In his latest podcast, Popehat delivered this opinion about the two indictments of Hunter Biden and Abbe Lowell’s aggressive attack on them.
In a way — and I don’t think this comparison is going to endear me to people — I think he’s doing very much what Trump is doing with his cases all over the place, calling them out about how they’re political and illegitimate and that type of thing. The truth is, the gun case is complete chickenshit but the tax case is absolutely the real deal, it’s something that, you know, if you get struck by the lightning that is IRS deciding to select you out to investigate you, you will absolutely get charged on that stuff and you’ll absolutely go to jail on that stuff. So it’s not a political case to that extent. The way it’s been handled might be political.
You should definitely listen to or read the podcast, as he and Josh Barro are two of the only people who even pretend to have read the motions to dismiss Hunter filed last week and you should never read just me on a topic.
They don’t mention two aspects of the tax indictment, which impact on whether it’s “absolutely the real deal.” First, something that even Weiss included in the plea statement but left out of the indictment: that Hunter has paid off his tax debt, along with up to $400,000 in penalties, for the charged years. And second, that Hunter’s lawyers at least claim (but have not substantiated publicly) that his accountant overstated his income for 2018, the year for which felonies have been charged. So (Hunter’s lawyers claim) when Hunter did belatedly pay his taxes, he overpaid them. Abbe Lowell has claimed that would mean the indictment would violate IRS guidelines, but it will also make it much hard to prove that whatever misrepresentations Hunter made in his 2018 tax filings were intentional.
To their credit, Popehat and Barro managed to lay out the content of much of the four motions to dismiss submitted last week, which I summarized this way.
The only things they missed were the Appropriations claim against David Weiss’ appointment, and the Separation of Powers claim about Congressional influence — though perhaps Popehat meant to invoke that in his characterization of the MTD as “it’s all politics.”
What’s interesting about the podcast is that Popehat continues to cling to his article of faith that Hunter’s claims of politics (he has made the same claims about Hunter’s accusations, which are backed by public evidence, that Rudy Giuliani and others have hacked his data) are all prospective: an attempt to taint anything Trump might do in a second term as political.
In the event that Donald Trump is elected President [Hunter Biden] is likely to be charged with a lot worse and a lot crazier stuff. And so what they’re really doing, I think, is using every situation that comes up as ways to get ahead of that, to get intel on it, to undermine it, and that type of thing.
Popehat gets a great deal right about this case (including the near-impossibility of winning a selective and vindictive prosecution claim). But it borders on insanity that he would read that MTD and then dismiss Hunter’s claims of politicization as an attempt to stave off future attacks from Trump.
The MTD about which Popehat made this argument — that the possibility of Trump politicization is all prospective — cited the following evidence:
- In testimony he would subsequently caveat, Joseph Ziegler claimed that Bill Barr made the decision to put the tax investigation into Hunter Biden under David Weiss in May 2019, which would have been days after Joe Biden declared his run for President.
- During his first impeachment, Trump sent tweets attacking Hunter Biden on October 6, October 10, October 12, October 13, November 15, 2019.
- Rudy Giuliani traveled the world searching for dirt on Hunter Biden and got DOJ to open a dedicated channel, via Scott Brady, to accept the information he obtained.
- Trump sent another tweet attacking Hunter on September 24, 2020.
- Weeks before the election, Rudy Giuliani obtained what Hunter calls, “stolen electronic data,” manipulated it, and released it in an attempt to undermine Joe Biden’s election.
- After Rudy released the “laptop,” President Trump led chants of “Lock him up” about Hunter Biden.
- In the wake of the laptop release in mid-October 2020, Trump raised the Hunter prosecution with Bill Barr.
- Bill Barr admitted having personal knowledge of how information from Scott Brady got shared with Weiss’ team, including on October 23.
- In December 2020, after the investigation into Hunter was publicly revealed as a tax investigation but while Trump was still President, Trump tweeted twice more about the investigation.
- On December 27, 2020, in the same hours-long phone call where Trump first floated replacing Jeffrey Rosen with Jeffrey Clark, Trump also raised the Hunter Biden investigation.
- During his January 6 speech, Trump claimed that if more people had known about the contents of the “laptop,” he would have won and he also taunted, “Where’s Hunter?”
