DC Circuit: Go Big and [in a Footnote] Go Blassingame!

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Note: Our discussion of the decision starts after 10 minutes.

During the entire month we’ve been waiting for a DC Circuit ruling on Trump’s immunity claim, I have argued we’d be better off with an opinion for which SCOTUS was likely to deny cert than a decision in which a — say — Judge Karen Henderson concurrence offered surface area for Justices to claw out review.

Before I explain why there’s a good shot that this opinion was worth the wait, let me review how SCOTUS came to uphold a Judge Chutkan opinion chipping away at Trump’s Executive Privilege claims for January 6. In that case, Trump was trying to prevent the Archives from sharing presidential documents with the January 6 Committee; because he was seeking to prevent something, it was actually easier to make appeals go faster. The appeals were resolved in 74 days:

  • On November 9, 2021, Judge Chutkan rejected Trump’s attempt to enjoin the Archives from sharing his papers
  • On November 30, a DC Circuit panel of three Democratic appointees heard his case; on December 9, the Circuit issued an opinion from Patricia Millet upholding Judge Chutkan
  • On January 22, 2022, with only a dissent from Clarence Thomas, SCOTUS upheld the DC Circuit opinion; Justice Kavanaugh noted that, even if a more stringent standard were applied, Trump’s claim would still fail

This appeal has taken 67 days thus far:

  • On December 1, Judge Chutkan, waiting less than 12 hours after the long-delayed issuance of an opinion in Blassingame holding that former Presidents are not immune from lawsuit when in the role of office-seeker, issued her ruling rejecting Trump’s immunity claim
  • A bipartisan panel — Karen Henderson, Florence Pan, and Michelle Childs — heard Trump’s appeal on January 9
  • The panel issued a strong per curiam opinion on February 6

In recent weeks, I had shown where there seemed to be disagreement on that panel, disagreements that are all resolved in the opinion.

Posture

Let’s start with the last one, what I called posture. Judge Henderson had originally not favored an expedited review. This order forces Trump into an expedited appeals process.

The Clerk is directed to withhold issuance of the mandate through February 12, 2024. If, within that period, Appellant notifies the Clerk in writing that he has filed an application with the Supreme Court for a stay of the mandate pending the filing of a petition for a writ of certiorari, the Clerk is directed to withhold issuance of the mandate pending the Supreme Court’s final disposition of the application. The filing of a petition for rehearing or rehearing en banc will not result in any withholding of the mandate, although the grant of rehearing or rehearing en banc would result in a recall of the mandate if the mandate has already issued.

The only way he can stop Judge Chutkan from issuing opinions on the remaining motions to dismiss filed last fall is if he immediately appeals to SCOTUS for a stay pending appeal, which he has already said he’d done. The only way he can get that stay is if five Justices say they think Trump will succeed on the merits and vote to grant the stay.

Steve Vladeck says that SCOTUS has a lot of options, but the two most likely are to deny the stay or to grant an appeal in this term, committing to an opinion by June.

Jurisdiction

At least by my read in the table, the one reason Pan and Childs couldn’t write their own opinion without Henderson was because Childs was much more cautious about whether the Circuit even had jurisdiction.

Nine pages of the opinion treat that question. It adopts two suggestions from Jack Smith’s prosecutor James Pearce. Most notably, it notes that SCOTUS has repeatedly given [former] Presidents get immediate appeals.

Nor was the question presented in Midland Asphalt anything like the one before us. Procedural rules are worlds different from a former President’s asserted immunity from federal criminal liability. The Supreme Court has repeatedly emphasized that the President is sui generis. In the civil context, the Court has held that the denial of the President’s assertion of absolute immunity is immediately appealable “[i]n light of the special solicitude due to claims alleging a threatened breach of essential Presidential prerogatives under the separation of powers.” Fitzgerald, 457 U.S. at 743. And in United States v. Nixon, the Court waived the typical requirement that the President risk contempt before appealing because it would be “unseemly” to require the President to do so “merely to trigger the procedural mechanism for review of the ruling.” 418 U.S. 683, 691–92 (1974). It would be equally “unseemly” for us to require that former President Trump first be tried in order to secure review of his immunity claim after final judgment.

Trump did not contest jurisdiction here, so it’s unlikely to be something that SCOTUS pursues (and if they did, then it would get bumped back to Chutkan for trial).

Go Big and [in a Footnote] Go Blassingame

Finally, I noted that Judge Henderson seemed to have concerns about the scope of their decision — what she described “floodgates” of follow-on charges. She at least considered the wisdom of limiting this opinion to a former President’s unofficial acts — in this case, defined as those of an office-seeker under Blassingame.

Rather than going Blassingame, though, the panel’s top line holding went Big.

The operative language in this opinion rejects the notion of Presidential immunity categorically as a violation of separation of powers.

At bottom, former President Trump’s stance would collapse our system of separated powers by placing the President beyond the reach of all three Branches. Presidential immunity against federal indictment would mean that, as to the President, the Congress could not legislate, the Executive could not prosecute and the Judiciary could not review. We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter. Careful evaluation of these concerns leads us to conclude that there is no functional justification for immunizing former Presidents from federal prosecution in general or for immunizing former President Trump from the specific charges in the Indictment. In so holding, we act, “not in derogation of the separation of powers, but to maintain their proper balance.” See Fitzgerald, 457 U.S. at 754. [my emphasis]

Even in that sweeping language, though, the opinion addresses the question of presidential immunity generally and specifically, as to the charges in the indictment.

The import of this move in resolving any disagreement on the panel is more clear elsewhere.

Perhaps most importantly, footnote 14, does something that Judge Chutkan also did. It said that because they reject the notion of categorical immunity, they don’t have to review whether the alleged crimes are official acts.

14 Because we conclude that former President Trump is not entitled to categorical immunity from criminal liability for assertedly “official” acts, it is unnecessary to explore whether executive immunity, if it applied here, would encompass his expansive definition of “official acts.” Nevertheless, we observe that his position appears to conflict with our recent decision in Blassingame, 87 F.4th at 1. According to the former President, any actions he took in his role as President should be considered “official,” including all the conduct alleged in the Indictment. Appellant’s Br. 41–42. But in Blassingame, taking the plaintiff’s allegations as true, we held that a President’s “actions constituting re-election campaign activity” are not “official” and can form the basis for civil liability. 87 F.4th at 17. In other words, if a President who is running for re-election acts “as office-seeker, not office-holder,” he is not immune even from civil suits. Id. at 4 (emphasis in original). Because the President has no official role in the certification of the Electoral College vote, much of the misconduct alleged in the Indictment reasonably can be viewed as that of an office-seeker — including allegedly organizing alternative slates of electors and attempting to pressure the Vice President and Members of the Congress to accept those electors in the certification proceeding. It is thus doubtful that “all five types of conduct alleged in the indictment constitute official acts.” Appellant’s Br. 42. [my empahsis]

But they say if they did have to review whether the indictment charged Trump for official acts, the fact that so many of the alleged acts in the indictment pertain to Trump’s role as an office-seeker, and because Presidents have no role in election certifications, the indictment would survive that more particular review anyway.

This is the kind of out that Justice Kavanaugh took on a related issue, whether the interests of Congress in reviewing an attack on the election certification preempted any Executive Privilege claims.

That is, both the District and Circuit have already said that, if they were asked to consider whether this indictment withstands an immunity claim, it substantially would.

I have no idea what SCOTUS will do. But by producing a unanimous opinion with little surface area for Justices to grab hold, Judges Henderson, Pan, and Childs may have ended up producing the most expeditious result.

DC Circuit Upholds Judge Chutkan’s Immunity Decision

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The opinion is here. They’ve also issued the mandate on a tight clock.

Today, we affirm the denial. For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.

They did use collateral order doctrine to establish jurisdiction.

