar politically charged information to the jury. To prevent this trial from becoming a trial on politics rather than a trial on the charges in the Indictment, this Court should grant both the Special Counsel’s motion as it relates to a “Russian malign election influence campaign” and this Motion.

Having investigated for six years, David Weiss never substantiated a FARA case. But (as the exhibit list makes clear) he wants to drag that into what he claims is a straightforward tax case anyway.

The scope of Leo Wise’s aspirations to use the tax case as a vehicle to air James Comer’s fevered fantasies is made clear by something else Wise revealed in that same filing: The reason giving Hunter Biden more than a week between trials would harm the government is because they plan to make more than thirty people from around the country fly to California to testify against Joe Biden’s kid.

The defendant is not seeking a modest delay of a few days to obtain a piece of evidence or to procure a witness. He seeks a 77-day delay in a case the government has extensively prepared for following a detailed and lengthy investigation. This will inconvenience the United States. For instance, the government anticipates calling more than thirty witnesses, most of them out-of-state. See Declaration of Leo J. Wise, at ¶4 . Trial subpoenas began being sent to these witnesses over a month ago. Id. Many of these individuals are represented; the witnesses and their counsel have planned their summer schedules to account for this trial commencing in June and concluding in July.

You don’t need to call 30 witnesses to present your tax case against Hunter Biden!!

The key witnesses will be Hunter’s ex-wife, Katie Dodge, no more than eight people Hunter paid out of Owasco funds and then wrote off (including, it seems, Hallie Biden, whose testimony Weiss is compelling), maybe a sex worker or two to titillate Matt Gaetz (Weiss has similarly refused to exclude the sex workers), the accountant who filed Hunter Biden’s taxes in 2020, former Hunter business partners Rob Walker and Eric Schwerin, and some law enforcement witnesses to present all the paperwork. That’s around 16 witnesses.

If Weiss really does call over 30 witnesses, it will make this “straightforward tax case” into the largest Special Counsel trial in recent years (as laid out by the list below).

The sheer overkill of Leo Wise’s aspirations is clear when you compare Hunter’s case — for a failure to pay taxes from income that all came through the US — to Paul Manafort’s EDVA trial. Like the Hunter Biden case, that was a tax case, one for which tax evasion was charged for five years, not one, and one for which the scope of income was at least an order of magnitude larger. Because Manafort’s tax evasion involved keeping his Ukraine income offshore in Cyprus, that case also included charges of FBAR violations. It also included nine counts of bank fraud. So tax evasion, plus hiding his funds overseas, plus trying to cheat some banks in the US. Prosecutors called a bunch of local Alexandria vendors, because one way Manafort shielded his income was by wiring money directly to US vendors to pay for things like Ostrich-skin vests.

And for all that, at this stage of the proceedings, prosecutors estimated they would call 20 to 25 witnesses; they ultimately called 27.

Leo Wise wants to do something more spectacular than the Paul Manafort case — and given his close ties to Rod Rosenstein, I wouldn’t rule out the grandiosity of his aspirations as some kind of payback. Of course, there’s a straight through-line between the Manafort case and the Russian-backed effort to fuck over Joe Biden, so Leo Wise is giving Russia precisely what they wanted.

Leo Wise was sure he was smarter than Lesley Wolf and so chased the Alexander Smirnov allegation only to discover he was participating in an attempt to frame Joe Biden. Having been duped there, Leo Wise now refuses to back down. He will stage the most spectacular Special Counsel trial yet!

Update: My apologies to Judge Scarsi. He has apparently granted the continuance to September 5.

Other Special Counsel prosecutions

Scooter Libby: 10 Government Witnesses (plus three CIA briefers not called)

Roger Stone: 5 Government Witnesses (plus Andrew Miller, Michael Caputo, and Jerome Corsi, not called)

Michael Sussmann: 25 Government Witnesses (about 5 not called)

Igor Danchenko: 6 Government Witnesses

How David Weiss Plans to Prove the Gun Case against Hunter Biden

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In addition to their ham-handed attempt to cover up that the gun shop at which Hunter Biden purchased a gun fluffs gun purchase documents for “celebrity” purchasers, David Weiss’ team submitted their trial brief for the gun case yesterday. That, taken in conjunction with their Motions in Limine, provides a good sense of the gimmicks they plan to use to win the case against Hunter Biden. (You can find all these filings at my Hunter Biden page, which for the Delaware case is up to date.)