- Trump posted about Hunter on March 31, 2023 after learning about the Alvin Bragg indictment.
- Trump posted about the Hunter Biden plea deal three times on the day it was released on June 20, 2023, in one case calling it “The Hunter/Joe Biden settlement.”
- On June 24, after the IRS agents’ transcripts were released, Trump made two more posts suggesting allegations against Hunter tied to Joe.
- On June 26, Trump linked to a post falsely claiming that Hunter had shared classified documents with “foreign regimes.”
- On July 11, Trump accused Weiss of giving Hunter a “traffic ticket instead of a death sentence.”
- On November 23, Trump asked whether Joe had paid taxes on money he [claimed Joe had] made from Hunter.
This is the document Popehat claims to have read and decided Hunter was only doing this to claim that Trump was acting politically in some future prosecution.
And that’s not even the only evidence about Trump’s past politicization that Lowell has cited. In the subpoena request Abbe Lowell invoked in the MTD package, Hunter’s lawyer further described that Richard Donoghue ordered Weiss’ office to accept a briefing on an FD-1023 reporting a claim Mykola Zlochevsky made in late 2019, a briefing that occurred on October 23, 2020. By date, this briefing happened after Trump called Barr about the Hunter Biden investigation.
In a letter Lowell sent to Matthew Graves about Tony Bobulinski’s interview with the FBI on October 23, 2020, he noted that:
- Bobulinski was Trump’s guest at the Nashville presidential debate on October 22.
- Bobulinski’s claim to have attended a 2017 meeting with CEFC with Hunter Biden, at which — he claimed — Hunter received a diamond, conflicts with Bobulinski’s own communications from the period.
- In her book, Cassidy Hutchinson described a clandestine meeting between Bobulinski and Mark Meadows weeks afterwards at which Trump’s Chief of Staff handed Bobulinksi something that might be an envelope; the excerpt describes Meadows having the meeting because, “The boss asked him to meet up with Tony Bobulinski.”
Plus, there’s a bunch that Lowell has not (to my knowledge) cited.
For example, FBI Agent Johnathan Buma claims that in January 2019, two Ukrainians with ties to the Prosecutor General’s Office — later deemed to be part of an information operation — shared allegations about Hunter Biden and Burisma with the Los Angeles US Attorney’s Office. The allegations were passed onto Baltimore FBI agents investigating Hunter Biden. The Ukrainians were later invited to an event hosted by the Trump White House.
In IRS agent Ziegler’s testimony, he described that it took him three tries before justifying a criminal (rather than civil) investigation into Hunter Biden; as part of that, he made claims about 2014 payments from Burisma that are explained in the tax indictment against Hunter. He similarly described learning, second-hand, that his supervisor during the first full year of the investigation documented repeated examples of potential improper political influence.
[M]y IRS supervisor, Matt Kutz, created memos which he put in the investigative files regarding the investigation potentially violating the subject’s Sixth Amendment rights. He also referred to Donald Trump’s tweets at the time.
On July 25, 2019 Trump withheld congressionally appropriated funds to support Ukraine to get Volodymyr Zelenskyy to announce an investigation of Hunter Biden and Burisma, asking him to contact Barr and Rudy, the men who would later set up the channel via which information was ultimately shared with the Hunter Biden team. Two impeachment witnesses testified that Zelenskyy brought up a Burisma investigation, though the name does not appear in the transcript.
In addition to the details of Scott Brady’s task that Lowell did cite, Brady also described that he and Weiss spoke every four to six weeks about “the assignment.” Brady also describes getting Weiss to order his team to provide Brady details of the Hunter Biden investigation, which Brady described as “interrogatories.”
On September 12, Tim Thibault testified that, after such time as Steve Bannon would have had the “laptop” in 2020, the FBI made his propagandist Peter Schweizer an informant regarding matters pertaining to Hunter. The lead FBI supervisor on the Hunter Biden case asked the Washington Field Office to stop sending Schweizer’s reporting because it would give Hunter’s attorney, if he were ever charged, evidence to discredit the investigation.
FBI supervisor Thomas Sobocinski and David Weiss, along with other House Judiciary Committee witnesses, have testified that after the IRS agents’ claims went public — and so after Trump posted six times between when the plea deal was released and the hearing at which it failed — the investigative team, especially AUSA Lesley Wolf, began to get “pervasive” threats.