Although both parties agree that the Court has jurisdiction over former President Trump’s appeal, amicus curiae American Oversight raises a threshold question about our collateral-order jurisdiction. In every case, “we must assure ourselves of our jurisdiction.” In re Brewer, 863 F.3d 861, 868 (D.C. Cir. 2017). Under 28 U.S.C. § 1291, which grants us jurisdiction over “final decisions of the district courts,” id., “we ordinarily do not have jurisdiction to hear a defendant’s appeal in a criminal case prior to conviction and sentencing,” United States v. Andrews, 146 F.3d 933, 936 (D.C. Cir. 1998). The collateral-order doctrine, however, treats as final and thus allows us to exercise appellate jurisdiction over “a small class of [interlocutory] decisions that conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and are effectively unreviewable on appeal from a final judgment.” Citizens for Resp. & Ethics in Wash. v. Dep’t of Homeland Sec., 532 F.3d 860, 864 (D.C. Cir. 2008) (cleaned up). The district court’s denial of former President Trump’s immunity defense unquestionably satisfies the first two requirements and thus we focus our analysis on the third: whether the denial of immunity is effectively unreviewable on appeal from a final judgment.

Here’s how the opinion dealt with Trump’s Marbury argument. This language would have come from Judge Henderson (the opinion clearly has a lot of input from all three).

We therefore conclude that Article III courts may hear the charges alleged in the Indictment under the separation of powers doctrine, as explained in Marbury and its progeny and applied in the analogous contexts of legislative and judicial immunity. The Indictment charges that former President Trump violated criminal laws of general applicability. Acting against laws enacted by the Congress, he exercised power that was at its “lowest ebb.” Youngstown, 343 U.S. at 637 (Jackson, J., concurring). Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct.

This part of the ruling could be seen as limiting it to Blassingame.

We note at the outset that our analysis is specific to the case before us, in which a former President has been indicted on federal criminal charges arising from his alleged conspiracy to overturn federal election results and unlawfully overstay his Presidential term.8

8 We do not address policy considerations implicated in the prosecution of a sitting President or in a state prosecution of a President, sitting or former.

The opinion straight up says Trump’s Take Care Clause argument is bunk.

The President, of course, also has a duty under the Take Care Clause to faithfully enforce the laws. This duty encompasses following the legal procedures for determining election results and ensuring that executive power vests in the new President at the constitutionally appointed time. To the extent former President Trump maintains that the post-2020 election litigation that his campaign and supporters unsuccessfully pursued implemented his Take Care duty, he is in error. See infra n.14. Former President Trump’s alleged conduct conflicts with his constitutional mandate to enforce the laws governing the process of electing the new President.

This is an argument that I thought Jack Smith didn’t push enough.

Former President Trump’s alleged efforts to remain in power despite losing the 2020 election were, if proven, an unprecedented assault on the structure of our government. He allegedly injected himself into a process in which the President has no role — the counting and certifying of the Electoral College votes — thereby undermining constitutionally established procedures and the will of the Congress. To immunize former President Trump’s actions would “further . . . aggrandize the presidential office, already so potent and so relatively immune from judicial review, at the expense of Congress.” Youngstown, 343 U.S. at 654 (Jackson, J., concurring) (footnote omitted). As Justice Jackson warned:

Executive power has the advantage of concentration in a single head in whose choice the whole Nation has a part, making him the focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear. No other personality in public life can begin to compete with him in access to the public mind through modern methods of communications. By his prestige as head of state and his influence upon public opinion he exerts a leverage upon those who are supposed to check and balance his power which often cancels their effectiveness.

Id. at 653–54 (Jackson, J., concurring).

We cannot accept former President Trump’s claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results. Nor can we sanction his apparent contention that the Executive has carte blan che to violate the rights of individual citizens to vote and to have their votes count.

* * *

At bottom, former President Trump’s stance would collapse our system of separated powers by placing the President beyond the reach of all three Branches. Presidential immunity against federal indictment would mean that, as to the President, the Congress could not legislate, the Executive could not prosecute and the Judiciary could not review. We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter. Careful evaluation of these concerns leads us to conclude that there is no functional justification for immunizing former Presidents from federal prosecution in general or for immunizing former President Trump from the specific charges in the Indictment. In so holding, we act, “not in derogation of the separation of powers, but to maintain their proper balance.” See Fitzgerald, 457 U.S. at 754.

This section, turning Trump’s impeachment argument on its head, is the fruit of Florence Pan’s work in the hearing, surgically narrowing and then narrowing still further the issues.

Former President Trump agrees that the Impeachment Judgment Clause contemplates and permits the prosecution of a former President on criminal charges — he argues only that such a former President first must be impeached by the House and “convicted” by the Senate. Appellant’s Br. 12–14, 31. In other words, he asserts that, under the Clause, a former President enjoys immunity for any criminal acts committed while in office unless he is first impeached and convicted by the Congress. Under that theory, he claims that he is immune from prosecution because he was impeached and acquitted. By taking that position, former President Trump potentially narrows the parties’ dispute to whether he may face criminal charges in this case consistent with the Impeachment Judgment Clause: If the Clause requires an impeachment conviction first, he may not be prosecuted; but if it contains no such requirement, the Clause presents no impediment to his prosecution.

Former President Trump also implicitly concedes that there is no absolute bar to prosecuting assertedly “official” actions. He argues elsewhere in his brief that his impeachment on the charge of inciting insurrection was based on conduct that was the “same and closely related” to the “official acts” charged in the Indictment. Appellant’s Br. 46 (“President Trump was impeached and acquitted by the Senate for the same and closely related conduct to that alleged in the indictment.” (emphasis omitted)); id. at 42 (“[A]ll five types of conduct alleged in the indictment constitute official acts.”). And he agrees that if he had been convicted by the Senate in that impeachment trial, he would not be immune from prosecution for the “official acts” at issue here. See id. at 31. Thus, he concedes that a President can be prosecuted for broadly defined “official acts,” such as the ones alleged in the Indictment, under some circumstances, i.e., following an impeachment conviction. [my emphasis]

They note that Trump’s argument about Alexander Hamilton is followed immediately by Hamilton saying that Presidents must be unlike Kings.

To counter the historical evidence that explains the purpose of the Impeachment Judgment Clause, former President Trump turns to one sentence written by Alexander Hamilton in the Federalist 69: “The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.” The Federalist No. 69, at 337 (Alexander Hamilton) (Coventry House Publishing, 2015). He focuses on the word “afterwards” and suggests that a President is not “liable to prosecution and punishment” until “after[]” he has been impeached and convicted by the Senate. See Appellant’s Br. 14–15. But we think the more significant word in Hamilton’s statement is “liable,” which means “subject to.” Liable, 1 John Ash, New and Complete Dictionary of the English Language (1795). Hamilton specifies that a President would be subject to impeachment, trial, conviction and removal from office; and “afterwards” would be subject to prosecution and punishment, without regard to the verdict in the impeachment proceeding. 10 Moreover, in the very next sentence of the same essay, Hamilton stresses that the President must be unlike the “king of Great Britain,” who was “sacred and inviolable.” The Federalist No. 69, at 337–38. It strains credulity that Hamilton would have endorsed a reading of the Impeachment Judgment Clause that shields Presidents from all criminal accountability unless they are first impeached and convicted by the Congress.

The opinion names all the Senators who said they voted against impeachment because Trump was out of office.

Former President Trump’s interpretation also would permit the commission of crimes not readily categorized as impeachable (i.e., as “Treason, Bribery, or other high Crimes and Misdemeanors”) and, if thirty Senators are correct, crimes not discovered until after a President leaves office. See U.S. CONST. art. II, § 4; see also, e.g., 167 CONG. REC. S736 (daily ed. Feb. 13, 2021) (statement of Senate Minority Leader McConnell) (“We have no power to convict and disqualify a former office holder who is now a private citizen.”). 13

13 See also statements of Senators Barrasso, Blunt, Braun, Capito, Cornyn, Cramer, Crapo, Daines, Ernst, Fischer, Grassley, Hoeven, Hyde-Smith, Inhofe, Kennedy, Lankford, Lee, Lummis, Moran, Portman, Risch, Rounds, Rubio, Shelby, Sullivan, Thune, Tillis, Tuberville and Wicker.

Here’s another section on the import of Blassingame. They’re saying this decision is categorical — that is, there’s no need for analysis of whether these were official acts or not. But because Blassingame already ruled they were not, there’s no need to here.

