Hunter Biden Reply Motions to Dismiss

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As a few of you have noted, Hunter Biden has filed his replies on his motions to dismiss.

As I noted on Xitter, the Reply on Discovery confirms I was right when I pointed out that the Coke-in-Gun ploy actually undermined David Weiss’ argument.

They never bothered to send the gun out for testing until October 2023 — five years after local authorities decided not to charge this.

I’m finishing up my initial review and will comment at more length, but here are all these filings:

In addition, Abbe Lowell filed a motion to compel.

IRS First Received Hunter Biden’s iCloud Data on Same Day White House Released the Perfect Phone Call

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The Delaware District Courthouse has unsealed much of what Judge Maryellen Noreika ordered unsealed last week. The major piece still outstanding are the Attachments for the most recent warrant describing the crimes they’re investigating and the things they’re permitted to seize, which is actually one of the most important things I was seeking to have unsealed.

The story the warrants generally tell is that investigators obtained Hunter Biden’s entire iCloud account on September 25, 2019, literally the same day it became clear Donald Trump had demanded an investigation into Hunter Biden. Then they got the laptop. The laptop led them to discover four device backups of interest. In summer 2020, they obtained warrants specific to those devices to access data already in hand.

And then, years later, 81 days after charging Hunter Biden for gun crimes, they obtained a warrant to search all that same digital evidence for evidence of gun crimes.

They really are claiming they didn’t think to search all the data they had for evidence of gun crimes until after they had the indictment in hand, 81 days after they indicted the President’s son. That is, at least for the moment, they are claiming that they never bothered to check for gun crime evidence in Hunter Biden’s texts until after they charged him.

And they made that admission in a filing arguing, “oh sure, we’ve been planning on charging these gun crimes for years.”

This late disclosure will undoubtedly raise a lot of questions about whether any of this data was presented to the grand jury (particularly given that Abbe Lowell would only have had notice of this warrant not long before we got it); if it was, it’d strongly suggest that investigators unlawfully searched Hunter’s data for gun crimes. Though thus far, that’s the most likely way any of this becomes illegal under the very generous precedents for criminal investigators.

Before I look more closely at what the individual warrants show, remember that these are not the only warrants. We know from this filter document Joseph Ziegler shared, for example, that investigators also searched this same data for FARA crimes — so there are almost certainly a parallel sent of warrants for those crimes. There are known warrants, such as for the Google account tied to Hunter’s Rosemont Seneca email, for other content that would have been less interesting for the gun crimes. There’s some epic funkiness with the treatment of the laptop.

But this is the story David Weiss has decided he can bring to a jury: that investigators obtained two parallel sets of Apple data, and very belatedly, literally after they indicted, decided to search it for alleged gun crimes that were committed before they obtained the first warrant.

August 29, 2019: Original iCloud warrant; warrant return

The first warrant unsealed obtained all the content for Hunter’s iCloud account. It permitted the search for evidence pertaining to the three tax crimes charged in Los Angeles: 26 USC 7201, 26 USC 7203, and 26 USC 7206(1) (though the probable cause statement could not have covered those charges for 2018, the primary tax year charged, as those alleged crimes had not been committed yet).

It asked for the entire content of the iCloud account, from January 2014 through the present; I originally questioned how they could show probable cause to obtain information from 2018 and 2019, as no tax crimes could have been committed yet in those years, but realize that so long as Hunter hadn’t paid his earlier tax years, the willful failure to pay continued.

The warrant did not mention Burisma by name, though Burisma might be covered under permission to search for evidence about business operations. The warrant did not mention the sex workers on which this entire investigation was predicated, but those would be covered under “personal expenditures.”

The warrant only asked for content related to one of the several email addresses Hunter used with Apple, RHBDC at iCloud, though probably got everything in response under Apple’s normal response to legal process. That could become pertinent later.

Here’s how Derek Hines described it in his response filing that first identified these warrants:

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.

2 District of Delaware Case No. 19-234M

There are three things of interest in Hines’ description. He emphasizes that both the FBI and IRS were on this warrant, which might be an attempt to cover later plain view expansions of this investigation. He suggests, inaccurately, that the warrant focused on backups from Hunter’s phone, which is likely because he only wants to introduce texts at trial, not emails.

Most interestingly, Hines notes that the warrant was served in August but the data was returned in September.

The warrant shows that before investigators filed for a warrant in August 2019, they twice preserved Hunter’s data, on April 11, 2019 (which is the day Joseph Ziegler submitted his tax package to DOJ Tax for approval to open a grand jury investigation), and July 11, 2019.

The docket itself shows that Magistrate Judge Sherry Fallon issued a Magistrate’s order on September 12 (which remains sealed). That suggests that Apple may have challenged this warrant, delaying the return of the content until after that.

We may learn more about the content of this order in motions in the Los Angeles case (though once it was issued, investigators would be working under a Good Faith exception). As the July 2020 warrant reveals, Apple turned over the content on September 25, 2019 — the very day the White House would release the Perfect Phone Call revealing that Trump had been demanding an investigation into Hunter Biden personally.

On August 24, 2020, investigators sought a renewal of the original order sealing the docket. At least from what got unsealed, that’s the only actual renewal of sealing orders investigators ever got.

December 13, 2019: Original laptop warrant; warrant return

The second warrant obtained authorized the search of the laptop turned over from John Paul Mac Isaac. Here’s how Hines explained it:

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

4 District of Delaware Case No. 19-309M

It was actually served by the FBI agent who served the subpoena on JPMI on the CART guy.

Mike Waski may know details of how — according to JPMI — the laptop came to be accessed four days before this warrant. Or he could be “computer guy” who didn’t bother to validate the content of the laptop for over 10 months.

In their (absolutely atrocious) coverage of these warrants, NYPost claimed to have seen an earlier warrant.

A third search warrant was obtained Dec. 13, 2019, to examine the now-first son’s infamous Apple MacBook Pro laptop and a hard drive — the same one containing a copy of Biden’s laptop that computer store owner John Paul Mac Isaac made to give to Rudy Giuliani’s lawyer Robert Costello, an earlier warrant reviewed by The Post shows.

Given that the rest of Priscilla DeGregory’s story betrays not the remotest inkling of understanding of what she’s looking at, McGregory may be thinking of the December 9 subpoena to JPMI, but I suspect Abbe Lowell may learn if there’s an earlier one when he points out that according to JPMI, the FBI accessed the content of this laptop before the December 13 warrant, possibly in a way that is forensically unsound.

Attachment B in this warrant is similar to the one in the first warrant. It has this boilerplate paragraph, which would cover the government if they sent Bill Barr a copy on December 14.

But, largely because of the difference between cloud data and devices, it has different language pertaining to attribution.

The iCloud warrant describes it this way:

Hunter is undoubtedly the email account owner. But there is very good reason to believe that between January 1, 2014 and August 29, 2019, Hunter was not the only user. Indeed, this scope of time would cover the compromise that Lev Parnas says happened when Hunter was in Kazakhstan.

Among other things, this language should put the government on the hook for aberrations in Hunter’s iCloud access in advance of treating the laptop uncritically.

Now compare that with the attribution language used on the laptop warrant.

Most expansively, this device was only owned starting in October 2018 (when Hunter no longer owned it and whether he ever owned the hard drive remain very much contested), and I’ve got questions about whether others used it. And JPMI undoubtedly “used” both devices.

Bookmark that detail.

July 10, 2020 iCloud warrant; warrant return

The permission to search for passwords as evidence of “user attribution” could become mildly important given the third warrant which (as I’ve already noted), Derek Hines simply mentions as an afterthought.

a follow up search warrant, District of Delaware Case Number 20-165M.

In July 2020, investigators used this warrant to access content already in their possession tied to four specific devices. The warrant describes clearly that this is the content they received from Apple on September 25, 2019 (again, the same day the Perfect Phone Call transcript revealed that Trump was demanding investigations just like this one). And the warrant clearly shows that the data was stored at the FBI office in Wilmington.

I’ll return to the devices later. With these devices, as with all of Hunter’s iCloud content and devices from the period of his addiction, investigators would need to prove that content on the devices was put there while they were still in Hunter’s possession and that he was the one who backed up the phones.

But what Derek Hines is not telling Judge Maryellen Noreika is that the reason investigators came to have an interest in these four devices is because they accessed the content of those four devices from the laptop.

They got a warrant to access the same content from the Apple production. But they don’t claim to have obtained a warrant to access the same content on the laptop, and we know thanks to Gary Shapley that they only accessed one of these devices using a password they found on the laptop (again, that particular factoid is what sent me down this rabbit hole in the first place).

I’ll come back to the question of whether that’s a problem or not.

December 4, 2023: Post-indictment warrant; warrant return (less attachments) Attachments AB

Finally, there’s the December 4, 2023 warrant, the reason I asked to get these unsealed in the first place.

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

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

When Derek Hines described this warrant, he tried to hide that by “later” he meant, “81 days after obtaining the indictment,” and — from the submission of the signed return dated yesterday, it appears that Special Agent Boyd Pritchard was still searching this content when the dockets were unsealed yesterday.

As noted above, the Delaware Clerk has not yet complied with Judge Noreika’s order with regards to this warrant. I’m going to see if I can’t get them to do so and if I succeed I’ll add some update. But for now, I can’t compare search protocols with those earlier warrants or see what crimes of which Pritchard said he was search for evidence. [Update: They have now provided the Attachments]

The Attachments basically just trace through the three earlier warrants (iCloud; laptop; backups — though they are not in order), then authorize searching the content for evidence of the gun crimes charged 81 days earlier.

Effectively, three days after a meet-and-confer phone call with Abbe Lowell following up on all the discovery requests David Weiss was blowing off, including these two bullets, they obtained a warrant to access his texts — they claim, for the very first time.