Ignore the Gun Shop’s Celebrity Treatment

As noted, David Weiss’ crack prosecutors only discovered that the gun shop had altered the Hunter Biden gun form after the fact when Abbe Lowell told them that at a status hearing last week.

They quickly reinterviewed gun shop employees, only to discover their testimony conflicts about whether they got that second form of ID in real time, or instead blew off doing so because Hunter was a “celebrity” purchaser and everyone knew his father.

In their belated motion in limine trying to prevent Hunter Biden from revealing that the gun shop altered this very form after the fact, prosecutors argue that relying on evidence about alterations made three years after the fact would amount to putting the gun shop owner on trial.

Except it’s not that simple. Both the 302 of the gun shop owner and the guy who sold the gun make it clear that someone in a back room is responsible for ensuring that the paperwork is in order, along with a clerk who handles the documents a third time. “He would not have paid attention to the paperwork side of the sale,” sales guy Gordon Cleveland told the FBI, “because he had already done his part by working with the customer and making the sale.” That is, the only guy in contact with the customer is not in charge of ensuring that the paperwork is in order — some guy in a back room, who submits the form to the authorities, is in charge of that.

Gun shop owner Ronald Palimere explained that his shop bifurcates the roles that way to “prevent errors.” Except even the tracking number did not get added to this form until after it was submitted to ATF; they appear to have added it after it was clear there was an investigation into the gun. The bifurcated role did the opposite of ensuring compliance.

In other words, if Judge Maryellen Noreika allows Hunter Biden to present this scandalous detail, it provides one way to sow doubt: if the gun shop was willing to alter the form three years after submission to belatedly comply with requirements, who’s to say they weren’t the ones who asserted that Hunter Biden wasn’t an addict?

Continue to Misrepresent Hunter Biden’s Memoir

When this is all said and done, I’m going to count the number of times that David Weiss and the two Trump-appointed judges justified this prosecution with a claim that everything they needed for the prosecution appeared in Hunter Biden’s memoir, with prosecutors and Judge Noreika all making false claims about what’s actually in the memoir, in the prosecutors’ case, repeatedly.

The problem is that Hunter actually didn’t say much about what happened between the time he returned to Delaware in October 2018 and when he went to Massachusetts for Ketamine treatment at the hands of Fox News pundit Keith Ablow that November. All those claims that the memoir provided abundant evidence to prove the gun case against Hunter? Nope.

And, as I’ve laid out repeatedly, what prosecutors once claimed showed the state of Hunter Biden’s addiction in October 2018, when he bought the gun, and still claim presents his continued state of addiction from October 2018, is actually his description of his addiction after (Hunter describes) the Ketamine treatment made it worse.

The therapy’s results were disastrous. I was in no way ready to process the feelings it unloosed or prompted by reliving past physical and emotional traumas. So I backslid. I did exactly what I’d come to Massachusetts to stop doing. I’d stay clean for a week, break away from the center to meet a connection I found in Rhode Island, smoke up, then return.

[snip]

Finally, the therapist in Newburyport said there was little point in our continuing.

“Hunter,” he told me, with all the exasperated, empathetic sincerity he could muster, “this is not working.”

I headed back toward Delaware, in no shape to face anyone or anything. To ensure that I wouldn’t have to do either, I took an exit at New Haven. For the next three or four weeks, I lived in a series of low-budget, low-expectations motels up and down Interstate 95, between New Haven and Bridgeport.