14 Because we conclude that former President Trump is not entitled to categorical immunity from criminal liability for assertedly “official” acts, it is unnecessary to explore whether executive immunity, if it applied here, would encompass his expansive definition of “official acts.” Nevertheless, we observe that his position appears to conflict with our recent decision in Blassingame, 87 F.4th at 1. According to the former President, any actions he took in his role as President should be considered “official,” including all the conduct alleged in the Indictment. Appellant’s Br. 41–42. But in Blassingame, taking the plaintiff’s allegations as true, we held that a President’s “actions constituting re-election campaign activity” are not “official” and can form the basis for civil liability. 87 F.4th at 17. In other words, if a President who is running for re-election acts “as office-seeker, not office-holder,” he is not immune even from civil suits. Id. at 4 (emphasis in original). Because the President has no official role in the certification of the Electoral College vote, much of the misconduct alleged in the Indictment reasonably can be viewed as that of an office-seeker — including allegedly organizing alternative slates of electors and attempting to pressure the Vice President and Members of the Congress to accept those electors in the certification proceeding. It is thus doubtful that “all five types of conduct alleged in the indictment constitute official acts.” Appellant’s Br. 42.

The opinion does rely, in part, on the fact that Jack Smith didn’t charge incitement to insurrection to dismiss Trump’s double jeopardy claim (I had wondered if Smith would add that charge based on the outcome here).

To the extent former President Trump relies on “double jeopardy principles” beyond the text of the Impeachment Judgment Clause, those principles cut against him. The Double Jeopardy Clause provides: “No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. CONST. amend. V. It has been interpreted to prohibit “imposition of multiple criminal punishments for the same offense.” Hudson v. United States, 522 U.S. 93, 99 (1997) (citation omitted). Under precedent interpreting the Double Jeopardy Clause, former President Trump’s impeachment acquittal does not bar his subsequent criminal prosecution for two reasons: (1) An impeachment does not result in criminal punishments; and (2) the Indictment does not charge the same offense as the single count in the Impeachment Resolution.

[snip]

Even if we assume that an impeachment trial is criminal under the Double Jeopardy Clause, the crimes alleged in the Indictment differ from the offense for which President Trump was impeached. In determining whether two charges are the “same” for double-jeopardy purposes, courts apply “the sameelements test” (also known as the “Blockburger test”): If “each offense contains an element not contained in the other,” the offenses are different. United States v. Dixon, 509 U.S. 688, 696 (1993) (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)) (cleaned up). If the charges at issue are not the “same offense” under that test, double jeopardy does not bar prosecution. Id. at 696–97.

Under the Blockburger test, none of the four offenses alleged in the Indictment is the same as the sole offense charged in the article of impeachment. The indicted criminal counts include conspiracy to defraud the United States under 18 U.S.C. § 371; conspiracy to obstruct and obstructing an official proceeding under 18 U.S.C. §§ 1512(c)(2), (k); and conspiracy to deprive one or more individuals of the right to vote under 18 U.S.C. § 241. See Indictment ¶¶ 6, 126, 128, 130. By contrast, the article of impeachment charged former President Trump with incitement of insurrection. See H.R. Res. 24, 117th Cong. (2021). Each of the indicted charges requires proof of an element other than those required for incitement. And the offense of incitement of insurrection requires proof of incitement — an element that is distinct from those associated with each of the crimes of indictment. In other words, the charges are not the same under a straightforward application of the Blockburger test.

[my emphasis]

Stop Treating Rule of Law Like a Magical Sparkle Pony and Get Busy

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Like everyone else, I anxiously await the DC Circuit decision on Trump’s immunity bid.

Unlike most people, I’m not yet convinced that the delay so far stems from Judge Karen Henderson deliberately stalling the decision.

To be sure, I identified Henderson as the key target for persuasion before the hearing. I even suggested she might happily join an opinion holding that unofficial acts may be charged criminally, without ruling regarding official acts.

Her statements at the hearing on immunity were a pleasant surprise; it seems she’ll easily reach that position, adopting at least the Blassingame standard that former Presidents can be charged for unofficial acts, like starting a coup to try to stay in office.

So, as I said, I’m still not convinced she’s stalling.

That’s because the decision is more complicated than most commentators appreciate.

There are three decisions in front of these judges. First, whether or not the court has jurisdiction to rule at all. Then, whether they should just rule for unofficial acts, like launching a coup to get reelected, or whether they should rule, generally, that Presidents can even be prosecuted for their official acts, like pardoning Roger Stone to buy his silence. Finally, they need to decide how to release the opinion, possibly in a way to give Trump fewer options to stall further.

Because the American Oversight amicus — a pretty convincing one! — raised a question about whether the DC Circuit had jurisdiction, it caused a potential split between Florence Pan and Michelle Childs, both Biden appointees, who otherwise seemed to agree on the scope of their ruling. Childs seemed very persuaded by the AO brief, and so very cautious about their basis to rule at all.

As a result, there’s no natural majority, meaning whatever opinion(s) get written will be far harder to map out. It is simply a far harder opinion than most people think, and if they get this wrong, it’s going to lead to far longer delays at both the en banc and SCOTUS level.

Talk to me in two weeks. If we’ve got no ruling then, I’m happy to start entertaining theories about deliberate delay.

What I don’t understand, however, is how the visible panic of a few TV lawyers who’ve been wrong every step of the way on the January 6 investigation has led to an all-out panic among Democrats.

The result has been self-inflicted impotence.

No judicial outcome will ever be sufficient, by itself, to beat Trump. No realistic Democrat should be staking their electoral hopes on one or some guilty verdicts — not because they wouldn’t help, but because you can’t control that.

Every single person reading this has in their power the ability to do something — whether it’s local electoral work, repeating discussions of Trump’s corruption so much that it begins to drown out stories about Hunter Biden, or educating your neighbors about Trump’s central role in rolling back reproductive choice — to help defeat Trump. Every second you spend worrying about Karen Henderson is time you’re not doing whatever it is that will be most useful in defeating Trump.

Stop making yourself impotent by worrying about the court cases. Stop hoping that any court case is going to be the Magical Sparkle Pony that makes this easy. Stop wallowing in provably false conspiracy theories about the January 6 investigation that ignore a bunch of public things the TV lawyers don’t talk about.

This is not going to be easy, I promise you. Find some way to make yourself useful to make it, at least, easier.

Hunter Biden’s Delayed Email Access on the JPMI Laptop

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In both a footnote of his reply motion for discovery …

1 The prosecution’s opposition briefs reveal some new evidentiary issues (e.g., seizing electronic evidence for the gun charges for the first time pursuant to a December 4, 2023 warrant; using a grand jury in California in connection with the tax case to elicit evidence for already-indicted gun charges in Delaware; seeking a search warrant in December 2023 to search for evidence in support of its charges three months after having charged; testing a leather pouch for cocaine residue in October 2023 that it had in its possession for five years; denying there was Probation’s approval for the diversion agreement) in addition to those raised in Mr. Biden’s motions to dismiss themselves (e.g., how a Delaware agreement for a diverted gun charge and two tax misdemeanors turned into multiple felonies in two jurisdictions following massive political pressure to do just that). Based on the prosecution’s admissions made only recently in its filings, Mr. Biden will expeditiously file a motion to suppress improperly gathered evidence. [my emphasis]

And two footnotes in his motion to compel …

3 The search warrant on December 4, 2023, which post-dates the firearm indictment by almost three months, is the first time in the course of this five-year investigation that DOJ obtained a warrant to search the alleged laptop (and iCloud account and backup data) for evidence of federal firearms violations. The prosecution then used that warrant to purportedly review and seize, for the first time, text messages, photos, and other evidence in support of its felony charges, several of which the prosecution cited in its pleadings on January 16, 2024. (See DE 68 at 8–9.) Moreover, that warrant contained testimony (in support of finding probable cause) about the firearm obtained from a witness in a grand jury empaneled in the Central District of California in November 2023 after this indictment had already been brought. Accordingly, the issue raised—as a result of the prosecution’s recent filings—is one to explore at the evidentiary hearing Mr. Biden requested (DE 64) and a motion to suppress which will be filed promptly.

[snip]

18 Citing District of Delaware Search Warrant No. 23-507M. Unlike the Office’s prior search warrants during the five-year investigation that were for tax, financial, or foreign-business related offenses, this warrant was specifically for offenses pertaining to 18 U.S.C. §§ 922, 924 (firearms offenses). See supra n.3, and a further motion to suppress concerning this December 4, 2023 search will be forthcoming. [my emphasis]

Hunter Biden attorney Abbe Lowell said he would soon be filing a motion to suppress “improperly gathered evidence.”

