Hunter Biden Claims All Zhaos Look the Same to Joseph Ziegler

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From the time Gary Shapley provided Congress obviously flawed summaries of WhatsApp texts, stripped of their identifiers, from an iCloud backup of Hunter Biden’s, I’ve argued their treatment reflects badly on the IRS agents involved.

When Abbe Lowell claimed, before Hunter was charged, that the IRS agents had gotten the identify of Hunter’s interlocutor wrong, I noted that the summaries, lacking identifiers, prevented what should be easy adjudication of this dispute.

The summary matters, a lot. That’s because Lowell claims that Shapley — or whoever did these summaries — misidentified the Hunter Biden interlocutor whose last name begins with Z.

In one excerpt that has now gotten a great deal of media attention, Mr. Biden is alleged to have been sitting next to his father on July 30, 2017, when he allegedly sent a WhatsApp message, urging the completion of some business transaction. See Shapley Tr. at 14. The inference is that the referenced message was being sent to an official of CEFC (China Energy) to forward a false narrative about the Bidens’ involvement in that company. The facts, which some media has now reported, are that President Biden and our client were not together that day, the company being referenced was not CEFC but Harvest Financial Group (with a person who also had the initial “Z”), and that no transaction actually occurred. More important, your own actions call into question the authenticity of that communication and your subsequent use of it. In short, the images you circulated online are complete fakes. Many media articles confirm that data purported to have come from Mr. Biden’s devices has been altered or manipulated. You, or someone else, did that again. All of the misstatements about this communication and your use of a false text are good examples of how providing one-sided, untested, and slanted information leads to improper conclusions. [my emphasis]

This is a remarkable claim, because — if true — it suggests the IRS was investigating Hunter Biden based on wildly incorrect assumptions about the identity of his interlocutors.

Abbe Lowell claims that the IRS agents who investigated his client for five years — the son of the President!!! — didn’t know to whom he was talking! I’ve heard a lot of outlandish claims from defense attorneys (though Lowell is far more credible than the grifters who defend a lot of January 6 defendants), But this is an utterly inflammatory claim.

Had Shapley used responsible summaries, rather than the unprofessional script he did use, it might be possible to figure out who is right, here, because then we could compare the actual number or email account used.

When Luke Broadwater tried to manufacture a partisan both-sides dispute out of this discrepancy, I noted the real conflict came between Republicans, some of whom said the Zhao in question was Henry, others who said it was Raymond.

The summary and the fabrications of the text and Smith’s use of the initials “HZ” matter because there’s a dispute between Republicans and their IRS source about the identity of the person involved.

Shapley said the texts involved Henry Zhao, consistent with Smith’s fabrication.

But in a later release, James Comer described the interlocutor as Raymond Zhao — which is consistent with the interjection in the summary (and other communications regarding this business deal).

On July 30, 2017, Hunter Biden sent a WhatsApp message to Raymond Zhao—a CEFC associate—regarding the $10 million capital payment:

As we’ll see, Broadwater predictably “fact checks” this as a dispute between Democrats and Republicans. It’s not. Before you get there, you first have to adjudicate a conflict between the guy who led the IRS investigation for more than two years, Gary Shapley, and James Comer. It’s a conflict sustained by the shoddiness of the underlying IRS work.

This is a story showing not only that James Comer and Jason Smith don’t know what they’re talking about, but are willing to lie and fabricate nevertheless, but even the IRS agents may not know what they’re talking about, and if they don’t, it’s because the standard of diligence on the investigation of Joe Biden’s son was such that they didn’t even include the identifier of the person to whom Hunter was talking, which would make it easy or at least possible to adjudicate this dispute.

In Wednesday’s hearing, after such time as they had received discovery on this material, Hunter Biden and Abbe Lowell provided a new explanation for the discrepancy: That the first text (but only the first text) was accidentally sent to Henry Zhao, and the follow-up texts — which were therefore necessarily unrelated — came from Raymond Zhao.

Q This is a giant text pack prepared by the IRS investigators, summarizing, and in many cases, quoting WhatsApp message.

Mr. Lowell. Do you have the underlying message?

[Redacted] We have this document. This is what we have.

Mr. Lowell. I want to point out on the record that is all known to you that we have great reservations about the accuracy and completeness of what two IRS agents who have decided to go on television and try to promote what they believe should happen to Mr. Biden as having made a complete record.

And when there have been records, they have not been complete?

And when they make summaries, they are often quoting from texts or communications, which appear to have been altered by those other than themselves.

So with all that, you can certainly ask your questions. But I do not accept the premise that what you’re about to ask him is either an authentic or authenticated or a complete document.

[Redacted]: Okay.

Mr. Lowell. With that in mind, let’s go.

[Redacted] Okay.

BY [Redacted]:

Q Just to set expectations here, I’m going to refer to three. Okay? Then we’ll be done with this document for now.

A Page 3?

Q I’m going to refer to three sort of topics —

A Okay.

Q — within this giant document, not 148. We’re not going to go through every page. I’m sort of managing your expectations here.

A Thank you.

Q I’d like you to turn to page 4, and it’s a message dated July 30th, 2017. It’s about halfway down the page and it begins, “WA message with SM.” And that’s the — that stands for Sportsman, and that’s what they called you, and Zhao. Have you identified the one that I’m referring to?

Mr. Lowell. It’s down the page. It’s the only one for the 30th?

[Redacted]. Correct.

Mr. Lowell. Okay. Yes.

BY [Redacted]:

Q And so the text, according to the IRS, the Federal investigators, say, “Z, please have the director call me, moment James or Tony or Jim. Have him call me tonight. I’m sitting here with my father, and we would like to understand why the commitment made has not been fulfilled.

“I’m very concerned that the chairman has either changed his mind or broken our deal without telling me or that he’s unaware of the promises and assurances that have been made have not been kept.

“Tell the director I would like to resolve this now before it gets out of hand, and now means tonight. And, Z, if I get a call or text from anyone involved in this other than you, Zhang or the chairman, I will make certain that between the man sitting next to me and every person he knows and my ability to forever hold a grudge that you will regret  not following my direction.

All too often people make mistakes — sorry.

“All too often people mistake kindness for weakness, and all too often I’m standing over the top of them, saying, I warned you.

“From this moment until whenever he reaches me. It’s 9:45 a.m. here and I assume 9:45 p.m. there. So his night is running out.”

Zhao responds, “Copy. I will call you on WhatsApp.”

You respond, “Okay, my friend. I’m sitting here, waiting for the call, with my father. I sure hope whatever it is are you doing is very, very, very important.”

Then Zhao says, “Hi, Hunter. Is it a good time to call now? Hi, Hunter, Director did not answer my call, but he got the message you just mentioned.”

A Yeah.

Q Do you have any recollection of sending these?

A No, but I’ve seen this and —

Mr. Lowell. Is there a question?

[Redacted]. Yes. Does he have a recollection of sending the message?

The Witness. And I do not, but I do know this. I have now seen it, which it’s been presented. I would say two things about this message.

Mr. Nadler. Can you speak up?

The Witness. I would say two things about this message. The first thing is this.

Is that the Zhao that this is sent to is not the Zhao that was connected to CEFC.

BY [Redacted]:

Q Okay.

A Which I think is the best indication of how out of my mind I was at this moment in time.

Again, I don’t — my addiction is not an excuse, but I can tell you this: I am more embarrassed of this text message, if it actually did come from me, than any text message I’ve ever sent.

The fact of the matter is, is that there’s no other text message that you have in which I say anything remotely to this. And I was out of my mind. I can also tell you this: My father was not sitting next to me. My father had no awareness. My father had no awareness of the business that I was doing. My father never benefited from any of the business that I was doing.

And so, I take full responsibility for being an absolute ass and idiot when I sent this message, if I did send this message.

Q Okay.

[Redacted]. When you say it wasn’t Zhao from CEFC, who —

Mr. Nadler. Would you speak up, please?

[Redacted]. Which Zhao are you referring to if it wasn’t from CEFC?

The Witness. The number that I believe it went to was to Henry Zhao. Zhao is a very common — it’s not a surname — surname in China. I mean, obviously, very common surname. And I, like an idiot, directed it towards Henry Zhao who had no involvement, who had no understanding or even remotely knew what the hell I was even Goddamn talking about. Excuse my language

BY [Redacted]:

Q And he seems to —

A No, no, no, no, no, the Zhao — it’s a different — you’re conflating now.

Q Okay.

A And this why this report from the IRS is absolutely wrong. They’re two different messages.

The Zhao that calls me is not related to the message that was sent. I speak to him the next day. They’re two completely different sets of messages. One goes a number because, I made the Goddamn — excuse my language again — because I made like an idiot, and I was drunk and probably high, sent a — this ridiculous message to a Zhao, to a Henry Zhao.

But then the next day, I speak to a Raymond Zhao, who has never received the message that Henry Zhao got. And so that’s why this report is very misleading in many ways.

Mr. Lowell. That’s exactly why I raised the point before you decided to ask questions. The IRS agents —

The Witness. I gave —

Mr. Lowell. — took two different times and two different messages and conflated them. That’s what he’s explaining.

The Witness. And I can — and we can show you that.

And I also could show you that on that message, there was never a Chinese flag and a picture of it, as I think was shown in the Oversight Committee before. [my emphasis]

If I understand it correct, Henry Zhao was involved in an earlier business deal, Raymond Zhao is the one with ties to CEFC.

Here’s how Shapley presented the text in his first deposition.

And here’s the exhibit on which House Republicans are likely relying.

There are still a number of inconsistencies with this story, but it really doesn’t make sense to address them without full context (which Hunter presumably has).

In any case, the text string is still somewhat damning to Hunter; his conversations with CEFC continued the same thread, cutting Tony Bobulinski and the others out of the deal.

But I will say this: I already have questions about where WhatsApp texts got saved, not least because at the time, having access to one WhatsApp instance would give you access to the rest of it.

All the more so given that, if we can trust the warrant and Joseph Ziegler’s description of the source of these texts (Apple Backup 3, which the warrant describes as an Apple 6S backup), the timing is curious. Hunter used an iPhone 6S much earlier than 2017, and he initiated a new one on February 9, 2019, just as his devices were packed up for delivery to John Paul Mac Isaac.

Whatever the explanation, it seems that rather than work through a discrepancy, or just leaving out texts that couldn’t be explained, the IRS just blew through inconsistencies.

Like His Father, Hunter Biden Got Forgetful about Details Pertaining to Beau’s Illness

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Predictably, after Republican staffers asked the expected questions in Wednesday’s Hunter Biden deposition (and Democratic staffers caught their colleagues leaving out pertinent pages, twice), individual members of Congress launched their gotcha questions, with Matt Gaetz trying to base bribery allegations in the fact that Hunter paid a shared cell phone bill 14 years ago.

There was one interesting gotcha question, though — because it demonstrated how Biden men peg events to things that happened with Beau’s cancer, and as a result get fuzzy about the timeline.

To set up a question about a business deal with a hedgie named Jonathan Li, a staffer asked Hunter to read a passage from his book describing a trip to China where then-Vice President Biden briefly met Li. While reading, Hunter observed that he might have the date of the trip wrong.

Q You can read the next full paragraph.

A Okay. “In 2013 –” I think it was 2014, but I’m not sure, because — I think this is a mistake because I’d learned of Beau’s tumor just months before, it would be 2014, and I went on this trip, I believe, it was in 2014.

“In 2014, Dad asked –” it says, in 2013, but it should say 2014 — “Dad asked my then teenage daughter, Finnegan, to join him on Air Force Two to Japan and then onto Beijing, where he was meeting with President Xi Jinping. Dad often asked his grandkids to accompany him on overseas trips. It was his chance to catch up. I jumped on the plane from Japan to China to spend time with them both. While we were in Beijing, Dad met with one of Devon’s Chinese partners, Jonathan Li, in the lobby of the American delegation’s hotel, just long enough to say hello and shake hands. I was meeting with Li as a courtesy call while I was in the country; the business deal had been signed more than a week earlier. Li and I then headed off for a cup of coffee.”

That was in the first hour.

Two hours later, after Andy Biggs attempted to claim that Devon Archer had testified that Hunter had called his father with Mykola Zlochevsky (Archer testified that he didn’t witness any call), Biggs tried to make a major deal about Hunter’s earlier uncertainty about this date.

