Garanimals in a SCIF: David Weiss’ Attempt to Sheep Dip Bill Barr’s Hunter Biden Prosecution

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On July 11, 2023, David Weiss’ First AUSA Shannon Hanson responded to an inquiry from Judge Maryanne Noreika’s courtroom deputy, Mark Buckson. He wanted to know when “the final versions of the documents” pertaining to the Hunter Biden plea deal would be completed. Hanson responded within five minutes. Before she explained that she didn’t know when they’d have the final documents, but hoped to have them to Judge Noreika by Thursday (so July 13), she described that, “I will be speaking with the team later today (I understand they are in a secure location and cannot readily be contacted at the moment.”

Hanson was describing “the team” — she had cc’ed Delaware AUSA Benjamin Wallace and Baltimore AUSAs Leo Wise and Derek Hines — as something of which she was not a part. And she was describing that team as being in a SCIF.

Hunter Biden’s attorneys included the email with their motion to dismiss based on an argument that the diversion agreement Hunter signed prohibits the indictment charging him with three gun charges. The email shows that the final documents filed with the court on July 20, by Wallace, had just one change from the version submitted on June 8, by Hanson. Wallace explained:

The parties and Probation have agreed to revisions to the diversion agreement to more closely match the conditions of pretrial release that Probation recommended in the pretrial services report issued yesterday.

Hunter’s team submitted it to show that, following the Probation Office’s recommendation of Hunter for diversion on July 19, the parties submitted it as a finished agreement.

This motion makes a strong argument that the government entered into an agreement with Hunter for which he sacrificed his rights — including by allocuting to the facts regarding the gun purchase — and therefore must honor the contractual protections it offered to get Hunter to sacrifice those rights.

Indeed, in a footnote it goes further than that: it argues that because the immunity agreement language was in the gun diversion, all the charges tied to the informations that were before Noreika are barred, including the tax charges filed in California.

7 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.

I’m less certain that’ll fly, but it’s a hint of where things are headed in California.

That’s what the documents show with regards to the motion to dismiss, which I’ve always said is probably Hunter’s best argument to have the indictment dismissed.

But the documents are as interesting for what they show of David Weiss’ attempt to sheep dip this prosecution — to give it a virgin birth under the direction of now-Principal Senior Assistant Special Counsel Leo Wise or, as Joseph Ziegler’s attorney described it when he invited the disgruntled IRS agent to explain how irreplaceable he was, to replace one Garanimal with another.

Mr. Zerbe. I want to make sure — you made one point. I think you need to clarify it for him. He asked if the case is going forward. I think for everybody here, explain though that it’s not just kind of Garanimals where they can swap you in and out. Talk about, you not being on the case, you have to put somebody in new, but kind of how that impacts. I just want you to understand that.

Mr. [Ziegler]. So what’s frustrating — and I think it’s obvious is he removed two of the people who have been challenging and been kind of like this is the — we’re trying to do the right thing, we’re trying to do the right thing. And it was kind of like we got loud enough, and they found an avenue to remove us. I have been told by so many people on this case that we’re where we are today because of my work. It’s 5 years of an investigation. You can’t just pick up that and move it onto someone else. And if they removed all the prosecutors, DOJ Tax, and had a brand-new team, I would understand that completely if that’s the decision that they made. But they just removed us.

Ziegler made that comment on June 1. And he was right, at that point — as he sat in a room making claims about Lesley Wolf’s conduct that documents he himself released almost four months later would substantially debunk — that “they” had not yet “removed all the prosecutors.” But they would, within days.

As Chris Clark described in his declaration describing plea negotiations, that same day, June 1, Lesley Wolf invited Clark to come to the US Attorney’s Office the next day to work on the plea agreement, in part so they could share language with David Weiss in real time.

20. On June 1, 2023, AUSA Wolf sent me an email inviting me to meet at the U.S. Attorney’s Office in Wilmington on June 2 to work together on the agreements’ specific language and provisions. The idea was for the AUSAs and defense counsel to be in the same room with access to U.S. Attorney Weiss, so that the terms could be worked out. A true and correct copy of AUSA Wolf’s June 1, 2023, email to Chris Clark is attached hereto as Exhibit H.

21. On June 2, 2023, co-counsel Matthew Salerno and I went to the U.S. Attorney’s Office in Wilmington, where the USAO presented us with its draft of a new Diversion Agreement, along with a draft Plea Agreement. This was the first time that we had seen the USAO’s draft Agreements. Each draft Agreement was accompanied by a broad and lengthy Statement of Facts, each of which had been drafted solely by the USAO in advance of the June 2 meeting. At this meeting, AUSA Wolf expressed the view that it was in Mr. Biden’s interest to have broad Statements of Facts included because the scope of immunity (under Paragraph 15 of the Diversion Agreement) would be tied to the Statements of Facts. The Agreement included a more limited immunity provision than I had discussed with AUSA Wolf or that Mr. Biden would accept. Among the revisions, during or shortly after that June 2 meeting, references to tax liability for years 2016 and 2019 were specifically added to the Plea Agreement’s Statement of Facts.

22. The AUSAs and we took turns working on the specific language of each Agreement—with AUSA Wolf running the changes by Office leadership, including U.S. Attorney Weiss. No final agreement was reached that day, and the meeting concluded with the AUSAs agreeing that the USAO would work on composing acceptable language on an immunity provision.

23. That same evening (Friday June 2), at or around 9:43 PM EST, I emailed AUSA Wolf, copying my co-counsel, and proposed one revision to Paragraph 15 of the Diversion Agreement (the provision governing immunity): that Paragraph 15 provide that “The United States agrees not to criminally prosecute Biden, outside the terms of this Agreement, for any federal crimes arising from the conduct generally described in the attached Statement of Facts (attachment A) and the Statement of Facts attached as Exhibit 1 to the Memorandum of Plea Agreement filed this same day.” (Emphasis added.) In the email, I advised AUSA Wolf that it was “very critical for us” that the Diversion Agreement include “[t]his language or its functional equivalent.” A true and correct copy of Chris Clark’s June 2, 2023, email to AUSA Wolf, copying co-counsel, is attached hereto as Exhibit I. [emphasis original]

Wolf was still on the team when — after Clark spoke with Weiss directly on June 6 about the importance of protecting Hunter from any further legal exposure — she sent Clark new language seemingly addressing Clark’s concerns about the immunity language.

28. After extensive discussion with AUSA Wolf in which she repeatedly stated that U.S. Attorney Weiss was unwilling to revise the language of the Agreement’s immunity provision, I conveyed that if this language could not be revised, we would not have a deal and that it was the most important term in the Agreement that Mr. Biden get finality. Accordingly, I requested to speak directly with U.S. Attorney Weiss, whom I was told was the person deciding the issues of the Agreement. Later that afternoon, on June 6, 2023, I spoke directly with U.S. Attorney Weiss. During that call, I conveyed to U.S. Attorney Weiss that the Agreement’s immunity provision must ensure Mr. Biden that there would be finality and closure of this investigation, as I had conveyed repeatedly to AUSA Wolf during our negotiations. I further conveyed to U.S. Attorney Weiss that this provision was a deal-breaker. I noted that U.S. Attorney Weiss had changed the deal several times heretofore, and that I simply could not have this issue be yet another one which Mr. Biden had to compromise. The U.S. Attorney asked me what the problem was with the proposed language, and I explained that the immunity provision must protect Mr. Biden from any future prosecution by a new U.S. Attorney in a different administration. The U.S. Attorney considered the proposal and stated that he would get back to me promptly.

29. Later that same evening on June 6, 2023, at or around 5:47 PM EST, AUSA Wolf emailed me proposed language for the immunity provision that read: “How about this- The United States agrees not to criminally prosecute Biden, outside of the terms of this Agreement, for any federal crimes encompassed by the attached Statement of Facts (Attachment A) and the Statement of Facts attached as Exhibit 1 to the Memorandum of Plea Agreement filed this same day.” (Emphasis in original.) After speaking with Mr. Biden, I responded to AUSA Wolf that the language she sent me “works” and is suitable for Mr. Biden as well, at which point the Parties had a deal. A true and correct and correct copy of AUSA Wolf’s June 6, 2023, email to Chris Clark is attached hereto as Exhibit K. [all emphasis in Clark’s declaration]

And Wolf was still on the team on June 8, the day when the documents were first filed with the court.

