Hunter Biden’s Replies to His Motion to Dismiss

I was laughing that David Weiss’ prosecutors would get sloppy with Roger Stone references in a case I was covering closely. It got me two citations in Hunter’s reply on selective prosecution.

8 Stone, No. 21-cv-60825, DE 1 ¶¶ 40-53 (accusing Stone of seeking to shelter his wealth from criminal forfeiture); Bill Barr Repeatedly Lied, Under Oath, About Judge Amy Berman Jackson, https://www.emptywheel.net/; United States v. Stone, Case 1:19-cr- 00018-ABJ DE 260 (Verdict Form). It is particularly ironic that DOJ would try to use Biden’s gun charge under a statute expressly reserved to protect public safety—to justify criminal tax charges when only Stone was charged with endangering anyone.

9 DOJ acts like, rather than honestly describe his struggles, Biden published his memoir to brag about his crimes, which is particularly absurd considering the memoir mentions neither the gun he is accused of purchasing nor his failure to pay his taxes.

10 See Marcy Wheeler, David Weiss is Smoking Roger Stone’s Witness-Tampering Gun, Emptywheel (Mar. 11, 2024), https://www.emptywheel.net/2024/03/11/david-weiss-is- smoking-roger-stones-witness-tampering-gun/. This included an introduction repeating the false claims at the core of his 2019 convictions for threats and intimidation, and Stone even litigated whether his memoir was covered by the gag order the judge issued in response to his threats. See Stone, No. 1:19-cr-00018, DE61 (S.D. Fl.).

As I’ll lay out later, it’s now crystal clear that David Weiss reneged on the plea deal in order to chase Alexander Smirnov’s lies.

Here are the reply motions:

How Josh Dawsey Downplays Paul Manafort’s Ties to Alleged Russian Spies

Josh Dawsey’s report that Trump plans to hire convicted money launderer and former business partner of an alleged Russian spy Paul Manafort to work on his campaign — possibly to help fundraising!!! — makes all the years of shitty coverage of the Russian investigation an urgent problem again.

The job discussions have largely centered around the 2024 Republican convention in Milwaukee in July and could include Manafort playing a role in fundraising for the presumptive GOP nominee’s campaign, according to these people, who spoke on the condition of anonymity to describe private deliberations.

Dawsey gets big and little things wrong in his report. For example, he claims that Manafort was sentenced to around four years in prison after which he was released under COVID protocols.

Manafort was found guilty of hiding millions he made lobbying on behalf of pro-Russian Ukrainian politicians in overseas bank accounts, then falsifying his finances to get loans when his patrons lost power. He was originally sentenced to about four years in prison but was released early to home confinement due to the coronavirus before he was pardoned by Trump.

In reality, Judge Amy Berman Jackson sentenced Manafort to 73 months (60 months concurrent with his EDVA sentence, and 13 months consecutive to that; his release to home confinement did not adhere to the priorities for release at the time).

 For the reasons stated on the record in open Court Defendant’s 540 Motion for Reconsideration is DENIED. Count 1ssss: Sentenced to Sixty (60) months incarceration. The sentence is to run concurrent to Thirty (30) months of the sentence previously imposed by the U.S. District Court for the Eastern District of Virginia which has already accounted for the credit defendant is due for time served. Special Assessment of $100.00 was imposed. Count 2ssss: Sentenced to Thirteen (13) months incarceration, to be served consecutively to the sentence on Count One (1).

Predictably, though, it is in downplaying the import of Manafort’s ties to Russian spies where Dawsey really fails.

During the 2016 campaign, Manafort also allegedly shared Trump campaign polling data with Konstantin Kilimnik, a Russian who the U.S. government said had ties to Russian intelligence. The special counsel accused Manafort of lying to the FBI about his interactions with Kilimnik, even after Manafort had said he would cooperate and provide truthful information.

Manafort also allegedly worked with Kilimnik to spread Russian disinformation that it was actually Ukraine who interfered in the 2016 U.S. election.

In a report issued in 2020, the Senate bipartisan committee that investigated Russian interference found that “Manafort’s presence on the Campaign and proximity to Trump created opportunities for Russian intelligence services to exert influence over, and acquire confidential information on, the Trump Campaign.”

First, there is absolutely no dispute that Manafort sent campaign data to Kilimnik to share with his Ukrainian backers and Oleg Deripaska. Manafort simply maintained that he only instructed Rick Gates to share public data (Kilimnik’s other business partner, Sam Patten, said Manafort shared internal data). But the polling data has never been the key point. They key point was, weeks before the Russians started stealing Hillary’s internal modeling, Manafort told Kilimnik how he planned to win the race in the swing states — Michigan, Pennsylvania, Wisconsin, and also Minnesota — where Trump ultimately did win it.

Dawsey of course is silent about the other two undisputed aspects of the August 2, 2016 meeting. Kilimnik pitched Manafort on a plan to carve up Ukraine (Manafort ultimately admitted that Kilimnik did; he just claimed he didn’t buy into the plan at that point). And Manafort talked about how to get paid by his Ukrainian backers and get his debt with Oleg Deripaska relieved.

That is, the meeting at least maps the outline of a quid pro quo: a commitment to carve up Ukraine in exchange for millions and help winning the election.

And Robert Mueller didn’t just accuse Manafort of lying during the period when he was supposed to be cooperating. Judge Amy Berman Jackson ruled that he had.

Paul Manafort lied to cover up what really happened between him and Konstantin Kilimnik, and Donald Trump pardoned Manafort to reward those lies.

Finally, it’s not that, “U.S. government said [Kilimnik] had ties to Russian intelligence.” In 2021, after Kilimnik allegedly interfered in a second US election, Treasury stated as fact that Kilimnik was Russian intelligence.

Konstantin Kilimnik (Kilimnik) is a Russian and Ukrainian political consultant and known Russian Intelligence Services agent implementing influence operations on their behalf. During the 2016 U.S. presidential election campaign, Kilimnik provided the Russian Intelligence Services with sensitive information on polling and campaign strategy. Additionally, Kilimnik sought to promote the narrative that Ukraine, not Russia, had interfered in the 2016 U.S. presidential election. In 2018, Kilimnik was indicted on charges of obstruction of justice and conspiracy to obstruct justice regarding unregistered lobbying work. Kilimnik has also sought to assist designated former President of Ukraine Viktor Yanukovych. At Yanukovych’s direction, Kilimnik sought to institute a plan that would return Yanukovych to power in Ukraine.

Kilimnik was designated pursuant to E.O. 13848 for having engaged in foreign interference in the U.S. 2020 presidential election. Kilimnik was also designated pursuant to E.O. 13660 for acting for or on behalf of Yanukovych. Yanukovych, who is currently hiding in exile in Russia, was designated in 2014 pursuant to E.O. 13660 for his role in violating Ukrainian sovereignty. [my emphasis]

We also know, from the Charles McGonigal sentencing materials, that by 2017, the Intelligence Community had judged Oleg Deripaska to be “associated” with a Russian intelligence agency, too.

Among other things, in May 2017, McGonigal received a then-classified email stating that Deripaska was associated with a Russian intelligence agency, and possibly involved in that agency’s coup attempt in another country. (PSR ¶ 19).

By context, the agency must be GRU and the attempted coup must be Montenegro, a country implicated in McGonigal’s other prosecution — one where Manafort had an extensive history with Deripaska and one mentioned in Andrew Weissmann’s Team M report.

Donald Trump is considering hiring the former business partner of two alleged Russian spies, admitted money launderer Paul Manafort, to help with fundraising.

Way back in 2021, Avril Haines committed to declassifying parts of the SSCI Report that remained then, and still remain, redacted. It’s time to unseal those details describing why the spooks were so convinced that Kilimnik was, himself, a Russian spy.

Related posts

Deza: Oleg Deripaska’s Double Game

The Ongoing Investigation into Paul Manafort’s Handlers

Four Stories about Paul Manafort from Andrew Weissmann’s Team M

Paul Manafort Remains a Bigger Scandal than Hunter Biden

 

Eight Possible Explanations — Many Bad, Some Good — for SDNY’s Delay in Turning Over Cohen Files

As Adam Klasfeld and others reported yesterday, Trump is asking to delay his New York trial on charges that he engaged in fraud to cover up the hush payments he made to get elected in 2016. Trump is asking for the delay because the Southern District of New York just provided stacks and stacks of discovery he subpoenaed in January. Alvin Bragg has consented to a 30-day delay, but Trump is asking for a 90-day delay of the trial that was supposed to start on March 25.

In their letter explaining the situation, NYDA attorneys described that last year, they asked SDNY for the “full grand jury record” associated with Michael Cohen’s campaign finance conviction. Instead, SDNY provided “a subset.”

The People diligently sought the full grand jury record related to Cohen’s campaign finance convictions from the USAO last year, including exculpatory material and (1) grand jury minutes and tapes; (2) witness lists and other documents identifying the names or identities of grand jury witnesses; (3) any grand jury subpoenas and documents returned pursuant to those subpoenas; (4) exhibits presented to the grand jury; (5) to the extent within the scope of Rule 6(e), summaries of witness interviews occurring outside the grand jury; and (6) to the extent within the scope of Rule 6(e), search warrant affidavits or other applications that contain evidence from the grand jury, and evidence seized pursuant to those warrants. In response, the USAO produced a subset of the materials we requested, which we timely and fully disclosed to defendant on June 8, 2023, more than nine months ago. [my emphasis]

On January 18 of this year, Trump subpoenaed additional materials, and consented to several delays. On March 4, SDNY provided the initial tranche, which was 73,000 pages, of which less than 200 pages pertained to the case. Last week, SDNY provided a second tranche. And they say they’ll provide a third next week.