The user attribution could have some interesting repercussions, not least because it’s not clear these devices were “used” by Hunter when the content was added to them.

Of some interest, in the response, Hines didn’t mention the call from Joe Biden telling Hunter to get help reported by the Daily Mail. Since investigators seem to have so little appreciation for what happened with Hunter’s devices before and after the FBI obtained this warrant, they may not understand there’s evidence in the public record that won’t exist on the laptop, which therefore they would not have gotten a warrant to access.

In a different world, the serial discovery of what a mess Hunter’s digital mess was might have led law enforcement officers to start investigating whether there was a reason it was such a mess.

Not these guys. They just decided to take the assist criminals gave them to investigate Joe Biden’s son.

And with regards to the Apple content (it’s likely investigators got Hunter’s Rosemont Seneca account first, which shows even more evidence of deliberate compromise), they first received it on the same day the White House revealed that Trump had extorted Volodymy Zelenskyy for just such an investigation.

Updated with the AB Attachments from the most recent warrant.

Update: Corrected my reference to Matt/Mike.

Update: Corrected Pritchard’s first name now too. [Sigh!]

The Post-Indictment Hunter Biden Warrant Included the Laptop

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The Delaware District Court has started unsealing the dockets Judge Maryellen Noreika ordered unsealed last week.

Remember how I said that getting a new warrant to parallel construct evidence already obtained wouldn’t cause a problem, but misleading a judge might?

Well, this is the kind of thing that might cause a problem.

Here’s how Derek Hines described the post-indictment warrant.

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. [my emphasis]

That led me to believe that the warrant targeted only Hunter’s iCloud content.

It was broader than that. It also targeted the laptop itself.

Here are the RECAP links to the dockets that will, eventually, include the warrants.

August 29, 2019: Original iCloud warrant; warrant return

December 13, 2019: Original laptop warrant; warrant return

July 10, 2020 iCloud warrant; warrant return

December 4, 2023: Post-indictment warrant; warrant return (less attachments)

Update.

Oh. Here’s the search warrant return for the warrant obtained in December.

The FBI Agent didn’t sign the search warrant return until … oh! Today!

Parallel Poisons: Derek Hines’ (Mis)Representations about His Post-Indictment Investigation

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As I noted in this post, I confirmed that a warrant that AUSA Derek Hines says he relied on to search Hunter Biden’s iCloud content for evidence of firearms violations was not obtained until December 4, 2023, 81 days after Hines obtained an indictment charging Hunter for those violations.

As I also explained, there’s no reason to doubt that that warrant is lawful. I imagine the affidavit for it simply quotes a bunch of Hunter Biden’s public comments about his addiction to establish probable cause. While it is dickish for a prosecutor to seek evidence that has been readily available for years between charging and trial, so long as he’s not relying on the grand jury that was exclusively focused on investigating that crime, it would be within the bounds of normal dickish prosecutorial behavior.

Where it starts to be a problem is in the way it undermines the argument at hand. In the same filing where he revealed that warrant, for example, Hines leant heavily on representations Chris Clark made, in a letter sent in October 2022, about a call he had in March 2022 (Hines only includes three pages of a 27-page letter; Politico describes the rest to be an extensive description of the political pressure to charge the gun charges), to claim that prosecutors were always going to charge Hunter for gun crimes, even before Jim Jordan demanded those charges.

During the course of discussions between counsel for the defendant and counsel for the government, in a letter dated October 31, 2022, from Mr. Biden’s prior counsel to government counsel, the defense wrote:

Since December 2020, nearly all of our meetings, phone calls, and correspondence with your Office have related to the Government’s investigation of Mr. Biden for possible tax offenses. It was not until a phone call in March 2022—over a year into our cooperative dialogue—that your Office disclosed a potential investigation of Mr. Biden for possible firearms offenses (the “Firearm Investigation”). (footnote)

Exhibit 1 (redacted and includes only relevant pages).

The footnote in the letter stated, “Your Office informed us that the implic ated Title 18 provisions are Sections 922(g)(3), 922(a)(6), and 924(a)(1)(A).” Id. (emphasis added). The defense later released their letter to selected media outlets, 7 but the defendant did not include it in his materials filed with the Court in support of his motion to enforce the diversion agreement. The letter the defense sent in October 2022 shows that the defense was aware that the government was considering all of the charges later returned in the indictment, see Section I.G., as of March 2022. This directly refutes that the charges returned by the grand jury were the product of various statements by out-of-office politicians in 2023, as the defendant claims. [emphasis original]

In October 2022, prosecutors could still and likely were relying on content available on the laptop (including, per Daily Mail, a voice mail from Joe Biden on October 15, 2018 telling Hunter to get help). But in November 2022, John Paul Mac Isaac published a book claiming, among other things, that the FBI was attempting to access the laptop on December 9, 2019, four days before the warrant David Weiss is relying on here, meaning any reliance on the laptop would pose significant problems at trial (even before you consider some forensic problems I’m still trying to nail down).

Here’s the passage from JPMI’s book — it becomes important below:

Agent Wilson eventually shook my hand, saying, “Let us know if anyone comes looking for it. Call us immediately.” “What should I tell them?” I asked, hoping the conversation would never arise.

“Tell them you keep abandoned equipment offsite, like a warehouse location,” Agent DeMeo answered, taking over. “Tell them it will take a day for you to check and they should call back the next day. Then immediately text me at my cell number. From now on, only communicate through my cell number. Not Agent Wilson, just me. We need to avoid communicating through, ah, normal channels. I’m sure you can understand. Text me and we will get the equipment back to you and deal with the situation.”

[snip]

I went home and called my father. I was relaying the facts when an incoming call notification showed up: Agent DeMeo.

“I’ll have to call you back. I have one of the agents calling in,” I told my father before switching calls.

“Hello, this is John Paul,” I said.

“Hi, my name is Matt,” said a voice I didn’t recognize. “I work with Agent DeMeo and Agent Wilson. Do you have a second? I have some questions about accessing the laptop.”

Confused, I responded, “Sure, what’s going on?”

“Did the laptop come with any cables or a charger? How can I connect the drive to a PC? When I plug it in, it wants to format the drive,” Matt said.

“PCs can’t natively read Mac-formatted disks. You will only be able to access the drive from another Mac.”

This is fairly common knowledge among most computer users, and I was surprised that any kind of tech person wouldn’t know it.

“Sadly, Hunter never left the charger or any other cables,” I went on. “I have a charger and everything you need back at the shop. You guys are welcome to it.”

I was feeling really uncomfortable. This Matt guy definitely didn’t seem to have the training or resources to be performing a forensic evaluation of the laptop. Hadn’t the whole reason for taking the laptop been to get it to a lab for proper evaluation and dissemination?

“Tell him we’re OK and we won’t need to go back to his shop,” Agent DeMeo said in the background. “We’ll call you back if we need to,” Matt said before hanging up.

[snip]

“Hi, it’s Matt again. So, we have a power supply and a USB-C cable, but when we boot up, I can’t get the mouse or keyboard to work.”

I couldn’t believe it—they were trying to boot the machine!

“The keyboard and trackpad were disconnected due to liquid damage. If you have a USB-C–to–USB-A adaptor, you should be able to use any USB keyboard or mouse,” I said. He related this to Agent DeMeo and quickly hung up.

Matt called yet again about an hour later.

“So this thing won’t stay on when it’s unplugged. Does the battery work?”

I explained that he needed to plug in the laptop and that once it turned on, the battery would start charging. I could sense his stress and his embarrassment at having to call repeatedly for help. [my emphasis]

So this warrant was likely just parallel construction, an effort to make evidence already in hand admissible at trial. That’s also considered perfectly legal, just another of the dickish prosecutorial tactics considered normal.

But Derek Hines can’t very well tell Judge Maryellen Noreika that the guy who gave the FBI the laptop would testify, if called as a witness, that the FBI was, “trying to boot the machine!” before obtaining a warrant for it. Or at least before obtaining this warrant, the December 13, 2019 warrant that Hines claims to be relying on.

So instead, Hines told her that they first obtained a warrant to search for content on December 4, 2023, 81 days after obtaining an indictment.

The process of parallel constructing that content, if that’s what happened, now helps Abbe Lowell make the case that prosecutors weren’t really considering charging the gun crimes until Jim Jordan demanded they do so, because Hines has implied to Judge Noreika that they didn’t obtain a warrant to search for evidence of that crime until … after they indicted.

Things get worse from there. According to an unrebutted claim Lowell made in his December 11 motion for discovery, ten days before Lowell filed that motion, Hines responded to Lowell’s inquiry about whether he should expect, “any additional productions in the near-term,” by stating he would, “let the discovery stand for itself.”

During a meet and confer phone call on December 1, 2023, Mr. Biden’s counsel even asked Messrs. Wise and Hines for a status update of the prosecution’s discovery, and specifically whether the government intended to make any additional productions in the near-term or respond to our various discovery request letters, to which Mr. Hines responded that the government would “let the discovery stand for itself.”

Hines told Lowell, ten days before Lowell’s motions were due, that the discovery spoke for itself.

And then, three days later, he went and got a new warrant for content he wants to use at trial against Hunter Biden.

Note that, in the passage that discloses these warrants, Hines doesn’t say that he provided Lowell the warrant before his motions deadline? He only claims to have given Lowell the content, “in advance of the deadline to file motions.”

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. [my emphasis]

You need to cross-reference this passage with Hines’ response to Lowell’s discovery request to discover that Hines doesn’t claim to have given Lowell anything after obtaining the December iCloud warrant until January 9, almost a month after the motions deadline.

On October 8, 2023, the defendant made a request for discovery under Federal Rules of Criminal Procedure 16.