Part of this will likely be a challenge to the belated pretextual testing of the gun for cocaine residue without also testing for fingerprints and dating of the residue to the time period immediately after Hunter purchased a gun.

But in all three footnotes, he promises to challenge the December 4, 2023 warrant, which would implicate the original search warrant to Apple, the exploitation of the laptop, and follow-on searches for four devices backed up to his iCloud:

  • iPhone X (Apple Backup 1)
  • iPhone 6S (Apple Backup 3)
  • iPad Pro (Apple Backup 4)
  • iPhone XR (Apple Backup 11)

After over three years of controversy about the laptop attributed to Hunter Biden, this challenge may finally unpack the reliability of the device that has driven right wing frothers nuts ever since.

Game on!

There’s a variety of things that Lowell might rely on to challenge the use of the laptop — and possibly, the four backed up devices, as fruits of the laptop — some sound and some less so. They include:

  • A complaint that David Weiss used testimony obtained from a Los Angeles grand jury focused on tax crimes to obtain the December 2023 warrant, which will almost certainly be dismissed as normal prosecutorial dickishness.
  • If any of the devices entirely predate 2018, there should be no probable cause to search them for the 2018 charges. Based on emails available at BidenLaptopEmails dot com, Hunter Biden started using at least three different iPhone Xes in 2018 (but at least one of those was likely lost to hostile people). He had an iPhone 6S with the droidhunter account he used to access adult entertainment in early 2019, though the only known iPhone XR may have been tied to that account, rather than his Rosemont Seneca account (or there could be a later one). Otherwise, his iPhone 6S use appears to have significantly predated 2018. An iPad backed up to the laptop is an iPad Pro, which itself dates to 2016, and much of Hunter Biden’s known iPad Pro use was also in 2016 and earlier, which is the time frame investigators were most interested when they obtained those warrants.
  • The fact that, per Gary Shapley’s notes, the FBI never validated when the files loaded onto the laptop were added to it in the first 10 months they used it (which also means they did not do so before obtaining four backup devices partly relying on it).
  • John Paul Mac Isaac’s acknowledgment that when his father first went to the FBI, the FBI agent with whom he spoke advised, “you should get a lawyer [because] You may be in possession of something you don’t own.”
  • JPMI’s description that the FBI was trying to boot up the laptop on December 9, 2019, before the FBI had the December 13, 2019 warrant.
  • The fact that the Attorney General’s Chief of Staff texted the Attorney General that he was sending him a laptop the day after the FBI obtained the known December 13, 2019 warrant, suggesting the laptop may have been used for something else, like potential impeachment defense.
  • Also per Shapley’s notes, that some of the means FBI used to determine the laptop was once associated with Hunter’s iCloud account — including call and email traffic with John Paul Mac Isaac and a cigar purchase made locally the day of the drop-off — could easily be spoofed by anyone in possession of the laptop.
  • The fact that, for two and a half months by the time the FBI claimed to have validated that the laptop was Hunter Biden’s, they had had full access for Hunter’s iCloud (and almost certainly had access to Hunter Biden’s Rosemont Seneca Google account for at least that long), which would have given them full access to a bunch of metadata that very much should have raised concerns about who had control of Hunter’s devices at any given time.

Those are just some of the potential bases for a Fourth Amendment challenge to using the laptop as evidence. There may be more.

It’s the last bullet that I want to focus on here. Shapley’s notes show that on November 6, 2019 — over a month after obtaining Hunter’s full iCloud account on September 25, 2019 — Josh Wilson used the serial number provided by JPMI and “determined that device was registered to [Hunter Biden] via apple ID account/iCloud account.”

It is absolutely the case that at 8:50AM Delaware time on October 21, 2018 — nine days after Hunter bought a gun and two days before he no longer possessed it — the laptop that would eventually end up at the FBI logged into Hunter’s iCloud account, though unlike some devices before and after, there’s no public confirmation of a tie to Apple directly, such as Apple welcoming him to a new computer or a receipt.

But there’s something unusual about what came next.

Normally, when Hunter Biden started using one of the new devices that can be clearly tied to his account, he would log into iCloud, then shortly thereafter log into one or another of his two Google accounts, Rosemont Seneca and/or droidhunter. As a result, Google would send security alerts to both the Gmail account and a whichever of the iCloud emails were set as backup.

For example, after Hunter bought a new laptop (possibly the laptop found at Keith Ablow’s in March 2019) on August 31, 2018, he signed into his iCloud account the next day, then, also on September 1, signed into his droidhunter Gmail account, then into his Rosemont Seneca account on September 2.

Someone signed into one of his new replacement iPhones, ordered through Asurion, on October 14 and then, on October 17, signed into his Rosemont Seneca Gmail account.

Someone signed into a new iPhone 8 Plus on October 23, 2018 — possibly the other replacement phone from Asurion — and then signed into his Rosemont Seneca Gmail account that same day.

Things are a bit fuzzier with some phones replaced through Apple the next spring, after his life was packed up on a laptop for delivery to John Paul Mac Isaac.

On February 21, 2019, he got a new iPhone, associated with his droidhunter account, and signed in on his droidhunter Gmail right away.

On March 1, 2019, he got a new iPhone XR — possibly the one obtained with the 2020 warrant. Then bought an adult themed App on March 7, then signed into his droidhunter email on March 9.

There are an astounding number of other devices used to log into one or another account associated with Hunter Biden’s digital life. But for recognizable device replacements, the pattern generally holds: Sign into Apple, then sign into Google.

But based on what is available on the public emails, after someone logged into Hunter’s iCloud account with a new laptop on October 21, 2018, it was weeks before a new Mac device logged into his Gmail accounts, starting with a November 16 attempt to log into Rosemont Seneca that was rejected by Google, followed by a reset of the droidhunter account and a login into that on November 20, followed by a login into Rosemont Seneca on November 24. Not only did those attempts come in the midst of a bunch of attempts to get into Hunter Biden’s Twitter account from a Mac. But on November 27, someone appears to have gotten into his iCloud account from Troutdale, OR.

New Mac devices also accessed Hunter’s Rosemont Seneca account on February 9 and February 20, 2019.

As I’ve already described, a great deal of Hunter Biden’s “normal” activity on his devices in this period looked like he was hacking himself. For example, on at least 36 occasions in 2017 and 2018, Wells Fargo shut down Hunter’s online access because of activity that looked, to it, like a hack. Many if not most of that was probably, instead, just Hunter Biden doing erratic things. In other cases, it’s impossible without more data to show whether a particular access or expenditure was Hunter himself, someone who had acquired one of his devices, or someone more malicious.

But there is a pattern, and the laptop ultimately shared with the FBI, he deviated from that pattern.

Certainly, David Weiss might argue that the FBI just hadn’t looked at Hunter Biden’s digital fingerprints that closely when they got a warrant on December 13, 2019.

But they’ve had five years to look at it in the interim period, and might have a harder time arguing that this pattern was normal.

Update: Just catching up to the Delaware docket (JPMI’s suit and Hunter’s countersuit). Judge Robert Robinson will hold hearings in everyone’s motions on February 22.

Update: Abbe Lowell has amended his lawsuit against the IRS, tweaking it to make statements that lawyers for Joseph Ziegler and Gary Shapley made. He told Mark Scarsi had had some motion regarding the disgruntled agents, so I expect this filing will be cited in that motion.

Abbe Lowell Already Accused David Weiss of a Brady Violation

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There was something subtle but potentially important in Abbe Lowell’s motion to compel discovery in Hunter Biden’s gun case.

First, after discussing the discovery requests he sent in October and November, he described reminding prosecutors (this is actually in the October letter) that Leo Wise had assured Judge Maryellen Noreika on July 26 that prosecutors had provided all Brady materials.

Mr. Biden reminded the prosecution that this Court ordered the production of Brady materials on July 26 and October 3 and asked the prosecution to confirm whether further productions were forthcoming, or Mr. Biden would need to move to compel. Id. As the Court may recall, the prosecution told the Court at the July 26 hearing that it had already produced all Brady material. (7/26/23 Tr. at 7 (“THE COURT: Has all Brady material been produced? MR. WISE: Yes, Your Honor”.).) Yet, the prosecution did not send the first production for almost three months, until October 12, 2023, with a cover letter noting its production was “in response” to Mr. Biden’s October 8 letter requesting discovery. [emphasis original]

Then, later in the motion, Lowell described that the Delaware case file prosecutors didn’t provide until October 12 — in response to the October 8 letter — included a declination decision.