Mr. Biggs. Right.

So you also testified that the book — that the book was wrong, your book was wrong, it’s printed with the wrong date. You testified that —

Mr. Lowell. No, no. Actually, it was right.

The Witness. Oh, it was right?

Mr. Biggs. But that’s not what he testified to, Mr. Lowell.

Mr. Lowell. He said he wasn’t sure.

The Witness. I wasn’t sure. I thought because —

Mr. Biggs. No, no. Well, we’ll have the transcript to look back. I mean, you like to rely on the transcript.

Mr. Lowell. Well, luckily we’re still here, so let’s ask the question: When is the date that is in his book in which he’s talking about? It’s either 2013 or 2014.

Is that the one you’re talking about?

Mr. Biggs. Yeah.

Mr. Lowell. Let’s go back to the book.

The Witness. Yeah.

Mr. Lowell. Can we go back to that exhibit?

The Witness. But regardless is this: is that, I’m sorry I missed, in a 270-page book, a typo of — if it is such a typo. I have no idea.

Mr. Lowell. What is the 2013 date?

Mr. Biggs. Unbelievable.

The Witness. How is it unbelievable, Mr. Biggs? I really don’t understand.

Mr. Biggs. Well, I’m not surprised you don’t understand, so —

The Witness. Why are you not surprised? I really — is that —

Mr. Biggs. So here we go. Do you have the book?

Mr. Lowell. Yeah, we do.

Mr. Biggs. Okay. What’s the right year?

Mr. Lowell. “In 2013, Dad asked my then-teenage daughter, Finnegan, to join him on Air Force Two to Japan” —

The Witness. So this isn’t even — we’re not even talking about the same time.

This is the — this is the transcript. I thought that that 2013 — I was confused. I thought that it happened in —

Mr. Biggs. So you’re —

The Witness. — 2014. But —

Mr. Biggs. I don’t want to interrupt you, but I’m going to. You are confused — you were confused earlier today —

The Witness. About your —

Mr. Biggs. — when you testified?

The Witness. By your questioning. You’re telling me — you were just talking about a board meeting with Burisma in Dubai.

Mr. Biggs. Yeah, and then we moved on to this.

The Witness. Oh. We hadn’t even moved on to it yet, though. What’s —

Mr. Biggs. Yeah, we had.

The Witness. — the question?

Mr. Biggs. You said this morning — I want to make this as clear as I possibly can.

This morning, you testified, my understanding, that your book was in error. In fact, I wrote it down when you said that, that the date was in error —

The Witness. No —

Mr. Biggs. — in your published book. Is that — was that wrong?

The Witness. If we — we will, I’m sure, have the transcript in 24 hours. But to clarify, I will make absolutely clear, we were doing questioning here. We were asking other questions related to other dates. There have been many, many dates thrown around today. I think probably a thousand times someone has asked me about a date, time, this, this, and the other.

Mr. Biggs. This was —

The Witness. When I was reading this, it said in 2013, and I said, “Is that right?”

Mr. Biggs. Okay.

The Witness. “I’m not sure if that’s right. I thought the trip to China occurred in 2014.”

Mr. Biggs. All right.

The Witness. I’m still not certain of exactly the date that it happened. But it’s not a —

Mr. Biggs. You don’t view it as materiality. I get it.

The Witness. Whether it happened in 2013 or 2014?

Mr. Biggs. So I want to — I want to ask you —

The Witness. Do you view that as materiality?

Mr. Lowell. I’m sorry. Now we have to tell you that you’re over your hour, and  I’ve given you 2 or 3 more minutes. And I’m just — according to Ms. Greene, rules matter.

Mr. Biggs. Thank you.

Mr. Lowell. We’re done.

They weren’t done, by the way. Biggs moved on to attempting to claim Hunter had vouched for Tony Bobulinski’s pictures of Blackberry messages, even though Abbe Lowell had specifically said they did not vouch for those messages. There was a lot of claiming that up was down from the members of Congress.

But the exchange about dates is instructive. Biggs thought he had scored a great big gotcha. He was (and probably will) attempt to use Hunter’s uncertainty about the date of the trip to China — uncertainty that stemmed from Hunter trying to map it onto Beau’s illness — to claim that Hunter’s certainty that he did not call his father on Zlochevsky’s behalf is unreliable because he couldn’t remember the date of the trip to China.

Biggs was attempting to use Hunter’s uncertainty about something that’s not material as a way to claim his certainty about something material cannot be trusted.

It looks pretty ridiculous on paper, doesn’t it?

But it sounds remarkably similar to what Robert Hur did with Hunter’s father — using Joe Biden’s uncertainty about the timing of Beau’s death to suggest Joe’s certainty that a reference to a 40-page handwritten memo could not be trusted, and that instead one must infer something more nefarious.

Of course, when Hur pulled this ploy, he concluded that Joe’s uncertainty about the date reflected not the stress of dealing with October 7 nor the muddiness created by pegging life events to grief, but that Joe is an old geezer who should not be President.

It turns out that both Biden men — 81-year old Joe and 54-year old Hunter — got similarly uncertain when they tied life events to Beau’s illness in a deposition.

Trump’s Other Immunity Claim: Stealing Boxes and Boxes of Classified Documents

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Whatever else the SCOTUS grant of Trump’s immunity claim did, it provided the basis for scheduling clarity.

It seems likely SCOTUS has committed to deciding the immunity question by the end of term, in June.

That would present Tanya Chutkan with the decision of whether to try the January 6 case during the election season (it is her choice, not DOJ’s to make). She had been entertaining starting the trial in August, which would have bled into election season as it is, so she may decide to do this. If she does, it is unlikely a jury would reach a verdict before election day, but the trial would give voters opportunity to see the evidence before voting.

The decision to grant cert is as interesting for Trump’s other immunity claim — Trump’s even more frivolous claim that he can’t be prosecuted for stealing boxes and boxes of classified documents because his claimed decision to convert those government documents to his personal possession in violation of the Presidential Records Act is immune from prosecution, as well. I’ve seen some commentary that SCOTUS may have been trying to come up with a different solution but then decided to hear the case. If that’s true, the decision to hear the case came less than a week after Trump made that other claim of immunity, that he can steal classified documents with impunity. Who knows? It’s not before the court, but it may have affected their decision to hear the case.

The matter will be fully briefed by the time Jack Smith submits his brief to SCOTUS on April 8. So he can have two absurd claims of immunity to address, Trump’s claim he can steal the election with impunity, and Trump’s claim he can convert boxes and boxes of classified documents to do with as he pleases on the way out the door even if it violates the Presidential Records Act, a law passed specifically to apply to Presidents. One of the matters that had been hypothetical before the DC Circuit — that Trump might sell nuclear documents to our adversaries — has become concrete.

Given the question as posed by SCOTUS — Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office? — I think SCOTUS may have been uncomfortable with the DC Circuit’s thin treatment of Trump’s argument that, without immunity, former Presidents could be prosecuted for things like approving the drone strike on Anwar al-Awlaki (note, when Trump raises this, he never mentions that he himself killed Awlaki’s daughter).

Former President Trump argues that criminal liability for former Presidents risks chilling Presidential action while in office and opening the floodgates to meritless and harassing prosecution. These risks do not overcome “the public interest in fair and accurate judicial proceedings,” which “is at its height in the criminal setting.” Vance, 140 S. Ct. at 2424.

Former President Trump first asserts that the prospect of potential post-Presidency criminal liability would inhibit a sitting President’s ability to act “fearlessly and impartially,” citing the “especially sensitive duties” of the President and the need for “bold and unhesitating action.”

There has to be something that distinguishes such actions from those charged against Trump. That something is likely the conversion of the Presidency to one’s own personal benefit. It’s not in the DC Circuit opinion and needs to be — all the more so given that, in Florida, Trump is claiming that he could legally simply convert boxes and boxes of classified documents to his personal property, even though the Presidential Records Act prohibits it.

It’s not in the DC Circuit opinion. But something like that has to be, some measure to distinguish the ordinary unlawful stuff Presidents are asked to authorize on behalf of the country and the venal stuff Trump did to benefit himself.

Tomorrow, Judge Cannon will hold a hearing to discuss how to schedule that trial. Her original schedule included six months of things after pretrial motions, which would put her schedule at September as well (though she’s obviously more likely to stall until after the election). But one thing she can expect is that, by June, Trump’s immunity claim will be resolved.

Update: Here’s the language from Trump’s brief that addresses this problem.

The panel opinion ignores the long history of real-world examples of Presidents engaging in actual behavior that political opponents viewed as egregious and “criminal.” Instead, keying on the Special Counsel’s arguments, the panel fretted about lurid hypotheticals that have never occurred in 234 years of history, almost certainly never will occur, and would virtually certainly result in impeachment and Senate conviction (thus authorizing criminal prosecution) if they did occur—such as a hypothetical President corruptly ordering the assassination of political rivals through “SEAL Team Six.” D.C. Cir. Oral Arg Tr. 10:19-21. Such hypotheticals provide fodder for histrionic media coverage, but they are a poor substitute for legal and historical analysis. Confronted with real-world hypotheticals—such as President Obama’s killing of U.S. citizens by drone strike—the Special Counsel conceded below that Presidential immunity from criminal prosecution for official acts likely exists and would apply, directly contradicting the “categorical,” App’x 20A, holdings to the contrary of both the appellate panel and the trial court. D.C. Cir. Oral Arg Tr. 49:18-22 (Special Counsel admitting that a “drone strike” where “civilians were killed … might be the kind of place in which the Court would properly recognize some kind of immunity”). Further, the logical presupposition of such speculative hypotheticals—i.e., that the Founders supposedly must have intended that no alleged Presidential misdeed could ever escape prosecution—is plainly incorrect and contradicts the basic premises of a system of separated powers. “While the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty.” Morrison, 487 U.S. at 710 (Scalia, J., dissenting).

Jack Smith’s response doesn’t really deal with this issue in depth.

7 A sufficient basis for resolving this case would be that, whatever the rule in other contexts not presented here, no immunity attaches to a President’s commission of federal crimes to subvert the electoral process. See Amici Br. of John Danforth et al., at 7. The court of appeals’ analysis was “specific” to the allegations that applicant conspired to “overturn federal election results and unlawfully overstay his Presidential term,” Appl. App. 31A, and a stay can be denied on that basis alone, leaving for another day whether any immunity from criminal prosecution should be recognized in any circumstances. See Gov’t C.A. Br. 45-49 (explaining that foreign affairs are not implicated in this case); cf. Nixon, 418 U.S. at 707, 710, 712 n.19 (reserving whether an absolute presidential-communications privilege might exist for military, diplomatic, or national security secrets).

How Derek Hines Fooled Ken Dilanian into Making False Claims about the Hunter Biden Laptop

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When I first read this passage in mid-January, it led me to suspect prosecutors in the Hunter Biden case were hiding real problems with the provenance of their digital data.

In August 2019, IRS and FBI investigators obtained a search warrant for tax violations for the defendant’s Apple iCloud account. 2 In response to that warrant, in September 2019, Apple produced backups of data from various of the defendant’s electronic devices that he had backed up to his iCloud account. 3 Investigators also later came into possession of the defendant’s Apple MacBook Pro, which he had left at a computer store. A search warrant was also obtained for his laptop and the results of the search were largely duplicative of information investigators had already obtained from Apple. 4 Law enforcement also later obtained a search warrant to search the defendant’s electronic evidence for evidence of federal firearms violations and to seize such data. 5

2 District of Delaware Case No. 19-234M and a follow up search warrant, District of Delaware Case Number 20-165M.

3 The electronic evidence referenced in this section was produced to the defendant in discovery in advance of the deadline to file motions.

4 District of Delaware Case No. 19-309M.

5 District of Delaware Case No. 23-507M.

Not so Ken Dilanian.

He read the same passage over five weeks and abundant new disclosures later, and claimed that rather than raise questions, it instead amounted to confirmation that prosecutors had authenticated material from the laptop.

Material from the laptop became evidence in the criminal investigation of Hunter Biden, which ultimately resulted in a pair of indictments accusing him of tax and gun crimes. He has pleaded not guilty. A recent court filing by the lead prosecutor in the case, special counsel David Weiss, says investigators authenticated the laptop material — and the fact that a computer had been left in a store.