On October 12, 2023, the government provided to the defendant a production of materials consisting of over 350 pages of documents as well as additional electronic evidence from the defendant’s Apple iCloud account and a copy of data from the defendant’s laptop. This production included search warrants related to evidence the government may use in its case-in-chief in the gun case, statements of the defendant including his admissions that he was addicted to crack cocaine and possessed a firearm in 2018, and law enforcement reports related to the gun investigation.

On November 1, 2023, the government provided a production of materials to the defendant that was over 700,000 pages and largely consisted of documents obtained during an investigation into whether the defendant timely filed and paid his taxes and committed tax evasion. These documents included information of the defendant’s income and payments to drug and alcohol rehabilitation programs in 2018, the same year in which the defendant possessed the firearm while addicted to controlled substances.

On December 7, 2023, a grand jury in the Central District of California returned an indictment (hereafter the “tax indictment”) charging the defendant with the following tax offenses:

[snip]

In advance of his initial appearance on the tax indictment, the government made a production of materials to the defendant on January 9, 2024, which included over 500,000 pages of documents and consisted of additional information related to the tax investigation. [my emphasis]

That is, in his selective and vindictive response, Hines has suggested to Judge Noreika that Lowell had the opportunity to suppress content. But in his discovery response, Hines seems to suggest that he didn’t provide Lowell the warrant that he would need to suppress until after the motions deadline passed, in language that implies the January 9 discovery pertained exclusively to the tax case, and not the gun case.

Before I get into where Hines may really have created a problem for himself, let’s consider how it is possible that Hines could have provided Lowell with “the electronic evidence referenced in this section” before he had obtained a warrant to find it.

See the language I’ve turned red? On October 12, Hines gave Lowell,

  • Additional electronic evidence from the defendant’s Apple iCloud account
  • A copy of data from the defendant’s laptop

The texts he quotes in the filing may well be in both of those, the iCloud account and the laptop. They definitely were on the laptop; that’s where the Daily Mail got them.

It’s the iCloud content where things get interesting (but not yet to where Hines really created a problem for himself — not yet). When the FBI gets a warrant, they get everything, and then can search for the stuff that fits within their scope. So in either 2019 or — more likely — 2020, they got everything in Hunter’s iCloud from 2018. Often, prosecutors will give defendants both a complete and a scoped version of evidence, basically, “here’s everything Apple had on you, and here’s the stuff that complied with our warrant.”  So it could just be that Hines provided Lowell with Hunter’s iCloud and that’s the basis for saying that Lowell had everything before the motions deadline.

But Hines implies that the iCloud content he turned over on October 12 was scoped, pertinent to the gun crime.

If that’s right, it means Hines had a different warrant than the December 4, 2023 one authorizing the search of content for gun crimes. It’s possibly the one, 20-165M, he describes in a footnote but doesn’t explain in the text, the one that would have come after relying on the laptop for seven months without doing much due diligence on it. If so, we’ll learn that when the warrant actually gets unsealed on Monday; something to look forward to! Or, it’s possible there’s one from 2021 or 2022 that Hines doesn’t want to talk about, not to us and not to Judge Noreika.

It’s like that it’s not so much that prosecutors hadn’t already gotten the evidence to charge Hunter with gun crimes, it’s that they had to get a new warrant to make it admissible at trial without giving Lowell cause to subpoena JPMI to describe how the FBI told him they were booting up Hunter Biden’s laptop on December 9, 2019, before they got a warrant.

Or at least before they got this warrant.

If Judge Noreika were to ask about the confusion, Hines might just explain that they got a warrant relying on the laptop obtained in good faith, but have since gotten a new warrant to ensure it’s all kosher. Mind you, along the way, he might have to explain that something Abbe Lowell said on that phone call on December 1 — possibly following up on the discovery request he made on October 8 for any record of communications with John Paul Mac Isaac — led him to run out and get a new warrant that didn’t rely on the laptop.

Any documents and/or information reflecting communications (whether oral or in writing) between anyone in your Office or any member of the investigative team or their supervisors (including FBI and IRS agents) with John Paul Mac Isaac or any member of his family.

Who knows: Maybe Hines discovered, for the first time, that there were three calls made from Agent DeMeo’s phone to JPMI on December 9, 2019, a phone used, according to JPMI’s description of what DeMeo told him because, “We need to avoid communicating through, ah, normal channels.” Maybe Hines discovered corroboration for JPMI’s claim that the FBI was booting up Hunter Biden’s laptop four days before obtaining a warrant. Or at least before obtaining the warrant dated December 13, 2019.

Believe it or not, if they had a warrant — say, one obtained by Bill Barr’s office in advance of the time his Chief of Staff sent him a text on December 14 saying, “Laptop on way to you” — all this still might fly. There is a great deal of dickishness that prosecutors routinely get away with.

Where prosecutors get in trouble is not collecting evidence after indicting and not in parallel constructing evidence and not in relying on dodgy warrants so long as they were obtained in good faith — prosecutors get away with that kind of dickishness all the time!

Where prosecutors get in trouble is in misleading judges. And I have to believe that Judge Noreika might not look too kindly on Hines’ claim, in his discovery filing, that suggested he turned over the warrants “related to evidence the government may use in its case-in-chief in the gun case” on October 12, as if he turned over all the warrants relating to the gun case.

This production included search warrants related to evidence the government may use in its case-in-chief in the gun case,

He obviously couldn’t have turned over all the warrants relating to the gun case on October 12, because he hadn’t obtained the one he claims he is relying on, not for another 53 days yet!

Derek Hines might get away with obtaining evidence after the indictment and parallel construction and good faith reliance on a warrant that relied on the laptop. That’s all normal prosecutorial dickishness. But if Judge Noreika feels like he implied he turned over all the warrants in one filing even while, in another, he was hiding the fact that he didn’t turn over the warrant he is actually relying on until well after the motions deadline, then Hines might get into hot water.

You can get away with a great deal of prosecutorial dickishness, but you can’t mislead a judge.

Mind you, it may not matter. Whatever is going on, by obtaining a warrant 81 days after indicting Hunter Biden, Hines has created the appearance that he didn’t obtain his best evidence until after rushing an indictment that Jim Jordan demanded, making it more likely that this would be that almost unheard of example where a judge rules there’s reason to question the prosecutors’ decisions.

At the very least, Judge Noreika might just grant Abbe Lowell discovery to try to figure out why Derek Hines got a warrant 81 days after the indictment.

Update: Corrected Judge Noreika’s first name.

In Peter Navarro Sentencing, No Mention of Competing Claims about Official Acts

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As you’ve no doubt heard Judge Amit Mehta sentenced Peter Navarro to four months in prison plus a $9,500 fine. Here’s Kyle Cheney’s account.

The punishment matched the sentence imposed — but stayed pending appeal — by Trump appointee Carl Nichols, but with a bigger fine.

At first, Navarro attorney Stan Woodward told Judge Mehta that Navarro would say nothing.

But then he did. He claimed, as a Harvard-educated gentleman, he was helpless to figure out what to do in response to a subpoena.

Navarro made a last-ditch appeal for leniency to Mehta, addressing the court even after his lawyers had initially said he wouldn’t. He said he grew confused about the thicket of precedents and rules around executive privilege and believed he didn’t have to comply with Congress’ subpoena.

“I’m a Harvard-educated gentleman, but the learning curve when they come at you with the biggest law firm in the world is very, very steep,” Navarro said.

Judge Mehta, a mere Georgetown/UVA grad, was having none of it. He noted that by the time Navarro defied the January 6 Committee, Steve Bannon had already been charged.

I’m just as interested in what wasn’t said at the sentencing. In spite of unsealing part of the communications pertaining to the Presidential Records Act lawsuit still pending against Navarro, which I wrote about here, I saw no mention of it in today’s hearing.

If I’m right that Navarro continues to withhold communications about the coup based on a claim they’re not protected by the Presidential Records Act, nothing would prevent Jack Smith from handing Navarro a subpoena. Indeed, Navarro’s testimony today would validate that Navarro now knows exactly how to respond to a subpoena — and that he doesn’t believe these are official records.

The big drama going forward is whether Judge Mehta lets Navarro stay out of jail pending appeal, as Judge Nichols did with Bannon.

But if Navarro were to defy another subpoena, it might be a way to get him jailed more quickly.

A Second Trump Term Would Replace Competent Corrupt People with Incompetent Ones

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Steve Neukam is one of the Messenger scribes who often chases Dick Pics with little care for the actual evidence.

In the middle of a paragraph quoting an anonymous Republican saying that Republicans don’t even need direct financial ties to Joe Biden to impeach him, for example, Neukam treats the factual explanation that Republicans are trying to impeach Joe Biden based on loans he made to his family while a private citizen as a brush-off.

The source close to Trump also said Comer “set the bar too high” for an impeachable offense, attempting to prove a direct payment to Joe Biden in the probe. The investigation spent weeks rolling out payments to Joe Biden from Hunter Biden and James Biden, the president’s son and brother, which the White House and Biden allies brushed off as loan repayments. Proving a direct payment to the president, the source said, was not necessary. [my emphasis]

But by being a committed Dick Pic Sniffer, Neukam has hit paydirt with a story quoting a slew of MAGAts trying to blame James Comer, and James Comer exclusively, that Republicans haven’t even succeeded in the single thing they tried to do with their House majority last year: Impeach Joe Biden.

Comer has led a”clueless investigation” at best and — at worst — “a disaster.”

“It’s been a parade of embarrassments.”

[snip]

“James Comer continues to embarrass himself and House Republicans. He screws up over and over and over,” the source said. “I don’t know how Republicans actually impeach the president based on his clueless investigation and lack of leadership.”

[snip]

“It seems like they got played by Hunter Biden,” one senior House GOP aide said. “It was a disaster. They looked like buffoons.”

Behind these hilarious quotes, however, is a particular power structure, one that is actually far more telling than the quotes.

The same article that claims that Comer’s problem is that he was picked because of his fundraising prowess…

“This is why we shouldn’t pick our chairman based on how much money they raise,” another member told Moskowitz, according to the congressman.