Despite assuring the Court all Brady material had been produced on July 26, 2023, since then, the prosecution has produced an October 2018 state police case file of the firearm incident that includes interview memoranda and deliberations among Delaware state prosecutors regarding whether to file charges—per the file, on October 30, 2018, after reviewing the facts, New Castle County prosecutors decided not to prosecute and closed the case. [emphasis original]

A decision not to charge for state crimes would be helpful but not definitive at a trial on federal charges. But it pretty clearly is helpful to Hunter Biden’s defense.

And yet, prosecutors hadn’t provided it to Chris Clark before, on July 26, Leo Wise assured Judge Noreika that prosecutors had provided all Brady.

I suspect the motion to compel is designed as much as a challenge — “is this your final answer?” — before Lowell makes further allegations that prosecutors withheld material helpful to Hunter’s defense. That is, I suspect Lowell knows of certain things, perhaps the memos that Joseph Ziegler’s original supervisor, Matthew Kutz, included in the case file documenting improper political influence, that also clearly count as Brady that he hasn’t received yet.

That said, I suspect there was a pretty good reason prosecutors didn’t bother to give Clark that Delaware case file before the hearing on July 26: because there was never any consideration of actually charging Hunter on the gun crimes. That is, whatever Brady they provided was likely focused on the tax case, not the gun one, because the gun charge was never going to be charged.

Until Leo Wise, who assured Judge Noreika that prosecutors had complied with Brady, decided that he was going to charge those gun crimes.

Particularly given DOJ’s increased focus on such things in recent years after some really big Brady violations, a serious Brady violation is one of the few things that would actually give Merrick Garland cause to shut down David Weiss as Special Counsel.

The declination decision, turned over a month after the indictment, isn’t that, yet. For Leo Wise, who assured the judge in this case that all Brady had been turned over, however, it’s a detail that might be more convenient if treated as proof they weren’t going to charge gun crimes before they did.

The December Warrant Shows David Weiss Wasn’t Going to Charge Gun Crimes Until Trump Elicited Threats

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Over a week ago, NBC’s Gary Grumbach emailed me to figure out how he could access the then still-sealed warrant dockets I liberated.

To the best of my knowledge, neither he nor anyone else at NBC reported that the dockets revealed that David Weiss first obtained a warrant to search Hunter Biden’s iCloud content and a laptop attributed to him for evidence relating to the gun charges on December 4, 81 days after indicting him. Indeed, besides me, only right wing outlets (Fox, NYPost, Washington Examiner) reported on the warrant.

The existence of the warrant was first disclosed as part of a legal fight (MTD; response; reply) over whether David Weiss charged Hunter Biden only because pressure from Donald Trump and Jim Jordan generated threats that led Weiss to fear for the safety of his family.

Q Do you have concerns for the safety of individuals working in your office?

A Sure. I have safety concerns for everybody who has worked on the case, and we want to make sure that folks — yeah, folks are encouraged to do what they need to do with respect to the pursuit of justice generally and they not be intimidated in any way from performing their responsibilities.

Q Do you have concerns that the threats and harassment employees have received are intended to intimidate them into not doing their jobs?

A I really can’t speak to the intention of any actor in this realm. I just know that these — that certain actions have been taken by individuals, doxing, and, you know, threats that have been made, and that gives rise to concern. We’ve got to be able to do our jobs. And, sure, people shouldn’t be intimidated, threatened, or in any way influenced by others who — again, I don’t know what their motives are, but we’re just trying to do a public service here, so —

Q Have you yourself been the subject of any threats or harassment?

A I’ve certainly received messages, calls, emails from folks who have not been completely enamored of my — with my role in this case.

Q Do you have concerns for your safety or that of your family because of these threats?

A You know, I’m not — for myself, I’m not particularly concerned. Certainly I am concerned, as any parent or spouse would be for — yeah, for family, yep.

The fact that, in five years of investigating Hunter Biden, in the over two years after Hunter Biden’s book came out, David Weiss never obtained a warrant to search the iCloud content that he already had in possession for evidence to support gun charges (and also never sent the gun to the FBI lab for testing) is pretty compelling evidence that he never intended to charge Hunter for gun crimes until Donald Trump elicited threats that led Weiss to fear for the safety of his family. In his response, Weiss claims it is a Hollywood plot that such threats might lead him to renege on his decision to deal with the gun crime as part of a diversion agreement, making light of the same threats that, he told Congress, led him to be “concerned, as any parent or spouse would be for — yeah, for family, yep.”

This is unbelievably scandalous — that in the middle of a presidential campaign, Donald Trump ginned up threats against a prosecutor and then, for the first time, after the statute of limitations expired, that prosecutor sought new evidence to prosecute Joe Biden’s son.

Yet Gary Grumbach doesn’t think that’s newsworthy.

Instead, Grumbach is focused on important things: like whether Joe Biden will visit his son on his birthday.

Trump Spent $50 Million Paying Lawyers But Taxpayers Are Providing Loaner Laptops

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As multiple outlets reported this week, Trump spent over $50 million of the money raised from his supporters to pay for legal representation last year, both for himself and for those whose loyalty and silence he needs to ensure.

That includes upwards of $250,000 to a solicitor in London who filed a lawsuit against Christopher Steele that got dismissed this week.

Meanwhile, the response to Trump’s motion to compel in his stolen documents case reveals that, in October, Jack Smith provided two of the most important lawyers being paid by Trump funds, Carlos De Oliveira attorney, John Irving, and Walt Nauta attorney, Stan Woodward, loaner laptops.

Here’s how the response filing describes the loaners and the attorneys’ delay (and subsequent difficulties) accessing the surveillance footage in the proprietary media player Trump Organization uses.

In an email on October 24, 2023, months after the materials were made available to the defense, counsel for De Oliveira for the first time mentioned problems that he had encountered when attempting to access specific CCTV files that the Government had obtained from the Trump Organization and produced in discovery. The Government immediately arranged a call with counsel and technical personnel from the FBI to help resolve the reported issues. Exhibit E at 2- 3. During the call, counsel for De Oliveira explained that he did not own or have access to a laptop or desktop computer and was instead attempting to review the entirety of the Government’s discovery on a handheld tablet. Id. The Government then offered to lend him a laptop computer to facilitate his review. Id. Counsel for De Oliveira accepted the offer, and on November 1, 2023, the Government hand-delivered a computer to him. Since then, whenever De Oliveira’s counsel has raised technical issues with viewing specific Trump Organization CCTV files, the Government has promptly assisted with resolving these inquiries, providing tips and examples, and offering to set up calls as needed. See ECF No. 252 at 2 n.1.

Counsel for Nauta was copied on the October 24, 2023 email and reported “having the same issues” as counsel for De Oliveira. Exhibit E at 3. The Government extended the same laptop offer to Nauta’s counsel, who accepted the offer but noted that he planned to “return it promptly assuming I have the same issues.” Id. at 2. The Government also emailed defense counsel with additional suggestions to facilitate expedited review of CCTV footage, and counsel for Nauta responded within minutes, explaining that he planned to “run a test to extract data” to a separate drive, “and report back” about how it went. Id. at 1. The computer was delivered to Nauta’s counsel on November 1, and has not been returned. The Government heard nothing from Nauta’s counsel about CCTV for more than two months and thus reasonably believed that defense counsel had watched and was continuing to review the footage.

Then, on January 11, 2024, Nauta’s counsel confirmed that he was able to extract all of the files but had encountered difficulty attempting “to launch the [M]ilestone video application.” Exhibit F. Counsel’s reference to “Milestone” was to a proprietary media player and camera system vendor platform used by the Trump Organization to record, archive, and play video footage. In response, the Government worked with counsel to identify his misstep in attempting to launch the player and provided detailed instructions and screenshots about how to do so. Exhibit G. This most recent problem—the apparent basis for the statement in defendants’ brief that “[d]efense counsel for Mr. Nauta was not able to launch the proprietary video player at all” (ECF No. 262 at 61)—omits that for over two months he did not even attempt to launch the player the Government provided (on the laptop that the Government also provided), and did not do so until days before the motion to compel was due. In any event, once notified of the problem, the Government provided prompt assistance in diagnosing the simple and easily correctable user error that has now been resolved. [my emphasis]

The filing is worth reading for more than the revelation that John Irving doesn’t own a laptop.