Regarding the 73,000 pages of records produced by the USAO as of the date of defendant’s motion, the People’s initial review indicated that those materials were largely irrelevant to the subject matter of this case, with the exception of approximately 172 pages of witness statements that defendant would have adequate time to review and address before trial. Yesterday afternoon, however, the USAO produced approximately 31,000 pages of additional records to both the People and the defense in response to defendant’s subpoena, and also indicated that an additional production would follow by next week. [my emphasis]

Those 31,000 pages provided last week includes stuff from Cohen’s grand jury file that NYDA had asked for last year.

Based on our initial review of yesterday’s production, those records appear to contain materials related to the subject matter of this case, including materials that the People requested from the USAO more than a year ago and that the USAO previously declined to provide.

NYDA say they’re ready to go on the 25th, but would consent to a 30-day delay. Surely, though, they’ve seen enough that they want to be prepared to rebut anything Trump found in the documents.

Update: NYDA has submitted a follow-up. The total universe of this production amounts to 119,000 pages of discovery. Of that, just a subset of 31,000 pages covers stuff related to the case, and of that subset, some of it was already provided to Trump. Trump is disputing that, but at this point, he and his lawyers have been crying wolf for a year. 

It’s not yet clear what’s in the 100,000-page plus discovery or why SDNY refused to turn it over, besides their unshakeable arrogance.

But there are a number of possible explanations, most terrible, at least three defensible. They include:

  1. Covering up Bill Barr’s fuckery
  2. Covering up Ed O’Callaghan’s fuckery
  3. Hiding details regarding the retraction of Robert Mueller’s scope
  4. Hiding details of Cohen’s tax crimes
  5. Hiding details of Barr’s further fuckery
  6. Protecting a Bill Barr investigation
  7. Protecting a Viktor Vekselberg investigation
  8. Protecting a Trump tax investigation

Much of these would serve to shield (or, ultimately, delay) SDNY or DOJ embarrassment generally. Some, though, would serve to protect real investigations that we know happened.

Covering up Bill Barr’s fuckery

What Trump undoubtedly was seeking when he subpoenaed SDNY was evidence of known Bill Barr fuckery, which would help the former President argue that he never committed a federal campaign finance crime and would hurt the theory of the case. Geoffrey Berman described much of this in his book.

In February 2019, days after being confirmed, Bill Barr tried to unprosecute Cohen.

While Cohen had pleaded guilty, our office continued to pursue investigations related to other possible campaign finance violations. When Barr took over in February 2019, he not only tried to kill the ongoing investigations but—incredibly—suggested that Cohen’s conviction on campaign finance charges be reversed. Barr summoned Rob Khuzami in late February to challenge the basis of Cohen’s plea as well as the reasoning behind pursuing similar campaign finance charges against other individuals. Khuzami was told to cease all investigative work on the campaign finance allegations until the Office of Legal Counsel, an important part of Main Justice, determined there was a legal basis for the campaign finance charges to which Cohen pleaded guilty—and until Barr determined there was a sufficient federal interest in pursuing charges against others.

Barr headed the Office of Legal Counsel in 1989 through the middle of 1990. He knew its powers, and as Trump’s attorney general he knew how to use it as a cudgel to accomplish his goals.

The directive Barr gave Khuzami, which was amplified that same day by a follow-up call from O’Callaghan, was explicit: not a single investigative step could be taken, not a single document in our possession could be reviewed, until the issue was resolved.

And if Main Justice decided there was no legal basis for the charges? The attorney general of the United States would direct us to dismiss the campaign finance guilty pleas of Michael Cohen, the man who implicated the AG’s boss, the president.

Barr attempted to put Richard Donoghue in charge of the matters — the Cohen case — that Berman was recused from. (Remember that Barr would also put Donoghue in charge of what should have been follow-on investigations of Rudy Giuliani’s dalliance with Russian spies.)

One way for Barr to accomplish that would have been to put the Cohen case in the hands of someone to whom he felt closer. About a week after our office tussled with Barr and Engel, Barr attempted to do just that. Word was passed to me from one of Barr’s deputies that he wanted Richard Donoghue, the US Attorney for the Eastern District of New York (who would later transfer to Main Justice to work under Barr), to take over supervision of anything I was recused from.

By Berman’s description, none of those efforts succeeded.

But according to the NYT, Barr did get OLC to write a memo questioning the basis for prosecuting someone for covering up public details (this doesn’t show up in Berman’s book).

At one point during the discussions, Mr. Barr instructed Justice Department officials in Washington to draft a memo outlining legal arguments that could have raised questions about Mr. Cohen’s conviction and undercut similar prosecutions in the future, according to the people briefed on the matter.

[snip]

The New York Times reported previously that Mr. Barr had questioned the legal theory of the campaign finance charges against Mr. Cohen, but it was not known that the attorney general went so far as to ask for the draft memo or had raised his concerns more than once.

The memo, written by the Justice Department’s Office of Legal Counsel, addressed the Southern District’s somewhat novel use of campaign finance laws to charge Mr. Cohen. Before Mr. Cohen’s guilty plea, the only person known to face criminal charges for payments meant to keep negative information buried during a political campaign was the former senator and Democratic presidential candidate John Edwards, who was not convicted.

Mr. Barr argued, among other things, that such cases might be better suited to civil resolutions by the Federal Election Commission than to criminal prosecutions, according to people with knowledge of the discussions.

[snip]

There is no indication that the Justice Department planned to issue a formal opinion on the campaign finances charges. Such a step, if taken, might have raised questions about the validity of the case against Mr. Cohen and affected any future effort to investigate Mr. Trump or others in his circle for similar conduct.

This memo is undoubtedly what Trump wants. He would use it to suggest that he was never in danger of prosecution for the hush payments, and therefore his fraud to cover them up cannot be a felony.

Covering up Ed O’Callaghan’s fuckery

Trump is also, undoubtedly, seeking details of then PADAG Ed O’Callaghan’s fuckery.

Once SDNY did charge Cohen, O’Callaghan intervened to demand that SDNY take language out of Cohen’s statement of offense making it clear that Individual-1 was part of the crime.

Consistent with DOJ guidelines, we first submitted the information to the Public Integrity Section at Main Justice. They signed off.

We then sent a copy to Rod Rosenstein, informing him that a plea was imminent. The next day, Khuzami, who was overseeing the case, received a call from O’Callaghan, Rosenstein’s principal deputy.

O’Callaghan was aggressive.

Why the length, he wanted to know. He argued that now that Cohen is pleading guilty we don’t need all this description.

Khuzami responded, What exactly are you concerned about?

O’Callaghan proceeded to identify specific allegations that he wanted removed, almost all referencing Individual-1. It quickly became apparent to Khuzami that, contrary to what O’Callaghan professed, it wasn’t the overall length or detail of the document that concerned him; it was any mention of Individual-1. Khuzami and O’Callaghan went through a handful of these allegations, some of which Khuzami agreed to strike; others, to ensure a coherent description of the crime, he did not.

Berman’s prosecutors stayed up all night cutting the Information from 40 pages to 21.

The team was tasked with the rewrite and stayed up most of the night. The revised information, now twenty-one pages, kept all of the charges but removed certain allegations, including allegations that Individual-1 acted “in concert with” and “coordinated with” Cohen on the illegal campaign contributions. The information now alleged that Cohen acted in concert and coordinated with “one or more members of the campaign.” But in the end, everything that truly needed to be in the information was still there.

Cohen included those details in his verbal allocution anyway.

The most consequential details that O’Callaghan wanted removed still wound up in the public record, simply because Cohen acknowledged them in open court. He testified that Trump not only knew about the six-figure payoffs designed to keep Stormy Daniels and Karen McDougal from going public but had orchestrated them.

With regard to McDougal, Cohen said that he and “the candidate worked together to keep an individual with information that would be harmful to the candidate and to the campaign from publicly disclosing this information. After a number of discussions, we eventually accomplished the goal by the media company entering into a contract with the individual under which she received compensation of $150,000.”

As for Stormy Daniels, Cohen admitted that he had, “in coordination with, and at the direction direction of, the same candidate, [arranged] to make a payment to a second individual with information that would be harmful to the candidate and to the campaign to keep the individual from disclosing the information. To accomplish this, I used a company that was under my control to make a payment in the sum of $130,000.”

Any paperwork describing this dispute will not help Trump as much as an OLC memo saying his hush payments weren’t a federal crime. But he will use them to suggest that Rod Rosenstein didn’t think Trump was a part of it.

Hiding details regarding the retraction of Robert Mueller’s scope

Another thing that Cohen’s case file would disclose that might embarrass DOJ is how Rod Rosenstein constrained Mueller’s scope after initially permitting him to prosecute crimes he could use to flip people.

Remember that Mueller was permitted to prosecute both Paul Manafort’s tax crimes and Mike Flynn’s Turkey FARA crimes; he used those other crimes to (attempt to) flip Trump’s aides. But around the same time as Rosenstein issued his second scope memo (November 2017), he seems to have changed this approach.

In his book, Berman explained that by the time Mueller was investigating Cohen, Rosenstein was only permitting Mueller to investigate the Russian-related conduct. So when Mueller found Cohen’s taxi medallion and other crimes, they had to find a way to hand it off while still hoping to use those crimes to flip people.

At first, Mueller prosecutor Andrew Goldstein asked Berman to partner on the case, which would allow Mueller to be involved in an attempt to flip Cohen.

Goldstein informed Martins and Capone that Mueller was investigating Michael Cohen, the president’s personal lawyer, for bank fraud relating to his taxi medallion business. Mueller wanted to pursue the Cohen investigation—but in conjunction with a US attorney’s office—because it fell outside his mandate. The idea was that we would be the partner to Mueller’s team.

Berman refused that request, because he didn’t want to sacrifice SDNY’s cherished independence. In the end, Mueller only got a request that a Mueller prosecutor could be involved in any discussion of cooperation.