That is, Wolf was still on the team when Jim Jordan and Bill Barr had already intervened in the case.

Wolf was still on the prosecutorial team — and negotiating a plea deal that would have ruled out FARA charges — on June 7.

That’s the same day Weiss sent the first response, to a May 25 letter Jim Jordan sent Merrick Garland about the IRS agents’ complaints of being removed from the investigation. In it, he cited Rod Rosenstein’s explanation to Chuck Grassley in 2018 how congressional interference might politicize an investigation (in that case, the Mueller investigation).

The information sought by the Committee concerns an open matter about which the Department is not at liberty to respond. As then-Deputy Attorney General Rod Rosenstein wrote in 2018 in response to a request for information from the Honorable Charles Grassley, Chairman of the Senate Committee on the Judiciary:

Congressional inquiries during the pendency of a matter pose an inherent threat to the integrity of the Department’s law enforcement and litigation functions. Such inquiries inescapably create the risk that the public and the courts will perceive undue political and Congressional influence over law enforcement and litigation decision.

[snip]

Weiss might claim that he replaced Wolf with Wise and in the process had Wise reassess the prior prosecutorial decisions. But, given the date of that letter, there was never a moment he had done so before the political pressure started. David Weiss cannot claim he did so before being pressured by Jim Jordan.

And Jordan’s letter wasn’t the only political pressure. On the same day that Weiss said he couldn’t share information — the likes of which Shapley had already started sharing — because it might politicize an ongoing investigation, Bill Barr (one of the people Lowell wants to subpoena) publicly intervened in the case, insisting the FD-1023 recording Mykola Zlochevsky making a new allegation of bribery had been a live investigative lead when it was shared with Weiss in October 2020, the FD-1023 Weiss specifically said he could not address because it was part of an ongoing investigation.

On a day when Lesley Wolf remained on the case, both Jordan and Barr had already intervened. And because there was never a time that Weiss had replaced Wolf with Wise before the political pressure started, there was little time he had done so before the physical threats followed the political pressure.

But June 8 — the day the plea deal first got shared with the court — was the last day that Lesley Wolf shows up in Clark’s timeline.

She wasn’t removed for misconduct. In his testimony to the House Judiciary Committee, Weiss agreed that Wolf, “did her work on the Hunter Biden matter in a professional and unbiased manner without partisan or political considerations.” He said,

I believe she did. As I said, she served the Department for more than 16 years, and I believe her to be a prosecutor with integrity.

But per Michael Batdorf, she was, nevertheless, replaced.

On June 19, Principal Senior Assistant Special Counsel Leo Wise made his first appearance. Joseph Ziegler, a disgruntled IRS agent spreading false hearsay claims, succeeded in getting Wolf replaced.

That same day, June 19, Hanson requested that Clark modify the statement he was going to release. But, in a phone call, she told him that there was no pending investigation against Hunter Biden.

35. On June 19, 2023, at 2:53 PM EST, after I had a phone call with AUSA Hanson indicating I would do so, I emailed AUSA Hanson a proposed press statement to accompany the public release of both Informations that read, in part, “I can confirm that the five-year long, extensive federal investigation into my client, Hunter Biden, has been concluded through agreements with the United States Attorney’s Office for the District of Delaware.” (Emphases added.) A true and correct copy of Chris Clark’s June 19, 2023, email to AUSA Hanson is attached hereto as Exhibit P.

36. Shortly after that email, I had another phone call with AUSA Hanson, during which AUSA Hanson requested that the language of Mr. Biden’s press statement be slightly revised. She proposed saying that the investigation would be “resolved” rather than “concluded.” I then asked her directly whether there was any other open or pending investigation of Mr. Biden overseen by the Delaware U.S. Attorney’s Office, and she responded there was not another open or pending investigation. Thereafter, at 4:18 PM EST that day, I sent AUSA Hanson a revised statement that read: “With the announcement of two agreements between my client, Hunter Biden, and the United States Attorney’s Office for the District of Delaware, it is my understanding that the five-year investigation into Hunter is resolved.” (Emphases added.) The new statement revised the language from “concluded” to “resolved,” a stylistic change that meant the same thing. A true and correct copy of Chris Clark’s June 19, 2023, email to AUSA Hanson is attached hereto as Exhibit Q [Clark’s italics, my bold]

I hope to hell Clark has notes of that conversation, because the assertion that there was no pending investigation of Hunter Biden on June 19 directly conflicts with a claim that David Weiss made to the House Judiciary Committee.

On November 7, David Weiss repeated a claim his office made when they first announced the deal: that it was ongoing. “I can say that at no time was it coming to a close,” Weiss told the House Judiciary Committee. “I think, as I stated in the one statement I made at the time … the investigation was continuing. So it wasn’t ending there in any event.”

That is, Weiss’ First AUSA, Shannon Hanson, allegedly told Clark something that directly conflicts with something Weiss said to Congress.

That may be why Abbe Lowell, while arguing that no hearing is necessary to dismiss the indictment based on the contract that existed between the government and Hunter Biden, said that if Judge Noreika thinks she does need a hearing, then to please have David Weiss prepared to testify as a witness.

If the Court believes that parol evidence should be considered, Mr. Biden requests an evidentiary hearing in which all participants in the negotiation of the Diversion Agreement, including Mr. Weiss and the responsible members of his prosecution team, can be called as witnesses to address the extensive recapitulation provided in Mr. Clark’s Declaration.

It’s going to be a lot harder for Weiss to claim that US Attorneys-turned-Special Counsels can’t testify when he was willing to testify to Congress.

This is undoubtedly why Lowell asked to be able to subpoena Bill Barr’s communications, through the present, about the Hunter Biden investigation — a version of which he made in formal discovery as well (Lowell also noted Barr’s recent comments on the investigation in the selective and vindictive prosecution MTD). Because Bill Barr intervened in this case before such time as Wolf was apparently removed and replaced by Principal Senior Assistant Special Counsel Leo Wise. Barr intervened publicly, and given Wise’s concerns about DOJ materials in the possession of former DOJ employees in his response to that subpoena request, it seems acutely likely that Weiss recognizes that Barr intervened in a way that shared privileged information.

Likewise, specific regulations govern the disclosure of DOJ materials in the possession of former DOJ employees, and the government is unable to assess the applicability or propriety of disclosure without identification of the specific documents. See 28 C.F.R. § 16.26 (outlining considerations governing appropriateness of disclosure); see generally 28 C.F.R. pt. 16, subpt. B (proscribing Touhy regulations for disclosure of official materials, including those held by former DOJ employees); United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). Only once those materials are specifically identified can the government assess the appropriateness of disclosure, including whether such materials are privileged

Worse still, per Weiss’ testimony in November, this effort to mine the investigation into Mykola Zlochevsky that Barr personally orchestrated remains ongoing — or remained ongoing until such time, CNN recently reported, as it closed the investigation into Zlochevsky’s changed statements about the Bidens around the same time DOJ’s criminal investigation into him was closed down by Bill Barr’s DOJ.

When Steve Castor asked about the FD-1023 that, per Chuck Grassley, was the result of Scott Brady’s effort to mine the recently closed Zlochevsky investigation, David Weiss responded that it was part of an ongoing investigation.

Q Are you familiar — let’s mark this as the next exhibit — with an FD-1023 dated June 30, 2020, summarizing a confidential human sources meeting with Burisma executives during which they discussed bribes allegedly paid to Joe Biden and Hunter Biden?

A I’m sorry. What was your question about this document?

Q Are you familiar with this?

A I’m not going to comment on that. I appreciate your question, but it concerns a matter that is subject to an outstanding investigation. It’s something that I absolutely cannot comment on either way. [my emphasis]

This is why I’m interested in Hanson’s description that “the team” was in the SCIF on July 11. Wise and Hynes are — or were, until getting their big promotion to Senior Assistant Special Counsels — Baltimore AUSAs. There’s no reason for them to be in SCIF together with Wallace except on the Hunter Biden case. There is no conceivable classified information in the two Hunter Biden indictments (one, two).