It starts with a 15-page section describing the course of the investigation.

As Politico first reported, it describes how upwards of 45,000 people entered Mar-a-Lago during the period when Trump was hoarding the nation’s nuclear secrets without getting their names checked by Secret Service.

of the approximately 48,000 guests who visited Mar-a-Lago between January 2021 and May 2022, while classified documents were at the property, only 2,200 had their names checked and only 2,900 passed through magnetometers;

And it provides details of Trump’s lack of security clearance and his loss of Q Clearance after he got fired by voters.

The defendants next request evidence related to the “attempt to retroactively terminate President Trump’s security clearance and related disclosures.” ECF No. 262 at 38-42. This request includes any information concerning “President Trump’s security clearances, read-ins, and related training,” as well as, “where applicable, the failure to maintain formal documentation and training that is typically required.” ECF No. 262 at 40-41. The defendants specifically assert (ECF No. 262 at 41) that the Government must search the Scattered Castles database (a database of security clearances maintained by the Intelligence Community) and a similar database maintained by the Department of Defense (the Defense Information System for Security, which replaced the Joint Personnel Adjudication System). The Government has produced the results of a search in Scattered Castles, which yielded no past or present security clearances for Trump.

[snip]

First, the Government has already produced all non-privileged, responsive materials. The Government produced to the defendants through discovery a memorandum authored by an assistant general counsel in DOE, dated June 28, 2023. Exhibit 59. The memorandum stated that DOE had granted a Q clearance to Trump on February 9, 2017, “in connection with his current duties” as President, see id., pursuant to a statutory provision that permits DOE to grant clearances without a background check if doing so is in the national interest, see 42 U.S.C. § 2165(b).25 The memorandum further stated that when DOE officials learned that Trump remained listed in DOE databases (its Central Personnel Clearance Index and Clearance Action Tracking System) as possessing a Q clearance after his term ended, they determined that Trump’s clearance had terminated upon the end of his presidency and that the DOE databases should be updated to reflect that termination. Exhibit 59. In response to the defendants’ motion, the Government made a second request for documents to DOE on January 24, 2024, and included the categories of information in Trump’s request described above. The Government is now producing approximately 30 pages of responsive materials, while withholding eight emails under the deliberative-process privilege.

24 The document charged in Count 19 may be viewed by someone holding an active and valid Q clearance. Trump’s Q clearance ended when his term in office ended, even though the database was only belatedly updated to reflect that reality. But even if Trump’s Q clearance had remained active, that fact would not give him the right to take any documents containing information subject to the clearance to his home and store it in his basement or anywhere else at Mar-a-Lago. No Q clearance holder has authorization to remove documents from a proper place of storage and keep them for himself. And a Q clearance would not even permit access to, much less offsite possession of, the documents charged in Counts 1-18 and 20-32.

25 The authority to classify and control access to national defense information rests with the President, see Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988), and accordingly, during their terms in office, Presidents are not required to obtain security clearances before accessing classified information, see 50 U.S.C. § 3163 (“Except as otherwise specifically provided, the provisions of this subchapter [dealing with access to classified information] shall not apply to the President and Vice President, Members of the Congress, Justices of the Supreme Court, and Federal judges appointed by the President.”). Those exceptions for the President and other high-ranking officials apply only during their terms of office. See, e.g., Executive Order 13526, § 4.4(a) (authorizing access to classified information by former officials, including former Presidents, only under limited and enumerated circumstances). [my emphasis]

These details should, but won’t, resolve all sorts of confusion about under what authority Presidents and Vice Presidents access classified information.

Mike Roman, Donald Trump’s Spy and Vote Fraud Fraudster

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WaPo has an overdue profile of Mike Roman, the guy who threatens blow up the Fani Willis prosecution by exposing a romantic relationship between her and prosecutor Nate Wade.

It describes how the guy who recruited a bunch of the most prominent Republicans in swing states across the country to sign onto fraudulent certificates claiming Trump won had previously served as — basically — a spy, first for the Kochs and then for Trump.

As Mike Roman spoke to a gathering of fellow conservative activists in March 2022, he offered a glimpse of the intelligence-gathering skills he had honed over the previous decade working as an opposition researcher for Donald Trump and Republican megadonors.

“I show my wife this all the time when we go to a hotel,” Roman told the crowd in Harrisburg, Pa., according to an audio recording reviewed by The Washington Post. “She logs on to the Hilton WiFi, and I go on and I ‘tap, tap, tap,’ and I show her everybody else that’s on there and how we could get into their computer.”

But it fails to make a few key points clear. Consider what it means, for example, that this is the guy that the Koch brothers would use to pick Republican candidates to back.

Roman’s unit compiled a “Weekly Intelligence Briefing,” with information about political races and recommendations about where the network’s donors should contribute, according to a person who worked there with Roman and spoke on the condition of anonymity because he was not authorized to discuss the organization’s internal operations.

Or consider the real implications that Roman served in Trump’s White House in the guise of “vetting” candidates.

Roman was made a special assistant to the president and White House director of special projects and research, reporting to then-White House counsel Donald McGahn and earning $115,000 per year. Roman was a private investigator of sorts for McGahn’s office, responsible for vetting potentially controversial nominations, according to a former senior administration official.

“It would be like, ‘We’ve heard an appointee might have a shady business deal,’ or ‘Counsel is hearing something about a presidential nominee that could cause a huge problem for us. Can you figure it out?’” the former official said, speaking on the condition of anonymity to discuss sensitive White House work.

Trump in no way eschewed “appointees [with] a shady business deal.” His Secretaries of Treasury and Commerce had fairly astounding shady business deals, as did Trump’s son-in-law (though he was never going to be subject to vetting). The culmination of Don McGahn’s tenure as White House Counsel was installing Brett Kavanaugh on the Supreme Court, and the rape allegations against Kavanaugh obscured further problematic allegations still further.

If Mike Roman was in charge of vetting, he let a lot of epically corrupt people through his “vetting” process.

So yeah, as I noted the moment the Fani Willis scandal broke and this story confirms, it was no surprise that any vulnerabilities Fani Willis had were discovered by Mike Roman.

Going on the offense against the prosecutor was a trademark Roman tactic, according to the former senior official on Trump’s 2020 campaign. “This is a classic Mike Roman move,” the former official said. “When I saw the filing, I said, ‘That’s Mike.’ It’s a good one.”

But once you understand that Roman’s focus has traditionally been trained on Republicans at least as much as Democrats, a lot else begins to make sense.

Update: As someone noted to me on Twitter, Roman had actually gone to RNC by the time Kavanaugh was nominated.

Update: Here’s Fani Willis’ response to Roman’s allegations. She doesn’t deny a personal relationship but says it post-dates when she hired Nate Wade. I’m not going to wade [sic] through it, but will link credible analysis when I see it.

The Hunter Biden Laptop: Two CARTs before the Horse

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According to the property receipt that has been posted publicly (but not, as far as I know, been made available as separate PDF), FBI Special Agent Josh Wilson signed the receipt for a hard drive and laptop obtained from John Paul Mac Isaac. The date is obscure, but consistent with receipt on December 9, 2019.

The admittedly inconsistently dark case file on that form, as right wing frothers never tire of pointing out, is a money laundering case file, 272D-BA-3065729.

According to the warrant return I liberated this week, on December 13, 2019, Josh Wilson received the hard drive and laptop again. He received the laptop not from an evidence locker, where it might normally go while an agent gets Office of Enforcement Operations approval and then gets a warrant from a magistrate judge, but from a Computer Analysis Response Team (CART) Computer Analyst named Mike Waski.

The warrant I liberated is not for money laundering. The only crimes listed on Attachment B are tax crimes: 26 USC 7201, 26 USC 7203, and 26 USC 7206(1).

According to the notes Gary Shapley took after it became clear that, after sharing the laptop with the FBI, John Paul Mac Isaac shared a copy with Rudy Giuliani, after Josh Wilson took possession of the hard drive and laptop (a second time), the hard drive, at least, went back to CART — this time, a CART Agent named Eric Overly.