The next day Goldstein got back to us. He backed off the requirement of a joint investigation and agreed that the Southern District would conduct the investigation as we saw fit. He asked for just one thing: if SDNY and the FBI had discussions with Cohen or his lawyer about cooperation, we would inform Goldstein and allow someone from the Mueller team to be present. I did not believe that such an accommodation would impinge on our independence or link our reputation to Mueller’s.

These disclosures, if they’re included in the documents turned over, wouldn’t help Trump all that much (and therefore might not be made public). But they’re another instance showing how Rod Rosenstein intervened to protect Trump.

Hiding details of Cohen’s tax crimes

Something else that SDNY might not want to turn over would pertain to the viability of the crimes to which Cohen ultimately pled guilty.

Remember: Every time he gets asked about why he pled guilty, he claims he pled guilty to more than what he had done, and he did so because of SDNY’s threats that they would include Cohen’s spouse if he didn’t plead.

SDNY would absolutely attempt to withhold details that addressed this issue, particularly if they confirmed Cohen’s claims.

They would only help Trump if they confirmed SDNY’s side of the story (and to be sure, there is abundant SDNY documentation documenting their belief that they believe Cohen’s lies extended before and after his guilty plea).

Hiding details of Barr’s further fuckery

After first trying to make Cohen’s prosecution go away, Barr later tried to make it worse, by sending Cohen back to prison from his COVID furlough because he started writing a book about what a crook Trump was. As Cohen claimed in an emergency motion to get out of jail, Cohen described that he was issued a gag order he would have to sign if he remained out on furlough, and when he refused, he was sent back to prison.

Michael Cohen is currently imprisoned in solitary confinement because he is drafting a book manuscript that is critical of the President of the United States—and because he recently made public that he intends to publish this book shortly before the upcoming election.

[snip]

While he was on furlough, Mr. Cohen publicly announced that he was putting the finishing touches on a tell-all book about his decade-long experience with President Trump. Just one week later, on July 9, 2020, BOP officers under the direction of Respondents presented Mr. Cohen with an unconstitutional demand: As a condition of his release—a release BOP already had determined was necessary for his health and safety—Mr. Cohen had to agree to a complete bar on speaking to or through any media of any sort.

Mr. Cohen expressed that this condition would bar him from making any progress on his book draft, making a pre-election publication date unlikely. But, because he was fearful for his life should he be remanded to prison, he did not refuse. Instead, he and his lawyer sought both to clarify the meaning of the condition, and to tailor it more narrowly to the BOP’s stated reason for including it; namely, to avoid glamorizing or bringing attention to his upcoming home confinement status. BOP officials refused those requests. Instead, they remanded him into solitary confinement in Respondents’ custody, where he remains.

Judge Alvin Hellerstein found Cohen’s claims persuasive. When he released Cohen shortly thereafter, Hellerstein ruled that the purpose of Cohen’s jailing was retaliatory (here’s the transcript, which shows BOP and SDNY’s rebuttals).

“I make the finding that the purpose of transferring Mr. Cohen from furlough and home confinement to jail is retaliatory, and it’s retaliatory because of his desire to exercise his First Amendment rights to publish a book and to discuss anything about the book or anything else he wants on social media and with others,” U.S. District Judge Alvin Hellerstein said during a teleconference Thursday morning.

Cohen secured an emergency temporary restraining order and a preliminary injunction, ordering the government to immediately release him and be allowed to resume his home confinement.

“How can I take any other inference other than it was retaliatory?” Hellerstein mused, summarizing the terms of the government’s home-confinement agreement as telling Cohen: “You toe the line about giving up your First Amendment rights or we’ll send you to jail.”

“I’ve never seen such a clause in 21 years of being a judge,” the Clinton appointee added.

“In 21 years of being a judge, and sentencing people, and looking at the terms and conditions of supervised release, I have never seen such a clause.”

There’s undoubtedly paperwork related to this in Cohen’s case file, including paperwork that might match SDNY’s claims that this was not retaliation. But there could well be paperwork that shows — as was also alleged in the decision to free Paul Manafort from a prison not experiencing a COVID outbreak — involvement from Barr.

Protecting a Bill Barr investigation

You probably won’t believe me. But DOJ actually investigated some of Bill Barr’s fuckery. One such investigation was publicly reported: a DOJ IG investigation into Roger Stone’s sentencing.

There was at least one other aspect of Bill Barr fuckery that DOJ investigated which is not public.

Both investigations were active in the year since NYDA asked for materials on this case.

I have no idea whether Barr’s fuckery on the Michael Cohen case was part of either investigation into his fuckery. But if it was, then any delay in releasing materials would be justified to protect an ongoing investigation.

Protecting a Viktor Vekselberg investigation

You cannot separate the investigation into Trump’s 2016 hush payments from payments that Viktor Vekselberg’s Columbus Nova made to Michael Cohen. That’s because, after Cohen’s bank issued a Suspicious Activity Report on the payment to Stormy Daniels, they looked at how the other things Cohen did with his Essential Consultants account, which he had claimed was for domestic real estate purposes, deviated from his claims about the account.

And one thing he did with that account was to receive $400,000 from a company owned by Russian oligarch Viktor Vekselberg.

22. According to records obtained from Bank 1 through June 1,2017, in the first fìve months of 2017, the Essential Consultants bank account received five deposits, each in the amount of $83,333 (for a running total of $416,665). The funds for all five deposits-four of which were wire transfers and one by check-came from an account at another bank held in the name of Columbus Nova, LLC.

23. Public records show that Columbus Nova, LLC is an investment management firm controlled by Renova Group (“Renova”), an industrial holding company based in Zurich, Switzerland. According to public news accounts, Renova is controlled by Viktor Vekselberg, a wealthy Russian national. Public news accounts also report that Vekselberg is an oligarch with various connections to Russian President Vladimir Putin and publicly met with Putin as recently as in or around March 2017.

7 According to the news articles, Vekselberg and Renova currently are involved in various infrastructure projects in Russia, such as the building of an airport in Rostov in advance of the 2018 FIFA World Cup, which is to be held in Russia. Vekselberg has been involved in various symbolic acts seen to be in the Russian national interest, such as the purchase and repatriation of historic Faberge eggs.8

Mueller investigated these payments to determine whether they explained why Trump tried to back out of sanctions on Russia, etcetera etcetera. From the first warrant, then, the Stormy Daniel investigation implicated any investigation into Vekselberg’s efforts to pay for access in the US.

We know that, since Russia’s invasion of Ukraine, DOJ has ratcheted up sanctions-related investigations into Vekselberg’s associates. In January 2023, DOJ unsealed details of arrests pertaining to Vekselberg’s yacht; those prosecutions are active and are being run out of DC.

And in February 2023 — around the time when NYDA asked for the Cohen file — SDNY rolled out money laundering charges against Vekselberg’s US-based fixer, Vladimir Voronchenko, whom they claimed was a fugitive.

Voronchenko may be a fugitive, but the docket in his case has the look of a docket with a whole bunch of interesting things going on, albeit all sealed.

I don’t know what explains the skips in docket numbers, from 3 to 18, from 18 to 27, and from 27 to 32. But as of December, they SDNY was still stuffing the vault with … something.

If the investigation into Vekselberg would in any way be compromised by the release of Cohen’s case file, it would explain — and easily justify — delaying their release. Particularly if the investigation into Vekselberg’s associates implicated people close to Trump or other prominent Republicans.

Protecting a Trump tax investigation

During both the tax and fraud trials of Trump Organization, there were hints that SDNY had — finally — picked up some of the financial allegations NYS dug up and turned them into federal investigations, including obtaining testimony from some of the same witnesses.

If that happened, it could explain a justifiable delay of providing those files to Trump.

Obviously, most possible explanations for a delay in turning over these files involve someone’s embarrassment, whether SDNY itself, or DOJ more generally. I grant that it’s extremely likely that an attempt to avoid embarrassment explains the delay.

But there are several confirmed and one suspected investigation that also might explain, and entirely justify, a delay. We just don’t know yet.

Update: Judge Merchan has delated the trial start for 30 days from today and scheduled a hearing about the claimed discovery violation.

A Third Tie between Trump World and Alexander Smirnov

Before I point to a report on third known link between Alexander Smirnov — the FBI informant whose allegedly false claims about Joe Biden were laundered through a process Bill Barr set up for Rudy Giuliani in 2020 — and Donald Trump, let me lay out several details that are important to assessing the import of such ties.

  • Smirnov was admonished on the limits of permission to engage in Otherwise Illegal Activities on at least five occasions, including on August 7, 2020. That’s what the FBI does before they pre-approve you committing a crime because they want to learn about the other people committing crimes involved. For any given sketchy business someone reports Smirnov to have engaged in, there’s a distinct possibility he was engaging in it because the FBI was interested in the other people engaged in the business.
  • Smirnov’s ties to Russian spies go through at least one other intelligence service — probably Israel. But, at least for the last six months, he has been hanging out on the megayachts of Russian Oligarchs, almost certainly in Dubai, where, according to him, he was part of a plan to end the Ukraine war and elect Donald Trump.
  • One unanswered question that will be key to understanding how Smirnov attempted to frame Joe Biden is to identify how MAGAt US Attorney for Pittsburgh Scott Brady came to chase an otherwise unremarkable earlier Smirnov informant report mentioning Hunter Biden in passing. Given that Brady’s project catered to Rudy, any link involving Rudy as well would be significant.
  • But we may not discover that unless something dramatic happens, because David Weiss has no business overseeing this investigation, as he’s a direct witness to the involvement of Brady and Bill Barr. Indeed, as Hunter Biden attorney Abbe Lowell recently pointed out, Weiss has misrepresented his involvement in the Smirnov lead, going back to 2020, and by chasing this lead and extending the prosecution of Hunter Biden, he is effectively doing Russia’s bidding.

We already know of two ties between Trump world and Smirnov. His cousin, Linor Shefer, has ties to Trump through a Miami Real Estate developer.