But on July 10 — the day before Hanson said “the team” was in a SCIF — Weiss told Lindsey Graham that the FD-1023 was part of an ongoing investigation. And on November 7, Weiss told Steve Castor that it was part of an ongoing investigation.

And the possibility of a FARA charge is what Leo Wise used on July 26 to blow up an investigation that — as of June 19 — was done.

There is a good deal of reason to believe that David Weiss used the effort Bill Barr set up four years ago to launder dirt from Russian spies into the Hunter Biden investigation as an excuse, after private citizen Barr had intervened in this investigation, to reopen the investigation after Republicans demanded it.

Documents

Motion to dismiss because the diversion agreement prohibits the gun charges

Donald Trump Says He Can Only Work Over Christmas If He’s Planning a Coup

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There’s a passage of Trump’s opposition to fast-tracking the DC Circuit review of Judge Tanya Chutkan’s opinion holding he is not immune from criminal prosecution that has gotten a lot of attention: Where he accuses Jack Smith of being a mean old Grinch.

Even if the Court grants expedited consideration—which it should not do—it should not adopt the prosecution’s proposed schedule, which is facially unreasonable. The prosecution “requests that the Court require the defendant’s opening brief be due no later than ten days from the entry of a briefing order,” Mot. 5-6—which, assuming the Court rules promptly on the motion to expedite after the close of briefing, would make President Trump’s opening brief due the day after Christmas. This proposed schedule would require attorneys and support staff to work round-the-clock through the holidays, inevitably disrupting family and travel plans. It is as if the Special Counsel “growled, with his Grinch fingers nervously drumming, ‘I must find some way to keep Christmas from coming. … But how?’” DR. SEUSS, HOW THE GRINCH STOLE CHRISTMAS (Random House 1957).

Trump shouldn’t have to reschedule his holidays to make his argument that he is above the law, he says.

The argument is obnoxious on its face. All the more so because Trump has been known to work over Christmas.

Indeed, Donald Trump worked his ass off — as did many of his closest aides and his lawyers — over Christmas 2020.

On December 18, Trump had the famous meeting to discuss seizing the voting machines. On December 19, he tweeted out the “Will be wild” announcement, kicking off efforts around the country to travel to DC for the rally. On December 21, he had a planning call with members of the Freedom Caucus. On December 22, Trump approved an ad buy to pressure governors. On December 22, Trump met with Scott Perry and Jeffrey Clark. On December 22, Mark Meadows attempted to enter the counting area in Cobb County, GA. On December 22, Trump gave a speech in which he defamed Ruby Freeman and Shaye Moss. On December 23, Trump called Georgia investigator Frances Watson and suggested that he she showed him winning by hundreds of thousands, “you’ll be praised.” On December 23, Trump accused Georgian election officials of being “Terrible people.” On December 23, Trump had an Oval Office meeting with Doug Mastriano and other Pennsylvania State Senators. On December 23, John Eastman fine-tuned his scheme to have Vice President Pence pick and choose which votes to count. On December 23, Trump tweeted out about Operation PENCE Card. On Christmas Day, Trump called Rusty Bowers and asked him to support the fake elector scheme. Also on Christmas, Trump tried to persuade Pence to reject Biden votes. On December 26 and 27, Scott Perry developed his plan to have Jeffrey Clark intefere at DOJ. On December 27, Trump harangued Jeffrey Rosen and Richard Donoghue for two hours in an attempt to get them to support his false claims of fraud, before he suggested he might install Clark. On December 27, he spoke with Roger Stone about plans for January 6, including his own plan to speak. On December 27, Trump started getting more involved in planning the event, beginning to discuss a march to the Capitol. On December 27, Trump boosted January 6 again. On December 28, Rudy’s team finalized their Strategic Communications Plan they’d been working on for weeks.

This is a non-exclusive list. Trump worked his ass off over the Christmas holiday in 2020.

So it’s not that Trump (or his lawyers) are averse to working through the holidays.

They’re only willing to do so, though, when planning a coup.

SCOTUS Takes Up January 6 Obstruction Challenge — But with Unknown Scope

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Today, SCOTUS granted cert to one of the initial challenges to 18 USC 1512(c)(2), that of Joseph Fischer.

Depending on what they do with the appeal, the review could have significant effect on all the January 6 cases charging obstruction — over 300 defendants so far, including Trump.

But no one knows how broadly they will be reviewing this appeal.

On its face, the only thing being appealed in Fischer is whether this statute requires document tampering.

Did the D.C. Circuit err in construing 18 U.S.C. § 1512(c) (“Witness, Victim, or Informant Tampering”), which prohibits obstruction of congressional inquiries and investigations, to include acts unrelated to investigations and evidence?

If SCOTUS upheld the DC Circuit opinion (and all the underlying District opinions), nothing would change. If it overturned the DC Circuit opinion, then hundreds of cases of rioters would be thrown out.

Remember that defendants have always likened the January 6 attack with the interruption by protestors of Brett Kavanaugh’s confirmation hearing (there are significant differences, starting with the fact that all the protestors who disrupted Kavanaugh’s hearing were in the building legally). So I wouldn’t even rule out some set of Republicans rejecting this application on those grounds.

But it’s not clear that would affect the charges against Trump. That’s because Trump’s obstruction does involve document tampering: the forged elector certificates.

It’s possible, though, that SCOTUS will also review a more contentious issue: the definition of “corrupt purpose” in the statute. Fischer addresses that deeper in the petition.

While some courts have limited Section 1512(c)(2)’s scope by a particular definition of the critical mens rea element—“corruptly”—they have not defined it uniformly. See Miller, 605 F. Supp. 3d at 70 n.3. And the D.C. Circuit’s lead opinion declined to define it all, even while stating that “corrupt intent” limited Section 1512(c)(2)’s reach. Compare Pet. App. 17a-18a with Pet. App. 20a. The lead opinion nonetheless acknowledged three potential definitions:

1. Corruptly means conduct that is “wrongful, immoral, depraved, or evil.” Pet. App. at 18a (quoting Arthur Anderson LLP, 544 U.S. at 705, discussing 18 U.S.C. § 1512(b)).

2. Undertaken with a “corrupt purpose or through independently corrupt means, or both.” Pet. App. 18a-19a (quoting United States v. Sandlin, 575 F. Supp. 3d 16, 30 (D.D.C. 2021) (citing United States v. North, 910 F.2d 843, 942-43 (D.C. Cir. 1990) (Silberman, J., concurring and dissenting in part)).

3. Conduct that involves “voluntarily and intentionally [acting] to bring about either an unlawful result or a lawful result by some unlawful method, with a hope or expectation of either financial gain or other benefit to oneself or a benefit of another person.” Pet. App. 19a (quoting Aguilar, 515 U.S. at 616-17) (Scalia, J., concurring).

Here, SCOTUS could adopt the more restrictive definition of corrupt benefit, option 3.

In that case, it’s not clear what would happen with the crime scene defendants: at the DC Circuit, Justin Walker argued that Trump supporters might have obtained a corrupt purpose if Trump were unlawfully retained.

But for Trump, there’s no question: He was attempting to retain one of the most valuable jobs in the world through unlawful means.

All of which is to say, SCOTUS’ decision to review the case is huge — though not entirely unexpected.

But we won’t know what to make of the review for some time.

Update: I had been anxiously waiting to see what Steve Vladeck had to say about this. He notes that SCOTUS took Fischer but not Miller and Alam, which had been joined to it.

All three defendants filed cert. petitions challenging the D.C. Circuit’s decision. The Department of Justice filed a single, consolidated brief in opposition—and the Court’s website used to reflect that the three cases had been “vided” (meaning that they were being considered alongside each other). Thus, it’s really strange that the Court granted Fischer, but not Lang and Miller. (And then quietly removed the notation from Fischer’s docket page that the case was tied to Lang and Miller.) Yes, the Court often holds parallel cases for a lead case, but not after both the court of appeals and the government had already consolidated them.