… Has these two deliciously contradictory claims about Mike Johnson’s impotence, a Speaker picked in spite of his non-existing fundraising record.

The Republican lawmaker who took his complaints of Comer to the speaker’s office was told that Johnson is aware of the problem, agrees with the criticism but can’t really do much other than watch and shake his head, the lawmaker told The Messenger.

[snip]

Top House Republicans stand next to Comer amid the intra-party criticism. Johnson told The Messenger that he is “fully supportive” of the chairman’s work.

“I am grateful for the superb efforts of Chairman Comer,” the speaker said in a statement to The Messenger. “Without his and the other investigators’ work, we wouldn’t have uncovered the millions in foreign funds going to the Biden family, the dozens of exchanges between the President and Hunter Biden’s clients, and the litany of lies the White House has told.”

Meanwhile, at least some of the people griping are people close to Trump venting because the House GOP hasn’t delivered on Trump’s demands.

Twice-impeached Trump himself threatened House Republicans in August to impeach Biden “or fade into OBLIVION.”

[snip]

“You have to start producing,” a Trump ally said. “The base is starting to get more and more frustrated with him because they see all this smoke but they don’t see the movement.”

It is virtually certain that many of the Republicans quoted here (with the possible exception of Jim Jordan’s chief counsel Steve Castor) suffer from the very same problems James Comer has faced in this investigation. They’re incompetent. They exist in a Fox/Newsmax bubble that rewards feral loyalty, incompetence, and lies. When exposed to any real scrutiny, those lies crumble.

You won’t find them reflecting on whether their own false claims have contributed to the hilarity of Comer’s failures. Amid increasing concerns that Republicans will lose the House in November, they’re busy passing the blame, even while they ignore an even bigger underlying problem.

One reason this impeachment has failed, thus far, is because they’re pursuing impeachment for the sake of impeachment. One reason this impeachment has failed, thus far, is because the House GOP has dedicated their entire first year to delivering whatever Trump demanded, when he demanded it, irrespective of whether it served their own interests or was justified by anything but Trump’s petulant demands.

Of course, none of the Republicans quoted here (Neukam also relies on Jared Moskowitz’s second-hand claims about what Republicans have told him) would admit they’re no different than Comer. They could do no better.

The Republicans on these committees have, like Comer, gleefully made false claims about smoking guns for which they had no evidence, for example. These Republicans continue to chase every one of Comer’s new diversions, in hope somewhere there’ll be evidence.

This is the persistent problem with claims — renewed today from the NYT team — that Trump will use DOJ to pursue partisan retribution.

[Maggie] He and his allies have also been clear that a big agenda item is eroding the Justice Department’s independence.

Charlie: Yes, Trump has vowed to use his power over the Justice Department to turn it into an instrument of vengeance against his political adversaries. This would end the post-Watergate norm that the department carries out criminal investigations independently of White House political control, and it would be a big deal for American-style democracy.

He already did this!!! No matter how many times NYT claims this would be a new development, none of it can eliminate the evidence that Trump’s focus on retribution began when he ordered investigations into Hillary and John Kerry under Jeff Sessions and accelerated as Bill Barr tried to find ways to charge Hillary and other Democrats for Trump’s efforts to cozy up to Russia. These efforts continue, with wild success, as Trump’s demands for a Hunter Biden investigation finally bore fruit.

As people consider the dangers of a second Trump term — and make no mistake, it could end American democracy — they need to consider whether incompetent corrupt partisans like James Comer will be any more effective than what Bill Barr already tried. Hell, under Barr, DOJ altered evidence to attempt to implicate Joe Biden in Trump’s corruption. John Durham fabricated a claim to impugn Hillary, but still couldn’t make charges against her attorney stick.

The difference — the one place where Comer, and to a much greater degree, Jim Jordan — have succeeded where Barr did not is not in the quasi-legal outcome. Rather, it is in ginning up threats against — seemingly — every single adverse witness.

The incompetent corrupt people that Trump is relying on while disavowing his past competent agents of retribution are really really good at one thing: Sowing political violence. But it’s not clear they’d be any better at politicizing DOJ than Trump already managed.

“What it gets at is just facts:” MAGAts Learn to Love Long-Delayed Interview Reports

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I spent much of my day reading the transcript from Hunter Biden attorney Kevin Morris’ deposition by the House. (xitter thread here)

It was a predictable shit show.

And some details — such as Morris’ disclosure that the only reason he contributed $11,000 on Hunter’s behalf pertaining to a Porsche in 2020 was to pay it off to the point that he could sell it — confirm that David Weiss was spinning Hunter’s expenses on the tax indictment to put them in the worst possible light.

But there’s a particular meltdown that deserves further attention. One of the GOP staffers was grilling Morris about the references to him recorded in a Joseph Ziegler interview report from a September 29, 2022 interview of James Biden, which would have been the last substantive interview of the investigation before David Weiss reopened it last year.

These bullet points are Ziegler’s representation of what James Biden had to say about Morris; they were asking him about a March 2020 communication from a period when Morris was putting together a plan to get Hunter’s life back on track, including by filing his tax returns. If Ziegler’s representation is accurate, the President’s brother is not terrifically enamored of Hunter’s benefactor.

Text Dated March 2020:

a. Kevin Morris (“Morris”) was an attorney for SouthPark and the Book of Mormon. Morris is a very wealthy guy. Morris had befriended RHB. James B didn’t know why or when this occurred.

b. James B was asked by DOJ-Tax attorney Daly what “World Class of People” referred to? James B thought that this could be attorneys and could mean anything. Morris has a huge ego in being a successful entertainment attorney. RHB wasn’t interfacing with anyone during this time except for Morris and one other guy who flipped houses named George.

c. Morris was helping RHB a lot, but James B didn’t know why. James B thought that this might have been because of his ego. RHB asked James B to thank Morris because Morris requested a thank you. James B had no understanding of what the team of people means and has no knowledge of what Morris had done for RHB. James B was not sure if there was a loan between Morris and RHB. James B thought that the money was significant enough that RHB asked his uncle to say something to Morris and thank him. James B didn’t recall a specific discussion only to say thank you “on behalf of the family”.

d. James B recalled that when RHB was being vilified by the media, Morris had sent a film crew to Bulgaria. Morris was there with his film crew monitoring a documentary trying to defame RHB.

e. James B only met Morris 3-4 times. Morris wanted James B to come work for him and James B told Morris that he was not interested. James B met Morris at his home. Morris also came to RHB’s house for a picnic in which James B attended.

f. James B recalled Morris making a comment that if RHB’s attorneys weren’t going to listen to him, then he wanted nothing to do with them.

g. James B stated that Morris thought he was very knowledgeable “politically,” but James B thought otherwise.

h. James B was not aware if Morris asked RHB for anything else other than a thank you. RHB was very closed lip about Morris. [my emphasis]

So a Republican staffer takes this passage and then asks Morris what James Biden meant when he said that he, Morris, was not very knowledgable politically, an observation there’s no reason to believe Morris had heard directly.

Mr [redacted]. If you go to 51(g), just a little bit lower, it says, “James Biden recalled Morris making a comment” — or excuse me.

Mr. Sullivan. (f), you mean?

Mr. (g): “James B stated that Morris thought he was very knowledgeable ‘politically,’ but James B thought otherwise.” Do you know why James Biden would say that you thought you were politically savvy?

Morris balks. Hours into this deposition, he doesn’t simply point out he would have no way of knowing. Based on what he knows about James Biden, he doubts the representation is accurate. He, a Hollywood lawyer, cites Law and Order.

Mr. Morris. I don’t believe that he said it.

Look, counsel, this is not a transcript. These are the notes of a law enforcement official, you know, trying to, you know, trying to get a case going. All you have to do is watch one episode of “Law & Order” to know that that’s not often — it’s not always accurate.

GOP staffer then makes of Morris’ comment something it isn’t.

Mr. [redacted] So you’re saying you never had any political conversations with James Biden?

Mr. Morris. No, I don’t remember any political conversations with Jim.

A Dem staffer, perhaps seeing this about to go off the rails, notes that this is not a contemporary record of the interview.

Mr. [redacted, seemingly a Dem staffer] And can we just establish for the record that this is a memorandum of interview for an interview that took place September 29th, 2022. And as is noted on the last page, Agent Ziegler notes in it, “I prepared this memorandum on over the period October 10th through November 2nd, 2022, after refreshing my memory –“

Which leads things to go after the rails. For at least the second time in the deposition, a Republican staffer defends Joseph Ziegler’s honor, as if he hadn’t already been caught in misrepresentations of these events.

Mr. [redacted] Are you disputing the accuracy of the — of this memo?

Mr. [redacted] “– from notes made during and immediately after the interview with James Biden.”

The Reporter asks people to stop interrupting each other.

The Reporter. You have to repeat. I had two people talking at the same time.

Mr. [redacted] I’m just noting that at the end it says, “I prepared this memorandum on over the period October 10th through November 2nd, 2022, after refreshing my memory with notes made during and immediately after the interview with James Biden.”

I’m — this is just — I’m just reading from the —

[1:39 p.m.]

Mr. [redacted] It’s in the — we’ve entered it into the record. So the notes were made — if we’re going to — we’re going to pause if you want to maybe ask questions.

Ms. [redacted] We can pause.

A seeming Republican argues that since this is already in the record it must be taken as Gospel.

 Mr. [redacted] There were notes that were taken with this. So I don’t know what the point of that was since it’s already in the record.

Ms. [redacted] I think the point is that this is not a contemporaneous memorandum.

Another Democratic staffer notes this is not a contemporaneous record.

That this was actually written down several days, actually a couple weeks after the interview. And it says on the face of it that Mr. Ziegler had to refresh his memory from  notes. So I think, you know, it is — it’s as valuable as the paper it’s written on, but it says on its face that it’s not contemporaneous. I think that’s the point we’re making.