I exchanged L.A.’s $400-a-night bungalows and their endless parade of blingy degenerates for the underbelly of Connecticut’s $59-a-night motel rooms and the dealers, hookers, and hard-core addicts—like me—who favored them. I no longer had one foot in polite society and one foot out. I avoided polite society altogether. I hardly went anywhere now, except to buy. It was me and a crack pipe in a Super 8, not knowing which the fuck way was up. [my emphasis]

And they keep massaging this timeline. In their latest iteration in the trial brief, prosecutors try to minimize how long Hunter was in Ablow’s treatment (which, in any case, is inaccurate in Hunter’s book).

In his book, the defendant describes that he had a short stint at a therapistrun wellness center in Newburyport, Massachusetts, where the defendant says he sought drug addiction therapy.

By “brief,” these prosecutors mean Hunter claimed he spent 8 weeks in Newburyport, but the available evidence shows his follow-up trip started in mid-January, weeks earlier than he claimed in the book.

I would make two trips up there, staying for about six weeks on the first visit, returning to Maryland, then heading back for a couple weeks of follow-up in February of the new year.

As noted here, prosecutors are trying to edit the memoir to say what they want it to say, cherry picking pages and presenting them out of context. After I noted that they had excluded the part that shows Hunter arriving back in Delaware, they’ve added it belatedly in their trial brief.

7 Page 203 was inadvertently omitted from the government’s excerpts at Doc. No. 119-1. The government includes this single page in Exhibit 1 to this filing (it is the only page added to the submission at 119-1).

Abbe Lowell unsurprisingly objected to this cherry picking.

Lastly, setting aside the admissibility of additional statements from Mr. Biden’s memoir, equally concerning is the Special Counsel’s selective redaction to statements contained in the pages in Exhibit 1, without regard to the completeness of those proffered pages. For example, on page 219 (Chapter 11 title page, “Saved”), the Special Counsel included the opening sentence, “By the time my plane touched down in Los Angeles in March 2019, I had no plan beyond the momentto-moment demands of the crack pipe.” Ex. 1 at 219. However, the very next sentence on the page is redacted: “I was committed to one thing: vanishing for good.” Such a statement—whether Mr. Biden was in such despair or depression that he wanted to disappear, or worse, relent to suicidal thoughts—again goes to Mr. Biden’s then-existing state of mind, and should Mr. Biden seek its admission at trial, it ought to be admissible subject to its relevance and probative value.

[snip]

Just as importantly, these redacted pages ignore the common-law doctrine of completeness codified in Rule 106—limited to writings or recorded statements. Fed. R. Evid. 106, Adv. n.1. The rule’s purpose is to prevent a party from misleading the jury by allowing into the record relevant portions of the excluded testimony which clarify or explain the part already received. United States v. Ricks, 882 F.2d 885, 893 (4th Cir. 1989). But that is exactly what the Special Counsel has asked to do here—determining what it deems relevant, without regard to the complete context and conditions as Mr. Biden described it in his memoir.

This is one of just a few key decisions before Judge Noreika that may determine the outcome of the trial: whether she lets prosecutors effectively rewrite Hunter’s memoir so it tells a story that it really doesn’t.

Virgin Birth the Laptop

The other is what to do about the laptop.

Last August, prosecutors brashly told Abbe Lowell they didn’t need any laptop evidence to prove their case, that all of it also existed in Hunter’s iCloud data. That was, of course, over three months before they obtained the first warrant to search Hunter’s digital evidence for gun crimes, so they should not — and may not — have known how wrong they were.

Prosecutors now submitted what they bill as a summary chart of the communications they say support their case. Even more of the comms they’re relying on come from the laptop than when Derek Hines admitted they were relying on laptop comms in February.

Fully half — 148 out of 294 messages or videos — are sourced to the laptop (I’ve split out some of the laptop messages to highlight ones that are temporal outliers, which I may return to). And, as was true of Hines’ earlier filing, Weiss is relying on communications that only exist on the laptop to show Hunter’s state of mind in the period he owned the gun.

 

In a motion in limine, Weiss’ team tried to argue that because two FBI guys have certified that what they’ve shared is what they got from Apple and John Paul Mac Isaac, they don’t need to further validate these communications. They’re claiming this summary table is sufficient.