Part of why it’s weird is because all three petitions raise the question presented in Fischer—the actus reus question. The other two petitions also raise the mens rea question (and Fischer does not), but if the Court was interested in answering the actus reus question in general (and only the actus reus question), it could easily have granted all three petitions only on that question.

Otherwise, the only difference I can readily discern between Fischer and the other two cases is that Fischer entered the Capitol later on January 6 (after the Joint Session recessed). But it’s hard to believe that the Court is intervening in an interlocutory posture (remember, the cases have not yet gone to trial) because it wants to draw a temporal distinction among which January 6 rioters can and can’t be prosecuted under 1512(c)(2).

All of this is to say that, if the Court really was interested in narrowing the scope of 1512(c)(2) to align with Judge Katsas’s dissent in Fischer, I don’t get why the Court would sever cases that had hitherto been consolidated.

 

What Might Happen If Hunter Biden Refuses to Testify (Behind Closed Doors)

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Update: Hunter did, as I supposed here, show up in DC only to make a public statement. 

Because a dumbass Congressman from Kentucky has not told Hill journalists what was in Hunter Biden’s motions to dismiss the other day, at least some of them have no conceivable way of knowing what’s in there, much less the specifics.

As I noted, along with the selective prosecution claim that Katy Tur was sure was the totality of it and the vindictive prosecution that was also obvious, Abbe Lowell also argued that the House GOP has usurped DOJ’s prosecutorial authority and effectively forced David Weiss to charge Hunter Biden with 6 felonies.

No one appears to know whether Hunter Biden will show up for his scheduled 9:30 deposition today, and if he does, whether he’ll do the thing virtually all defense attorneys would advise — to simply invoke the Fifth — or whether he’ll just refuse to answer questions unless a live camera is rolling. But if he does anything but invoke the Fifth, that separation of powers claim is going to take on vastly new significance.

Before I explain why, let me first talk about some wild coincidences. First, Hunter filed the motions to dismiss on Monday, two days before this subpoena, based off a requested schedule change Abbe Lowell made on October 13 and Judge Maryanne Noreika approved on October 19. James Comer sent Hunter the subpoena, setting today’s date and time, back on November 8. According to reports, only in recent weeks have Comer and Jim Jordan and Speaker Mike Johnson decided they’ll hold the vote to authorize the impeachment inquiry that is one of two bases on which Comer issued the subpoena to Hunter this afternoon — after the scheduled time for the deposition that has been scheduled for over a month. And the suit that resulted, yesterday, in NY’s top court issuing an order for redistricting by February was first filed on June 28, 2022; Dave Wasserman says the decision could endanger the seats of five GOP Congressmen, as well as flipping the seat recently vacated by George Santos.

Abbe Lowell didn’t mastermind those coincidences. In fact, Speaker Mike was the one who made the only recent decision: to schedule the impeachment inquiry vote that would give more legal authority for the subpoena issued to Hunter on November 8, for after the scheduled Hunter deposition. On December 6 — the day after Speaker Mike decided to schedule an impeachment inquiry vote — Comer and Jordan sent a letter threatening to initiate contempt proceedings, “If Mr. Biden does not appear for his deposition on December 13.” But Congress is scheduled to leave town tomorrow and this Congress claims to have a rule that members get notice before any votes.

Republicans say they have the votes to approve the inquiry. Maybe they do! Maybe they still do after the redistricting decision! If that’s right, it’ll be one of the only votes the GOP has managed to pass in the entire year of their majority without Democratic votes. Quite literally, the only thing the GOP would have accomplished in a year would be to start an impeachment inquiry that virtually all sentient beings admit is based on no evidence of wrongdoing by Joe Biden.

But if Hunter Biden does anything but plead the Fifth (or testify), that impeachment vote will have been cast after Comer refused what he offered a few weeks ago: an offer for Hunter to testify publicly.

Similarly, a contempt vote — a second contentious vote for those five NY Congressmen and others in Biden districts — would be held after Comer refused what he has boisterously said was sufficient: public testimony. It’ll come from Jim Jordan, not exactly the model for principled use of contempt to enforce Congressional subpoenas. Even so, Trump will exert a great deal of pressure to pass a contempt vote, even on those five NY Congressmen facing an even tougher reelect battle. Let’s assume it passes! All that would make still more clear that this Congress only exists to serve the beck and call of Donald Trump, not Members’ constituents.

If the House held Hunter Biden in contempt, Merrick Garland’s DOJ would likely do what he always does: give it to a Special Counsel. And there’s already a Special Counsel prosecuting closely related issues. Doing anything but giving it to David Weiss would signal all sorts of confidence or legitimacy problems with his authority, even if they’re merited.

If David Weiss were to receive a contempt referral from the House, he’d be looking at what might be a clearcut case of contempt (particularly if Hunter simply doesn’t show up). Based on the Steve Bannon precedent, there’d be a great deal of pressure to charge Hunter Biden with contempt. But that would result in Weiss doing precisely what Hunter’s motion to dismiss accuses him of already: prosecuting him because Congress demanded he do so, prosecuting him to show up for an inquiry that has, over and over, made claims — mostly unsubstantiated — about crimes Hunter allegedly committed. As the motion to dismiss described it,

Many members of Congress, including the last Speaker of the House, Chairman of the House Oversight Committee, Chairman of the House Judiciary Committee, and the Chairman of the Ways & Means Committee are actively interfering with DOJ’s investigation, using their authority to pressure and malign DOJ, and using congressional committees limited to investigating government agencies to conduct a criminal investigation of private conduct by a private citizen— one they are conducting based on a publicly stated presumption of guilt.

On its face, contempt would be justified. Except Congress has not hidden their belief that they are pursuing — this deposition was meant to investigate — crimes they imagine Hunter Biden committed.

Venue would be in DC. And while blowing off a subpoena might be an easy question for a DC jury (it was in the Bannon and Peter Navarro cases), in his communications with Congress, Lowell has established that:

  • He offered to cooperate starting in February
  • He repeatedly raised false claims Congress had made about Hunter
  • Hunter offered to testify in public, which Comer offered then retracted

And that’s before you consider that the subpoena was issued prior to an impeachment resolution, but any contempt trial would happen after an impeachment resolution would have made it clear that this always was about impeachment.

I don’t know how this turns out today. But there’s a distinct possibility that it will result in demonstrating precisely what Abbe Lowell has laid out in one of his motions to dismiss. There’s a distinct possibility that the actions Comer and Jordan take today will provide yet more evidence Hunter will use to argue that the entire case must be dismissed.

I’m not saying it’ll work! I am laying out the dynamic exacerbated by a bunch of coincidences that even Abbe Lowell couldn’t have planned.

In Motion to Dismiss, Hunter Biden Accuses House GOP of Separation of Powers Violation

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It’ll take me a few days to get through the pile of motions to dismiss Hunter Biden filed yesteday.

As I noted, I think the challenge to his gun charges based on a claim that the diversion agreement remains valid is strong. I think both the challenge to the constitutionality of the gun charge and the challenge to David Weiss’ appointment are designed to create appealable issues — I really hate the appointment challenge, but Republicans might love it. While strong, the selective and vindictive prosecution motion likely still isn’t strong enough to get by the near-impossible standard set for such things.

While I suspected we’d see some version of all of those (I expected a different challenge to Weiss’ Special Counsel appointment, given that he has admitted no political officers have or are supervising him), there’s something I didn’t expect, at least not in this form: a claim, as part of the selective and vindictive prosecution claim, that Congress has impermissibly usurped DOJ’s role in Hunter Biden’s prosecution.