Mr. [redacted] And I’m just making that point in the interactions or comments that James Biden said X, and I just want to be clear that what this document says about what it is and what it is not.

A likely Republican says that because ten people attended the interview, all must have vouched for the accuracy of the memo.

Mr. [redacted] There’s also 10 people present here. And, presumably, Mr. Ziegler, when he prepared this, he circulated, at least to the internal folks, to make sure that he had it accurate, right?

Kevin Morris is not having it. He notes only one other person, Christine Puglisi, signed it.

Mr. Morris. No, we don’t know that. I’m not presuming what Mr. Ziegler said.

I mean, it is signed by Mr. Ziegler and by another special agent. And I am just reading the caveat that’s noted above his own signature. I’m not speculating —

Someone complains that they’ve gone off the rails.

Mr. [redacted] We’re getting a little bit —

The court reporter begs, again, for people to stop talking over each other.

The Reporter. Can we speak one at a time, please.

Morris’ attorney points out what Morris might have: The House shouldn’t be pushing on this in any case, because Morris has no personal knowledge of the interview.

Mr. Sullivan [Morris attorney]. Sorry. For me as the counsel for the witness, I am just saying, the questions are being asked about, based on this memo, that Mr. Morris has no personal knowledge of anything that was actually said. If this is true, we just don’t know. We don’t have any personal knowledge of whether this is.

Mr. [redacted] Fair enough.

Mr. Sullivan. That is my main concern — questions about that —

The Republicans will not be deterred.

Mr. [redacted] Jim Biden mentions —

The court reporter tries, again, to get people to stop talking over each other.

Mr. Reporter. One at a time, please.

The Republicans will not be deterred.

Mr. [redacted] Jim Biden mentions Mr. Morris. Here we’re simply asking questions to the extent you can answer it. Or if you disagree with it, you can tell us what you can tell us, and that’s where we’ll be.

Morris repeats that this transcript doesn’t sound like Jim Biden, but also notes that even if he did, it doesn’t get Republicans to where they want to get.

Mr. Morris. And counsel what I’m saying is, I do question the validity of this. I do question a lot of it. Some of it sounds lake stuff Jim would never say. But, in any event, I don’t believe — you know, were it all true, I don’t know where this gets you. Like if, you know — and I could be speculating about what Jimmy said in front of investigators, you know, written down by the memo and not on a transcript.

In response to which, a Republican asserts that this transcript, which Morris contests, relaying claims to which Morris has no personal knowledge, “gets at is just facts.”

Mr. [redacted] What it gets at is just facts. I mean, we’re just trying to ask you questions as fast as we can.

It’s nice to know these committees are just as much of a shit show behind closed doors as are the hearings hosted by James Comer.

But the dispute is worth closer look. The point the Democrats are making is that this interview of James Biden — the last interview of this investigation — was not written up for 34 days. The interview was held on September 29, 2022. Ziegler described that, starting 11 days after the interview, he wrote it up over a period of 23 days, from October 10 to November 2.

I prepared this memorandum on over the period October 10th through November 2nd, 2022, after refreshing my memory from notes made during and immediately after the interview with James Biden. [my emphasis]

Not only that, but Ziegler corrected himself: he didn’t write the memo on a particular day, he wrote it over a more than three week period just before the 2022 midterms.

Remember: It is an article of faith that there must have been political interference because it took 22 days to write up an interview report of Mike Flynn’s January 24, 2017 interview, which was finalized on February 15, 2017. This conspiracy theory frothed Republicans up but good for — I kid you not — 675 days until, after a series of backflips to invent some reason to throw out the Flynn prosecution, Bill Barr’s DOJ admitted the conspiracy theory was based on fluff. There was no original 302, they admitted after Sidney Powell spent years leading MAGAts to believe there was.

The delay in finalizing Flynn’s 302, which is actually far too routine, was a core piece of “proof” in the conspiracy theories that Flynn was wrongfully prosecuted.

And here, an interview report of the President’s brother took 12 days longer to complete than Flynn’s (which is still not that long compared to far too many interview reports). Worse still, during that entire period, Ziegler’s boss and close ally on this case, Gary Shapley, was busy inventing a reason to blow up the case. Ziegler didn’t even begin to write up this interview until after the October 6 leak and the October 7 meeting that has since roiled the case.

Honestly, Morris should have started where he ultimately ended up: noting that even if the interview report recorded James Biden accurately, it didn’t help Republicans’ conspiracy theories.

But by raising questions about whether Ziegler, at a time when he and Shapley were inventing conspiracy theories about this case, accurately recorded the President’s brother, he invited Republicans to demonstrate just how little they really care about delayed interview reports.

Abbe Lowell’s Eight Chessboards

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The developments in two Hunter Biden lawsuits — his Privacy Act claim against the IRS and his hacking claim against Garrett Ziegler — made me think about how many moving parts Abbe Lowell is juggling, and the degree to which he may be staging them all to work together.

First, on January 22, Lowell successfully requested to move the hearing for Garrett Ziegler’s motion to dismiss Hunter’s hacking lawsuit to coincide with Rudy’s (in which Robert Costello is the one defendant, on account of Rudy’s bankruptcy).

IT IS HEREBY ORDERED that the hearing on Defendants’ Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(2), 12(b)(3), and Cal. Civ. Proc. Code Section 425.16 is continued from February 22, 2024, at 10:00 a.m. to March 21, 2024, at 10:00 a.m.

I think this will have the result of delaying Lowell’s disclosure of his theory of venue in California and of hacking, so (for example) Costello — the far better lawyered of the two defendants — now won’t have time to respond to what Lowell unveils against Ziegler. It will likewise delay this reveal until after Hunter testifies in a deposition before Congress.

Meanwhile, on January 16, DOJ filed a motion to dismiss just part of Hunter’s IRS lawsuit based on all the documents released public via Joseph Ziegler and Gary Shapley. Hunter’s lawsuit alleged two counts:

  1. Grossly negligent unauthorized disclosure on behalf of both the IRS agents and their attorneys
  2. Privacy Act violation, based on IRS’ inadequate protections against such disclosures

DOJ moved to dismiss the part of count 1 that included the IRS agents’ lawyers but not the IRS agents themselves, and moved to dismiss the Privacy Act claim for several reasons, two technical, but also a third that Hunter did not adequately allege that IRS had not taken proper safeguards against the disclosures. Yesterday, both sides in that lawsuit asked to delay Hunter’s response to February 20, giving this explanation.

Rule 6(b)(1)(A) of the Federal Rules of Civil Procedure permits the Court to extend the time for answering, moving, or otherwise responding to the complaint for good cause shown. Good cause exists to extend Mr. Biden’s deadline to respond to the partial motion to dismiss to February 20, 2024. Mr. Biden’s counsel is in the process of reviewing the Defendants’ partial motion to dismiss and assessing the appropriate response to the motion. In addition, Mr. Biden’s counsel has a number of filing deadlines in his two criminal cases and several of his pending civil cases in the next few weeks.

Notably, DOJ did not move to dismiss the claim that Ziegler and Shapley were grossly negligent in their treatment of Hunter’s tax information. At the very least, that means Hunter can get discovery on their actions, and it likely means the same DOJ that is prosecuting Hunter Biden for tax crimes agrees that it is plausible that the two agents who were primary investigators for years treated his tax information improperly.

Consider the timing of this extension, though — the claimed basis for it. In the criminal suits, Lowell has to reply to his motions to dismiss in the Delaware case by January 30, then file his initial motions to dismiss — which will significantly overlap with what he already filed in Delaware, but under an order from Judge Scarsi will be a fraction of the length of those in Delaware — on February 20.

Notably, Lowell is not asking for an extension until after he submits his MTDs in Los Angeles. Rather, he asked for an extension to the day those MTDs are due, meaning his response would coincide with the Los Angeles MTDs.

As it stands, then, the reveal of his hacking and venue theories in the two hacking lawsuits will coincide, and the reveal of his plans in the tax case and the IRS lawsuit will coincide.

Looking at the timeline below, some of what Lowell is doing becomes clear.

John Paul Mac Isaac decided to sue Hunter based on a single statement the President’s son made in 2021, one that did not even mention JPMI. That statement was:

There could be a laptop out there that was stolen from me. It could be that I was hacked. It could be that it was the – that it was Russian intelligence. It could be that it was stolen from me. Or that there was a laptop stolen from me.

The statement provided Hunter the opportunity to countersue for something that wouldn’t involve discovery into his entire life.

More importantly, the countersuit gave Hunter a way to obtain JPMI’s copy of Hunter’s data, which is undoubtedly one of the things that gave him the opportunity to sue Ziegler and Rudy (and subpoena Apple), which will — if those lawsuits survive motions to dismiss — provide a way to obtain discovery about the laptop caper from them. Based on that laptop, Hunter has now publicly alleged that his data — the data shared with the FBI and Congress — was stolen.

The competing claims for summary judgment are briefed and ready for a hearing in Delaware.

Even as he was collecting data from JPMI, Hunter also started getting discovery in his criminal cases. Thus far, at least, there’s a great deal that’s in the public record that David Weiss is refusing to officially give Hunter (note, the language covering the three discovery productions below doesn’t claim to have provided discovery on the FARA prongs of the investigation, the prongs that implicate Donald Trump’s crimes).

Then there’s the Dick Pic Sniffing investigation by James Comer and Jim Jordan. I and virtually everyone else you ask says it is insane for Hunter Biden to sit for a deposition before two hostile committees. But I’m … intrigued by the fact that, by using Comer and Jordan’s ineptitude to win a delay, Lowell has ensured that Hunter will have not only have visibility on what JPMI did by the time of the deposition (possibly, though unlikely, even a judgment against him), including on the hard drive the blind computer repairman gave exclusively to Republicans, but he also will have a great deal of visibility not just into the scope of the two charged cases against him, but also the FBI’s provably inadequate treatment of the laptop.