Shefer, a 38-year-old Israeli-American, was a former contestant on the Israeli version of reality show Big Brother, and in 2014 won the Moscow beauty pageant ‘Miss Jewish Star’.

According to her LinkedIn page, she has been an ‘Inhouse Consultant’ for Dezer Development in Miami, Florida since 2022.

Dezer partnered with Trump’s organization to develop the $600 million Trump Grande Ocean Resort and Residences and $900 million Trump Towers. The company is run by Gil Dezer, and founded by his Israeli-American billionaire father Michael, who is a Trump donor.

And Smirnov has ties to Sam Kislin, who not only has long-standing ties to Rudy and Trump, but who came under some scrutiny during the 2019 impeachment.

Around 2021, on the beach at a private club in Boca Raton, Smirnov pitched Kislin on founding a company together that would market electric-car batteries and capture federal subsidies, Kislin said.

Smirnov told him he also could use his FBI ties to help him unfreeze more than $21 million in infrastructure bonds that belonged to Kislin but which Ukrainian authorities deemed had been issued illegally, embroiling Kislin in a corruption probe, Kislin said.

Kislin had for years been seeking to unfreeze the funds, traveling to Ukraine and meeting with officials there. His travel there coincided with efforts by Giuliani and his associates to push the Ukrainian government to investigate Biden, and in 2019, Kislin was subpoenaed by House impeachment investigators who were looking into those efforts. Kislin’s lawyer said he didn’t have relevant information, and he didn’t ultimately testify.

Smirnov set his fee for recovering Kislin’s $21 million at $1 million, according to Kislin, who said he paid Smirnov $224,000—partially as an advance and partially as an investment in the car-battery company, incorporated in Nevada in May 2021 as Quantum Force.

After a little over a year, Quantum Force dissolved and registered by the same name in a different state—this time without Smirnov listed in the corporate records.

When a solution to Kislin’s problem in Ukraine failed to materialize, Kislin said he deduced that Smirnov had taken him for a ride.

The Guardian points to a third — one through another of the sketchy businesses with which Smirnov worked, which includes a Middle East real estate tie:

Back in 2020, Smirnov was paid $600,000 by a company called Economic Transformation Technologies (ETT), prosecutors said. That same year, Smirnov began lying to the FBI about the Bidens, according to the indictment.

ETT’s CEO is the American Christopher Condon, who is also one of three shareholders in ETT Investment Holding Limited in London. Other shareholders in the UK include Pakistani American investor Shahal Khan and Farooq Arjomand, a former chairman and current board member of Damac Properties in Dubai who is also listed as an adviser on ETT’s American website.

[snip]

The exact business model of Texas-based ETT is murky. Its mission statement reads in part: “ETT set up the chess board to bring in top notch executives from those sectors to help implement its vision of love and social impact to improve the quality of human existence through the application of ‘new age’ technologies.”

The current CEO, Condon, is a California man who has been involved in several civil lawsuits, including a civil Rico case in 2010 that he won on appeal. Condon’s official biography says he is “a former professional tennis player, financial advisor, and currently is an entrepreneur focused on social-impact projects, public-private partnerships, and creating smart communities that benefit both individuals and governments”.

Condon, Arjomand and Khan registered ETT Investment Holding Limited in the UK on 6 March 2020. Khan, an investor who purchased the Plaza Hotel in 2018, and Arjomand have ties to Donald Trump through Trump associates and Damac, a major Middle East developer that has partnered with Trump for a decade. Arjomand, Khan and Condon owned 34%, 33% and 33% of ETT Investment Holding Limited respectively, according to UK business filings. No other information on the UK company is readily available.

The WSJ story — the same one that focused on Kislin — already laid out some sketchy aspects of Smirnov’s ties to ETT, and states that the relationship began in 2019.

Smirnov helped another company—Texas-based Economic Transformation Technologies, a software platform focused on “sovereign economic performance”—solicit investors starting around 2019, former associates said.

Smirnov was aware of concerns among investors and employees about some of the company’s practices, one of the associates said. The company was failing to pay some of its bills and several of its employees despite spending lavishly on travel and maintaining its exorbitant rent in the Dallas Cowboys headquarters, former associates and investors said.

Still, Smirnov brought in investors to meet with the company’s chairman, Christopher Condon, and other company executives—among them Kislin, who didn’t ultimately invest. Condon described Smirnov to associates as a “Russian friend of ours” who was skilled at fundraising, a former associate said.

It described that Condon knew of Smirnov’s FBI ties.

Smirnov’s FBI connections often came up in conversation as he hawked his services. Condon, the ETT chairman, also told people that Smirnov had “friends” in the FBI and described him as his protector who could help shield him from investigations, former associates said. Condon’s lawyer said Condon didn’t know the extent of Smirnov’s FBI involvement, and Condon denied describing Smirnov as a protector.

There are a lot more details of the Trump ties of Khan and Arjomand in the Guardian piece. What’s not included in there is the date in 2020 that ETT paid Smirnov. Particularly given Condon’s other sketchy ties, if that payment was anywhere close to August 2020, when we know Smirnov was given permission to engage in otherwise illegal activity, it may be his business ties were done with the knowledge and permission of the FBI.

Of course, the people with whom he engaged in OIA could well have a link to Scott Brady’s discovery of Smirnov. That’s why it is so problematic that Weiss, a witness, is leading this investigation.

In a status hearing for Hunter Biden yesterday (at which his gun trial was tentatively scheduled for the first two weeks of June), prosecutor Derek Hines suggested the Smirnov trial is still set to go starting on April 23, in spite of a recent CIPA filing. Also yesterday, Judge Otis Wright denied Smirnov’s bid to be released to San Francisco to receive glaucoma care.

Update: Fixed spelling of Shefer’s first name.

Update: CBS has a story describing a past complaint that Smirnov is a fraudster and a liar. Again, it’s hard to distinguish, without knowing more, whether for the FBI, that was the point.

Smirnov surfaced as a key secret witness in a sweeping racketeering case in California in 2015. In that case, the Justice Department brought charges against 33 defendants with ties to Armenian organized crime groups. Among the charges were money laundering, health care fraud and even a murder-for-hire.

Smirnov’s information contributed to the case against a married couple, Tigran Sarkisyan and his wife Hripsime Khachatryan, charged with conspiring with others to use fake identities to collect tax reimbursements from the federal government. The couple eventually pleaded guilty to a single count of racketeering in May 2017. In a 2018 sentencing memorandum, the couple’s lawyers flatly accused Smirnov of deceit.

“The [Confidential Human Source] was known to the United States as a liar and fraudster,” the sentencing brief states.

A footnote in the document states that the government was provided with the notes of their private investigator’s interview with a close associate of Smirnov who repeatedly called him a “liar.”

[snip]

Benincasa believes federal prosecutors realized they had a problem. According to Benincasa, the prosecutors had originally indicated they would be seeking a 10-year sentence as part of any plea deal. But after the lawsuit was filed, the government softened its position. Benincasa said he believes prosecutors wanted to avoid seeing Smirnov deposed in the civil case and possibly have his identity as an informant exposed. In the end prosecutors asked for 21 months, an unusually sharp reduction from the original 10 years that Benincasa says they were seeking. The judge ultimately sentenced the couple to 15 months.

The “Waiting for Mueller” Mistake and the Right Wing Bubble

Simon Rosenberg didn’t panic about a 2022 Red Wave. As analysts everywhere were wailing that the Sky Was Falling, he was quietly confident.

Keep that in mind as you listen to this conversation he had with Greg Sargent. I have about the same cautious optimism as Rosenberg (I was less confident than he was in 2022) on this year’s election, but he’s a pro who works from fundamentals, not just last week’s poll results.

Among other things, he talks about how any of six big negatives for Trump could blow the election for him:

  1. He raped E. Jean Carroll in a department store dressing room
  2. He oversaw one of the largest frauds in America history and that he and Rudy Giuliani through all their various misdeeds own over $700M dollars
  3. He stole American secrets, lied to the FBI about it, and shared these secrets with other people
  4. He led an insurrection against the United States
  5. He and his family have corruptly taken billions from foreign governments
  6. He is singularly responsible for ending Roe and stripping the rights and freedoms away from more than half the population

I would add two more: First, Trump routinely defrauds MAGAt supporters. Over the last week, he turned the RNC into a means to do so on a grander scale. Republicans need to hear that they’re being taken to the cleaner by Trump — and by Steve Bannon, whose trial for doing so will also serve as backdrop to this election season.

More tellingly, Rosenberg addressed this detail when he described how Biden’s two big negatives have resolved (my biggest complaint about this interview is it didn’t address Gaza, the unmentioned third), not when he addressed Trump’s scandals.

The Biden crime family story, we just learned in the last few weeks, was a Russian op that was being laundered by the Republican party that blew up in their face.

Rosenberg treated the manufactured “Biden crime family” that was actually a Russian op laundered by the GOP as a resolved Biden negative after he made this point, the most important in the interview, in my opinion.

We have to learn the lesson from waiting for Mueller. Waiting for Mueller was a mistake by the Democratic Party. It prevented us from prosecuting the case against Trump and his illicit relationship with the Russian government that was out there all for us to see. Right? The Russians played a major role in his election in 2016. This is not in dispute in any way. And so I think now what we need to do is not wait for Jack Smith or wait for Merrick Garland. We need to use what’s in front of us and prosecute this in ways that we know is going to do enormous harm.

No superhero will come tell any one of these stories for Democrats. Trump’s opponents have to tell the story of Trump’s corruption. They cannot wait for Mueller. Or Jack Smith.