Altogether, between two or three different passages, the filing spends over ten pages (of almost 70) cataloging House GOP interference (footnotes omitted):

Republican Members of Congress were quick to take credit for sabotaging Mr. Weiss’s proposed Plea Agreement, celebrating the end of the deal as their doing. House Oversight Committee Chairman Comer declared outside the Capitol: “I think that you’re seeing our investigation that’s shined a light on the many wrongdoings of the Biden family has picked up a lot of credibility today, because now we see that there are a lot of crimes that this family’s committed and that played out in court today.”29 Chairman Smith told Fox News that afternoon “justice has been served,”30 and later said: “Announcement of a special counsel only happened because congressional GOP exposed the two-tiered judicial system by shining light onto the investigation into Hunter Biden’s alleged financial crimes & the political interference that shielded both him & POTUS from scrutiny.”31 See infra Section I.A. (discussing congressional admissions of interference with DOJ). And now these same Republican leaders are praising the new tax charges that were just piled on in California (years after DOJ had the relevant facts and after it agreed to resolve them with a plea to misdemeanor offenses), while simultaneously criticizing them as an effort to “protect” Mr. Biden and demanding even more charges.32

In other words, these officials have (1) accused DOJ of trying to protect Mr. Biden by resisting calls to investigate him based on baseless accusations in the first place, (2) criticized DOJ for declining to charge him with a crime for which no similarly situated person would be charged, (3) claimed credit for Mr. Weiss caving to their pressure and forcing Mr. Biden to enter a Plea Agreement he should never have had to consider, (4) claiming credit for Mr. Weiss subsequently yielding to their pressure and scrapping that plea deal, (5) boasting that the appointment of a Special Counsel (which those officials had demanded for years) was their doing , and (6) declaring they were the cause for Mr. Weiss now bringing misdemeanor and felony tax charges DOJ had not believed were warranted until they intervened. This ludicrous and shameless behavior would be comical if it were not so deeply unfair to Mr. Biden, embarrassing to the country, and offensive to the concept of justice. It is overwhelmingly clear that nothing the Justice Department could charge Mr. Biden with, no matter how unjustified, would satisfy these officials, which is no surprise given that their real objective is to attack the President and the Democratic Party before an election. 33

In sum, politicians and public officials at war with their political rivals are flouting separation of powers to intentionally interfere with the Executive Branch’s handling of this case, and the casualties are Mr. Biden’s constitutional rights, any objective appearance of fairness, and public confidence in the justice system. DOJ is responsible for preventing this, but the agency was bullied into investigating Mr. Biden in the first place and now everything the agency does (or does not to) earns it condemnation and reprisal.

Relying on a losing effort to make a similar argument, Abbe Lowell argued that the things that decision said would amount to a separation of powers violation exists here.

Here, however, the scale tips the other way. A lone congressman is not just cajoling and exhorting. Many members of Congress, including the last Speaker of the House, Chairman of the House Oversight Committee, Chairman of the House Judiciary Committee, and the Chairman of the Ways & Means Committee are actively interfering with DOJ’s investigation, using their authority to pressure and malign DOJ, and using congressional committees limited to investigating government agencies to conduct a criminal investigation of private conduct by a private citizen— one they are conducting based on a publicly stated presumption of guilt. They have gone as far as releasing agents’ entire investigative file during the investigation. Their actions have overcome Special Counsel Weiss’s independent judgment, causing him to abandon the very resolution of this case that he proposed prior to their pressure. As noted above, these Republican House Members have publicly claimed credit for causing Special Counsel Weiss to cave under their pressure. See supra Section IV (discussing congressional interference).105 There was no such evidence in Mardis.

[snip]

Congress has intruded on the executive function to an extent that only dismissal of these charges can cure, and DOJ has abdicated its responsibility and pledge to prevent it from doing so. The Court should not hesitate to step in and safeguard Mr. Biden’s rights, the independence of purity of government, and the integrity of the justice system.

105 Because the Congress and DOJ are both part of the United States Government which prosecutes a criminal defendant, there is “no difference between prejudicial publicity instigated by the United States through its executive arm and prejudicial publicity instigated by the United States through its legislative arm.” Delaney v. United States, 199 F.2d 107, 114 (1st Cir. 1952). “Pretrial publicity originating in Congress, therefore, can be attributed to the Government as a whole and can require postponement or other modification of the prosecution on due process grounds.” 10 Opinions Of The Office Of Legal Counsel Of The United States Department Of Justice 77 (1993) (April 28, 1986, Statement of Charles J. Cooper, Deputy Asst. Att’y Gen., Off. of Legal Counsel).

As always, the chances any of this works are really slim. And given how Judge Maryanne Noreika dealt with an amicus filing that Jason Smith submitted (mentioned in the brief), I doubt she’ll look too kindly on the argument.

Some of this is absolutely correct: Trump can be gagged to ensure a fair trial process. Yet not only aren’t Congress parties to these prosecutions (so they couldn’t be gagged), but under Speech and Debate, there’s almost no way that a judge could silence them.

But there is similarly a real risk that Hunter Biden could never get a fair trial, because the GOP has generated a non-stop media blitz claiming he is guilty of things for which there’s not a shred of evidence.

It will take months for this to be resolved. But it bears notice, the day before Hunter is due to appear for a subpoena, that it’s a key part of the argument here.

It Was Donald Trump, in the Dining Room, with the Twitter Account

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In spite of the fact that Jack Smith recognizes Trump’s interlocutory appeals of absolute immunity and double jeopardy will stay proceedings, as promised, his team nevertheless met a preexisting deadline yesterday: To provide expert notice.

Two of the notices describe how DOJ will show that the mob moved to the Capitol after Trump told them to.

The demonstration, and probably even the experts, are a version of something shown in a great number of January 6 trials already.

The third expert, however, has generated a great deal of attention. That expert will describe what two White House phones show about the actions Trump — and possibly another person, Individual 1 — took with those phones.

Expert 3 has knowledge, skill, experience, training, and education beyond the ordinary lay person regarding the analysis of cellular phone data, including the use of Twitter and other applications on cell phones. The Government expects that Expert 3 will testify that he/she: (1) extracted and processed data from the White House cell phones used by the defendant and one other individual (Individual 1); (2) reviewed and analyzed data on the defendant’s phone and on Individual 1’s phone, including analyzing images found on the phones and websites visited; (3) determined the usage of these phones throughout the post-election period, including on and around January 6, 2021; and (4) specifically identified the periods of time during which the defendant’s phone was unlocked and the Twitter application was open on January 6.

I’m particularly interested in the identity of Individual 1. Johnny McEntee told the January 6 Committee that Trump sometimes used his phone (albeit while traveling); the stolen documents indictment shows that he also used Molly Michael’s phone. Dan Scavino had access to Trump’s Twitter account.

But I’m not at all surprised by the fourth bullet point: The focus on when the phone was unlocked and open to Twitter on January 6.

It’s the counterpart of what I laid out in this post — and will undoubtedly be mirrored by the search returns from Trump’s Twitter account.

That post explained that the metadata involving attribution that Jack Smith’s team obtained from Twitter was probably at least as important as any DMs Trump received (and they only obtained around 32 DMs involving Trump’s account, what prosecutors called a “minuscule proportion of the total production”), because prosecutors would need to attribute the Tweet that almost got Mike Pence killed.

Donald Trump nearly killed his Vice President by tweet — the tweet he sent at 2:24PM on January 6, 2021.

111. At 2:24 p.m., after advisors had left the Defendant alone in his dining room, the Defendant issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

112. One minute later, at 2:25 p.m., the United States Secret Service was forced to evacuate the Vice President to a secure location.

113. At the Capitol, throughout the afternoon, members of the crowd chanted, “Hang Mike Pence!”; “Where is Pence? Bring him out!”; and “Traitor Pence!”

114. The Defendant repeatedly refused to approve a message directing rioters to leave the Capitol, as urged by his most senior advisors-including the White House Counsel, a Deputy White House Counsel, the Chief of Staff, a Deputy Chief of Staff, and a Senior Advisor.

As the indictment tells it, at the time Trump sent his potentially lethal tweet, inciting the mob bearing down on Mike Pence, Pence’s spouse, and daughter, Donald Trump was alone in his dining room with the murder weapon: an unknown phone, and his Twitter account.

But when DOJ served a warrant on Twitter for Trump’s Twitter account on January 17, they couldn’t be sure who was holding the murder weapon. They also wouldn’t know whether triggering the murder weapon was coordinated with other events.