He also claimed that this laptop evidence could have resulted in a gun indictment, when — as I confirmed as I was trying to chase down my suspicions — prosecutors didn’t get a warrant to search the laptop for gun crimes until after the gun indictment. If they used the laptop to get that gun crime indictment, they probably conducted an unlawful search.

Because people are quoting Dilanian’s claims as if they accurately report what we know about the laptop, I’d like to trace all the reasons why Dilanian should never have made either claim.

Let’s start with the reasons that passage raised suspicions in the first place.

I was suspicious partly because of the way Derek Hines used a showy claim about cocaine residue to distract from the issue he was litigating — whether prosecutors only decided to charge gun crimes in response to GOP pressure. Worse still, Hines hid the most important detail about that cocaine residue discovery, the date a lab tested for it, which would reveal whether that showy claim instead hurt his argument. In NBC’s case, three reporters suggested the late discovery of cocaine residue showed that prosecutors had obtained new evidence that led to indictment (though to NBC’s credit, they at least didn’t make the coke-in-gun their headline). Subsequent filings have revealed that the lab test was October 2023, after the indictment, and so proof instead that prosecutors didn’t seek evidence until after they charged. The showy residue claim actually supports Hunter’s side of this argument, not Weiss’: it suggests prosecutors never took basic investigative steps to support gun charges until Jim Jordan demanded it.

I was also suspicious because Hines had engaged in so much obvious prevarication in the same filing. He played with the timeline to suggest that evidence available two years before the indictment — Hunter’s book — was newly obtained. He selectively cited documentation about what led up to the plea deal: ignoring proof that David Weiss was personally involved, on June 6, in crafting language that protected against further charges; offering no contest to Chris Clark’s claim that on June 19, Weiss’ First AUSA assured Clark there was no ongoing investigation. Hines lumped Hunter’s lie on a gun form in with far more serious straw purchases in order to claim there were aggravating circumstances that merited charging (a detail that still doesn’t address why Weiss reneged on the plea deal). Hines outright lied about how much David Weiss had ratcheted up the potential sentence with the new charges.

No one should have uncritically accepted the language in this passage, because so much of the filing was obviously deceptive.

I was suspicious, too, because Hines’ claim that evidence obtained from the laptop was “largely duplicative” admits that it was not entirely duplicative. His choice of language made it clear there were things on the laptop that were not in the iCloud.

And he did so in a paragraph that tried to obscure how the provenance of the laptop affects the provenance of his other evidence. Notably, the structure of the passage misrepresented the temporal progression — a temporal progression that anyone who had covered Gary Shapley’s testimony should know. The body of the paragraph suggested that investigators got a warrant for Apple and only then accessed the laptop. The body of the paragraph provided no hint about when prosecutors obtained a warrant to search already obtained materials for gun crimes. The footnotes tell a different story. Hines hid in footnote 2 a follow-up warrant for backups of individual devices with a docket number, dating to 2020, showing that that follow-up warrant post-dated FBI’s receipt of the laptop (again, which was already clear from Gary Shapley’s testimony), and therefore may be poisoned fruit of the laptop. More shockingly, Hines hid the 2023 date of the gun crimes warrant in footnote 5. Those footnotes are what led me to ask more questions and ultimately to liberate the warrants in question.

When Dilanian quoted that passage as if it were reliable, he omitted the existence of those footnotes, as well as the reference to the belated warrant for gun crimes that explained why the laptop couldn’t have “resulted” in the gun indictment without a likely Fourth Amendment violation.

“In August 2019, IRS and FBI investigators obtained a search warrant for tax violations for the defendant [Hunter Biden]’s Apple iCloud account,” [omitted footnote 2] the filing said. “In response to that warrant, in September 2019, Apple produced backups of data from various of the defendant’s electronic devices that he had backed up to his iCloud account. [omitted footnote 3] Investigators also later came into possession of the defendant’s Apple MacBook Pro, which he had left at a computer store. A search warrant was also obtained for his laptop and the results of the search were largely duplicative of information investigators had already obtained from Apple.” [omitted footnote 4 and admission they did not originally get a warrant for gun crimes]

Even in January, that response filing should have led reporters to note that David Weiss didn’t even seek basic evidence needed to prove the gun case until after he charged it.

But much has happened since to raise further questions about the laptop, including:

  • January 17: I write Weiss’ spox asking, “Can you correct me on the date of that warrant, please?” because I thought there was no way it was really December 2023. He declined to further comment, which made me suspect maybe it was really December 2023.
  • January 22: I asked Judge Noreika to unseal the dockets. She did!
  • January 30: Those dockets confirmed Weiss did not seek a warrant to search Hunter’s Apple data for evidence of gun crimes until 81 days after the indictment; the warrant return also discloses that the FBI was still searching Hunter’s Apple data on January 16 when Hines first publicly disclosed it and claimed that the laptop was largely duplicative of what was in the iCloud.
  • January 30: Abbe Lowell announced he plans to file a motion to suppress.
  • January 30: Prosecutors had not provided material from the laptop with Bates stamp or in e-discovery format; they also had not provided expert reports on the laptop known (from Shapley’s testimony, among other places) to exist.
  • February 13: Almost 40 months after acknowledging that the FBI had never validated the laptop to check when files were added to it, they admitted that they still have no index of the laptop. They also claim they were seizing information relating to gun crimes under the plain view doctrine for four years.
  • February 13: The FBI understands the laptop so poorly that they presented a picture of sawdust from Keith Ablow that probably should have been treated as privileged and claimed it was a picture Hunter took of his own cocaine. (There’s likely another picture that Hines misattributed, too.)
  • February 20: The same day Hunter rejected Weiss’ demand for quick guilty pleas to felony charges, August 29, prosecutors told Abbe Lowell — still three months before they obtained a gun crime warrant for either Hunter’s iCloud or the laptop — they had “independent sources” for anything on the laptop.
  • February 20: By describing that key texts sent between Hallie and Hunter Biden in October 2018 were not found in the iCloud content, prosecutors were actually describing that they did not have “independent sources” for their most probative evidence (or of the picture of a picture of a table saw and sawdust they want to claim is cocaine).

Let me make this easy for NBC, because they seem to misunderstand this.

Over 1,500 days after receiving the laptop, the FBI has not done the things it would need to do to validate the laptop. They don’t have an index of what they have and they don’t know how all the embedded back-ups relate to one another. Without that, they cannot make representations that the laptop was not tampered with. Indeed, they’re making laughably false claims about what they have found uniquely on the laptop, a testament that they don’t have the most basic understanding about the laptop.

Additionally, Hines’ description of the source for the texts between Hallie and Hunter Biden makes it highly likely they came from a device backup that was protected by a password when the FBI got the laptop. Accessing that content without a follow-up warrant — which they did before they got the 2020 warrants that may rely on it — may be a Fourth Amendment violation under Riley. And particularly given that Hunter had just lost two phones in the days before such texts would have been sent, it raises real questions about both their provenance and the compilation of the laptop itself.

Since Derek Hines made dubious claims on January 16 that the laptop was “largely duplicative” of material found in Hunter Biden’s iCloud, we’ve since learned one reason he was so squirrelly when he made that claim: his most important evidence for the gun crime doesn’t appear to be duplicated in Hunter’s iCloud. And unless the FBI conducted an unlawful search of Hunter’s digital evidence — or unless they indicted based on what they had seen in Murdoch publications — they did not learn that until months after they charged the President’s son. And they didn’t learn that because four years after obtaining the laptop, the FBI has still never taken basic steps to understand what is on it.

After I reviewed the passage Dilanian quoted, I realized that it is even more misleading than I had previously understood. The full passage is below, with annotations. 

In August 2019, IRS and FBI investigators obtained a search warrant for tax violations for the defendant’s Apple iCloud account. 2 In response to that warrant, in September 2019, Apple produced backups of data from various of the defendant’s electronic devices that he had backed up to his iCloud account. [this obscures what happened: Apple sent the full content of Hunter’s iCloud account, including the backups, but DOJ obtained new warrants — possibly relying on the laptop — to obtain those backups in 2020] 3 Investigators also later came into possession [this “came into possession” will look comical after we see a motion to suppress, not least because by the time FBI obtained it, they had already told John Paul Mac Isaac’s father he may have had it illegally] of the defendant’s Apple MacBook Pro, which he had left at a computer store. [as I’ve shown, the only proof that Hunter left the laptop would be easily faked by anyone in possession of the laptop — and when they checked Hunter’s iCloud data, they should have realized there were too many devices associated with it for all to be legitimately his] A search warrant was also obtained for his laptop and the results of the search were largely [as subsequent filings made clear, Weiss’ most important evidence was not duplicated in Hunter’s iCloud] duplicative of information investigators had already obtained from Apple. 4 Law enforcement also later [by “later,” Hines means, they didn’t get a warrant until 81 days after indicting and were still searching the digital data] obtained a search warrant to search the defendant’s electronic evidence for evidence of federal firearms violations and to seize such data. 5

2 District of Delaware Case No. 19-234M [August 29, 2019: Original iCloud warrant; warrant return] and a follow up search warrant, District of Delaware Case Number 20-165M. [July 10, 2020 iCloud warrant; warrant return]

3 The electronic evidence referenced in this section was produced to the defendant in discovery in advance of the deadline to file motions.

4 District of Delaware Case No. 19-309M. [December 13, 2019: Original laptop warrant; warrant return]

5 District of Delaware Case No. 23-507M. [December 4, 2023: post-indictment warrant; warrant. return (less attachments) attachments AB]

The searches revealed incriminating evidence, including evidence of the defendant’s addiction to controlled substances and his possession of the firearm, such as:

– Prior to October 12, 2018 (the date of the gun purchase), the defendant took photos of crack cocaine and drug paraphernalia on his phone. [as proof of this, Hines presented a single photo of someone weighing cocaine without proof Hunter took it (though he probably did)]

– Also prior to his gun purchase, the defendant routinely sent messages about purchasing drugs. [as shown in the table below, Hines provides three examples, one of which was conducted on an “unknown” phone, the most recent of which was in July 2018]

– On October 13, 2018, and October 14, 2018 (the day after and two days after he purchased the firearm), the defendant messaged his girlfriend about meeting a drug dealer and smoking crack. For example, on October 13, 2018, the defendant messaged her and stated, “. . . I’m now off MD Av behind blue rocks stadium waiting for a dealer named Mookie.” The next day, the defendant messaged her and stated, “I was sleeping on a car smoking crack on 4th street and Rodney.” [this is from content that Hines seems to concede only exists on the laptop and was sent during a period when Hunter was still replacing lost phones]

– On October 23, 2018 (the day his then-girlfriend discarded his firearm), the defendant messaged his girlfriend and asked, “Did you take that from me [girlfriend]?” Later that evening, after his interactions with law enforcement, he messaged her about the “[t]he fucking FBI” and asked her, “so what’s my fault here [girlfriend] that you speak of. Owning a gun that’s in a locked car hidden on another property? You say I invade your privacy. What more can I do than come back to you to try again. And you do this???? Who in their right mind would trust you would help me get sober.” In response, the girlfriend stated “I’m sorry, I just want you safe. That was not safe. And it was open unlocked and windows down and the kids search your car. You have lost your mind hunter. I’m sorry I handled it poorly today but you are in huge denial about yourself and about that reality that I just want you safe. You run away like a child and blame me for your shit . . .” [this is still content that may only be available on the laptop and therefore unreliable or inadmissible]

– After the firearm was taken from him and recovered by police, the defendant continued to send messages to various people about his use of drugs, including telling his girlfriend that he is an “addict” on November 8, 2018, and on November 21, 2018, telling Person 1, “. . . I’m a fucking better man than any man you know whether I’m smoking crack or not.” He also continued to send messages about purchasing drugs. He sent a message to his girlfriend on November 29, 2018, stating, in relevant part, “I DONT BLAME MY ADDICTION ON YOU . . .” and another message to Person 2 on December 18, 2018, acknowledging that he is “an addict.” On December 28, 2018, hemessaged Person 2 stating, “I’ll fuxking [sic] get sober when I want to get fucking sober.” [this content does exist in Hunter’s iCloud, but several things make it suspect: he was texting on at least one other device at the time — though that’s a device that appears to only be available on the laptop — and (as I describe here) this particular device may be one that has suspect provenance going back to 2016]

– During November and December 2018, the defendant took multiple photographs of videos apparent cocaine, crack cocaine, and drug paraphernalia. [Hines presented three photos to back this claim: a timer in a picture of a presumed sex worker, a picture Keith Ablow took of a picture of sawdust, and a picture that may have come from Hallie — to the extent that it represented drug use — could not be tied to Hunter as opposed to Hallie and was very dated in any case] These episodes of persistent drug usage, documented by the defendant, in the immediate time frame before, during, and after his possession of the gun were evidence that he lied during the background check and unlawfully possessed the gun in October 2018.