One of many reasons I’m so focused on the Hunter Biden story is that it is actually what proves the continuity of that story of Russian influence that Democrats failed to tell. Trump asks for Russian help in 2016 and gets it. As part of a campaign in which Rudy Giuliani solicited Russian spies for dirt on Hunter Biden, Trump withheld security support from Ukraine to get the same. Even after that, Trump’s DOJ created a way to launder the dirt Rudy collected from known Russian spies to use in the 2020 election. That campaign created the shiny object that has created the “Biden crime family” narrative. Like Russia’s role in the 2016 election, none of this is in dispute. It’s just not known.

You cannot wait for Robert Mueller or Jack Smith to tell this narrative. But for four months this entire story — this arc — has passed largely unnoticed, even as Trump took steps to deliver Ukraine’s bleeding corpse to his liege, Vladimir Putin.

Those who want to defeat Trump — and honestly, Republicans like Liz Cheney and Amanda Carpenter have been doing a better job of this than most Democrats — have to make sure this story gets told.

This is what I’ve been trying to say over and over and over. The reason why the moderate press hasn’t been telling the story of Trump’s role in the insurrection, of his ties to militia members and his direct inspiration for the most brutal assaults on cops on January 6 is because all their TV lawyers have been whinging instead about their own misunderstanding of the January 6 investigation. They haven’t been telling the story of what we know.

They have been complaining that Merrick Garland hasn’t compromised the investigation to tell them them more, turning Garland into their villain, not Trump.

In the few minutes after I posted these comments on Twitter, commenters have:

  • Complained that the full Mueller Report hasn’t been released, when really they’ve simply been too lazy to understand that the most damning bits have been released.
  • Bitched that Merrick Garland hired Rob Hur, rather than bitching about Rob Hur telling a narrative even after his own investigation had debunked it.
  • Complained about a delay in the January 6 investigation that didn’t happen.

Kaitlan Collins’ interview with Brian Butler, a former Trump employee whose testimony badly incriminated his one-time best friend, Carlos De Oliveira, has been drowned out by all the complaints.

The story barely made a blip. It’s not just the NYT that buries important Trump stories under complaints about Biden, it’s Democratic supporters.

Rosenberg went on to describe how Democrats need to improve this. He noted that the Right Wing noise machine provides them a great advantage on this front, one that Biden will have to spend to combat.

We have to recognize, Greg, that the information environment in the United States is really broken right now and that the power of the Right Wing noise machine to bully and intimidate mainstream media into being complicit in advancing some of their narratives is something that needs a campaign that has half a billion dollars in it to be able to draw even on. What we’ve learned is there is a structural imbalance in the information game between the two parties, that the Republicans have a significant advantage over us in a day-to-day information war.

This is true. But the insularity of the Right Wing noise machine can be made into a weakness for Republicans, even before spending the money. Because right wingers so rarely try to perform for a mainstream audience, as soon as they do — whether it is rising star Katie Britt or Kentucky redneck James Comer — they look like lying morons.

And in the face of that Right Wing noise, Democrats need to be disciplined.

The Biden campaign’s going to have to be wildly disciplined. They can’t chase the daily story. They’re going to have to pick the two or three things they know from research are the things that are a rubicon with the electorate.

[snip]

It’s going to be incumbent upon them to not allow the Trumpian mania and madness sort of push them around every day. They’re going to need to develop an offensive strategy both on what we’re selling and on what we’re indicting him with.

Rosenberg laid out the six bullets; I added two more. Trump will try to distract from that with daily outrages, with spectacle.

Trump — abetted by social media — will try to distract from that argument by demeaning all ability to make, or understand, coherent arguments.

I’m less sanguine than Rosenberg that even discipline is enough to overcome Trump’s circus. Therein lies the challenge.

But he’s right that those who want to defeat Trump have to make that case themselves. Neither Jack Smith, nor the NYT, will save you.

How Alleged Geezer Joe Biden Caught Rob Hur and Marc Krickbaum Trying to Sandbag Him

I was giggling during much of the atrocious Robert Hur hearing yesterday. Just as it started, House Judiciary Democrats released the transcript of the Joe Biden interview (October 8, October 9). It’s the kind of no-advance release that Sarah Isgur (whom Hur paid to be his spox for the hearing) did while at DOJ, most notably with the texts of Peter Strzok and Lisa Page. It was particularly damaging to Hur that when he denied that, in his interview, Biden had correctly and forcibly stated the date of Beau’s death, the transcript was out showing that’s a lie.

But it also meant that as Hur was spending hours (fewer than the combined length of his Biden interview, though) defending calling Biden an old geezer, people were reading the transcript and seeing that he misrepresented Biden’s acuity.

The transcript is more important, however, for the way it shows that Hur — and even more so, another former Trump US Attorney, Marc Krickbaum — came into that interview with a theory of Biden’s criminal wrong-doing, repeatedly tried to sandbag the President into admitting culpability, only to have the old geezer point out their logical flaws.

Generally, the plan for the interview went like this:

  • Biden’s transition from VP to private citizen
  • Map of the houses
  • Specific furniture from 2017 in Chain Bridge and 2019 in Wilmington
  • The notebooks and the filing cabinets and the ratty box
  • [Break for the day]
  • Clarification about when Biden did send marked documents back
  • The Thanksgiving Memo
  • Confidential memo in back
  • Zwonitzer interview and 8 words out of 33 words
  • How and why he had just returned marked documents
  • His notebooks
  • The Afghan docs
  • Tranches of deliveries to the garage
  • Penn Center general
  • Penn Center specific
  • Naval Observatory meeting

On the first day, they got Biden to explain how he managed the 2017 transition and where stuff, especially furniture, was in both his existing Wilmington house and a house he rented in Virginia from 2017 to 2019 that they call Chain Bridge. It ended with a review of the box from the garage, what both men were desperate to make a smoking gun.

Much of the second day, in which Krickbaum took the lead, focused on trying to get Biden to endorse their theory that Biden had taken the Afghan documents home because he wanted to write a book on them. He debunked that theory, but they nevertheless put it into the report anyway.

The part of the report where they laid out this theory is riddled with false claims.

In the same box in the garage where FBI agents found the classified Afghanistan documents, agents also found other documents of great personal importance to Mr. Biden, including photos of his son Beau and documents Mr. Biden filed, accessed, and used in early 2017, during the same time he told Zwonitzer found the classified documents about Afghanistan in his Virginia home. 825 The evidence suggests that Mr. Biden maintained these files himself.

Mr. Biden had a strong motive to keep the classified Afghanistan documents. He believed President Obama’s 2009 troop surge was a mistake on par with Vietnam. 826 He wanted record to show that he was right about Afghanistan; that his critics were wrong; and that he had opposed President Obama’s mistaken decision forcefully when it was made-that his judgment was sound when it mattered most. 827

This evidence provides grounds to believe that Mr. Biden willfully retained the marked classified documents about Afghanistan. If he was not referring to those documents-later found in his garage-when he told Zwonitzer he had “just found all the classified stuff downstairs,” it is not clear what else Mr. Biden could have been referring to. 828

825 See Chapters Five and Six.

826 See Chapter Six.

827 See id.

828 See Chapters Five and Six

The photos of Beau were campaign photos, not personal photos. There was a good deal of administrative files in the box, which Biden pointed out in his letter, he didn’t manage himself. The report doesn’t even present proof that Biden was accessing all those files in 2017 and — as Hur himself admitted — there were files from much earlier and much later.

Since Biden had the memo he wrote himself, there was no reason to keep all the other documents. The memo was better exoneration, as it was proof not only that he was right, but that he warned President Obama in advance, the only memo of the kind he sent Obama, he claimed. And the claim that “it is not clear what else Mr. Biden could have been referring to,” is sheer fantasy. By context — the context they only provided once in the report — it was a specific reference to the memo, which (as they also showed) would have been found stuck in one of the notebooks Biden was using in the interviews.

As I laid out here, nothing about this theory ever made sense!

And, as I noted, this discussion cites to the chapters of the report I’ve called novelistic, which incorporate direct testimony only from Ron Klain. This is the theory that Hur himself describes as “reading into” the facts of the case.

But now look at how Hur and Krickbaum came into those interviews with a determination to get Biden to admit to it anyway.

On the first day, Hur led Biden through a discussion of the box and its contents (remember: the FBI put the documents into a new box out of order, and they did all questioning on documents based on photos, which were often hard to read). Biden repeatedly said that, given that there was such a mix of things in the box, someone probably just shoved them all in together.

Hur: But do remember how these materials got into the box and then how that box got into the garage?

Biden: No, I don’t remember how it got — I don’t remember how a beat-up box got in the garage.

[snip]

Somebody must’ve, packing this up, just picked up all the stuff and put it in a box, because I didn’t.

[snip]

See, that’s what makes me think just people gathered up whatever they found, and whenever the last thing was being moved. So the stuff moving out of the Vice President’s residence, at the end of the day, whatever they found, they put — they didn’t separate it out, you know, Speakers Bureau or whatever the hell it is, or Beau. They just put it in a single box. That’s the only thing I can think of.

[snip]

But my guess is that they — based on the dates, they were Vice Presidential material initially. They got put in a box and probably got sent — either to the Penn Center or to Chain Bridge Road or, for some reason, got sent up to Wilmington. [my emphasis]

At this point, Bob Bauer interrupted and noted that Hur was supposed to be asking Biden what he remembers, not asking him to engage in “detective work” about how things may have ended up where they did.

Bauer: But to be clear, your question is whether he knows —

Hur: Correct.

Bauer: — has a clear recollection of how they —

Biden: No, I have no idea.

Bauer: got [muddled] Okay.

Hur: Correct.

Bauer: I want to make sure it’s clear.

Hur: But it’s also helpful if he has thoughts as to how —

Bauer: Well, I mean, I’d like to stay with his recollection and not put him in a position where he has to speculate or —

Hur: Understood.

Bauer — create assumptions or try to engage in detective work.

Biden started looking at something and Hur brought him back to the box.

Hur offered up — literally asking Biden to endorse their theory — that because there are not other boxes with file folders in the garage, the materials in the box must have come from two file cabinets in another room, at least one of which came from Chain Bridge.