Finally, consider the challenges added by David Weiss’ decision to charge Hunter in two venues, Delaware and Los Angeles. Yes, Hunter is facing two Trump appointees, Maryellen Noreika and Mark Scarsi. But for several of Hunter’s motions to dismiss, if a motion works in one venue, it’ll do real damage to the case in the other one. Lowell already argued that if Judge Noreika rules that the diversion agreement was in effect, it would also bar any but the misdemeanor tax charges in Los Angeles.

Although the only charges now before the Court are the gun charges in the prosecution’s lone Indictment of Mr. Biden in this District, Mr. Biden notes that the sweeping immunity of the Diversion Agreement would seem to bar any plausible charge that could be brought against him (including the recently filed tax charges in California). The only charges that are not be barred by the immunity provision are those filed in the pre-existing Informations filed against him in this District. The Diversion Agreement called for the eventual dismissal of the gun charge Information upon the conclusion of the diversion period, but the prosecution already has dismissed it. Although the Plea Agreement was not accepted on the misdemeanor tax charge Information, the prosecution has dismissed that Information as well. Consequently, the Diversion Agreement’s immunity for gun and tax-related charges would bar any similar charge from now being filed. This sweeping immunity may make it difficult for the prosecutors to appease Mr. Trump and the Republican congressmen who have criticized them, but this is the deal that the prosecutors made and it reflects their choice to place the immunity provision in the Diversion Agreement.

When Lowell argues a selective and vindictive prosecution claim in Los Angeles, he might integrate more information on how the manufactured uproar created by the IRS agents, Comer and Jordan, and Trump led to threats against prosecutors, including David Weiss personally (and also, notably, Los Angeles US Attorney Martin Estrada). More importantly, he’ll already have the DOJ decision that his claim that Ziegler and Shapley were grossly negligent in the way they released Hunter’s tax information (and spoiled the jury pool) has some merit. Perhaps that even gives Lowell cause to ask to delay the prosecution. Also since Lowell first filed a challenge to Weiss’ appointment as a Special Counsel, the degree to which he has never been adequately supervised by a political appointee has become clear, perhaps inviting a Morison v. Olson challenge that might have more merit than the existing challenge.

There are a lot of moving parts here. And while DOJ is still withholding data that is relevant, Lowell actually has information that DOJ likely does not.

I’m really not arguing this is 8-dimensional chess. Hunter is still in a world of hurt.

But Abbe Lowell may well have some dramatic reveals prepared, dramatic reveals that make Hunter’s twin appearances in DC just a preview of coming attractions.

Updated Tax lawsuit below to reflect that Judge Kelly approved the delay.

1) Delaware gun case

[RECAP docket]

September 14: Indictment

October 3: Arraignment

October 12: First Discovery Production (350 pages focused on gun case), including iCloud data and “a copy of data from the defendant’s laptop”

October 13: Motion to Continue

October 19: Order resetting deadlines

November 1: Second Discovery Production (700,000 pages on tax charges — no mention of FARA investigations)

November 15: Hunter subpoena request

December 4: Weiss subpoena response

December 11: Motions due

December 12: Hunter subpoena reply

January 9: Third Discovery Production (500,000 pages focused on tax case)

January 16: Responses due

January 30: Replies due

2) Los Angeles tax case

[RECAP docket]

Hunter was indicted on December 7 and made a combined arraignment/first appearance on January 11. At that hearing, Judge Mark Scarsi set an aggressive (and, from the sounds of things, strict) schedule as follows:

February 20, 2024: Motions due

March 11: Response due

March 18: Replies due

March 27 at 1:00 p.m.: Pretrial motion hearing

April 17: Orders resolving pretrial motions.

June 3 at 1:00 p.m.: Status conference

June 20: Trial

3) House Dick Pic Sniffing Investigation

November 8: James Comer sends a pre-impeachment vote subpoena

November 28: Lowell accepts Comer’s offer for Hunter to testify publicly

December 6: Comer and Jordan threaten contempt

December 13: Pre-impeachment deposition scheduled; Hunter gives a press conference and states his data has been “stolen” from him

December 13: Impeachment vote authorizing subpoena

January 10: Oversight and Judiciary refer Hunter for contempt

January 12: Lowell invites Comer and Jordan to send another subpoena, now that they have the authority to enforce it

January 14: Jordan and Comer take Lowell up on his invitation

February 28 (tentative): Deposition

4) IRS lawsuit

[RECAP docket]

September 18: Privacy Act lawsuit

November 13: DOJ asks for extension to January 16

January 16: DOJ files motion for partial dismissal

January 23: Joint motion to continue

January 30: Original deadline for Hunter response

February 20: New deadline for Hunter response

March 12: New reply deadline for DOJ response

5) John Paul Mac Isaac’s Suit and Countersuit

Last summer, John Paul Mac Isaac and Hunter both sat for depositions, on May 31 and June 29, respectively.

Last fall, Hunter Biden subpoenaed people Rudy Giuliani, Robert Costello, Steve Bannon, Yaacov Apelbaum (who made a copy of the contents of the laptop), Tore Maras (who has described adding things to the laptop). In November, Hunter also served a subpoena on Apple.

On January 4, the parties to John Paul Mac Isaac’s suit and countersuit filed to have their pending motions decided by a judge. The media defendants — CNN and Politico — are filing to dismiss. Hunter and JPMI filed competing motions for summary judgment.

And Hunter is filing to quash a bunch of subpoenas, initially 14, to Hunter’s parents, uncle, ex-wife, former business partners, and several people with his father, like Ron Klain and Mike Morell. Though after that, JPMI attempted to subpoena Hunter’s daughters.

6 and 7) Garrett Ziegler and Rudy Giuliani hacking suits

[RECAP Ziegler docket; RECAP Rudy docket]

September 13: Complaint against Ziegler

September 26: Complaint against Rudy and Costello; noticing Ziegler suit as related case

November 15: Ziegler gets 30 day extension

December 1: Costello gets 30 day extension

December 7: After swapping attorneys, Ziegler gets extension to December 21

December 21: Ziegler motion to dismiss and request for judicial notice (heavily reliant on JPMI suit)

January 17: Costello motion to dismiss with Rudy declaration that makes no notice of his fruit and nuts payments relating to Hunter Biden

January 22: Lowell successfully requests to harmonize MTD hearing for both hacking lawsuits

February 8: Rescheduled date for hearing on motion to dismiss

February 22: Rescheduled date for hearing on motion to dismiss

March 21: Joined date for hearing on motion to dismiss

8) Patrick Byrne defamation suit

November 8: Complaint

January 16: After swapping attorneys, Byrne asks for 30 day extension

February 6: Rescheduled response date

Hunter Biden Lost His Phone(s) in the Same Days He Bought a Gun

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Ho hum. Another day, another David Weiss filing that may face significant evidentiary challenges at trial.

In past posts, I have shown how one after another sex worker, payments to whom prosecutors have made central to their allegations that Hunter Biden cheated on his taxes, may pose evidentiary problems if the case goes to trial.

In one case, David Weiss included in the tax indictment the first Venmo payment — and its misleading payment description and Weiss’ likely incorrect date — that Hunter made after two new devices accessed the account, 12 minutes apart, from two different cities. In another, I showed that a sex worker the IRS actually interviewed about her dates with Hunter was among the last people Hunter spent time with before he attempted to reclaim the part of his digital life hosted at Apple, using a laptop that would eventually be found at Fox News pundit-shrink Keith Ablow’s office when the DEA searched it in February 2020.

Even as the IRS spent years scrutinizing Hunter’s digital payments, they appear to have ignored how his digital life faced one after another compromise, most (but potentially not all) undoubtedly arising from the erratic habits of an addict. Those potential compromises should have elicited an entirely different investigative focus, but they also will make any digital evidence obtained from Hunter Biden’s devices difficult and at times impossible to validate for trial.

Take the texts that Hunter Biden sent Hallie in the two days after he purchased the gun for which he has been charged with three felonies, texts that Weiss has admitted he did not seek until last year, apparently only after indicting the President’s son. Prosecutors are very excited about obtaining these texts, after the fact, to prove that Hunter was smoking crack during the days he possessed a gun.

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.”

Weiss doesn’t say what time these texts were sent. Nor does he say whether these were telephony or app texts (Hunter was using at least WhatsApp in the period), and if the former, via which phone account.

But it happened on the same days that Hunter was informed that someone, whose name does not otherwise show up in public emails, emailed Hunter to tell him “you left your phone,” followed, after three attempts, by a shared Note that appears to link to a live Apple account (the times here are UTC-3, so one hour ahead of EDT; I hope I’ve adjusted all the times below to EDT).

And, indeed, Hunter does appear to have left his phone — or phones, plural — somewhere, probably the day before he bought the gun.

In those same two days in which those texts were sent to Hallie, there were four different attempts to replace phones via an Asurian protection plan, two of which ended in the delivery of phones he is known to have adopted as his primary phones afterwards, two of which tied to other numbers that ended in uncertain status. In addition to those iPhones he would use to replace his main phones, Hunter (or someone else) accessed his digital identity from a Samsung Galaxy, a rare deviation from Hunter’s commitment to Apple products.

A week later Hunter’s account would begin to be accessed using the laptop that would ultimately end up with the FBI.

The traffic for just those three days looks like this, with the emails from Joey bolded and two key account changes italicized:

October 12, 12:56PM: As you requested, your temporary [AT&T] password is: ****** Use your user ID and temporary password to sign in to your account.

October 12, 12:56PM: Looks like you recently updated the AT&T password.