 

 

Lesley Wolf Vindicated by Alexander Smirnov Indictment

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In the wake of the Alexander Smirnov indictment, the 51 former spooks who wrote a letter stating their opinion that the release of Hunter Biden emails to the NY Post is consistent with a Russian information operation have claimed vindication. That has led to this problematic Ken Dilanian report parroting David Weiss filings that deliberately obscured the evidence in the Hunter Biden case. And that, in turn, has led to a flood of people expressing opinions about the laptop turned over by John Paul Mac Isaac (Olivia Nuzzi, Reese Gorman) that exhibit no clue about how precarious that evidence is now.

In other words, that has renewed a debate consisting of misrepresenting the 51-spook letter, then misstating what the public evidence about the laptop shows.

I’ll return to the details about the laptop that these people are missing; hopefully until I get there, they’ll consider whether David Weiss’ claim that a Keith Ablow picture of a picture of a table saw with sawdust was instead Hunter Biden’s cocaine really validates the laptop, as they seem to believe it does.

But there is one person who has been vindicated: Lesley Wolf, the AUSA who aggressively pursued real charges against Hunter Biden, even while attempting to prevent repeated onslaughts of political garbage from tainting the case.

Among the many complaints the two disgruntled IRS agents aired, largely targeting her, one was that, “This investigation has been hampered and artificially slowed by various claims of potential election meddling.” That appeared in a memo submitted within the IRS in December 2020, probably written by Gary Shapley. The IRS agents believed they knew better than Lesley Wolf about efforts to interfere in the election.

The IRS agents and their allies in Congress bitched over and over that Wolf and others had not ingested politicized dirt into the investigation readily enough.

For example, Joseph Ziegler described that investigators asked to reinterview Tony Bobulinski after his October 23, 2020 meeting with the FBI, but were not permitted to do so because he “was not viewed as a credible witness” — and that was before Cassidy Hutchinson’s testimony, now backed by video, about the sketchy meeting Bobulinski had with Mark Meadows.

I can recall that agents on the investigative team brought up on multiple occasions to the assigned prosecutors that they wanted to do an interview of Bobulinski with the assigned case agents. I can recall being told that they would think about it and then ultimately being told there was no need for the team to interview Bobulinski and that Bobulinski was not viewed as a credible witness.

In his House testimony, Bobulinski backed off all the most inflammatory claims — such as that he attended a key meeting in Miami and witnessed Hunter receive a large diamond as a gift –made to the FBI.

Republicans in Congress have repeatedly complained that Tim Thibault shut down Peter Schweizer as a confidential human source in September 2020. Thibault explained to Congress that the Supervisory Special Agent called him and asked him to stop sending Schweizer’s reporting, because doing so would give Hunter’s attorneys ammunition if the case ever went to trial.

A I understand you don’t need the reporting anymore. I understand that if this goes to trial, Hunter Biden’s attorney —

Q Uh-huh?

A — could have some ammunition.

And Shapley specifically complained that Lesley Wolf withheld a particular email about some anomalies in the the hard drive image obtained from John Paul Mac Isaac.

Prosecutors deliberately withheld that email from agents who might have to testify to avoid making it Jencks production that would have to be shared with Hunter’s lawyers. Thanks to Shapley, it will presumably play a role in any suppression and Brady complaints tied to the laptop.

None of this is particularly noble on Wolf’s part. It’s typical, among prosecutors, in that they watch out for any evidence that would harm a case at trial, and avoid ingesting it in ways that would give defendants access to it. Lesley Wolf was not withholding details about problems with the hard drive JPMI provided the FBI to protect Hunter Biden. She was doing it to protect her case. In fact, her treatment of the laptop may be the one thing that helps bollox the case, if Leo Wise ends up needing any assistance on that front.

But it seems quite clear that efforts Wolf made to preserve a case for trial were instead spun by the disgruntled IRS agents as attempts to thwart the investigation. Their efforts to sell that spin have not only endangered the case, but also resulted in death threats targeting Wolf and her family.

Particularly given the timing of Congress’ focus on the FD-1023, including Bill Barr’s public commentary, Alexander Smirnov’s attempt to frame Biden is an important example of an effort Wolf made to protect a viable case against Hunter.

Gary Shapley released a memo that will be central to Hunter Biden’s bid to obtain discovery on the treatment of the Smirnov tip and the Scott Brady back channel, generally. It shows that the FD-1023, “was ordered to be received by this prosecution team by [Richard Donoghue]. It is happening on 10/23/2020 at 3pm in the Delaware FBI office.” It is proof that days after Trump yelled at Barr about the Hunter Biden investigation, DOJ ordered Wolf to accept this briefing.

Yet in his testimony, Shapley said that “We never discussed the form,” seemingly a reference to the Smirnov allegation.

After Barr ran his mouth to Margot Cleveland, both Ziegler and Shapley submitted supplements complaining that they hadn’t gotten briefed on the allegation. Shapley’s testimony, that neither the IRS agents nor the FBI agents, had checked out the allegation seems inconsistent with his claim never to have spoken about it.

Neither I nor the line IRS-CI agents acting under my supervision, nor the FBI agents working with IRS-CI, were ever provided the CHS information that Attorney General Barr recently referenced was sent to Delaware to have it “checked out.” Prosecutors never provided such information to IRS-CI. As such, neither IRS-CI nor the FBI agents working with him were provided the opportunity to conduct proper investigation into the allegations presented by this CHS. I, long with other IRS-Cl investigators, requested 10 be apart of briefings that the Delaware USAO and DOJ were having with the Pittsburgh USAO during the investigation, but our requests were denied.

Both further elaborated their complaints about not getting access to the FD-1023 in their public July testimony.

Then, even more forthcoming testimony Shapley gave to House Ways and Means served as a cue during Scott Brady’s House Judiciary Committee testimony, in which Brady described Lesley Wolf’s skepticism about the material being funneled from Brady’s office.

Q And were you ever told that the Delaware U.S. Attorney’s Office did not want a briefing from your office?

A I believe I was. I don’t remember. But I know that we had trouble scheduling it.

Q Okay. And then, further down, it states AUSA Wolf’s comments made clear she did not want to cooperate with the Pittsburgh USAO, and that she had already concluded no information from that office could be credible stating her belief that it all came from Rudy Giuliani.

Were you ever made aware of Ms. Wolf’s processing and decisions regarding this briefing, and why she didn’t want the briefing?

A I was not. We did, however, make it clear that some of the information including this 1023 did not come from Mr. Giuliani.

Q And did your team ever tell you that they were receiving comments from Ms. Wolf that she didn’t find the information your office was receiving credible?

A I don’t remember that, no.

Q If those conversations took place, would those have been between a AUSA at your office and Ms. Wolf?

A If they would have shared that with us at all, yes, likely, and had I been made aware, I would have called Mr. Weiss directly.

Q When you would have called Mr. Weiss directly, would you have told him the information the 1023 wasn’t coming from Mr. Giuliani, is that accurate?

A Yes, I would have, and that was already communicated to their office, that the 1023 was from a credible CHS that had a history with the FBI, and that it was not derived from any of the information from Mr. Giuliani.

Side note: The publicly released HJC transcript redacts several references to David Weiss, perhaps in an effort to hide the degree to which he is a witness to and therefore hopelessly conflicted on the Smirnov prosecution.

I’m guessing that neither Smirnov nor Hunter’s attorneys are so stupid that they can’t figure out who is named behind that redaction! But if they have any questions: Yes, Jim Jordan’s people really did redact references that make it clear what David Weiss personally witnessed in this transcript!

Unsurprisingly, in her testimony, Lesley Wolf did a far, far better job than Shapley and Brady adhering to her ethical duty to avoid speaking of an ongoing investigation. She also suggestsed that a lot of the decisions that Shapley and Ziegler complained about were made for ethical reasons, even an unwillingness on her part to risk her law license to take more aggressive steps. “Hey, I like my law license, and I know this person has a lawyer, so we’re going to have to work through counsel to get that interview you want,” she characterized such discussions with the investigators.

As a result of her strict adherence to prohibitions on her speaking about the investigation, her explanation for her reluctance to accept information from Brady’s side channel was very general. In her general explanation for why she might want to keep the existing Hunter Biden investigation separate from whatever Brady was doing, though, she provided the same reason Thibault got explaining why Delaware didn’t want to receive tips involving Peter Schweizer.

Q And during the course of your career, have you ever had a situation where you were reluctant to cooperate with a different U.S. Attorney’s Office? And by cooperate, I mean have meetings, take telephone calls.

[Wolf attorney Jenny] Kramer. I know this is almost too formal for this process, but I’m going to object to form. What does that mean, unwilling to cooperate? I’m just not clear on what exactly you’re trying to ask.

Mr. Castor. Unwilling to take meetings?

Ms. Kramer. Generally?

Mr. Castor. With a different U.S. Attorney’s Office.

Ms. Wolf. I can answer those questions, generally.

BY MR. CASTOR:

Q Sure, sure.

A I think as a general matter, the idea would be that you are coming from a place of cooperation and the common mission of the Department of Justice and what it is you’re trying to accomplish. But there may well be very, very valid means, reasons for a desire and an interest to keep investigations separate and apart. And in those circumstances, you would — and it wouldn’t be unusual to say, you know what, we’re not going to need to share information, we’re not going to do this. And it would just depend, again, on the particulars of an investigation and what the needs and what the various interests were at play.

Q Okay. Are you familiar with Supervisory Special Agent Gary Shapley’s testimony where he indicated you were unwilling to interact with Scott Brady?

A I’m generally familiar with Special Agent Shapley’s testimony, yes.

Q Okay. Are you familiar with that particular aspect of it?

A I mean, I’ve read his testimony.

Chairman Jordan. Would there be a reason not to interact and meet with Mr. Brady and his team?

Ms. Wolf. As that relates to a particular investigation, I’m not authorized to speak to that.

Chairman Jordan. You said there were some situations that — the general way of doing things is to, you know, “cooperate,” I think, is the word you used. And you said there are times that we’re not going to do that. Why would there be a reason not to do it in this situation?

Ms. Kramer. Chairman, respectfully, I think you had left the room when I had asked Mr. Castor earlier, please allow Ms. Wolf to finish her answers to the questions before —

Chairman Jordan. Okay, sure. I apologize.

Ms. Kramer. — and me as well, number one. And number two, I believe you mischaracterized her very recent answer. I don’t believe you said that there were times that you would refuse to cooperate, unless I misheard. So let’s break that down. I think your first question, Chairman Jordan, is what again, if you don’t mind repeating it?

Chairman Jordan. Would there be a reason not to cooperate with Mr. Brady’s office?

Ms. Wolf. As to this particular case, I’m not authorized to speak to that.

As a general matter, and I think to potentially recast and just reframe, the infusion on the point, there are valid investigative reasons in any given case that would need to be evaluated before joining, overlapping, even taking in information, and that would all be factored in, in any case, to deciding how to move forward in a matter, all in the spirit of advancing and the best interest of the investigation.

[snip]

You know, to the extent that it then subsequently touches on an investigation or a matter in your district, I would expect that would be something that you would be aware of and usually the kind of thing that would probably take place above the line level. And that’s part of, you know, a sort of lack of clarity or understanding on how this sort of what is and isn’t typical. I hesitate to answer. And, quite frankly, I think in answering whether this was typical or atypical, it runs afoul of what I am authorized to discuss, because it essentially acknowledges or will be interpreted as acknowledging or denying or endorsing what may or may not have happened.

Wolf is being coy here.

But she’s also making it clear that she decided sharing information with Brady’s project would harm the investigation.

This is why I posted Leo Wise’s repeated, defensive rebuttals to David Chesnoff’s claim that the Smirnov indictment was “makeweight.”

It seems clear that Lesley Wolf left the Smirnov allegation well enough alone, knowing that the project generally was producing garbage that could only endanger the case.