Hur: So just going back and forth, there’s blue hanging file folders, there’s some red manila folders, there’s yellow manila folder, both in the garage box and in the lower drawer of the cabinet in the den — in the pool table room. So it looks to us what happened was the materials that were in the box in the beat-up — the materials that were in the beat-up box in the garage, at some point, were in the cabinet in the pool table room. They got put in a beat-up box and shoved out in the garage.

Bauer was fairly incredulous at this leap of logic.

Bauer: Just for my sake, Rob, how do you — I just really — I honestly don’t quite understand.

Hur: Yes.

Bauer: These are file folders, right? They could — people buy file folders, so —

Hur: Correct.

Bauer: Why do you assume that that’s the trajectory here? I hope, I hope —

Hur: I am — I’m not assuming. I’m saying that it just —

Bauer: You said, you said it looks to us like this —

Hur: — from physical appearance. From physical appearance. So–

At this point, Biden and Bauer were looking at something entirely different. Once everyone was looking at the same picture (which, remember, is a picture of folders that were not in the same order as they had been in the tattered box, because the FBI rearranged the order on repacking), Hur tried again.

Hur: So was that material previously in the file cabinet that was in the pool table room and that is shown in FBI_0040?

Biden offered what was, to him, a more plausible explanation.

Biden: Wouldn’t it be more likely it was on a floor in the garage, they took it off the garage and put it in the file cabinet? Why would you put it out in the — unless you want to throw it away.

Hur: Well, maybe I framed this question — well, what are we trying to do is to figure out where was this stuff in the garage before it was in the garage.

Bauer interrupted again to remind Hur he was supposed to be asking Biden about what he remembers, and he had already said he didn’t know how the box got there.

Bauer: And my understanding, just to be clear —

Hur: Yes.

Bauer: because I really don’t want to be unhelpful, I want to be —

Hur: Yes.

Bauer: helpful, is I thought, unless I misunderstood —

Hur: Yes.

Bauer: His answer earlier was he doesn’t know how it got there.

Hur claimed that Biden said he did not recall how the box got there.

Hur: He doesn’t recall. And my follow-up —

Biden first said that he didn’t remember, because that’s the question Hur asked. But then he specifically said (bolded above) he did not pack up the box. That’s consistent with what he said about every other box they asked about, and consistent with the conclusion that Hur drew about the most sensitive documents found, which were at Penn Center.

Bauer intervened again and asked Hur to stop asking the President to speculate. Hur pretended he was just asking the question poorly, but repeated his theory that file folders must all come from the same place.

Bauer: And I’m worried that he’s about to start sort of analyzing speculative assumptions.

Hur: Sure. Well, let me, let me get the question out, because I’ve sort of framed it kind of clunkily here. So given the physical — given the fact that the materials in garage box 1 are different from everything else in the garage in that they’re in hanging file folders, and given their physical — you know, there are some similarities between their appearance and the stuff that’s in the file cabinet in the, in the pool table room, is it — are we wrong to think that maybe the stuff in the garage was formerly in the file cabinet?

Biden pointed out that — particularly since everything got delivered into the garage when it got moved — the opposite made more sense, that this box simply never got moved into the house. Then he repeated again, that he did not know how the box got there — not that he didn’t remember, but that he affirmatively did not know.

Biden: No no more than I think you’re wrong if it was the opposite, stuff that was in the file cabinet was in the garage.

Hur: I see.

Biden: In other words, I, I don’t have any idea.

Bauer intervened again.

Bauer: Yeah. I think —

Hur: Understood.

Bauer: I think we’re kind of going down a trail here that I find confusing. Frankly, I just —

Hur: Yes.

Biden, more plainly, stated that they’re “trying to establish something.” Ultimately, he described that he used to teach logic and pointed out that the logic of Hur’s theory was flawed.

Biden: They’re obviously trying to establish something.

Bauer: do. His recollection is his recollection.

Hur: Okay.

Bauer: and he doesn’t know how it got there.

Hur: Okay, fair enough.

Biden: No, but I, I don’t have any idea.

Bauer: Well, that’s, that’s — then that’s the answer then I think.

Biden: But I don’t know, it just — I used to teach logic. I don’t get even the assertion, but anyway, it doesn’t matter.

The guy Hur accused of being a geezer because he didn’t remember the year, but did (Hur forgot to put in his report) remember the date of Beau’s death ended up lecturing him on how dumb his theory was.

That also didn’t make the report.

The next day, Marc Krickbaum took a more active role in questioning. After walking Biden through the Thanksgiving memo Biden sent Obama to try to dissuade him from surging troops in Afghanistan — which Biden strongly explained he wanted to keep it secret because of the sensitivities of the memo, not because of classified information in it  — Krickbaum tested one part of his theory. Did Biden ever think about writing a book about Afghanistan? “I give you my word I never thought about that.” Biden reviewed, for a second time, what he had wanted to write about — the inflection point in history — and Krickbaum interrupted, and Bauer interrupted him. Bauer again complained that prosecutors were asking Biden to speculate so as to endorse their pet theory. In response, Krickbaum demanded a break.

Krickbaum: Okay. That answered my question.

Bauer: And Marc, just really quickly, I promise it’ll be brief. I just really would like to avoid, for the purpose of a clean record, getting into speculative areas. When the President responded and said I don’t recall intending to keep this memo, you then said well, you know, might you have thought it was important to keep it or whatever and he said well I guess, I could have — his recollection as I understand it is, he does not recall specifically intending to keep this memo after he left the Vice Presidency and I want to be — I want these questions to be as clearly answered and recorded on the transcript as possible.

Krickbaum: I think we should take a break at this point.

Laufman: Oh, come on. Come on.

They took a break.

Krickbaum then turned to the interview with Mark Zwonitzer and asked Biden about his comment that he “just found all the classified stuff downstairs,” though only describing, not quoting, the rest of the context.

Biden replied that he didn’t remember. He conceded he probably did tell Zwonitzer about the memo.

Then Krickbaum pulled a fast one, not just quoting only the 8 words without the surrounding context, but also claiming that Biden said he had found marked classified data.

Krickbaum: Okay. Do you remember telling him, “I just found all the marked classified stuff downstairs?”

Biden: Marked?

Krickbaum: Telling Mark? Do you remember saying that to him?

Biden: No.

Reminder, this is the full context, which Krickbaum summarized but did not read verbatim:

So this was – I, early on, in ’09-I just found all the classified stuff downstairs-I wrote the President a handwritten 40-page memorandum arguing against deploying additional troops to Iraq-I mean, to Afghanistan-on the grounds that it wouldn’t matter, that the day we left would be like the day before we arrived. And I made the same argument … I wrote that piece 11 or 12 years ago. [emphasis original]

After Biden stated, no, he didn’t remember raising classified information Zwonitzer, Kirckbaum again asked Biden to endorse his theory:

Kirckbaum: And I guess looking at, you know, the evidence taken together, one simple theory — and I’m just going to ask you if you have anything you want to add when I explain this theory. If the answer is no, the answer is no.

Biden: Okay.

Kirckbaum: One simple theory would be that when you told Mark Zwonitzer in February of 2017, and you were talking about Afghanistan, that you just found all classified stuff downstairs, what you mean was you just found all the classified documents about Afghanistan that were later found in your garage in the lake house. And so, we’re trying to understand if that’s what you meant or not. And I understand you’ve told us you don’t remember, but our question is really if there’s anything else — any other memory or thought you have on this that you want to share with us as we try to make sense of the evidence.

Biden: Other than, only thing I can think of is I was referring to him that I knew of the President — the memo I wrote to the President, I didn’t want that in use for any reason.

Krickbaum asked him specifically if Biden had just seen the Afghan documents that showed up in his garage years later, and Biden pointed out — without having been read the full context — that probably he was talking about the memo itself.

And yet, based on that record, when Hur and Krickbaum wrote up the report, they claimed, “it is not clear what else Mr. Biden could have been referring to.”

There were two more obvious possibilities: That Biden was referring to the red marked document he had found and had sent back. Or, that just as Biden answered, he was referring to the memo itself, which he named explicitly in his comment.

There also was a totally obvious explanation for why the Afghan documents weren’t properly returned: Because Biden wrote the memo while in Nantucket, then returned to DC separately.

Instead of considering the most obvious explanations, Hur and Krickbaum instead engage in their fiction.

No wonder the old geezer made fun of their logic.

Update: Fixed spelling of Krickbaum’s first name.

What If the Problem Is Not with Special Counsels, But Instead the Presidency?

Rod Rosenstein protégé Robert Hur will testify before the House Judiciary Committee today. He decided to come represented by one of the Republican party’s best criminal defense attorney, Bill Burck, and supported by a spox, Sarah Isgur, who played a key role in several of the hit jobs that Hur carried out with Rosenstein.

He just resigned from DOJ yesterday, which — along with his partisan hit squad — has raised concerns about what he’ll say. It’s unclear what effect that will have. When John Durham did the same thing, he actually reined in some of the false claims he had made in his report. That said, Hur has the ability to weaponize the fact that Joe Biden provided so much voluntary cooperation, meaning that many of the details in Hur’s report — like the content of classified documents discovered or of Biden’s diaries that Hur renamed notebooks to be able to snoop through them — were not obtained with a subpoena and would not be covered by grand jury secrecy. Testifying without a DOJ minder can work both ways, however; Democrats could — and should — question Hur about topics, such as:

  • Whether his supervision eliminated the kind of ethical check other prosecutors have
  • How he used attorney-client communications as a weapon against Biden when Robert Mueller, under Hur’s supervision, did the opposite
  • What role he played in depriving Andrew McCabe of due process and whether that abuse came up in the hiring process to be Special Counsel

Here’s my coverage of Hur’s report:

Robert Hur’s Box-Checking

How Merrick Garland Mistook a Trump Hitman for a Career Prosecutor

Robert Hur Complained about Biden Notes that Trump Almost Certainly Already Declassified

In Advance of Robert Hur Hit Job, DOJ Updated Public Identification Policy

How Robert Hur Ghosted Joe Biden’s Ghost Writer

Robert Hur Snooped Through Joe Biden’s Diaries after White House Warned It Would Be Unprecedented

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

Also, since transcripts show that Hur wildly misrepresented the moments where Biden couldn’t remember years, here’s my post on how Hunter Biden, like his dad, signposts his life around the grief tied to Beau’s illness and death.