In spite of the fact that Shapley made these notes in order to explain precisely what happened with the laptop, Shapley doesn’t mention where the laptop was between December 9, 2019, when Josh Wilson took possession from JPMI and December 13, 2019, when Josh Wilson took possession again.

Joseph Ziegler returned the warrant on January 30, 2020. But it wasn’t until March before the FBI got an image of the laptop (though this may have been after a filter team review). Josh Wilson got that personally, too.

Putting two carts before the horse is not normal, here. When the FBI accepts a laptop, even if it is being used in multiple investigations, they image it once and then — as ultimately happened here, probably multiple times — they obtain new warrants for the same device, first for the tax investigation, then for a FARA investigation, and finally, 81 days after indicting the President’s son for gun crimes, for a gun investigation.

But this laptop, Hunter Biden’s laptop, went from the blind computer repairman to Josh Wilson to CART to Josh Wilson and then back to CART.

I currently have theories why that happened. But no answers.

I’ve asked David Weiss’ spox for clarification about zscoreUSA’s observation: why the caption for the warrant obtained last month lists a different device serial number for the laptop:

Then the laptop for the actual laptop obtained from JPMI, which is what appears in the Attachments that were only released pursuant to Judge Maryellen Noreika’s orders after I made some follow-up calls.

The serial numbers are just off by two characters:

  • FVFVC2MMHV2G
  • FVFXC2MMHV29

David Weiss’ spox hasn’t acknowledged that inquiry. This could be a typo or, as was suggested, FBI Agent Boyd Pritchard may have used the serial number for a laptop into which (as Shapley described) FBI dropped the removable hard drive from the laptop obtained from JPMI. In that case, it would normally note that the laptop contained the hard drive liberated from a prior laptop.

Perhaps all this will get sorted if and when Abbe Lowell makes good on his promised suppression motion. But until then, I only have theories, not answers.

Chessboard(s): Hunter Biden’s Replies

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I’m going to write two posts on Hunter Biden’s reply motions in his gun case. Here are all the relevant filings:

Motions to dismiss

Information collection motions

This post will address the point I made here: Abbe Lowell is managing eight different legal challenges for Hunter Biden that, with the exception of the Patrick Byrne defamation suit, all interrelate. He seems to be managing them to optimize timing and information collection.

This totally ugly illustration captures how I’ve begun to think of these (anyone remember Howard Johnson motels?).

The most immediate threat against Hunter Biden is the stuff in the middle: the threat of imprisonment in the (so far) twin prosecutions of him; I’ve included a column to allow for the possibility that David Weiss is still considering more. But that threat exists within — indeed, Lowell argues in his selective prosecution motion, was demanded — as part of the larger GOP impeachment and election effort. Lowell has responded to those threats with lawsuits — a countersuit against John Paul Mac Isaac, hacking lawsuits against Garrett Ziegler and Rudy Giuliani (all three are marked in blue), and a gross negligence lawsuit against the IRS (in green) — that will or may provide a second way of collecting information, outside the prosecutions.

For example, countersuing JPMI provided a way to get the data the blind computer repairman had shared with the FBI and the rest of the world, as well as to subpoena Apple (data obtained in discovery may parallel that subpoena). The judge in that case has stayed some nuisance subpoenas from JPMI targeting Hunter’s family, and dueling motions for summary judgement are all briefed for a hearing. If Lowell succeeds with his argument that JPMI violated Delaware law by snooping through a laptop the computer repairman claims was dropped off by Hunter Biden before sharing it with the FBI and the GOP, it would destabilize Weiss’ prosecutions (both of which, given the December warrant, build off it) and impeachment (in which the GOP has been relying on a hard drive they were withholding from Democrats). Not only did that countersuit make lawsuits against Rudy Giuliani and Garrett Ziegler possible, but if Lowell prevails, then those lawsuits will become a lot more precarious for the men who destroyed Hunter’s life if those suits survive a joint motion to dismiss hearing — largely based on venue and the applicability of Lowell’s hacking theory — in March.

That’s important background to the new motion to compel filed yesterday, which follows on two other efforts to gather information — a motion to subpoena Trump and others, and a motion for discovery. Among other things, that motion asks David Weiss to describe specifically where in the Apple data his team obtained the texts cited in his response to Hunter’s selective prosecution claim. As I alluded to yesterday, not only do the July 2020 warrants almost certainly build off the laptop in a way that Weiss seems to be trying to obscure, but the way in which and timing that devices were embedded within the laptop may pose some interesting legal problems for the government, particularly given that the warrants aspire to obtain attribution information that (thus far at least) Weiss’ team seems blissfully unconcerned with. While that same motion suggests it is seeking expert reports about the gun, if Weiss plans to rely on evidence obtained directly or indirectly from the laptop, he’s going to have to call the guy who, JPMI claims, was trying to boot it up before obtaining a warrant on December 9, 2019, as well as the “computer guy” who didn’t bother to check when files were added to the laptop for 10 months after receiving it, precisely the kind of attribution information that would be critical to actually admitting any of it as evidence.

Relatedly, Lowell has also promised a motion to suppress the laptop evidence.

The search warrant on December 4, 2023, which post-dates the firearm indictment by almost three months, is the first time in the course of this five-year investigation that DOJ obtained a warrant to search the alleged laptop (and iCloud account and backup data) for evidence of federal firearms violations. The prosecution then used that warrant to purportedly review and seize, for the first time, text messages, photos, and other evidence in support of its felony charges, several of which the prosecution cited in its pleadings on January 16, 2024. (See DE 68 at 8–9.) Moreover, that warrant contained testimony (in support of finding probable cause) about the firearm obtained from a witness in a grand jury empaneled in the Central District of California in November 2023 after this indictment had already been brought. Accordingly, the issue raised—as a result of the prosecution’s recent filings—is one to explore at the evidentiary hearing Mr. Biden requested (DE 64) and a motion to suppress which will be filed promptly.

Partly, this motion to suppress will be a complaint about Weiss’ post-indictment use of a California grand jury in this case (a complaint that, by itself, likely wouldn’t work). But there are other parts of even what I can see in the warrant that make it ripe for challenge. At the very least, defending a motion to suppress will force the government to commit to certain technical claims that, thus far at least, they appear to be dodging.

The motion to compel also asks Judge Noreika to get a commitment from Special Counsel that they have provided all Brady evidence. As it is, Weiss’ team is adhering to a far stingier discovery standard than Jack Smith is and Robert Mueller and the post-Mueller Mike Flynn challenge did. But there are things out there — the most notable of which is the Perfect Phone call between Donald Trump and Volodymyr Zelenskyy, the most important of which are the threats that David Weiss and his team received before he reneged on a plea deal — that Lowell likely can argue are solidly Brady which, from the sounds of things, Weiss has not provided. Lowell has, thus far, not called out Derek Hines for claiming it would take a Hollywood plot to explain how the political pressure ginned up by a guy who has elicited dangerous threats against every prosecutor and judge deemed to be adversarial to him might have led David Weiss to renege on a deal. Hines’ silence about those threats basically amounts to license, given by an AUSA, for stochastic terrorists to target all his AUSA colleagues. I’ve been puzzled that Lowell has never mentioned these threats — except in passing in the selective prosecution reply — but wonder whether Lowell is simply leaving it there for Weiss to fail to mention with the repercussions that will have on the case.

Litigating a motion to suppress and a motion to compel will also delay any trial in this case, assuming none of these motions to dismiss work. Those are not Lowell’s only bid for delay. In the reply challenging that the gun charges against him are unconstitutional, Lowell responded to Weiss’ optimism that SCOTUS will review other gun cases by bidding to stay the entire gun trial: “this Court should await that guidance from the Supreme Court before allowing this case to proceed to trial.” That’s probably not going to work, but Lowell’s Bruen-related challenge will ensure that Weiss can’t close up shop until the constitutional question is decided. More interestingly, given the tight schedule Judge Mark Scarsi has set in the Los Angeles case, with a trial scheduled for June, delays in Delaware (assuming the case is not dismissed) could have the effect of putting the tax case before the gun case.

As I’ll show in a post on the selective prosecution claim, such a claim may work better in the tax case than the gun one.

Potential delay may be one point of Lowell’s challenge to both the manner of David Weiss’ appointment as Special Counsel and his funding for it. In his reply, Lowell claims that Weiss has responded to the challenge by arguing that Weiss would have been able to prosecute Hunter as US Attorney for Delaware, so there’s no legal problem with doing so as Special Counsel.