Leo Wise seemingly used the Smirnov allegation as an excuse to reopen the case against the President’s son, only to discover it opened a nasty can of worms.  It gave Abbe Lowell the evidence to prove that the prosecution of Hunter Biden was infected by an effort by the Attorney General to accommodate the dirt that Trump’s lawyers picked up from Russian spies. And it gave Wise a real headache of a prosecution to deal with.

Lesley Wolf probably didn’t decline all the garbage from Scott Brady for noble reasons. She was just protecting her case. But having made the opposite decision, Wise may end up blowing that case.

You know who is vindicated by the Alexander Smirnov indictment? Lesley Wolf.

Leo Wise Keeps Digging Through Difficulties Caused by a Dumb Prosecutorial Decision

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Because I want this language to be available for some other posts, I wanted to look at a ploy Leo Wise pulled in Alexander Smirnov’s Nevada detention hearing (Smirnov has another in Los Angeles later today).

In response to Smirnov’s attorneys describing the document fabrication charge as, “makeweight and politically-motivated; they do not involve espionage or theft and are thus not serious’,” Wise tried to use Hunter Biden’s claims of selective prosecution to rebut it.

MR. WISE: Now/ in addressing the 3142(g) factors, specifically the nature and seriousness of the offense, the defendants argues that “These allegations are make-weight and politically motivated. They do not involve espionage or theft and are, thus, not serious.”

I didn’t know what make-weight meant so I looked it up. According to Miriam Webster, the meaning of make-weight is something thrown into a scale to bring the weight to a desired value. I have no idea what that means in this context. Maybe Your Honor does.

And politically motivated, by whom? If Defense counsel is referring to his client’s allegations, then we agree. His client’s messages that are quoted in the indictment show political bias on his client’s part.

Or is the — is Defense counsel referring to us, the Government in this case? And that would certainly be curious. We’re prosecuting Hunter Biden on tax and gun charges, and his lawyers make the unfounded claim that we’re working at the direction of former President Trump and Congressional Republicans, although they can never explain why or how.

So then I guess what Defense counsel in this case is arguing is we’re working at the direction —

THE COURT: Are you saying Mr. Chesnoff and Mr. Schonfeld said that in their pleadings?

MR. WISE: That’s what they wrote. They wrote the charges in this case are make-weight and politically motivated.

THE COURT: So — but where do they — okay. But I — you’ve taken that quite a bit beyond that they’re saying — what did you just say was . . .

MR. WISE: Well, I’m trying to figure out — it sounds like they’re saying we’re working at the direction of the White House and the Biden campaign. And the other cases —

THE COURT: Is that a leap?

MR. WISE: And the other cases —

MR. WISE: — the Defense counsels are making the opposite argument.

THE COURT: Well —

MR. WISE: So we’re sort of curious which it is.

THE COURT: Well, and I’m not getting into the politics of this. I  have to make a determination under the Bail Reform Act whether he’s a flight risk or a danger and whether, if he is, there are conditions or a combination of conditions to address that.

MR. WISE: Right.

THE COURT: So I have no time for the politics of this case. I understand the underlying charges. There’s a component to that. But I’m not going to spend a lot of time here talking about the politics.

MR. WISE: Good. Because when we saw that, we were shocked that he would make the accusations —

THE COURT: So go on and continue with your argument.

MR. WISE: Now, the Defense counsel calls the charges not serious, which begs the question is he serious. The defendant’s lies have captured —

THE COURT: All right. I’m not going to get personal with the attacks on counsel. All right? Let’s keep it to the facts and the law. You don’t need to make snide remarks about “is he serious.” And I’m not going to tolerate that from either side .

MR. WISE: Understood, Your Honor. The defendant’s lies in this case have captured the national imagination. And while the — while the filing says they do not involve espionage, of course the charges do involve foreign intelligence services.

He lashed out again later in the hearing.

MR. WISE: You know, while counsel claims, I guess — I mean, in addition — and I hear him say now that the “serious” comment was about the — the sentence, but that’s — that’s not actually what he wrote. He wrote: “These allegations are make-weight and politically motivated. They do not involve espionage or theft and are, thus, not serious.” That’s — that’s his words. And he — he actually ascribes bad motives to us. He says the only reason we want to keep him in is so that he can’t defend himself, and he mentioned improper motives of the Bureau. I wasn’t quite following what he meant.

MR. CHESNOFF: Your Honor, could you ask him to stop? Like, suggest — enough is enough.

I wouldn’t call these “makeweight.”

It’s likely that close scrutiny of Smirnov’s ties to Russia in the conjunction of involvement in two information operations, to say nothing of his possible retroactive reporting to cover it up, made the charges necessary.

But it is also absolutely certain they would not have been charged if Wise had not used the FD-1023 to reopen the case against Hunter Biden and charge him with a bunch of felonies.

Wise seems to have believed, then, that he could bully his way through charges. And he seems to believe, here, that he can continue to do so.

But ultimately both problems stem from a stupid prosecutorial decision, one that didn’t take the difficulties of this case into consideration.

Update: Smirnov’s attorneys have posted a pretty reasonable release proposal, including a Special Master to prevent spending his millions and assurances from the Israeli consulate that they won’t reissue his Israeli passport.

Update: Judge Otis Wright granted the prosecution request for detention.

Premier Palace: The Risk of Non-Russian Involvement in Alexander Smirnov’s anti-Biden Election Operation

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Based on the transcript from the detention hearing, one reason Principal Senior Assistant Special Counsel Leo Wise failed to convince Nevada Magistrate Judge Daniel Albregts to detain Alexander Smirnov pretrial, is that in arguing Smirnov was a flight risk, Wise focused primarily on Smirnov’s ties to Russian intelligence, not other spy agencies.

That made it easier for Albregts to argue — repeating something Smirnov’s attorney, David Chesnoff, said — that Russian spooks are probably not too enamored of Smirnov right now, given the details included in court filings describing his reporting on Russian spies.

I — you know, I understand the concern about foreign intelligence agencies potentially resettling Mr. Smirnov outside of the United States/ his connections to them, but I think on some level that’s speculative as well because, as Mr. Chesnoff points out, I don’t know what Mr. Smirnov will be thought of in Russia/ but my guess is at this stage he probably thinks that’s not the most attractive place to go either if he was in fact inclined to go hide somewhere. So while I notice and note that that’s a concern and certainly raised by the Government that I should consider it, I just don’t know in the context of what’s happened in the last couple of weeks with his arrest and everything else that that is as grave a concern as the Government outlines.

This misunderstands the implied relationship of Smirnov to the Russians. For example, while Wise notes that Smirnov is not charged with spying (he’d have a tough time charging Smirnov with acting as a foreign agent without informing the Attorney General, given that the then-Attorney General was gleefully cheering what he was doing when he allegedly lied), he insinuates that Smirnov’s charged 2020 lie was part of a Russian influence operation.

MR. WISE: Understood, Your Honor. The defendant’s lies in this case have captured the national imagination. And while the — while the filing says they do not involve espionage, of course the charges do involve foreign intelligence services. The defendant claims to have met with Russian intelligence agencies on multiple occasions, and the U.S. intelligence community has concluded that Russian intelligence interfered in the 2020 election and continues to interfere in our elections by spreading misinformation.

What Wise didn’t emphasize, but which is no doubt the source of urgent concern, is that it’s not just Russian intelligence. As Wise addressed the limits of US extradition authority, he briefly noted there were other countries that, like Russia, would refuse to extradite Smirnov.

MR. WISE: These contacts make this defendant different from other defendants who merely have foreign ties, and they heighten the risk of flight dramatically. And that is because he can use these contacts with foreign intelligence services to flee and to resettle overseas, something I would again venture to say is almost unique in the presentation of a defendant being considered for the pretrial release.

THE COURT: So let’s say that happens. You don’t think that the Federal Government would have the ability to find him and take action to bring him back? You think that these Russian ties that you’re talking about are the type of people that would literally take him and secrete him from prosecution?

MR. WISE: If he were to resettle in Russian, we couldn’t extradite him. Russian won’t extradite under thesecircumstances. If he were to resettle in other — in third countries, we couldn’t extradite him. And so, yes, I think that is the case.

THE COURT: All right. Go ahead. I’ll —

MR. WISE: That’s even assuming we could find him. That’s even assuming we could find him.

For a dual Israeli citizen like Smirnov, those countries would, by law, include Israel. CNN reported last week that the FBI knew that Smirnov has also served as a source for Israel.

And while this is changing, those countries that would refuse extradition also likely include UAE, almost certainly another of the countries where Smirnov has been hanging out on mega yachts with Russian oligarchs.

Most of the details of Smirnov’s recent activity that David Weiss’ team chose to burn — and so the things that Albregts saw and Los Angeles Judge Otis Wright also received in their detention motion — does pertain to Russia.

The government put that reporting out of order in the detention memo, which obscures the timeline. I’m going to do the same, so as to first show the picture of Russian ties the government establishes. But as I’ll get to, those ties are built on two other relationships, relationships in Ukraine and Israel, that are critical to understanding Smirnov’s Russian relationships. [Note: I’ll be linking to the NV detention memo rather than the LA one; the declassified descriptions of his reporting are the same in both, but probably because of page limits, the LA one does not have most of the discussion about how Weiss intends to prove the case against Smirnov, which appears on pages 8-15 of the NV one.]

Here’s most of the timeline Smirnov gave his handler of how, along with discussing a way to end the Ukraine war, he also learned of a kompromat effort probably intending to use deep fake recordings of Hunter Biden. Note that the really interesting discussions post-date the September 27, 2023 FBI interview (marked in bold) at which Smirnov backtracked off some parts of his 2020 story and offered up details of another kompromat plan targeting the Bidens, which he already sourced in September 2023 to four Russian spies.

  • August 2023: Smirnov “had been introduced” to RI 2 (the unclassified report does not say, by whom), who was organizing a birthday party on his mega yacht that RO 2 would attend. At that point, the ties between two or three of the oligarchs involved and RO 2 are not yet clear.
  • September 27, 2023: Smirnov interviewed by different FBI agents, to whom he describes Premier Palace plan.
  • October 2023: Smirnov scores an invite to the birthday party on a Russian oligarch’s yacht in a Middle Eastern country (probably UAE). RO 1 and RI 1 were expected to attend.
  • October 2023: RO 1 is expected to attend the birthday party; Smirnov got a copy of RO 1’s passport.
  • November 2023: Smirnov has now met RO 1. RO 1 boasted that he has direct access to the “highest levels of the Russian government.” RO 1 is a top, unofficial representative to Country B. Smirnov got a picture of RO 1 in November 2023, while he was in Country A (meaning RO 1 stayed past the birthday party).
  • November 2023: RO 1 described the assassin teams in Ukraine, and offered to stop those efforts if Ukraine would stop targeting civilian family members of Russian officials living in Moscow. RO 1 also told Smirnov of plans for a winter attack in Ukraine and its intentions for that war.
  • December 2023: Smirnov attended a meeting at which RO 2 attended. The purpose of the meeting was to discuss a resolution to the Ukraine war. He had a separate conversation in which RO 1 told him about the kompromat operation at a “club” in a particular Ukrainian hotel, probably the Premier Palace. He explained they might use kompromat from the hotel in an election year operation. A Ukrainian government official later confirmed that kompromat operation was common knowledge.
  • December 2023: RO 1 and others tell Smirnov that RO 3 is the representative of RO 4, now listed as the former head of a particular unit of Russian intelligence.
  • January 2024: Smirnov told his handler he’d be traveling to Country A (probably UAE) to discuss a prisoner exchange between Ukraine and Russia with RO 1. [my emphasis]

Here are descriptions of the kinds of Russians with whom Smirnov was partying on mega yachts in the Middle East:

Russian Official 1: Son of former high-ranking RU government official, controls two groups of assassins, a RU representative to another country, ties to a particular RU intelligence service.

Russian Official 2: High-ranking member of specific RIS central to discussions of ending the Ukraine war. He has ties to both RI 1 (the senior member of a defense conglomerate) and RI 2 (the senior member of a RU steel company).

Russian Official 3: The representative of Russian Official 4.

Russian Official 4: Head of a particular unit of a RU intelligence service, ran a kompromat operation at a hotel, probably Premier Palace.

Russian Official 5: A Russian spy that Smirnov helped to flip for Country D, probably Israel. In 2019, RO 5 expressed some opposition to Putin.