October 12, 12:57PM: Critical security alert for your linked Google Account, Sign-in attempt was blocked for your linked [RosemontSeneca] Google Account [device not specified]

October 12, 3:25PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 431] has been started

October 12, 3:32PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 431] has been started

October 12, 3:38PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 579] has been started

October 12, 3:40PM: Your [AT&T] insurance claim [phone ending in 96]

October 12, 3:44PM: Your [AT&T] insurance claim [phone ending in 13]

October 12, 3:49PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 701] has been started

October 12, 3:55PM: Please complete and return your claim documents Wireless Number: **94

October 12, 3:57PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 799] has been started

October 12, 4:03PM: Please complete and return your claim documents Wireless Number: **29

October 12, 5:35PM: Hello. Review your AT&T order

October 12, 6:22PM: Good news. Your replacement device [grey Apple iPhoneX] has shipped. [phone ending in 13]

October 12, 6:24PM: Phone [from Joey]

Hey, You left your phone and other things. Tried to reach you at 202 and 302 all day but no luck. Let me know where to overnight.

October 12, 7:20PM: Good news. Your replacement device [iPhone 8] has shipped. [phone ending in 96]

October 12, 8:00PM: Verify your Samsung account [accessing Hunter’s iCloud]

October 12, 11:31PM: Someone Just Checked Your Background Report

October 13, 7:10AM: You left your phone. How do I get it to you?

joey

October 13, 7:26AM: You left your phone. How do I get it to you?

joey

October 13, 11:13AM: Let’s setup your AT&T replacement device [phone ending in 13]

October 13, 12:35AM: Someone Just Checked Your Background Report

October 13, 2:00PM: Hello, Review your AT&T order [changes to wireless]

October 13, 9:17PM: Your [RosemontSeneca] Google Account was just signed in to from a new Samsung Galaxy Note 9 device

October 13, 11:36PM: Wells Fargo Has Registered Your Mobile Device

October 14, 2:24PM: Your Apple ID password has been reset

October 14, 2:24PM: Your Apple ID was used to sign in to iCloud on an iPhone X

October 14, 3:28PM: Wells Fargo card added to Apple Pay

October 14, 3:36PM: Verify your Samsung account [on iCloud]

October 14, 7:48PM: “Overcoming myself” [from Joey]

When you have a minute, read ….

Open my shared note:

Interspersed with this traffic, Hunter’s accountant was trying to get him to file his 2017 taxes, Twitter was informing him of this story showing that Jared Kushner hadn’t paid taxes for years, Hunter was draining his bank account one $800 withdrawal after another, and his business partner was approving a payment to Hunter’s lawyer that would all but drain the Hudson West business associated with CEFC. A different business partner, Eric Schwerin, was also pushing Hunter to resolve their business interests during the 2018 tax year, something he failed to pull off.

Without the location and IP addresses, it’s not entirely sure what happened here (Weiss should have that with the iCloud data). It’s not even clear that Hunter had a phone, at all, between the time he lost his phones, plural, on October 11 and started using his new iPhone X on October 14 (though he did have a third phone tied to an account he used with sex workers). Hunter may have used the Samsung as a temporary phone for those two days or borrowed someone else’s Samsung to check his email; but it wasn’t verified to his iCloud account before October 14 at 3:36PM, and so may not have been able to access some Apple services. Importantly, however, that phone accessed his RosemontSeneca Google account after Hunter had started using one of his new replacement iPhones, something that doesn’t make sense if he was borrowing it.

If the texts to Hallie were sent after Hunter changed his wireless account at 2PM on October 13, they might be traced to a secure telephony account. But if they were sent via iMessage or WhatsApp before Hunter changed his iCloud password at 2:24PM on October 14, then you’d have to use location and IP data to rule out that someone else sent those texts to Hallie, using Hunter’s still accessible iCloud account via his lost phones (plural, apparently).

Because this particular verification challenge involves iCloud, which should have the location and IP data to verify which devices were used, and because (unlike the sex workers) it wouldn’t involve Hunter’s copresence with someone accessing his bank account via biometrics that others might access if he were wasted, this should be something that prosecutors could definitively prove, if indeed Hunter did send these texts.

If they can’t prove the location and IP from which these texts were sent, they may not be admissible at all, because prosecutors may not be able to prove that they are, in fact, Hunter’s words and not those of someone using his lost phones.

If this goes to trial, it might be worth forcing prosecutors to go through the effort to prove Hunter did send the texts, because it not only demonstrates how uncertain this evidence can be five years after the fact, but it would also show that Hunter spent hours trying to reclaim his digital identity — possibly using the laptop that would end up in Ablow’s possession — during the period when, prosecutors would be arguing, he was sleeping [in] a car and smoking crack.

Plus, that process would demonstrate something else. First, note that Hunter never verifiably made efforts that he did in August (the day before the dual Venmo access) to shut down access others would have via those lost devices to his digital identity. There’s no evidence here that Hunter deleted those phones, as he had only just finished doing weeks earlier with an iPad taken in August. That is, if Joey or whoever had one or two phones that Hunter had been using for weeks or months, there would be a great deal of data on them that would allow them, or anyone who subsequently got the phones, to carry out a much more systematic compromise of Hunter’s digital identity in the future.

There’s also no evidence that Hunter changed passwords besides the AT&T one, including for the RosemontSeneca email account that hosted all the work emails that would become so controversial years later. If he didn’t do that, then at least one of those two lost phones could likely access that account without interruption.

I’m not yet ready to show it, but this process, the incomplete effort to reclaim his digital identity, continued through the period where Hunter’s account started being accessed by a new laptop on October 21. And, depending on how the progression from prosecutors’ initial August 2019 iCloud warrant to the December 2019 warrant for that same laptop itself to the warrant to expanded scope of Hunter’s iCloud in July 2020 culminating in December 2023 in the use of those iCloud texts to substantiate a gun case occurred — something that Derek Hines deliberately obfuscates in this same filing — it may mean that this entire investigation has been built on this impossibly rocky foundation since 2019.

The laptop that FBI started using as evidence without first fully validating it destroys chain of custody not just because it was accessed by a hostile person over the course of months before being delivered to the FBI, but also because Hunter’s use of it would have been built on a digital identity that was totally compromised.

Normally, financial records are what make tax cases easy to prove (and, to be sure, many of the financial records used for Hunter’s tax indictment will be easily verifiable). Normally, these kinds of digital communications are what make other indictments easy to prove without having to rely on a sympathetic witness like Hallie Biden, one personally implicated in the insecure disposal of a gun.

But even ignoring the likelihood that more nefarious people might have compromised Hunter’s identity in this period (for which these is some evidence), Hunter’s addiction meant that his digital identity was persistently in a state of half-compromise through this entire period. His addiction led him to do things that prosecutors have now charged him for. It also adds a good deal of validation challenges for the kind of evidence that normally is routine.

David Weiss’ Indict First, Seek Warrants Later Ethic

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I want to further elaborate on a point in this post: It appears that David Weiss did not obtain a reliable warrant for the most showy evidence in his response motion to Hunter’s selective and vindictive prosecution claim until after he indicted Hunter for 3 gun felonies — indeed, he appears not to have obtained it until after Abbe Lowell asked for this kind of evidence.

I think it likely that, as a result, David Weiss will technically be relying on evidence from the laptop he obtained from John Paul Mac Isaac, which (as I’ll show in a follow-up), may be a particularly acute problem for the period in question.

I’ve put a timeline below, relying on Weiss’ response motions on selective prosecution and discovery. Because Weiss did not provide dates for any of the warrants described in the former, I’ve noted the closest unsealed dockets before and after each warrant docket included to approximate the dates for those warrants.

The gun indictment, which Weiss obtained just before the statute of limitations expired, did not provide any proof that Hunter Biden was an addict when he purchased a gun on October 12, 2018. It simply stated, for each of three charges, that he knew he was.

[T]he defendant, Robert Hunter Biden, provided a written statement on Form 4473 certifying he was not an unlawful user of, and addicted to, any stimulant, narcotic drug, and any other controlled substance, when in fact, as he knew, that statement was false and fictitious.

It’s true that on July 26, 2023, Hunter Biden admitted he was in treatment for addiction in Fall 2018 — but that admission was obtained with the promise of a diversion agreement — a point that Abbe Lowell noted in his motion to dismiss on immunity grounds.

Hunter was arraigned — initially with a 30-day deadline for pretrial motions — on October 3, 2023. At the hearing, Lowell said that he was going to ask for an evidentiary hearing, which (along with his TV appearances) would have alerted Weiss that he would seek to dismiss the indictment.

By Weiss’ own admission, he didn’t provide any discovery until October 12, four days after Abbe Lowell asked. He describes that that initial production, of just 350 pages, included “statements of the defendant including his admissions that he was addicted to crack cocaine and possessed a firearm in 2018,” electronic evidence from Hunter’s iCloud account, as well as “search warrants related to evidence the government may use in its case-in-chief.”

On October 12, 2023, the government provided to the defendant a production of materials consisting of over 350 pages of documents as well as additional electronic evidence from the defendant’s Apple iCloud account and a copy of data from the defendant’s laptop. This production included search warrants related to evidence the government may use in its case-in-chief in the gun case, statements of the defendant including his admissions that he was addicted to crack cocaine and possessed a firearm in 2018, and law enforcement reports related to the gun investigation. [my emphasis]

But he doesn’t say he provided all the warrants behind the evidence the government will use in its case-in-chief.

As I’ve noted, Hunter’s book is 272 pages long, so if Weiss included the book in that initial production, then there were only 78 other pages, to include warrants and law enforcement reports pertaining to the gun.

Among the things Lowell asked for in that initial discovery request was information “reflecting Mr. Biden’s sobriety in 2018” and “information reflecting Mr. Biden’s treatment for any substance or alcohol abuse in 2018.”

Weiss described that he provided evidence about payments to rehab programs in 2018 (this will include Keith Ablow!!!) on November 1.