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

In advance of Hur’s testimony, several people are taking a broader view, considering some problems with the current Special Counsel regime.

Chuck Rosenberg wrote a thoughtful piece about how the reporting requirement creates a problem.

Jack Goldsmith wrote a silly piece that tries to both-sides the matter.

Neither grapples with the underlying question: How do you hold a President accountable to rule of law?

Meanwhile, the transcripts of Biden’s interview with Robert Hur have been released (one, two). They don’t show what Hur claimed. Indeed, they show that former IA US Attorney Marc Krickbaum tried to sandbag Biden into admitting he knew he had documents with classification marks and Biden called him on it.

 

Tucking In Alexander Smirnov: Abbe Lowell Accuses David Weiss of Doing Russia’s Bidding

I was working on a complex post about a comment David Weiss’ prosecutors made in their response to Hunter Biden’s selective and vindictive prosecution claim in Los Angeles — bizarrely suggesting that because right wing claims had been debunked by David Weiss’ further investigation of Alexander Smirnov, it was proof that they were operating in good faith (while still adhering to claims about Joe Biden’s role in this investigation that are thoroughly debunked by the common sense implication that Biden was targeted by this investigation).

Tucked into a reply brief in Delaware, the defendant claimed that the Special Counsel’s investigation and recent indictment in the case of United States v. Alexander Smirnov “infected this case.” D. Del Dkt. 89 at p. 6. Anticipating he may make this claim in his reply here, the government notes the following. Ironically, in his recent congressional testimony before two House Committees, the defendant cited the indictment brought by the Special Counsel in the case of U.S. v. Alexander Smirnov as evidence that the Special Counsel had undermined the investigation by Republicans. He claimed, “Smirnov, who has made you dupes in carrying out a Russian disinformation campaign waged against my father, has been indicted for his lies.”12 While the defendant testified to Congress that the Special Counsel had undermined the impeachment inquiry conducted by House Republicans, to this Court he argues instead that the Special Counsel is working at the behest of House Republicans. Motion at 13. Which is it? Indeed, the defendant has no evidence to support his shapeshifting claims because the Special Counsel continues to pursue the fair, evenhanded administration of the federal criminal laws.

It was an utterly obnoxious comment, not least because prosecutors have not provided discovery relating to this — including, about David Weiss’ own role in the review of claims in 2020. These men enthusiastically chased Russian disinformation and now they’re trying to be snide about it.

I need not have bothered. In advance of a Delaware status hearing Wednesday, Abbe Lowell just filed what he fashions as a notice of additional authority — invoking the Scott Brady transcript — describing that even though David Weiss claimed to start investigating Alexander Smirnov’s allegation in July, he had already been briefed on Smirnov in 2020, but nevertheless chose to chase Russian disinformation again in July when House Republicans wailed loudly.

Although the Special Counsel claims that its investigation of Smirnov’s fantastical claims about Mr. Biden and President Biden receiving millions of dollars in bribes began in July 2023, Mr. Weiss and his team became aware of Smirnov’s claims years earlier. In October 2020, the FBI and then-U.S. Attorney Scott Brady (W.D.P.A.) passed Smirnov’s allegations to then-U.S. Attorney Weiss, and the Delaware U.S. Attorney’s Office was briefed on the claims contained in the now infamous FD-1023 alleging a fabricated foreign bribery scheme involving Mr. Biden and his father.1 Again, the FBI and DOJ had closed this investigation in August 2020 because they found Smirnov’s allegations baseless, and Mr. Weiss apparently agreed because he took no action based on them for over three years.

Then, in May 2023, it is uncontradicted that extremist Republicans in the House of Representatives pushed for the FBI (even threatening to hold its Director in contempt of Congress) to release the FD-1023 in an effort to publicly air these sensational allegations against Mr. Biden and President Biden, despite those allegations being baseless. Against its wishes, the FBI relented in July 2023. 2 With extremist Republicans and right-wing press outlets reviving interest in Smirnov’s claims, the Special Counsel apparently reopened its investigation days or weeks later. By the end of that month (July), the then-U.S. Attorney’s Office, instead of addressing with Mr. Biden’s counsel the specific questions this Court asked on July 26, instead abruptly backed away from a Plea Agreement that it signed and proposed to this Court and reneged on the Diversion Agreement. The connection between the reopening of the Smirnov allegations and the then-U.S. Attorney’s Office’s total rejection of the Agreement it made has, at the least, the appearance of catering to the shouts of extremist Republicans to scuttle the deal and keep an investigation into Mr. Biden alive.

Effectively, Lowell argues, Weiss’ decision to reopen the case against Hunter amounts to doing Russia’s bidding.

From the filings in Smirnov and other disclosures, it turns out that a Russian intelligence operation has the same goal of spreading disinformation to influence the U.S. presidential election in Russia’s favor. At a subsequent detention hearing in Smirnov’s case, Mr. Wise explained that Smirnov “met with Russian intelligence agencies on multiple occasions, and the U.S. intelligence community has concluded that Russian intelligence interfered in the 2020 election and continues to interfere in our elections by spreading misinformation.” United States v. Smirnov, No. 2:24- MJ-00166-DJA (D. Nev. Feb. 20, 2024) (Ex. 1 at 20). Mr. Wise explained that Smirnov’s “disinformation story” is part of a Russian intelligence operation “aimed at denigrating President Biden” and “supporting former President Trump.” Id. at 20–21, 33. Russia’s support of President Trump makes sense, as President Trump has praised the dictatorship of President Putin repeatedly and he continues to favor Russia over U.S. allies. See, e.g., Kate Sullivan, Trump Says He Would Encourage Russia To ‘Do Whatever The Hell They Want’ To Any NATO Country That Doesn’t Pay Enough, CNN (Feb. 11, 2024). The Special Counsel told the Nevada Court: “The effects of Smirnov’s false statements and fabricated information continue to be felt to this day.” Smirnov, DE 15 at 8 (Ex. 2 at 8); see also Govt’s Memo. in Support of App. for Review of Bail Order, United States v. Smirnov, No. 2:24-cr-00091-ODW, DE 11 (C.D. Cal. Feb. 21, 2024) (Ex. 3).

This case illustrates the very continuing harm identified by the Special Counsel. The Special Counsel tells us Russian intelligence sought to influence the U.S. presidential election by using allegations against Hunter Biden to hurt President Biden’s reelection. 3 And what did the now-Special Counsel do? The Office abandoned the Agreement it signed and filed felony gun and tax charges against Mr. Biden in two jurisdictions, which public records and DOJ policy indicate are not brought against people with similar facts as Mr. Biden. In these actions, the Special Counsel has done exactly what the Russian intelligence operation desired by initiating prosecutions against Mr. Biden.

Read the whole thing — along with other additional authority posted, a Third Circuit case holding that prosecutors have to deliver on their promises.

Whatever else these two filings do, they’ll force Weiss to explain his wildly conflicted role in this case.

David Weiss Is Smoking Roger Stone’s Witness-Tampering Gun

On Friday, David Weiss submitted most of his responses to Hunter Biden’s Motions to Dismiss in the Los Angeles tax case (he should submit a response to Hunter’s claim that the disgruntled IRS agents’ media tour amounted to a gross violation of his due process today; see links for everything here).

Expect a few posts going through them in the next few days.

Start with another embarrassingly false claim Weiss made in response to Hunter Biden’s vindictive prosecution claim that is worse, in some ways, than claiming that Keith Ablow’s picture of sawdust was instead a picture Hunter Biden had taken of cocaine.

It has to do with Roger Stone.

In an effort to claim that Hunter Biden deserves to be criminally prosecuted for tax crimes when Roger Stone was permitted a civil settlement, David Weiss falsely claimed something distinguishes Hunter — that he wrote a memoir about his alleged crime and Stone did not — when in fact, the memoir Stone did reissue during the period he was defrauding the IRS was more closely connected to Stone’s other, more damaging crimes, than Hunter’s memoir was.

If a memoir justifies a tax indictment, then Stone, not Hunter, should be the one facing prison right now.

David Weiss waives response about the import of threats to his family

There are two ways the Los Angeles vindictive prosecution discussion in Weiss’ twin prosecutions of Hunter Biden differs from the one in Delaware, at least so far. Most obviously, it’s a tax case, not a gun case, so Hunter’s attorney Abbe Lowell is making a different argument about how unusual it is for DOJ to charge someone who, like Hunter, late filed his tax returns before he knew of a criminal investigation and then, later, paid those taxes, with penalties.

That’s one difference.

A more subtle one is that Lowell, in his motion to dismiss, made explicit something he had not before: at the time David Weiss reneged on a signed diversion and plea deal, the Special Counsel feared for the safety of his family.

As a result, Mr. Weiss reported he and others in his office faced death threats and feared for the “safety” of his team and family.22

In his response, Weiss didn’t acknowledge, at all, that his own fears for the safety of his family have been made a part of the official record.

Instead, he continued to claim there’s no logical explanation for how the pressure ginned up by Trump and Republicans in Congress led him to renege on a signed plea deal. Weiss continued to claim that any connection is fictional.