[snip]

[O]ne thing DOJ needed to know before they conducted an interview that took place after Beryl Howell rejected yet another frivolous Executive Privilege claim in March was how Dan Scavino accessed Trump’s Twitter account when he did, from what device.

Who else had access to Trump’s Twitter account, one part of the murder weapon?

When DOJ asked Twitter to go back and figure out which other accounts shared IP addresses, cookies, or other device identifier with Trump’s Twitter account, they were asking for a list of other people (or at least clues to identify those people) who might be holding that murder weapon on January 6, Trump’s Twitter account, instead of Donald Trump.

Indeed, Thomas Windom said as much: “user attribution is important.”

What Jack Smith plans to do with the other evidence — what images the two phones had on them and what websites they visited — may actually be more interesting. After all, we know far less about the December 19 Tweet that kicked off the entire insurrection than we do the Tweet that almost got Trump’s Vice President killed. Somehow Trump’s Twitter account got the data from Peter Navarro that Trump’s account then tweeted out, announcing the January 6 rally. This expert testimony will be part of how prosecutors describe what happened.

But as to the Tweet that almost got Mike Pence killed? We know that. It was Donald Trump, alone in the dining room, with the lethal Twitter account.

Jack Smith (and Michael Dreeben) Go to SCOTUS

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Jack Smith just skipped the DC Circuit to ask for cert on Trump’s absolutely immunity claim.

Here’s the argument Smith gives for taking the case directly:

A cornerstone of our constitutional order is that no person is above the law. The force of that principle is at its zenith where, as here, a grand jury has accused a former President of committing federal crimes to subvert the peaceful transfer of power to his lawfully elected successor. Nothing could be more vital to our democracy than that a President who abuses the electoral system to remain in office is held accountable for criminal conduct. Yet respondent has asserted that the Constitution accords him absolute immunity from prosecution. The Constitution’s text, structure, and history lend no support to that novel claim. This Court has accorded civil immunity for a President’s actions within the outer perimeter of his official responsibilities, see Nixon v. Fitzgerald, 457 U.S. 731 (1982), and the Executive Branch has long held the view that a sitting President cannot be indicted while in office. But those principles cannot be extended to provide the absolute shield from criminal liability that respondent, a former President, asserts. Neither the separation of powers nor respondent’s acquittal in impeachment proceedings lifts him above the reach of federal criminal law. Like other citizens, he is accountable for criminal conduct.

[snip]

The United States recognizes that this is an extraordinary request. This is an extraordinary case. The Court should grant certiorari and set a briefing schedule that would permit this case to be argued and resolved as promptly as possible.

Posting this here for now. I’ll update in a bit.

An interesting detail: Michael Dreeben somehow snuck into Jack Smith’s office. He was Mueller’s appellate guy.

The August 13 Venmo Charge David Weiss Claimed Was an August 14 Charge

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My very first attempt to fact check one of the claims David Weiss made in the tax indictment of Hunter Biden the other day found what is almost certainly an error — and that’s before other reliability problems with the claims Weiss will face if this ever goes to trial.

But first, I probably owe Hunter Biden (and Katie Dodge, his long-suffering personal assistant during the period of his worst addiction) an apology.

In the indictment, Weiss included this eye-popping table that — he claims — captures Hunter’s spending in the years he charged.

There’s a conceptual problem with the table in any case. He’s showing the years for which he charged Hunter for — at a minimum — not paying his taxes. And while it’s true that if you’re self-employed you’re supposed to make estimated payments during the tax year, many many many people do not. Not paying usually only becomes a problem in the following year, when the taxes are due. Hunter’s alleged crimes occurred starting in 2017, not 2016.

So Weiss should show the income and expenses Hunter had in the following years — the years in which Hunter was legally obligated to pay the taxes. But if Weiss had shifted this table by one year, to show what Hunter was spending out-of-pocket in 2020, he would have had to reveal that in the year Hunter tried to clean up the wreck that he had made of his life in the past four years, he really didn’t have the income to pay those taxes. Weiss makes much of the fact that Kevin Morris paid for certain things in 2020 (probably including alimony and child support), some of that — possibly including the house in Venice where, in a recent podcast with Moby, Hunter describes he was hiding out from right wing mobs ginned up by Fox News — may not have been cash.

The reason I owe an apology, however, is that I assumed that the category, “Payments — Various Women,” meant those were sex workers.

To take this to trial, Hunter Biden has to be willing to let a paparazzi press spend valuable campaign reporting time on how a person can spend $383,548 on sex workers and $100,330 on adult entertainment in one year, 2018. It risks making the 2024 campaign precisely what Rudy Giuliani intended the 2020 one to be.

Then I started thinking about the way Hunter paid actual sex workers — often by Venmo or bank transfer and sometimes even by check — and I realized at least some of that would be captured in an even bigger number (which undoubtedly also reflects drug purchases) of ATM withdrawals: $772,548.

Then it occurred that that “payments — various women” may include to the four women Hunter paid from Owasco funds in 2018, including Dodge, Lunden Roberts, and these two people (who are not otherwise included in the table):

b. Person 2 is someone with whom the Defendant had a romantic relationship and who did no work, nor was she expected to do any work for Owasco, PC. The Defendant placed Person 2 on payroll in Spring 2018 in order to provide her with health insurance. In addition to health insurance, Person 2 received $11,000 in wages, which the Defendant falsely claimed as a business deduction reducing the income to him from Owasco, PC and his individual income taxes.

c. The Defendant placed Person 3 on payroll in spring 2018. Person 3 was a family member of Person 2’s. Person 3 received $11,000 in wages which the Defendant falsely claimed as a business deduction reducing the income to him from Owasco, PC and his individual income taxes. Prior to being placed on payroll, Person 3 had assisted the Defendant with personal errands and some light clerical work. After being placed on payroll, Person 3 did not perform any work-related services.

As I mentioned, Dodge worked her ass off in this period trying to keep Hunter afloat, including contacts with Burisma. I can imagine that an accountant would advise that treating her as payroll was perfectly acceptable. Yet if I’m right about how Weiss allocated this spending, he has insinuated by referring to this category by gender that Dodge, along with the others, was just a sex worker — exacerbating Joseph Ziegler’s labeling of Roberts as a prostitute in his House Ways and Means testimony.

Plus, if you had a personal assistant category, there should be one for the male Keith Ablow associate who in 2019 declared himself Hunter’s Chief of Staff, asked for income twice what Dodge was getting, and at least attempted to take over Hunter’s life, bank accounts, and rolodex. But he’s male and looking too closely at what he was doing when Hunter Biden’s digital life was packed up on a laptop that would eventually make its way to the FBI would raise a lot of questions and so … he doesn’t obviously appear here.

Then there are what Weiss has billed as ATM/Cash Withdrawals, that $772,548 figure. I’m virtually certain that’s wrong and also misnamed. It’s misnamed because we can see Hunter’s ATM withdrawals from Wells Fargo in publicly released data, and while there are days when he was obviously standing outside of an ATM making four $300 withdrawals in a row, that didn’t happen every day. It’s wrong because the credit card payments are almost certainly vastly higher than the curiously round $12,000. And it’s wrong or misnamed because a lot of that would be bank transfers and other kinds of payment, like Uber or Venmo.

Which brings me to the very first expense included in the indictment that I checked (there is at least one other to which I’ll return): a $1,500 Venmo payment to an exotic dancer, which Weiss described this way:

A $1,500 Venmo payment on August 14, 2018. That payment was to an exotic dancer, at a strip club. The Defendant described the payment in the Venmo transaction as for “artwork.” The exotic dancer had not sold him any artwork.

Per files available at BidenLaptopEmails dot com, here’s what that Venmo charge looks like:

Not only is there no way for someone who made this payment in the depths of his addiction to recognize, over a year later, that this woman is an exotic dancer, but Weiss got the date wrong. Venmo records the payment as being made on August 13, 2018 (though the payment may have cleared the next day).

Sure, getting a date wrong by one day in an indictment charging three felonies for making errors on paperwork is not that big of a problem — good enough for government work, they say.

Except it actually is a big deal that Weiss got that date wrong.