Russian Official 6: RO 5 had familial ties to RO 6, a former high-ranking member of a Russian intelligence service. In 2019, RO 5 told Smirnov that RO 6 was also not happy with Putin, and said he RO 6 was close friends with RO 2.

Russian Individual 1: A high ranking member of a RU state-owned defense conglomerate.

Russian Individual 2: A high-ranking member of a RU steel company — the guy who owns the mega yacht that was in a Middle Eastern country in October 2023.

According to the timeline of reporting to his handler, Smirnov was just learning about the assassin teams in November and the Premier Palace kompromat plan in December, both from Russian Official 1, whom he describes first meeting in November.

But as the indictment describes, after Smirnov reportedly stood by all his reporting in a conversation with his handler in July 2023, when his FD-1023 first got released, in August, the handler turned over a bunch of things that made it clear Smirnov was lying.

43. On August 29, 2023, FBI investigators spoke with the Handler in reference to the 2020 1023. During that conversation, the Handler indicated that he and the Defendant had reviewed the 2020 1023 following its public release by members of Congress in July 2023, and the Defendant reaffirmed the accuracy of the statements contained in it.

44. The Handler provided investigators with messages he had with the Defendant, including the ones described above. Additionally, the Handler identified and reviewed with the Defendant travel records associated with both Associate 2 and the Defendant. The travel records were inconsistent with what the Defendant had previously told the Handler that was memorialized in the 2020 1023. The Defendant also provided email communications with both Associate 2 and Burisma personnel beginning in 2017 to the Handler, which the Handler reviewed with the Defendant and shared with FBI investigators. [my emphasis]

Remember: Scott Brady testified that they asked the handler about travel information in 2020 and (while Brady refused to address the particulars on follow-up), the result of that was a determination that the travel records corroborated the claim.

Mr. Brady. So we attempted to use open-source material to check against what was stated in the 1023. We also interfaced with the CHS’ handler about certain statements relating to travel and meetings to see if they were consistent with his or her understanding.

Q And did you determine if the information was consistent with the handler’s understanding?

A What we were able to identify, we found that it was consistent. And so we felt that there were sufficient indicia of credibility in this 1023 to pass it on to an office that had a predicated grand jury investigation.

Someone, or someones, are lying about the travel records corroborating Smirnov’s claims, either Brady and/or the handler.

Chesnoff — Smirnov’s lawyer — seems to plan to bring this handler down with Smirnov, because he revealed that Smirnov and the handler communicated via the handler’s private phone.

I can tell you. Your Honor, that there will be a vehement defense to the argument that in fact he was not truthful. He had this personal relationship with the handler. It was so personal, Your Honor, that he wouldn’t even call him on his FBI phone; he would call him on his personal phone. So we’re going to dig down once we start defending this case and we’re going to find out who knew what when.

We may yet learn that all the texts in the indictment showing that Smirnov explicitly responded to a story about Andrii Derkach manufacturing dirt by slamming Joe Biden happened on the handler’s phone.

Given what I know of David Weiss’ sawdust-as-cocaine clown show thus far, my guess is they haven’t actually nailed down what this handler knew when, and what he meant when he said, “that would be a game changer.”

Indeed, what appears to have happened is that either the handler warned Smirnov or (more likely) Smirnov figured out, as his lies started crumbling in his September 2023 interview, that his story was in trouble, so tried to throw out new information to Weiss’ team to “help” their criminal investigation of the President and his son.

After the indictment describes the many things Smirnov said in his September 27 interview that thoroughly discredited the story, he describes Smirnov telling Weiss’ team that he already knew of the Premier Palace kompromat and advising them they should check Hunter Biden’s travel records, which they didn’t have to do to know that the Premier Palace kompromat was based on a lie.

51. The Defendant also shared a new story with investigators. He wanted them to look into whether Businessperson 1 was recorded in a hotel in Kiev called the Premier Palace. The Defendant told investigators that the entire Premier Palace Hotel is “wired” and under the control of the Russians. The Defendant claimed that Businessperson 1 went to the hotel many times and that he had seen video footage of Businessperson 1 entering the Premier Palace Hotel.

52. The Defendant suggested that investigators check to see if Businessperson 1 made telephone calls from the Premier Palace Hotel since those calls would have been recorded by the Russians. The Defendant claimed to have obtained this information a month earlier by calling a high-level official in a foreign country. The Defendant also claimed to have learned this information from four different Russian officials.

53. The Defendant told investigators that the four different Russian officials are all top officials and two are the heads of the entities they represent. These Russians said that conversations with Ukrainians about ending the war will include the next U.S. election. The Defendant told investigators he is involved in negotiations over ending the war and had been for the previous four months. According to the Defendant, the Russians want Ukraine to assist in influencing the U.S. election, and the Defendant thinks the tapes of Businessperson 1 at the Premier Palace Hotel is all they have. The Defendant told investigators he wants them to ask Businessperson 1 how many times he visited and what he did while at the Premier Palace Hotel.

54. Businessperson 1 has never traveled to Ukraine. The few Burisma Board meetings that Businessperson 1 did attend were all outside of Ukraine. [my emphasis]

In an effort to claim he was getting useful information about Hunter Biden, then, Smirnov offered up the Premier Palace story and sourced it, already, to four top Russian officials.

It’s totally unclear what Smirnov told his hander. Weiss’ team might be hiding that intentionally, or it may be the case that Smirnov didn’t tell his handler that he was involved in another election influence operation until months later, sourcing it from Russian spies he had or claimed to have met in the interim. But the record at least implies that he told Weiss’ team about the assassination teams and the Premier Palace in September, then found a way to source it anew over the next several months to RO 1, whom Smirnov claimed to have met for the first time on some oligarch’s yacht in October.

In the same interview, Smirnov also claimed that, sometime no later than 2016, he developed ties with Viktor Shokin and Petro Poroshenko.

50. The Defendant told investigators that he had asked the then-Ukrainian President to arrange a meeting between himself and the then-Ukrainian Prosecutor General to talk about Burisma. The Defendant told investigators that this meeting occurred before the then-Ukrainian Prosecutor General resigned, which was early 2016. The Defendant also told investigators this meeting occurred before his meeting with Burisma Official 1 in the coffee shop in a German speaking country. The Defendant told investigators that after he met with the thenUkrainian Prosecutor General, he met with the then-Ukrainian President. The Defendant did not provide any of this information to the Handler in 2020.

With all that in mind, consider the rest of the timeline, the stuff that happened (or that Smirnov claimed happened) before the reporting laid out above.

  • 1992 to 2006: Smirnov lives in Israel, where his family still lives.
  • 2002: Smirnov helps flip RO 5 at the behest of Country D (probably Israel).
  • October 1, 2010: Smirnov starts to serve as a source for the FBI.
  • 2016 or earlier: Smirnov has direct communications with Shokin and Petro Poroshenko.
  • 2019: Smirnov first tells his handler about flipping RO 5 in 2002.
  • January 2022: RO 5 set up a meeting helped introduce Smirnov to RO 2. Then, Smirnov set up a meeting between RO 2 and a high-ranking official of Ukraine.
  • January 2022: Smirnov asked RO 2 for a favor — to protect a Ukrainian associate during any Russian invasion. RO 2 told Smirnov that based on RO 5’s representation that Smirnov was a “good guy,” he’d protect Smirnov’s associate. (Note that the FD-1023 described that Alexander Ostapenko, the guy who introduced Smirnov to Burisma, worked in the Zelenskyy administration.) RO 2 also told Smirnov that there was a 99% chance that, rather than full-blown war, the invasion would only be a skirmish.
  • February 2022: Smirnov provides his handler the back story to his relationship with RO 5 and through him RO 2. When working in Country D (probably Israel) in 2002, Smirnov helped flip two spies, including RO 5, for Country D. Country D had caught RO 5 spying, but gave him 48 hours to leave the country rather than expelling him. RO 5 continued to provide Smirnov intelligence, but never anything adverse to Russia. In 2019, RO 5, whose wife is related to a former Russian spook, RO 6, had described what Russia might look like under different leadership. Smirnov never met RO 6, but once spoke to him briefly over a car speaker phone.
  • February 28, 2022: Smirnov’s partner buys a condo in Las Vegas, using his money, for $1,425,000.
  • December 2022: A RU spy (not any of the identified ones) tells Smirnov the identity of a Russian spy living outside of RU.
  • January 2023: Smirnov confirms, from a different non-identified RU spy, the first name of the RU spy living outside of RU.
  • May 2023: Smirnov participates in discussions to end the Ukraine war
  • By September 2023: Smirnov already claimed knowledge of the Premier Palace kompromat, sourcing that knowledge to four RU Officials, almost certainly one he described meeting in later months.

In other words, there are a bunch of things that lie behind all the reporting about parties with Russian oligarchs on yachts in (probably) UAE that Weiss’ team burned.

First, Smirnov’s entrée into Russian intelligence came by helping someone — probably Israel — flip RO 5, years ago, back in 2002. Smirnov may have thought he had flipped RO 5, but RO 5 never gave him any intelligence about Russia. In other words, in the process of flipping RO 5 for a country that likely is Israel, Russia learned that Smirnov was in the business of flipping people, and strung him along for years.

Smirnov allegedly lied about conversations with Zlochevsky in 2016 that implicated Joe Biden. But his currently operative story is that he had ties with Viktor Shokin from that period — someone who was absolutely central in the 2020 influence operation. It’s not clear that Smirnov ever revealed that to his handler, which surely would have changed the import of those texts sent in response to a story claiming there were secret recordings about Shokin’s firing.

That’s not the only important Ukraine tie. In January 2022, as Russia prepares to invade Ukraine, Smirnov used his tie to Russian spooks, the guy he thought he had flipped years before, RO 5, to meet RO 2. After brokering a meeting, Smirnov then asked for a favor, that Russia protect his associate when they invaded. Then, RO 2 lied about Russia’s intention.

That’s critical background to Smirnov’s claim to be involved in peace negotiations: His entire relationship with Russian spooks is built off a series of lies.

Then, finally, there’s the question of whether Smirnov retroactively provided reporting to cover up what he admitted to Weiss’ team in September: that for months, he had been part of an information operation that involved interfering in the US election and as part of that he had advance knowledge of a plan to frame Hunter Biden.

Again.

Weiss’ team has hinted that Smirnov’s entire relationship with Russian intelligence was built off that effort to flip RO 5 for another country, almost certainly Israel.

But they’re not telling us what they know, if anything, about Israel’s ongoing involvement with all this.

Navel-Gazing: The Ethics Problem Caused by Merrick Garland’s Brad Weinsheimer Solution

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I want to talk about DOJ’s career Associate Deputy Attorney General position. I think the way Merrick Garland is using that position to supervise Special Counsel investigations has contributed to the ethical lapses we’re seeing from them.

The current occupant of that role, Bradley Weinsheimer, has garnered attention in recent weeks for his role in some letters exchanged between lawyers for President Biden and DOJ. Between Politico, WaPo, and NYT stories on the letters, they describe the following exchanges:

There’s no report that anyone responded to any of Biden’s 2023 letters. Hur published the letter from Ricard Sauber and Bob Bauer letter in the report, without addressing most of his inappropriate statements. But, after Garland apparently referred the February 7 letter from Ed Siskel and Bauer to Weinsheimer, the ADAG responded to that, while referencing the letter to Hur.

Brad Weinsheimer blows off half Biden’s complaints

After describing that he “serve[s] as [DOJ’s] senior career official,” Weinsheimer proceeded to mischaracterize both the February 5 and the February 7 letters by claiming the complaints were “substantially similar.”

The objections you raise in your letter to the Attorney General are substantially similar to the objections you raised in your February 5, 2024 letter to Special Counsel Hur. In both letters, you contend that the report contains statements that violate long-standing Department policy.

That’s incorrect. They’re not substantially similar. The February 5 letter included the following:

  • Bullets one and two (about two pages total) complaining about prejudicial comments
  • Three bullets (three through five) about misrepresentations Hur made to substantiate his Afghanistan narrative, none of which Hur addressed in the report
  • Bullet six discussing the awareness of Biden’s staffers of his diaries
  • Bullet seven that included six other complaints, the last three of which Hur fixed, the first three of which — including the make-believe comment about an attorney-client privileged conversation — he left in

One of those items in bullet seven had to do with Hur’s claim, in the first draft, to have reviewed all the classified information in Reagan’s diaries; he added the word “some” in the final to make it accurate.