The government moves for a preliminary determination, as authorized by Federal Rule of Evidence 104, that a 1006 summary chart that summarizes the electronic evidence is admissible in evidence during trial, and the underlying evidence it summarizes is authentic pursuant to Federal Rule of Evidence 902(14). The summary chart satisfies the requirements of Rule 1006. The chart accurately summarizes electronic evidence derived from search warrants of the defendant’s Apple iCloud account and the defendant’s laptop and hard drive.

This ploy attempts to substitute the act of summarizing for the act of proving technical admissibility.

Unsurprisingly, the trial brief does not describe any plan to call the two technical experts — Robert Gearhart and Michael Waski — to describe the technical validity of the laptop. Weiss similarly is not calling Boyd Pritchard, the FBI agent who made a show of searching the laptop for gun crime evidence after Weiss finally got a warrant to do so.

In fact, Erika Jensen — the same woman who did interviews of the gun shop employees, at least one by herself — may be the only FBI employee (the forensic expert who tested the powder in the pouch that once held the gun may be the other) Weiss definitely plans to call to testify. And Jensen’s summary chart claims to rely on the original December 2019 laptop warrant rather than the December 2023 one as authority to have seized gun-related content.

This testimony will likely make or break any ongoing career at the FBI, because prosecutors are hanging this entire prosecution on her testimony (though I guess if Trump wins the election, she can expect a fat promotion). Particularly given that she’s the sole Agent to be involved in those key gun shop interviews, this could be more difficult than originally imagined.

It is common for prosecutors to try to “clean team” damning parts of the investigation — ensuring that investigative personnel privy to inconvenient facts never take the stand. Weiss has largely clean-teamed the entire underlying investigation.

This is, unsurprisingly, the topic about which Abbe Lowell had the most to say.

The Special Counsel seeks to exclude any authenticity challenge to six iCloud backup files included in its summary chart are self-authenticating pursuant to Rule 902(14). 1 That data, obtained in 2019 and 2020 from a search warrant to Apple, Inc. and, by subpoena and later a search warrant for The Mac Shop in Delaware, consists of more than 18,000 pages from various sources, including four iCloud backup files from Apple, Inc. and two backup files from a MacBook laptop and external hard drive subpoenaed from The Mac Shop in December 2019. (D.E.120 (“Mot.”) at 1, 3.) Defense counsel has numerous reasons to believe the data had been altered and compromised before investigators obtained the electronic material from Apple Inc. and The Mac Shop, such that the Special Counsel’s claim that the underlying data is “authentic” (id. at 4) and accurately reflects “defendant’s Apple Macbook Pro and [] hard drive” (id. at 2) is mistaken.

[snip]

Mr. Biden’s counsel told the Special Counsel on May 10, 2024 it agrees not to challenge the authenticity of the electronic data the Special Counsel intends to use with respect to it being what law enforcement received on December 9, 2019 from John Paul Mac Isaac (owner of The Mac Shop), and from Apple on August 29, 2019 and in a follow-up search on July 10, 2020. (Mot. at n.3.) However, Mr. Biden cannot agree this electronic data is “authentic” as to being his data as he used and stored it prior to Mac Issac [sic] obtaining it. Mac Issac [sic] claims he received an Apple MacBook laptop from a customer on April 12, 2019. FBI investigators did not obtain that data until December 9, 2019 through a grand jury subpoena, or gain lawful permission to access it until December 13, 2019 through a search warrant (No. 19-309M), some eight months after the Mac Isaac acquired the laptop. 2

2 The prosecution only received Office of Enforcement Operations approval to seek a search warrant for the laptop and hard drive on December 12, 2019, with the warrant issued the following day. See Gary Shapley, Laptop and Hard Drive Timeline (Oct. 22, 2020), Ex. 6 to Test. before H. Comm. on Ways & Means (May 26, 2023). Any access by FBI CART agents prior to December 12, 2019 was unauthorized, and Mr. Biden’s counsel objects to the any unlawful access of the laptop or hard drive prior to December 13, 2019.