On November 1, 2023, the government provided a production of materials to the defendant that was over 700,000 pages and largely consisted of documents obtained during an investigation into whether the defendant timely filed and paid his taxes and committed tax evasion. These documents included information of the defendant’s income and payments to drug and alcohol rehabilitation programs in 2018, the same year in which the defendant possessed the firearm while addicted to controlled substances.

Weiss didn’t describe providing any more information about Hunter’s addiction or sobriety.

Weiss didn’t describe providing any more discovery — and didn’t describe providing any more warrants at all — until January 9, almost a month after Lowell’s deadline for pretrial motions, including motions to suppress.

In advance of his initial appearance on the tax indictment, the government made a production of materials to the defendant on January 9, 2024, which included over 500,000 pages of documents and consisted of additional information related to the tax investigation.

Yet, by Weiss’ own admission, he never had a warrant to access iCloud content for gun charges — as opposed to tax and foreign influence charges — until he got it with District of Delaware Case No. 23-507M. If my approximations below are correct, Weiss didn’t obtain a warrant to search Hunter’s iCloud content for gun charges until sometime between November 30 and December 4 of last year. As noted previously, I asked Weiss’ spox to correct me if this was an error, but they declined to comment beyond what is in the filing.

Weiss is wildly squirrely about all this, as I’ll show. But he basically admits that he’s relying on that warrant — which it appears he obtained over two months after indicting Hunter — for the only evidence in this motion that shows Hunter’s drug use during the period he possessed the gun (and as noted, Weiss doesn’t describe when in 2023 the FBI first decided to send the gun to a lab for testing, but he admits it wasn’t until 2023).

Prior to October 12, 2018 (the date of the gun purchase), the defendant took photos of crack cocaine and drug paraphernalia on his phone.

Also prior to his gun purchase, the defendant routinely sent messages about purchasing drugs.

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.”

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 . . .”

Elsewhere in this response, Weiss quotes liberally from Hunter’s book, but the book really doesn’t say much about Hunter’s state in the 11 days he owned the gun.

I had returned that fall of 2018, after my most recent relapse in California, with the hope of getting clean through a new therapy and reconciling with Hallie.

Here’s how Weiss — in the paragraph immediately preceding this evidence — describes how — after Delaware cops had already seized the gun — investigators obtained evidence showing the purchase was illegal:

C. While Investigating the Defendant for Tax Violations, Investigators Obtained Evidence Showing His Prior Gun Purchase Was Illegal Because He Was Addicted to Controlled Substances

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

Weiss says he first obtained a warrant for Hunter’s iCloud account in August 2019, but that was just for tax violations. He doesn’t describe the temporal scope of that warrant. Joseph Ziegler predicated the investigation off a 2018 Suspicious Activity Report tied to payments to sex workers, but he only got approval for a criminal investigation by claiming — a claim that the tax indictment debunks — that no taxes were paid for his 2014 Burisma payments, so it’s possible that initial warrant only focused on 2014 and 2015 (particularly given that Hunter couldn’t have committed a tax crime in 2018 until October 2019, after that warrant was obtained in August 2019).

In a footnote but not in the text of the paragraph, Weiss mentions, oh, by the way, we got a follow-up warrant in 2020; he doesn’t provide the date, but it would have been between July 9 and 16, 2020. According to Gary Shapley, investigators obtained 2017 texts with that 2020 warrant — which again may suggest that Weiss didn’t obtain later content until after obtaining it first on the laptop.

Back in the main text, Weiss describes obtaining the laptop [bum bum BUM!!!]. But he claims that what he got from the laptop was “largely duplicative” of what he “already obtained” with the iCloud warrant.

Then, finally, he admits he never got a warrant to search the iCloud (he’s silent about the scope of the laptop warrants, but Ziegler only talked about tax and foreign influence peddling scopes) for evidence of gun crimes until that warrant that, if my approximation is correct, was after the indictment and after Weiss claimed to have provided all discovery for the gun crimes.

Note, significantly, that in a footnote Weiss said, “The electronic evidence referenced in this section was produced to the defendant in discovery in advance of the deadline to file motions,” but doesn’t say anything about when he provided that (apparent) December 2023 warrant to Lowell? It’s not clear whether Weiss included this among the iCloud and laptop material provided on October 12, or among the 700,000 pages provided on November 1.

But whichever it is, if I’m right about the timing of that gun crime warrant, Weiss did not yet have a warrant to access that material for the already obtained indictment yet. Lowell had the content, but not the notice that Weiss was going to use it for the gun crime.

And all this is before you consider the possibility that the second warrant, obtained in 2020, relied on the laptop (something that is consistent with Shapley’s testimony). If that’s the case, then Weiss would have a whole slew of other problems — not least, that John Paul Mac Isaac claims FBI was accessing the laptop before the date that Shapley says they got a warrant.

Update: Let me clarify why this matters. There’s no question that there was probable cause for gun crimes available for a warrant affidavit last year. And it is fairly common for prosecutors to get new warrants for content they’ve already seized; SDNY did so against both Michael Cohen and Rudy Giuliani, for example.

One reason this is problematic, though, is the timing. Weiss is arguing that he always intended to prosecute gun crimes, but he appears not to have gotten a warrant until after he charged it, which hurts his argument that he always intended to prosecute it (as does the delay in sending the gun to the lab). So it could hurt Weiss’ chances to win these motions.

Unless one of three things happened, David Weiss would be able to use this data at trial.

  • If the warrant to obtain the 2018 data was the warrant obtained in 2020 and it relied on stuff from the laptop, the laptop may have tainted the 2020 warrant. There are several ways the laptop may have tainted the 2020 warrant, one of which is JPMI’s claim that FBI was accessing the laptop before they got a warrant.
  • As noted, Weiss is really squirrely about when — or even if — it gave Abbe Lowell the warrant for this material. If they gave it to him after the deadline for these motions to suppress, it would mean they’ve deprived him of the ability to file a motion to suppress.

Timeline

August 22, 2019 [19-mj-232]

August 2019: Weiss first obtains iCloud data, for unstated dates, limited to tax crimes [19-mj-234]

In August 2019, IRS and FBI investigators obtained a search warrant for tax violations for the defendant’s Apple iCloud account. 2

2 District of Delaware Case No. 19-234M

August 27, 2019: [19-mj-235]

October 16, 2019: Mac Isaac’s father first contacts FBI [Shapley’s notes]

December 3, 2019: Ziegler first starts drafting search warrant for laptop

December 6, 2019: [19-mj-302]

December 9, 2019: FBI takes possession of laptop; per John Paul Mac Isaac, “Matt” called several times, asking for help accessing the machine, and revealing “we” had already tried to boot it up.

“Hi, it’s Matt again. So, we have a power supply and a USB-C cable, but when we boot up, I can’t get the mouse or keyboard to work.”

I couldn’t believe it—they were trying to boot the machine!

“The keyboard and trackpad were disconnected due to liquid damage. If you have a USB-C–to–USB-A adaptor, you should be able to use any USB keyboard or mouse,” I said. He related this to Agent DeMeo and quickly hung up.

Matt called yet again about an hour later.

“So this thing won’t stay on when it’s unplugged. Does the battery work?”

I explained that he needed to plug in the laptop and that once it turned on, the battery would start charging. I could sense his stress and his embarrassment at having to call repeatedly for help. [my emphasis]

December 12, 2019: Obtain OEO approval for warrant

December 13, 2019: Obtain warrant for laptop [date per Shapley]

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 District of Delaware Case No. 19-309M.

December 13, 2019: [19-mj-311]

December 14, 2019: Will Levi sends Bill Barr text stating, “Laptop on way to you”

July 9, 2020: [20-mj-162]

July 2020: Weiss obtains follow-up warrant, by description still limited to tax crimes (but almost certainly also including foreign influence peddling) [20-mj-165]

In August 2019, IRS and FBI investigators obtained a search warrant for tax violations for the defendant’s Apple iCloud account. 2

2 and a follow up search warrant, District of Delaware Case Number 20-165M.

July 16, 2020: [20-mj-177]

ND, 2023: FBI first does lab tests on gun and finds cocaine residue

September 14, 2023: Gun indictment

October 3, 2023: Arraignment

October 8, 2023: Request for discovery

On October 8, 2023, the defendant made a request for discovery under Federal Rules of Criminal Procedure 16.

October 12, 2023: First discovery production

On October 12, 2023, the government provided to the defendant a production of materials consisting of over 350 pages of documents as well as additional electronic evidence from the defendant’s Apple iCloud account and a copy of data from the defendant’s laptop. This production included search warrants related to evidence the government may use in its case-in-chief in the gun case, statements of the defendant including his admissions that he was addicted to crack cocaine and possessed a firearm in 2018, and law enforcement reports related to the gun investigation. [my emphasis]

November 1, 2023: Discovery production 2

On November 1, 2023, the government provided a production of materials to the defendant that was over 700,000 pages and largely consisted of documents obtained during an investigation into whether the defendant timely filed and paid his taxes and committed tax evasion. These documents included information of the defendant’s income and payments to drug and alcohol rehabilitation programs in 2018, the same year in which the defendant possessed the firearm while addicted to controlled substances.

November 15, 2023: Follow-up request for discovery regarding Trump’s interference and Brady channel

November 15, 2023: Abbe Lowell requests subpoenas for Trump, Bill Barr, and others

November 30, 2023: [23-mj-504]

ND, 2023:

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

5 District of Delaware Case No. 23-507M

December 4, 2023: [23-mj-508]

December 7, 2023: Tax indictment

December 11, 2023: Hunter’s motions due

ND: Third discovery production

In advance of his initial appearance on the tax indictment, the government made a production of materials to the defendant on January 9, 2024, which included over 500,000 pages of documents and consisted of additional information related to the tax investigation.

January 11, 2023: Arraignment