The letter to Garland addressed two topics, the second of which was Hur’s use of prejudicial language. Before it addressed Hur’s old geezer comments, though, the letter complained that Hur misrepresented DOJ’s past treatment of presidential and vice presidential diaries, a combination of bullet two, bullet six, and the Reagan diary complaint from the February 5 letter.

Rather than deal with the treatment of diaries, Weinsheimer appears to have just lumped the first part (bullet two in the original) in with the old geezer comments, resulting in Weinsheimer’s mischaracterization of the diaries complaint: Here’s how he described the two complaints.

In particular, you first highlight brief language in the report discussing President Biden’s use of the term “totally irresponsible” to refer to former President Trump’s handling of classified information. Second, you object to the “multiple denigrating statements about President Biden’s memory.”

And based on that mischaracterization, even while claiming to have “carefully considered your arguments,” Weinsheimer issued DOJ’s conclusion that Hur acted within DOJ guidelines.

Having carefully considered your arguments, the Department concludes that the report as submitted to the Attorney General, and its release, are consistent with legal requirements and Department policy. The report will be provided to Congress and released publicly, consistent with Department practice and the Attorney General’s commitment to transparency.

With that characterization, Weinsheimer blew off a number of requested corrections in the letter to Hur — such as the one that Hur invented a hypothetical attorney-client conversation to make the discovery of a box with classified documents in the Wilmington garage more suspicious — and also blew off most of the first half of the letter to Garland, addressing the past treatment of diaries.

The problematic function of the senior Associate Deputy Attorney General

I’m not so much interested in litigating Weinsheimer’s answer: that it was cool for Hur to use prejudicial language, including things like his invented attorney-client conversation. I’m interested in the fact that he claimed to address both the letter to Hur and the letter to Garland and, based on that claim, issued a definitive policy judgment. I’m interested in the function Weinsheimer is playing, because I think it is one thing contributing to the tolerance for ethical lapses among Special Counsels under Merrick Garland.

Politico describes Weinsheimer’s role in making that decision this way:

The next day, Feb. 8, Weinsheimer, the associate deputy attorney general, responded to the letter on behalf of the department. Weinsheimer, a civil servant who has worked at the department for decades, oversees the department’s most politically sensitive matters, including questions on ethics. He has fielded complaints from Hunter Biden’s lawyers about special counsel David Weiss and from Trump’s lawyers about special counsel Jack Smith.

That is, Politico treats Weinsheimer’s role as the traditional role of the career Associate Deputy Attorney General, the guy (if I’m not mistaken, it has always been a guy) one appeals to for ethical review.

That understanding of the role goes back to a guy named David Margolis, who is treated as a saint among DOJers. For 23 years, Margolis served as the guy who’d make the hard decisions — such as what to do with the prosecutors who botched the Ted Stevens prosecution or, worse yet, John Yoo’s permission to torture.

In 1993, he was named associate deputy attorney general. He worked for the deputy attorney general, essentially the chief operating officer of the department. “We would give all the hairballs to [Margolis], all the hardest, most difficult problems, the most politically controversial,” recalled FBI Director James B. Comey, a former deputy attorney general.

Vince Foster’s suicide. Ted Stevens’s botched prosecution for public corruption. The leak of Valerie Plame’s identity. The firings of U.S. attorneys. Margolis was involved — in some way — in them all.

Undoubtedly the most controversial issue he has dealt with came in the early years of the Obama administration. The department’s internal watchdog, the Office of Professional Responsibility, had determined that former Office of Legal Counsel lawyers John Yoo and Jay Bybee had engaged in professional misconduct in writing two memos that gave legal sanction to the use of torture tactics such as waterboarding, as well as wall slamming, extended sleep deprivation and other extreme techniques used by the CIA to interrogate terrorist detainees. Margolis had to decide whether to endorse the OPR’s recommendation that the two lawyers from the Bush administration, who by then had left government, be disciplined.

That was the decision “I agonized over most,” he said. “I knew it would be controversial whichever way it came down.”

In a memo written in January 2010, he conceded that “Yoo’s loyalty to his own ideology and convictions clouded his view” of his professional obligation. But, he concluded, Yoo did not “knowingly” provide inaccurate legal advice and he overturned the OPR recommendation.

That set off a firestorm of criticism from Democratic lawmakers, civil liberties advocates and human rights activists.

“I don’t want to accuse him of bad faith,” said David Luban, a Georgetown University Law Center professor of law and philosophy. “But I will accuse him of bad reasoning.”

But as bmaz wrote on Margolis’ passing, often as not decisions advertised as an ethical decision seemed instead to protect the institution of DOJ.

Sally Yates is spot on when she says Margolis’ “dedication to our [DOJ] mission knew no bounds”. That is not necessarily in a good way though, and Margolis was far from the the “personification of all that is good about the Department of Justice”. Mr. Margolis may have been such internally at the Department, but it is far less than clear he is really all that to the public and citizenry the Department is designed to serve. Indeed there is a pretty long record Mr. Margolis consistently not only frustrated accountability for DOJ malfeasance, but was the hand which guided and ingrained the craven protection of any and all DOJ attorneys for accountability, no matter how deeply they defiled the arc of justice.

After Margolis passed, a guy named Scott Schools played that role for a short period spanning the Obama and Trump years. In such role, in my opinion, he protected the Deputy Attorney General’s office more than DOJ. As one example, Schools was the guy who helped push Andrew McCabe out the door to serve Donald Trump’s whims.

Which is when, in 2018, Jeff Sessions put Weinsheimer, who had played a NatSec role prior to that, in the post.

For the purposes of this post, I’m not really interested in whether Weinsheimer is a good guy or not. There are journalists who are better placed than I am to go chase that down.

I want to talk about how his role on Special Counsels likely ensures an ethical conflict — and all that’s before you consider the extremely likely possibility that he signed off on the McCabe settlement and then was involved in Hur’s selection and supervision, which would be a separate conflict of his own.

Weinsheimer is the supervisor of David Weiss

I don’t dispute Politico’s characterization of how the ADAG position normally works. As laid out in the Margolis bio, the position is supposed to make the difficult decisions and then give such decisions, arguably meant to protect DOJ, the appearance of ethical gravitas. One is supposed to be able to appeal to the ADAG position, in case of ethical problems.

But that depends on the ADAG being outside of potentially unethical decisions in the first place. You can’t review decisions if you were part of them.

At least in the case of David Weiss, Weinsheimer can’t play that role because he is, for all intents and purposes, Weiss’ supervisor — apparently on all matters, not just the Hunter Biden investigation.

In his November testimony to Congress, Weiss described that he has never spoken to his nominal boss, Lisa Monaco, or the person via whom he would normally communicate to his boss, the current Principal Associate Deputy Attorney General, Marshall Miller (as noted below, he described communicating via Miller’s predecessor until 2022, John Carlin).

Q When you have interactions with Justice Department Headquarters or Main Justice, how does that ordinarily happen? Who is your primary point of contact?

A I don’t know that there is an ordinary. I don’t know that I would designate anyone in particular.

Q Under the reporting structure, though, you report up through the Deputy Attorney General. Is that correct?

A That’s correct.

Q And how often do you talk with Ms. Monaco?

A I have never spoken with Ms. Monaco.

Q You’ve never spoken to her?

A Never.

Q Okay. And do you have communications with someone else in the office? Maybe the PADAG?

A I have — my point of contact for the last year, year and a half has been Associate Deputy Attorney General Weinsheimer.

Q Okay. So you’re not in contact on a regular basis with the PADAG, Mr. Miller?

A I am not.

Q Have you ever had communications with him?

A I have not.

Q Okay. So you’ve never had any communications with Marshall Miller or Lisa Monaco?

A I have not.

By his description, he speaks to Weinsheimer regularly, about once a month, and those communications primarily pertain to the President’s son.

Q Okay. And how often do you have communications with Mr. Weinsheimer?

A It varies depending upon what’s going on. But I would say we’ve spoken, before August of 2023, approximately once a month, sometimes more frequently.

Q And was it related to the Hunter Biden case, or was it related to your ordinary duties?

A Generally, it was related to the Hunter Biden case investigation.

That same pace has continued during the period since he had been named Special Counsel.

Chairman Jordan. Have you kept up the rhythm? You said earlier today that you had monthly contacts with the key people at the Justice Department. Have you kept up that same protocol? Has it increased or decreased as Special Counsel?

Mr. Weiss. I guess it’s been, I guess, 3 months. I don’t know that there is much of a practice or that I could say, you know, circumstances. You know, I’ve had several conversations in the last 3 months with Mr. Weinsheimer. I can say that.

Chairman Jordan. So it’s picked up?

Mr. Weiss. It’s — I’ve had probably — yes, several conversations. Whether that will continue or it was unique to the initial stages of the project, I really can’t speak to.

When Weinsheimer reached out to the then-PADAG, Carlin — again, the normal person he would report to — Carlin involved Weinsheimer in all discussions about how to get Special Attorney (not Special Counsel) status to charge the case in a different District with Weiss.

Q Okay. And when did Mr. Weinsheimer first start having communications with you about the Hunter Biden case?

A I think we first spoke about the case in the spring of 2022.

Q And, to the extent you can tell us, what were the nature of those discussions?

A In 2022?

Q Yeah.

A Actually, more accurately, February of 2022, I think, was the first time we spoke. And I would have reached out because we were looking to bring certain portions of our investigation to either D.C. or L.A. At that time, D.C.

Q Okay. Did you call him, or did he call you?

A I reached out by email to the Principal Deputy Attorney General at that time, John Carlin.

Q Okay. So he was the PADAG before Mr. Barr [sic]?

A Correct.

Q And how often had you spoken with Mr. Carlin?

A Before this? Never.

Q Okay. So you initiated email contact with Mr. Carlin, and he referred you to Mr. Weinsheimer?

A I initiated email contact with Mr. Carlin, and I subsequently had a conversation with John Carlin, and I believe Brad Weinsheimer was on the call.

Q Okay. And what did they tell you about bringing the case in D.C. or different jurisdictions from yours?

A We discussed the fact that I would — they wanted me to proceed in the way it would typically be done, and that would involve ultimately reaching out to the U.S. Attorney in the District of Columbia. I raised the idea of 515 authority at that time because I had been handling the investigation for some period of time. And, as I said, they suggested let’s go through the typical process and reach out to D.C. and see if D.C. would be interested in joining or otherwise participating in the investigation.

So Weinsheimer was the primary supervisor of David Weiss on the Hunter Biden case.

That makes the meeting with Hunter Biden’s previous attorneys with Weinsheimer — which is fairly routine but was billed as a huge scandal by right wing nutjobs — something else entirely. As Politico described, after months of asking the people who should have had some supervisory role in the investigation, Clark finally emailed Weinsheimer asking whether he could appeal to him.

From the fall of 2022 through the spring of 2023, Clark sought meetings with people at the highest levels of the Justice Department — almost entirely without success. In multiple emails, he asked to meet with the head of the Criminal Division, the head of the Tax Division, the Office of Legal Counsel, the Office of the Solicitor General, Deputy Attorney General Lisa Monaco and the attorney general himself. On Feb. 21, 2023, Clark’s team reached out to multiple officials at Main Justice, who passed his request from one person to the next.

The search ended when Clark sent Associate Deputy Attorney General Bradley Weinsheimer an exasperated email, saying he had asked the government over and over to tell him who at headquarters they could appeal to if Weiss decided to charge their client.

“To date we have heard nothing in this regard,” he added.

“Please advise whether you would be the appropriate person to hear our client’s appeal, in the event that the U.S. Attorney’s Office decides to charge Mr. Biden,” he wrote.

Weinsheimer was indeed the right guy, and he met with Clark and Weiss on April 26.

As Weiss confirmed in his testimony, he attended that meeting with Weinsheimer.

Q Did Mr. Weinsheimer ever tell you that he met with Chris Clark?

A He — if — no. If he met with Chris Clark, I would have been at that meeting.

Q Okay. So there were no one-on-one meetings or telephone calls between Mr. Clark and Brad Weinsheimer?

A I am unaware of any such meeting, and I don’t think any such meeting would have occurred.