In response to both the lack of authorization and lack of appropriation issues, the Special Counsel claims the Court should let him go ahead and prosecute this case in the wrong way because he believes he could find a right way to prosecute the case if he wanted to. Opp. at 20. With respect to his lack of authorization to bring the case as Special Counsel, Mr. Weiss claims that he could have brought the case in his capacity as U.S. Attorney even though he did not. Opp. at 22– 23 (conceding that he signed the indictment as “Special Counsel,” rather than bringing it in his capacity as U.S. Attorney). Perhaps Mr. Weiss could resign as U.S. Attorney and seek to be reappointed as Special Counsel, consistent with DOJ regulations, and then seek to indict Mr. Biden again. Perhaps he could find a way to prosecute this case with the costs and expenses of gathering new evidence that was not obtained in violation of the Appropriations Clause as well (see supra at 15). But such issues are premature as he has done none of those things. It is telling that Mr. Weiss’s last argument is that, if all else fails, he can put back on his U.S. Attorney hat, change the nameplate on his door, and start again

But that’s the point of the appropriations clause aspect of the challenge; Lowell argues that Weiss would have to go back and collect new evidence (testing the pouch the gun was found in for cocaine residue, getting new grand jury testimony, and getting a warrant to use laptop content for the gun crimes) without violating the appropriations clause. I don’t like this motion nor do I think it will work. But by making an appropriations clause challenge, Lowell may be able to enjoin certain things — like issuing a final report, replete as John Durham’s was with fabrications — until any appeals are exhausted.

Which brings me to the claim that the diversion agreement must be honored and the related discovery motion. Those are the arguments I’ve always thought stood the best chance (though the briefing on it has devolved into a squabble about language). In the body of the latter argument, Lowell notes that Weiss’ claims he was always considering charging Hunter doesn’t defeat Hunter’s claims, because he ultimately decided not to, before he changed his mind for no apparent reason.

The prosecution’s response to Mr. Biden’s motion to dismiss for selective and vindictive prosecution further confirms the need for discovery should the Court not dismiss the indictment outright. The prosecution claims that its reasons for charging this case were based on “overwhelming evidence” (DE 68 at 2, 24) it obtained in 2019 and 2021, and on the unexplained “deterrent effect” (DE 68 at 33, 40–41) that it claims this prosecution of Mr. Biden serves. And the prosecution suggests “it had been considering” charging Mr. Biden “long before plea negotiations began.” (DE 68 at 17, 40, 48.) But this explanation is entirely pretextual because— even with all these factors in play—the prosecution still determined that the appropriate resolution was a diversion on the gun charge and a probationary sentence on two tax misdemeanors. The prosecution even signed a Diversion Agreement and Plea Agreement to that effect, and openly advocated for the Court to adopt the Plea Agreement at the July 26, 2023 hearing. What the prosecution has not explained is why it deemed this agreed upon resolution of its issues with Mr. Biden appropriate on July 26, 2023, but chose to abandon that approach and charge Mr. Biden with multiple gun and tax felonies afterward. It is undisputed that extremist Republicans criticized the prosecution’s deal heavily, and since then, House Republicans have declared that pressure is what caused the prosecution to reverse course. The fact that the prosecution’s explanation for its charging decision does not explain why it chose to change its proposed resolution of the dispute does nothing to show those House Republicans are wrong to claim causing the prosecution to reverse course.

Then a completely predictable footnote notes that the efforts to collect new evidence after indicting raise more questions about Weiss’ claims than they answer.

1 The prosecution’s opposition briefs reveal some new evidentiary issues (e.g., seizing electronic evidence for the gun charges for the first time pursuant to a December 4, 2023 warrant; using a grand jury in California in connection with the tax case to elicit evidence for already-indicted gun charges in Delaware; seeking a search warrant in December 2023 to search for evidence in support of its charges three months after having charged; testing a leather pouch for cocaine residue in October 2023 that it had in its possession for five years; denying there was Probation’s approval for the diversion agreement) in addition to those raised in Mr. Biden’s motions to dismiss themselves (e.g., how a Delaware agreement for a diverted gun charge and two tax misdemeanors turned into multiple felonies in two jurisdictions following massive political pressure to do just that). Based on the prosecution’s admissions made only recently in its filings, Mr. Biden will expeditiously file a motion to suppress improperly gathered evidence.

This is what I pointed out: Admitting that you never sent the gun to the lab until weeks after indicting the case is a confession that you were never really going to prosecute it until Jim Jordan demanded you do so.

And the excuse offered in the filing — that an FBI agent first saw cocaine residue when taking a picture of the weapon — is debunked by the fact that Weiss received photos of the weapon in the case file he has had for years.

The prosecution produced a Delaware state police case file, which includes a summary of an interview Mr. Biden gave police in October 2018 and other information about the purchase, discard, and recovery of the firearm, as well as evidence photos from its case file. [my emphasis]

They didn’t need a new photo. They have photos! They needed evidence they didn’t bother to seek in the over five years since the gun was seized.

But all that comes against the background of three arguments about how and why the plea deal fell apart, something that Weiss has very assiduously avoided. In the diversion reply, Lowell argues that judicial estoppel prohibits Weiss from claiming the diversion agreement is not valid because Leo Wise stood before Judge Noreika and made assurances about the degree to which the diversion would protect Hunter’s rights. In the selective prosecution reply, Lowell reminds Judge Noreika that her concerns with the plea deal were not that it was not draconian enough, but rather, whether Hunter would be protected to the extent he understood he would be.

The Court did not accept the Plea Agreement that day, but the Court was clear: “I’m not saying I’m not going to reject the plea, I’m not saying I’m going to accept the Plea Agreement. I need more information.” (7/26/23 Tr. at 109.) The Court expressed no concern with whether the parties had struck a fair bargain, rather the concern the Court expressed to Mr. Biden was with “making sure that your plea gets you what you think it gets.” (Id. at 108.) The Court wanted assurances that the immunity provision in the Diversion Agreement that would have the Court decide whether Mr. Biden had breached his obligations under the Diversion and Plea Agreements before the prosecution could charge Mr. Biden with conduct that would otherwise be immunized was constitutional. (Id. at 105–06.) In other words, the Court’s concern was with making sure that Mr. Biden received the benefit of the bargain that he struck, not with changing that bargain to be more punitive against Mr. Biden.

At the end of that filing, Lowell describes how David Weiss sat in the back of Judge Noreika’s courtroom, watching Leo Wise advocate for measures (negotiated by Lesley Wolf before Wise was brought in) to protect Hunter.

On July 26, 2023, Mr. Weiss sat right behind his prosecution team when they urged this Court to accept those agreements.

As of today, the motion for a subpoena for Trump has been fully briefed for 50 days, but Judge Noreika has not addressed it.

Indeed, the only thing we’ve heard from Judge Noreika since she granted Lowell’s request for a delay to do all this briefing on October 19 was her order granting my request to unseal the Apple warrants in this case (And thanks to Judge Noreika and her courtroom deputy and the clerks who scrambled to make it possible for doing so). That is, it’s not clear yet what she makes of these competing arguments.

But it is absolutely the case that Leo Wise stood before her and made certain representations about the plea deal. And my impression at least accords with Lowell’s: that her concerns arose from protecting Hunter Biden’s rights, not granting Jim Jordan the head of the President’s son.

Judge Noreika could just rule that the diversion agreement is binding (which as noted in my ugly table, will have interesting repercussions for the LA case). She could order an evidentiary hearing, granting the long-briefed motion for subpoenas.

Based on reports, in the initial appearance in the LA case, Judge Scarsi implied he’d be cautious against granting discovery about deliberations (presumably including the recommendation Los Angeles US Attorney Martin Estrada’s top prosecutors made about problems with the case). But he sounded more amenable to discovery about other topics — possibly the threats that Derek Hines treats as a Hollywood plot, including threats targeting Estrada.

In three weeks, Abbe Lowell will file most of these same motions before Scarsi, and if any work — especially the selective prosecution one — it might make the Delaware one unsustaintable as well.

Again, I’m not saying these will work. Selective prosecution has been made all but impossible to argue, for example.

But I am saying that Lowell is increasing his chances for success.