Lowell only cites John Paul Mac Isaac’s claims about accessing the laptop (which Lowell presumably has gotten in sworn fashion as part of the lawsuit), media reviews of the laptop (which probably reflect the data post-dating the FBI’s receipt of the laptop), and Lev Parnas’ description of being offered the laptop as part of Rudy’s information operation.

I’ve shown repeatedly (for example, one, two, three, four, five) that there are more indices of compromise throughout this data — indices that Weiss tries to brush away with a frankly stupid explanation that Hallie Biden will testify Hunter often “lost” phones.

Witness 3 observed that the defendant frequently lost phones and changed phones, which explains gaps in time where there are no messages.

Given the way Hunter backed up his data except on the laptop that ended up being delivered to John Paul Mac Isaac, this should not create the gaps Weiss has identified. He may have even more problems explaining why there are isolated comms in particular places where — given the temporal patterns here — they shouldn’t be.

In any case, in the five pages Lowell had, I’m not sure he has made this case. Plus, Judge Noreika is vulnerable on this point herself, having ruled that there’s no proof Rudy Giuliani influenced this case even while claiming data that is publicly available because of Rudy instead derived to Hunter’s memoir.

David Weiss’ case should be far more solid than it is. The gun shop’s alterations of gun form data provides Hunter a way to question whether he asserted he was not an addict or whether gun shop employees did. Only through shameless cherry picking have prosecutors made the memoir say what they need it to say. And Lowell should be able to raise real questions about the provenance of all the data derived from the laptop which, as I noted, includes the most important communications.

The success of what Weiss obviously thought was going to be a slam dunk may depend on Weiss’ success at getting Noreika to buy off on his gimmicks to shore up weak parts of the case.

Update: Derek Hines — he of the sawdust as cocaine — has filed a table-thumping reply accusing Hunter’s team of not understanding the laptop. He describes that Hallie will validate the comms between her and Hunter during the days after he purchased the gun.

Messages between the defendant and Witness 3, beginning in row 88 because the defendant began using his ex-wife’s phone in October 2018 and her old phone was not synced to his iCloud account. Witness 3 will testify to the authenticity of these messages at trial.

These are, without exception, the most important pieces of evidence in the case.

But then he admits he doesn’t have validation for around 83 other messages (about 21% of the total), including a bunch of videos that have mixed metadata (for example, one taken on an iPhone 8 on October 22 but saved onto the iPhone XS, another captured on October 16 but first saved on November 27, during the period when Ablow was involved).

Messages in Row 85-86 (a message where the defendant says “I need more chore boy,” which is used consistently in the message with how the defendant described “chore boy” in his book), Rows 87 and 135-137 (messages where the defendant says he in Delaware, which is consistent with his ATM withdrawal activity, location information on photographs on his phone, and his admissions in his book), Row 214 (a photograph of the defendant with a crack pipe in his hand), and 216-292 (videos and photographs of the defendant with a crack pipe and drug messages from December to March 2019, consistent with the defendant’s characterization of his activity in his book).

Hines — he of the sawdust as cocaine — is demanding that Hunter prove absence of chain of custody rather than prosecutors proving it affirmatively.

The crazier complaint comes in the way Hines — he of the sawdust as cocaine — claims that because Hunter cited Lev Parnas’ description of Vitaly Pruss’ offer of the laptop in this time period, Hunter is “asking people to believe Russian intelligence when it suits his interests.”

The defendant also relies on an allegation that a Russian businessman told a third-party that Biden’s devices were compromised by FSB during his 2014 trip to Kazakhstan. This is yet another example of the defendant asking people to believe Russian intelligence when it suits his interests, but not to believe Russian intelligence when it doesn’t suit his interests.

I get that Rudy Giuliani’s role in all this is particularly sensitive — particularly given his role in the Brady back channel that David Weiss chased credulously. But I’m not aware of any time when Hunter has chased Russian intelligence. David Weiss did that, not Hunter.

I asked Weiss’ spox for clarification, but he nodded only to court filings.