The reason I was immediately interested in that payment is because it occurred just days after the day, August 6, 2018, when someone or someones added two new remembered devices to Hunter’s Venmo account 12 minutes apart.

The thing is, it’s distinctly probable that at least one of the devices added to Hunter’s Venmo account was not added by Hunter. That’s because one of those newly added devices — an iPhone added at 15:26 — was located in Flintridge, CA, the foothills north of Pasadena. The other of those newly added devices — also an iPhone, the one added at 15:38 — was located near Las Vegas. According to Gus Dimitrelos’ report, Hunter hadn’t added a new iPhone to his Apple account for months — not since January 21, 2018.

Hunter was doing some crazy things at that point in his life, but getting from Los Angeles to Las Vegas in 12 minutes was probably beyond even the craziest driving; even commercial flights take over an hour.

This is precisely the phone metadata that, I noted, should have led law enforcement officers looking closely, as the IRS has been doing ever since 2018, to raise alarms about whether Joe Biden’s son, at a time when he was obviously hanging out with sex workers and drug dealers, was also having his digital life taken over.

The problem with indicting Hunter Biden for things that were paid through his devices is that — as the same book that Weiss uses to validate the fact that Hunter didn’t work at all in 2018 describes — often, after he engaged in a transaction with some other addict, his watch or jacket or iPad disappeared.

Somebody would eventually come over to my room to sell me something directly, or pass along a connection, for a finder’s fee. When we finished the transaction, the addict was usually out the door before I realized I was missing my watch or jacket or iPad—happened all the time.

“Happened all the time.”

If Hunter’s devices walked away “all the time,” then any payment made through them — certainly any payment made immediately after his Venmo account added two new remembered devices in two different cities 12 minutes apart — would have to be validated individually, to make sure someone else wasn’t making the payment, or at least to make sure Hunter didn’t think he was paying $500 for something but instead getting charged $3,000, which if he remembered it years later he would remember as something else.

“Happened all the time,” I can imagine.

But if you validate an individual Venmo payment adequately enough to be sure Hunter actually paid for it and entered the transaction category as “artwork” himself, then you’re going to get the date right.

And on this payment, in an indictment charging a three felonies for false filings to the Federal government, David Weiss didn’t get the date right.

Update: I have asked both David Weiss’ spox and Abbe Lowell whether they have clarity about the actual date of this payment. I have gotten no response from Lowell and Weiss’ spox has not yet gotten back to me with an answer.

Update: Weiss’ spox “decline[d] to comment beyond the indictment.”

Hunter Biden Accused Rudy Giuliani of Hacking His Data, Not Defamation

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Ruby Freeman and Shaye Moss’ civil trial against Rudy Giuliani goes to trial tomorrow.

In a number of the scene setters for the trial, people are making claims like this:

In addition to his criminal charges, disbarment proceedings and the lawsuit brought by Freeman and Moss, Giuliani has been sued by various other individuals — including President Joe Biden’s son Hunter — who claim he spread false allegations about them in 2020.

Or this:

He and one of his lawyers are being sued by Hunter Biden for allegedly mishandling the presidential son’s laptop,

Hunter Biden is not suing Robert Costello and Rudy Giuliani for defamation. He’s not suing Robert Costello and Rudy Giuliani for mishandling “his laptop,” which (even if John Paul Mac Isaac and Rudy Giuliani have told the truth about everything) would never have been in Rudy’s possession.

Hunter Biden is suing the former President’s former personal lawyer and that lawyer’s former personal lawyer for hacking his data. Hunter Biden is suing Rudy for violating the criminal Computer Fraud and Abuse Act: for accessing a computer without authorization or exceeding authorized access.

41. Defendants have violated the CFAA, specifically section 1030(a)(2)(C) of
the CFAA, by intentionally accessing a computer without authorization or exceeding
authorized access, and thereby obtaining information from any protected computer
which, pursuant to the CFAA, is a computer used in or affecting interstate commerce
or communication.

42. Defendants have violated the CFAA, specifically section 1030(a)(4) of the
CFAA, by knowingly and with intent to defraud, accessing a protected computer
without authorization or exceeding authorized access, and by means of such conduct
furthering the intended fraud and obtaining one or more things of value.

We will have to wait to see whether he can prove that claim. But particularly given that Hunter has since been charged with 12 criminal charges by a US Attorney appointed by Trump, let’s be clear what the claim is.

Hunter Biden has accused Rudy Giuliani of violating the criminal hacking statute.

One reason people make this mistake all the time — on top of the non-stop Fox News propaganda about this — is they think of the laptop like this:

The laptop, as it was brought to John Paul Mac Isaac’s shop, is better thought of like this.

There were dick pics on the laptop (I’m using artistic license in my choice of dick pics).

There were emails, including emails hosted by Google and emails tied to Hunter Biden’s iCloud account. But the laptop also included on it the means to get into Hunter’s iCloud account and at least some of his Google accounts.

There were other digital keys on the laptop and probably enough bank data to get into financial accounts.

And there was the contents of an iPhone, stored in encrypted form. As I’ve described, I first went down this rabbit hole — the entire Hunter Biden rabbit hole — when I read Gary Shapley’s description that the FBI needed a password to access some of the content, the content from the phone, on what was an actual laptop. That’s when I realized that anyone who accessed the encrypted contents of that phone without a warrant might be at risk for CFAA charges.

Several of the people who’ve been offering up Hunter Biden data confess, openly, that they broke the encryption on that phone.

In other words, no matter how all that stuff got put onto Hunter’s laptop, and no matter how it got brought to John Paul Mac Isaac’s shop, and no matter whether JPMI was perfectly in his legal rights to take possession of the laptop itself — all things that are very much contested — the laptop included the means to get into other data, data hosted in the cloud, to which neither JPMI nor anyone else had authorized access.

And then the blind computer repair man, after having chosen to copy that hard drive that, contrary to his claims was a removable hard drive, by cutting and pasting it and reading it along the way, packaged that all up on a hard drive and sent it, without Hunter’s consent, to the then-President’s lawyer.

We don’t know what kind of hard drive JPMI used — he said he constructed his own, to make it untraceable.

Instead of buying external drives from a local store, where the purchase might be traced back to me, or online, which also could be traced and moreover might lead to damage in transit, I built my own.

It took about a week to collect all the pieces and clone the drive from the store’s backup server. In essence, I created a copy that was as close to the original drive as possible.

As I have shown, at a time when Rudy says he (or Robert Costello) were in possession of that hard drive that had on it means to access several of Hunter’s cloud accounts, an email Hunter sent in 2016 was resent, showing some alterations.

Hunter Biden is not accusing Rudy Giuliani of saying things about him that aren’t true. Hunter Biden is accusing Rudy Giuliani of accessing data — whether on a hard drive copied from a laptop or in the cloud — to which he did not have legal access.

All Points Bulletin to David Weiss! Tony Bobulinski Is a Missing Person!!

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Best as I can tell, Tony Bobulinski is not among the Hunter Biden business associates described in his tax indictment. Here’s the likely identity of those named:

  • Business Associate 1: Rob Walker
  • Business Associate 2: James Gilliar
  • Business Associate 3: James Biden
  • Business Associate 4: Eric Schwerin
  • Business Associate 5: Devon Archer

Bobulinski would naturally appear — arguably, should appear — in this narrative:

During the next two years the Defendant, Business Associate 1, and Business Associate 2 continued to meet with individuals associated with CEFC, including in February 2017, with CEFC’s then-Chairman (hereafter “the Chairman”).

10. On or about March 1, 2017, State Energy HK, a Hong Kong entity associated with CEFC, paid approximately $3 million to Business Associate 1’s entity for sourcing deals and for identifying other potential ventures. The Defendant had an oral agreement with Business Associate 1 to receive one-third of those funds, or a million dollars. The Defendant, in turn, directed a portion of those million dollars to Business Associate 3.

11. After the State Energy HK payment, the Defendant, Business Associate 1, and Business Associate 2 began negotiating a joint venture with individuals associated with CEFC, which they called SinoHawk.