Of course Weinsheimer wasn’t going to accede to any of Clark’s requests, or even grant an independent review of some of the shitty things that had already gone on in the case. Presumably unbeknownst to Clark, Weinsheimer was signing off on Weiss’ actions all along.

And he didn’t. Two weeks after they met with Clark, Weinsheimer sent Clark a letter, “referring you back to” Weiss, saying that Weiss had full authority to charge the case wherever he wanted. It’s not clear that Weinsheimer ever revealed that he had assumed a supervisory role on the case a year earlier.

If Weinsheimer played a similar role with Robert Hur, the same would be true. Of course Weinsheimer wouldn’t, in that case, take action after Hur violated DOJ policy by smearing the President. That’s because Weinsheimer would have been in on it, part of the smear.

Except for the Special Counsel appointment

As David Weiss told it, there was an important exception that may have, may still, exacerbate all this.

He did not go through Weinsheimer when requesting Special Counsel authority.

Q And, when you submitted the request, was that through Mr. Weinsheimer?

A No. No, it wasn’t.

Q Did you have communications with Mr. Weinsheimer before you submitted the request?

A I did not have communications with Mr. Weinsheimer about the request before I submitted it.

Q Okay. You just went right to the Attorney General?

A I submitted the request on my own initiative, and, otherwise, I really can’t get into the particulars at all.

Q Right. Have you had subsequent conversations with Mr. Weinsheimer? Is he the individual that you reported to, or —

A After I was appointed?

Q Correct.

A Yes. I continue to discuss the matter with Mr. Weinsheimer.

Q So he’s your primary point of contact still?

A He continues to be my primary point of contact, yes.

And that communication with Merrick Garland was, at least at the time of Weiss’ testimony on November 7 (and so just over a week before Abbe Lowell started asking for discovery and subpoenas on the side channel and the Smirnov FD-1023), the only time he had ever communicated, in any form, with the Attorney General.

Q So the Attorney General has had a couple of silent appearances where this topic has come up, and I guess the question is, did you have direct communications with the Attorney General?

A I’ve never had any direct communications with the Attorney General, save my communication in requesting Special Counsel authority in August of 2023.

Q When you did request Special Counsel authority in August of 2023, how did you request it? Was it in writing or on the telephone?

A It was in writing, and that’s about all I’m going to say about that process.

Q Okay. Did you reach out directly to the Attorney General, or did you go through Mr. Weinsheimer?

A I’m not going to get into anything further. I requested it, and it was granted.

Q Okay.

I started writing this post before the arrest of Alexander Smirnov. At the time, I thought that Weiss might have gone directly to Garland only because Garland had promised the Senate he’d give Weiss Special Counsel authority if ever he asked it. That is, before the Smirnov arrest, it looked only like Weiss collecting on Garland’s promises.

No longer.

The significance of this has been missed. The FD-1023 assessment number, 58A-PG-3250958, cited Executive Branch public corruption. The only way the FD-1023 could be basis for ongoing criminal investigation is if Joe Biden were a subject of the investigation as well. That would make the Special Counsel request not a request for authority to charge in other Districts.

It would arise from the conflict of investigating the President.

Before even interviewing the informant’s handler — to say nothing of Smirnov himself — David Weiss got himself Special Counsel authority.

Few agree with me. But I think Weiss has walked himself into a shitshow. Even assuming that none of Abbe Lowell’s bids to throw out the indictments in Delaware and Los Angeles succeed — and the Smirnov indictment would seem to raise still more questions about why Weiss reneged on the plea deal — there’s good reason to believe the motion to suppress evidence from the laptop will surprise a good number of people, including the prosecutors. Consider what it means that attorneys for John Paul Mac Isaac abandoned their argument that the blind computer repairman had legal authority to snoop through and disseminate data he claims to believe belonged to Hunter Biden, focusing seemingly exclusively on a claim that Delaware’s two year statute of limitations for complaint from Hunter has expired: Judge Robert Robinson may not rule on that question, but that legal challenge may have confirmed that JPMI did not own the data he shared with the FBI after the FBI told his father he might not own it. The implications of that are fairly staggering, though I’ll wait before I lay them out explicitly.

And that’s before Smirnov — a 14-year source for the FBI, whose charged report was championed by Attorney General Bill Barr after Scott Brady claimed to have vetted it — starts challenging his own indictment. That’s before either Smirnov or Abbe Lowell raises Weiss’ conflict in charging it. I don’t think David Weiss has the team to pull that prosecution off without major blowback.

If there were a figure like Weinsheimer outside of this investigation to step in, to call a halt to this shitshow, now would be the time to do it. But as I understand it, Weinsheimer can’t do that, because — apparently aside from the Special Counsel request — he has been part of the process every step of the way.

I get why Merrick Garland would have chosen to do it this way: having a career ADAG oversee Special Counsels rather than the PADAG (in which role Hur supervised Mueller). But in SCO investigation after SCO investigation, it has turned the supervisory role into navel-gazing. And the attempt to ensure a higher level of independence has led to grave ethical problems.

Trump’s Defense: He Intended to Steal Boxes and Boxes of Classified Documents

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As I have been noting for months, in all of Jack Smith’s rebuttals to Trump’s claims that Presidents have absolute immunity, he floated scenarios that are pretty similar to stuff that Trump is known or suspected of doing.

One of those is, “a president who sells nuclear secrets to a foreign adversary.”

As I noted in response to Trump’s claim that that would be treason, Trump has done a whole lot that’s improper with classified information.

The closest thing on that list to treason is selling nuclear secrets to America’s adversaries. Not treason.

But Trump’s lawyers, including two of the lawyers representing him in the stolen documents case, lawyers who had their first good look at the documents Trump is accused of stealing last week, seem to suggest it could be.

To be clear: Trump has never been accused of selling nuclear secrets to America’s adversaries.

He undoubtedly gave Israel’s counterterrorism secrets to Russia — why, and whether there was a quid pro quo involved, we still don’t know.

He is known to have Tweeted out highly sensitive satellite information to dick-wag Iran, with the result that Iran learned about the satellites targeting their country.

To spite Mark Milley, he showed a plan to attack Iran to Mark Meadows’ ghost writers.

Ongoing reporting, first from ABC and then from NYT, reveals that after Australian billionaire Anthony Pratt paid millions for access to Trump, Trump shared details of a conversation he had about a call he had with Iraq’s president after bombing Iraq, described his perfect phone call with Volodymyr Zelenskyy, and provided sensitive details of America’s nuclear subs.

And he is accused of leaving nuclear documents — documents that Trump’s lawyers may have reviewed for the first time last week — in unsecure ways at his beach resort, possibly even in his gaudy bathroom.

So, no. Trump has not (yet) been accused of selling nuclear secrets, to adversaries or anyone else. Though he did give away what he claimed to be nuclear secrets to a businessman from an allied nation after the guy paid a lot of money for access to Trump.

But as I noted, we don’t yet know what happened to some of the secret documents that Trump snuck away from Mar-a-Lago after hiding them from Evan Corcoran in June 2022, documents he took with him to host a golf tournament the Saudis paid an undisclosed sum to host at Bedminster.

Those documents have never been located.

Just so long as Trump didn’t sell any of these nuclear documents, but instead gave them away, I’m sure we’re all good.

That’s important background to Trump’s primary defense in his stolen documents case. Between his motion to dismiss because the Presidential Records Act doesn’t say what he claims it says and his motion to dismiss for absolute immunity, he is arguing that he intended to steal boxes and boxes of classified documents.

The latter argument is substantially the same garbage argument Trump has made to the DC Circuit and SCOTUS. The former is a real piece of work, even by Trump’s standards. Here his argument:

  • Before the Presidential Records Act was passed, Presidents treated presidential papers — which are different from government classified documents — as their personal property
  • Because NARA had no authority, after Bill Clinton left office, to reclassify tapes of personal conversations Clinton made so Tom Fitton could have them, it means NARA has no authority over what counts as a presidential or personal record
  • Bill Clinton’s personal tapes are exactly the same as the boxes and boxes of official documents Trump sent to Mar-a-Lago
  • Without providing any evidence Trump did classify all those official documents as personal documents, he will nevertheless claim he did so while still in office
  • Robert Hur’s report describing seizing all of Joe Biden’s diaries — which are specifically excluded from the PRA — is proof that Presidents control all official documents they stash away
  • Cmon, Judge Cannon, you made the ridiculous argument I own these documents once already, only to have the 11th Circuit rip you a new asshole, but why can’t you make precisely that argument again?
  • Charging Trump for actions he took after leaving the White House is the same as supervising his actions day-to-day
  • Because DOJ declined to second-guess Mark Meadows’ spectacular failure to declassify documents Trump wanted to give to John Solomon, it means DOJ must accept Trump’s vague assertion that he didn’t spectacularly fail to declassify boxes and boxes of documents either
  • These boxes and boxes of official documents, which are not excluded from the PRA, are just like Reagans diaries, which are specifically excluded
  • Clinton’s conversations about official stuff are just the same as the official documents documenting that kind of stuff
  • Because NARA had never made a criminal referral before February 2022, the fact that it has since made two means it couldn’t make any
  • Trump didn’t think he’d get busted, so it was improper for FBI to bust him
  • DOJ should have dealt with me like they did with Peter Navarro when he also blew off the PRA
  • Because DOJ refused to seize unclassified personal Clinton recordings so Tom Fitton could have them, it means DOJ could not seize classified official documents so NARA could have them

Ultimately, though, the two arguments together are very simple. First, from the PRA filing, Trump intended to take those boxes and boxes of classified documents.

The Special Counsel’s Office concedes that the “genesis” of this case dates back to at least “the tail end of the Trump Administration itself.” Compel Oppn. at 3.2 The Office alleges in the Superseding Indictment that President Trump “caused scores of boxes, many of which contained classified documents, to be transported” to Mar-a-Lago. ECF No. 85 ¶ 4 (emphasis added). The Superseding Indictment makes clear that this decision and the related transportation of records occurred while President Trump was still in office. Id. ¶ 25 (alleging that President Trump caused boxes of records to be packed and shipped “[i]n January 2021, as he was preparing to leave the White House” (emphasis added)). President Trump departed the White House prior to “12:00 p.m. on January 20, 2021,” and as such he is alleged to have made these decisions concerning the documents at issue while he was the Commander-in-Chief. Id. ¶ 4.

And, from the immunity filing, because Trump stole those boxes and boxes of classified documents while he was still Commander-in-Chief, he has immunity from prosecution for doing so.

Specifically, President Trump is immune from prosecution on Counts 1 through 32 because the charges turn on his alleged decision to designate records as personal under the Presidential Records Act (“PRA”) and to cause the records to be moved from the White House to Mar-a-Lago. As alleged in the Superseding Indictment, President Trump made this decision while he was still in office. The alleged decision was an official act, and as such is subject to presidential immunity.

[snip]

Even if the Special Counsel’s Office could establish that President Trump’s designation decision under the PRA was illegal or otherwise improper—and they cannot—“the President’s actions do not fall beyond the outer perimeter of official responsibility merely because they are unlawful or taken for a forbidden purpose.” Blassingame, 87 F.4th at 14. The Supreme Court has so held, repeatedly. After all, every claim of immunity is raised against charges of allegedly improper motive or purpose. See, e.g., Fitzgerald, 457 U.S. at 756 (rejecting a rule that would permit “an inquiry into the President’s motives” as “highly intrusive”); Pierson v. Ray, 386 U.S. 547, 554 (1967); Barr v. Matteo, 360 U.S. 564, 575 (1959) (“The claim of an unworthy purpose does not destroy the privilege.” (citation omitted)); Spalding v. Vilas, 161 U.S. 483, 498 (1896) (holding that immunity does not turn on “any personal motive that might be alleged to have prompted his action”); Bradley v. Fisher, 80 U.S. 335, 354 (1871) (holding that immunity “cannot be affected by any consideration of the motives with which the acts are done”); see also, e.g., Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949) (Hand, J.). In short, in assessing whether immunity applies, courts must look to the “nature of the act itself.” Stump v. Sparkman, 435 U.S. 349, 362 (1978). The allegedly improper manner or purpose of the alleged acts is not relevant. Fitzgerald, 457 U.S. at 756. Therefore, President Trump is entitled to immunity for this official act and that must include immunity from criminal prosecution.

This is, quite literally, an argument that it was totally legal for Trump to choose to steal boxes and boxes of classified documents.