These are the kinds of Trump attacks that, the DC Circuit has found, have “real-world consequences” on those he attacks.
The record also shows that former President Trump’s words have real-world consequences. Many of those on the receiving end of his attacks pertaining to the 2020 election have been subjected to a torrent of threats and intimidation from his supporters. A day after Mr. Trump’s “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” post, someone called the district court and said: “Hey you stupid slave n[****]r[.] * * * If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly b[***]h. * * * You will be targeted personally, publicly, your family, all of it.” Special Counsel Br. 5; see United States v. Shry, No. 4:23-cr-413, ECF 1 at 3 (Criminal Complaint) (S.D. Tex. Aug. 11, 2023). The Special Counsel also has advised that he has received threats, and that a prosecutor in the Special Counsel’s office whom Mr. Trump has singled out for criticism has been “subject to intimidating communications.” Special Counsel Mot. 12.
In all the litigation about the danger of Trump’s rhetoric, there has been no discussion of threats that Trump’s comments (or the members of Congress) may have ginned up against Hunter Biden’s prosecutors.
Again, all this evidence of Trump’s effort to dictate prosecutorial outcomes for Joe Biden’s son have already happened. They happened while he was President and while he was running against Hunter’s father. None of this is remotely speculative, and much of it has been described by Republican witnesses.
And the latter examples — the stuff Trump did while President — are particularly problematic. That’s because (as Abbe Lowell has noted on at least two court filings) it is a crime for the President to order up IRS investigations of someone.
77 President Trump initiated the investigation of Mr. Biden illegally. 26 U.S.C. § 7217 provides: “It shall be unlawful for any applicable person [including the President] 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.”
A separate law prohibits someone, who does not need to be President anymore, to intimidate someone investigating tax crimes.
After unlawfully requesting that Mr. Biden be investigated, President Trump violated 26 U.S.C. § 7212 of the Internal Revenue Code by interfering with that investigation. The section has two substantive provisions. The “Officer Clause” forbids “corruptly or by force or threats of force (including any threatening letter or communication) endeavor[ing] to intimidate or impede any officer or employee of the United States acting in an official capacity under [the Internal Revenue Code].” (emphasis added). The second clause, the “Omnibus Clause,” forbids “corruptly or by force or threats of force (including any threatening letter or communication) obstruct[ing] or imped[ing], or endeavor[ing] to obstruct or impede, the due administration of [the Internal Revenue Code].” (emphasis added). Mr. Trump has done both.
Here, Lowell overstates. I’m aware of no evidence that Trump ordered up the IRS investigation of Hunter, like he did Peter Strzok and others.
The available evidence shows that at least one strand of the investigation into Hunter Biden — the one under Joseph Ziegler — started from a Suspicious Activity Report. And Barr is one of the people who would have been permitted to ask for an investigation into someone.
But it is nevertheless the case that the supervisor overseeing the investigation deemed Trump’s public demands for an investigation to be inappropriate. And at a time in 2020 after Trump knew there was an IRS investigation into Hunter, at a time he remained President, he privately and publicly pushed for an aggressive investigation. Those efforts, including publicly issued threats, have continued to this day.
The DC Circuit described how Trump uses social media posts to address people he knows are likely aware of his posts.
So too if the defendant posts a message on “social media knowing that [witness] is a social media follower of his,” id. 33:20–23, or that the message will otherwise likely reach the witness. In each of these scenarios, the defendant’s speech about witness testimony or cooperation imperils the availability, content, and integrity of witness testimony.
Accordingly, the district court had the authority to prevent Mr. Trump from laundering communications concerning witnesses and addressing their potential trial participation through social media postings or other public comments.
So whether or not Trump ever directly spoke to someone in the IRS about the investigations into Hunter Biden, under this theory of “laundering” communications, his tweets would have qualified as indirect communication.
Sure, a second Trump term will be worse.
But Hunter Biden is demonstrably among the handful of people who have experienced the kind of wholesale politicization of criminal investigations journalists imagine will only come in a second Trump term.
Udpate: Added some more details from Brady’s testimony.
Update: Fixed intro to DC Circuit opinion.