12. Over the summer of 2017, the Defendant cut out his SinoHawk business partners and separately negotiated a venture with individuals associated with CEFC called Hudson West III (“HWIII”). [my emphasis]

The entire passage is written to avoid mentioning a number of details that remain hotly contested. For example, the indictment doesn’t mention on what date in February 2017 the meeting in Miami with Chairman Ye occurred, which would determine whether or not it was even possible for Tony Bobulinski to attend, as Bobulisnki — in between meetings with Trump and Trump’s Chief of Staff — told the FBI he had, but which Abbe Lowell claims he did not.

The passage neglects to mention that Bobulinski worked with Walker, Gilliar, and Hunter to set up SinoHawk. It definitely doesn’t mention that the driving reason why Hunter “cut out his SinoHawk business partners,” which definitely included Bobulinski but which as written does not, was because Hunter thought Bobulinski was an asshole, both Hunter and Walker had concerns about Bobulinski’s Russian business ties, James Biden had concerns about his ties to pornography, and Walker, James Biden, and Hunter all thought he was a terrible fit for the group.

That said, note that ¶10 is wholly inconsistent with the “10 held by H for the big guy” conspiracy theories that Bobulisnki pushed to Republicans for years.

I await bulk corrections from virtually every Murdoch property.

David Weiss has simply disappeared Tony Bobulinski’s role in any of this.

Poof!

Weiss similarly made no mention of a diamond — or potentially two — another claim pushed by Bobulinski that the frothy right — and Congress, to the extent they’re distinguishable from the frothy right — has been chasing.

Whether or not the diamond had value is central to the topic of this indictment: what Hunter Biden earned and whether he paid taxes on those earnings. James Biden told investigators that the diamond was worthless, which may explain why the indictment doesn’t mention it. But if CEFC was handing Hunter one or more fake diamonds, it changes the nature of what was going on.

Admittedly, it may be easier for Weiss to prosecute the tax case by simply disappearing Tony Bobulinski from his allegations. Perhaps he’s trying to limit the discovery he has to provide to Hunter Biden. Perhaps he’s trying to avoid having to turn over the interview report that Joseph Ziegler already made public. But even in this passage of the indictment, Weiss is misrepresenting what the public evidence supports.

Or perhaps David Weiss’ disappearance of Tony Bobulinski is more than that.

The public record raises real questions about whether the past treatment of Bobulinski’s claims has tainted this investigation, a tax investigation.

In an affidavit accompanying the Bobulinski interview report he released, Ziegler explained that he was providing it because he didn’t get a chance to interview Bobulinski, yet another complaint from him about prosecutors’ likely attempts to avoid tainting the investigation that he now spins as political bias.

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

Ziegler admitted that he had been told that Bobulinski was not credible.

In his statement to the House Ways and Means committee last week (basically a mulligan — an opportunity for him and Gary Shapley to clean up their past hearsay claims that have been entirely debunked by first-hand witnesses to the issues, in which both proceeded to repeat those debunked hearsay claims), Ziegler complained that the people who used the interview reports he released to discredit his hearsay claims are just a bunch of dummies. They simply don’t understand.

The evidence I turned over to the committee was not cherrypicked and again, further supports my claims I brought forward to the committee. There have been critics on the committee who have tried to impeach some of the interview memos turned over and it is apparent that they do not understand how interviews in criminal investigations occur. [my emphasis]

In an attempt to deflect blame for his release of this interview report, he confessed that the Tony Bobulinski interview is not, as HWAM has billed it, an FD-302, a finished interview report.

I would point the members of the committee to Affidavit 4, Exhibit 400A (PowerPoint). I think that some of the members missed the point regarding this memorandum from the FBI intake of information provided by Anthony Bobulinski. You’ll notice that this is not an FBI 302 but is just a written document drafted by the Washington DC FBI agents from this interaction. The interview was not recorded and Bobulinski was voluntarily providing information to the FBI Agents. Since Bobulinski is providing the information in the presence of FBI Special Agents, he would still be criminally liable under Title 18 USC Section 1001 if he were to make any false statements. The Hunter Biden investigative team, including myself, had asked the assigned prosecutors to conduct an interview of Bobulinski but we were denied that request, and were never able to interview him. Interviewing Bobulinski would be normal process and procedure as a part of a criminal investigation for the team to corroborate evidence obtained in the investigation, elaborate on investigative leads, challenge some of the allegations made, and ask pertinent questions regarding the investigation. Again, this was not done! [my emphasis]

His complaint that HWAM has labeled it as a 302 is their fault.

Complain about the dumb Republicans for this error, Joe! While you’re complaining, Joe, you should similarly complain that James Comer invited Bobulinski for a voluntary, not compelled, interview, making it far easier for Bobulinski to dodge questions about what Mark Meadows handed him at a clandestine meeting in November 2020.

But not all of us are dummies, Joe. I noted that it wasn’t a 302 here.

The Bobulinski interview report Ziegler released, however, has not been entered in the official 302 form and by title is just a revision of his interview, with the author marked as one of the agents in the original interview; it appears to have been saved from Microsoft Word.

The fact that it’s not a 302 raises questions about Ziegler’s conduct in sharing it. Why would Ziegler share it if it were never approved? Why did he share it even though he has access to at least some of the communications that Lowell released which suggest Bobulinski couldn’t be telling the truth? If investigators were told Bobulinski wasn’t credible, why do they continue to float the “10 to H for the big guy” claims? Why did Shapley make Lesley Wolf’s prohibition — some weeks after the Bobulinski interview — on asking about the “big guy” reference central to his purported whistleblower complaint?

The Bobulinski claims are part of the Ziegler and Shapley media tour that — Abbe Lowell claims — generated political pressure with the result that David Weiss reneged on a plea deal and instead charged his client with nine tax charges (and three gun charges).

How did Ziegler get this report if it hasn’t been finalized into the FBI system? Ziegler describes only that it “was provided to the RHB investigation team by agents with the FBI.”

This was a memo and attachment that was provided to the RHB investigative team by agents with the FBI regarding information that was provided to agents with the FBI Washington Field Office from Anthony Bobulinski.

In his House Judiciary Committee, Tim Thibault described following up with the agent who did the interview, “to make sure that Baltimore got the FD-302s … that the agents had written and to also make sure that anything he had turned over to the agents got there.”

I guess Thibault, who spent 26 years in the FBI, is a big dummy too, because he called it a 302, too (and suggested it did get entered into the eGuardian system).

But Ziegler is an IRS agent, not the FBI agents that Thibault tried to make sure received the interview report.

And Ziegler has confessed to have obtained the report — finalized 302 or not — of the interview that Tony Bobulinski gave the day after spending time with Donald Trump, weeks before (by Cassidy Hutchinson’s telling) being handed something at a secret meeting with Mark Meadows.

The IRS obtained questionable witness testimony from a guy represented by a Trump-associated lawyer, volunteered immediately after spending time with Trump. That gets closer and closer to the President making a request that the IRS conduct an investigation into Hunter Biden and his father, a violation of 26 USC 7217, which makes it a crime for the President, by name, to ask the IRS to target someone specifically.

It shall be unlawful for any applicable person to request, directly or indirectly, any officer or employee of the Internal Revenue Service to conduct or terminate an audit or other investigation of any particular taxpayer with respect to the tax liability of such taxpayer.

[snip]

(e)Applicable person

For purposes of this section, the term “applicable person” means—

(1)the President, the Vice President, any employee of the executive office of the President, and any employee of the executive office of the Vice President; [my emphasis]

And now, three years after Bobulinski went to the FBI and — between meetings with Trump and his Chief of Staff — told them things that may not have been true, David Weiss has charged Hunter with tax crimes in an indictment that mentions the failed joint venture, SinoHawk, of which Bobulinski was a part.

Yet he didn’t mention Bobulinski’s role in it.

David Weiss appears to have hidden the role that Tony Bobulinski plays in these events, going so far as to insinuate that Hunter cut the SinoHawk partners out because of greed rather than justified distrust of Bobulinski. And in so doing, Weiss has hidden the taint — Donald Trump’s taint — that Bobulinski’s testimony may have had on the IRS investigation.