[T]o state an obvious fact that the defendant continues to ignore, former President Trump is not the President of the United States. The defendant fails to explain how President Biden or the Attorney General, to whom the Special Counsel reports, or the Special Counsel himself, or his team of prosecutors, are acting at the direction of former President Trump or Congressional Republicans, or how this current Executive Branch approved allegedly discriminatory charges against the President’s son at the direction of former President Trump and Congressional Republicans. The defendant’s fictious narrative cannot overcome these two inescapable facts.

[snip]

Second, to state the obvious, former President Trump is not the President. The defendant’s father is the President. The defendant fails to establish how President Biden or the Attorney General, to whom the Special Counsel reports, or the Special Counsel himself, or his team of prosecutors, are being improperly pressured by former President Trump or Congressional Republicans, such that the Executive Branch approved allegedly selective and vindictive charges to be brought against the President’s son in violation of the law. [my emphasis]

The centrality of Weiss’ claims that President Biden has a role in all this — leftover from the period when the Alexander Smirnov prong of the investigation remained secret — is all the more ridiculous now that it’s public that, after Weiss reneged on the plea deal, he chased Russian disinformation framing Joe Biden.

But is also utterly false that Lowell offered no explanation for how pressure from Trump led Weiss to renege on that plea deal. Once you include Weiss’ own stated fear for his family in the face of threats ginned up by Trump and Congress, what Weiss himself called intimidation, Lowell has established how pressure from Trump and Congress might have led Weiss to capitulate to that pressure. The fear of stochastic terrorism is all you need.

Which brings us to Roger Stone.

Abbe Lowell raises Roger Stone as a tax cheat who got a civil resolution

As noted, the Los Angeles indictment against Hunter is a tax case. And in a selective and vindictive prosecution claim, you need to explain the norm to be able to prove you’re being treated differently. To be sure, this filing is even less focused on selective prosecution, as opposed to vindictive prosecution, than the gun case, meaning such arguments are a small part of the argument. But Weiss has been unduly focused on selective prosecution from even before Hunter first made the claim, presumably because it’s easier to prove that the Hunter Biden case is different than anything DOJ has seen before than to rebut the evidence that Donald Trump and Bill Barr tried to frame Hunter and David Weiss is a witness to that effort.

So the selective prosecution argument, in which defendants have to argue that people just like them have not been charged before, was a minor part of this filing.

But it explains why Roger Stone ended up in a footnote of the filing — as Chris Clark promised they would do over a year ago.

56 The government does not generally bring criminal charges for failing to file or pay taxes, especially if the individual paid the taxes, interest, and penalty afterwards, as Mr. Biden did in October 2021. According to the IRS Data Book for 2021, 2,600,000 taxpayer returns were not timely filed. Many, if not the vast majority, of those cases were resolved with civil resolutions, even in the most high-profile cases. For example, in United States v. Shaughnessy, a DC law partner and his wife failed to file and pay their taxes for 11 years with nearly $7.2 million owed. DOJ ultimately resolved this civilly with tax, penalties and interest only. See Joint Motion for Entry of Consent Judgment, No. 22-cv-02811-CRC (D.D.C. 2023), DE 9. In United States v. Stone, where former Trump adviser Roger Stone and his wife owed nearly $2 million in unpaid taxes for 4 years, DOJ again resolved the matter civilly. No. 21-cv-60825-RAR (S.D. Fla. 2022), DE 64.

Here’s how Weiss, treating this as the guts of Lowell’s selective prosecution claim and therefore distracting from the rest of it, responded to that footnote:

The defendant compares himself to only two individuals: Robert Shaughnessy and Roger Stone, both of whom resolved their tax cases civilly for failing to pay taxes. Shaughnessy failed to file and pay his taxes, but he was not alleged to have committed tax evasion. By contrast, the defendant chose to file false returns years later, failed to pay when those returns were filed, and lied to his accountants repeatedly, claiming personal expenses as business expenses. Stone failed to pay his taxes but did timely file his returns, unlike the defendant. Neither Shaughnessy nor Stone illegally purchased a firearm and lied on background check paperwork. And neither of them wrote a memoir in which they made countless statements proving their crimes and drawing further attention to their criminal conduct. These two individuals are not suitable comparators, and since the defendant fails to identify anyone else, his claim fails. 5

Roger Stone’s tax fraud is different from Hunter Biden’s and that’s why Hunter’s selective and vindictive prosecution claim must fail, David Weiss says.

Weiss distinguishes Donald Trump’s rat-fucker from Joe Biden’s kid in three ways (note, Weiss doesn’t address that DOJ claimed Stone hid his business income, just as Hunter allegedly did):

  • Stone didn’t pay his taxes, but did file timely returns
  • Stone didn’t buy a gun while addicted (as far as we know — though there are pictures of Stone with guns and some of his associates have alleged that Stone had addiction problems in this period)
  • Stone didn’t — Weiss claims — write a memoir “proving [his] crimes and drawing further attention to [his] criminal conduct”

It’s that last bullet that is garbage bullshit, sawdust-as-cocaine levels of stupid.

But let’s take them in order.

David Weiss uses gimmicks to limit extent that addiction can undermine the tax case

Regarding the first bullet, using the failure to file taxes in the LA case to distinguish Hunter from Stone is problematic for several reasons. First, Lowell is arguing that what changed between the plea agreement, which charged only failure to pay, and the tax indictment, which charged a mix of failure to file and failure to pay, was political pressure (and, now, threats that made Weiss worry about his family’s safety).

Notably, Weiss avoids claiming that Stone didn’t evade taxes, probably because the complaint against him alleges that Stone hid his income from the IRS in an alter ego, Drake Ventures, a kind of tax evasion for which Weiss has charged Hunter Biden, but for which Stone was not criminally charged. “By depositing and transferring” over $1 million paid to Stone in 2018 and 2019, “into the Drake Ventures’ accounts instead of their personal accounts, the Stones evaded and frustrated the IRS’s collection efforts,” the complaint alleges (my emphasis). Right there, in the complaint, DOJ claimed that Stone evaded IRS collection efforts, but Stone was not criminally charged.

To get to claiming that Hunter willfully failed to file his taxes charges during the years of his addiction, Weiss relies on a bunch of gimmicks that are at the core of his indictment against Hunter Biden. In Weiss’ responses to Lowell’s technical complaints about the indictment — which I wrote up here — he explained each of those technical complaints away using a gimmick designed to allow him to ratchet up the charges on Hunter while also mitigating the risk that Hunter’s addiction will make it harder to prove the tax case to a jury.

For example, in addition to claiming he could charge Hunter for the 2016 tax year because the President’s son signed tolling agreements with two entities — the Delaware US Attorney’s Office and DOJ Tax Division — that are not involved in this prosecution, Special Counsel Weiss claims that Hunter’s failure to pay his 2016 taxes occurred in 2020, when Hunter was sober, rather than 2016, when he misplaced a finalized tax submission.

Similarly, it’s not so much that Weiss charged Hunter twice for failing to pay his 2017 and 2018 taxes, which Lowell argued made the charges duplicitous, Weiss claims; it’s that Weiss intends to give the jury a choice for which year they want to convict Hunter on those charges — whether he failed to pay when he missed filing deadlines in 2018 and 2019 or he failed to do so when he ultimately filed in 2020, when he was sober.

It doesn’t matter that Hunter didn’t live in California for some of the tax years for which Weiss charged him in California, Weiss says, because Hunter lived in CA when he ultimately did file his taxes in 2020, without paying them. Weiss has used gimmick after gimmick to eliminate problems posed by both Hunter’s addiction and the fact that he filed his taxes before he learned of the criminal investigation into him, on top of the gimmick that he claims Hunter could afford to pay his tax burden in 2020 because Kevin Morris paid for some of his other expenses.

Effectively, to get around the willfulness problem posed by Hunter’s addiction, Weiss has shifted the date of Hunter’s crimes to 2020. But once you’ve done that, Hunter and Stone did the same thing: fail to pay taxes and also hide their income from 2018 (and 2019, in Stone’s case).

The gimmicks are just the kind of normal prosecutorial dickishness we’ve come accustomed to from this Baltimore crowd. But once you understand the effect of the gimmicks — to displace Hunter’s alleged crimes to 2020, when he submitted tax returns for four years at once — then Hunter and Stone are similarly situated, albeit with Stone accused of “evading” taxes in two calendar years, not one.

Weiss says a gun that was never fired is a worse related crime than witness tampering that was

But Weiss has a bigger problem with his effort to dismiss Stone as a comparator. He pulls two things out of his arse to present as distinguishers between Hunter Biden and Stone without (apparently) first doing the least little due diligence to check whether those things he pulled out of his arse have any basis in reality, much less to make sure they don’t actually prove him wrong.

David Weiss says that Hunter Biden is different from Roger Stone because he unlawfully owned a gun for 11 days in 2018. But the gun charge has no tie to the tax charge. Not even Weiss makes that claim!

Indeed, it’s the reverse: investigators decided not to charge gun crimes in 2018, before the tax investigation started. Prosecutors only reconsidered that because of the tax investigation — and (Lowell has alleged with no response from Weiss) because Republican politicians made Weiss afraid for the safety of his family. The only tie between the gun charges and the tax charges would be exculpatory in the tax case — Hunter’s addiction. Weiss’ prosecutors admitted the inverse relationship in Hunter’s initial appearance in Los Angeles. ‘[A]rguably,” Leo Wise said to Judge Mark Scarsi on January 11, “information in that case that is inculpatory in this case, may be arguably, exculpatory in that case.” The things prosecutors will use to prove Hunter was an addict in 2018 undermine prosecutors’ case that Hunter’s failure to file tax returns for 2017 and 2018 was willful.

By contrast, the government did claim that Roger Stone’s tax avoidance tied directly to his other crimes, crimes for which a jury had already found him guilty when DOJ filed the tax complaint in 2021.

The complaint against Stone described how he engaged in fraud to shelter his money because he was indicted.

40. In May 2017, the Stones entered into an installment agreement with the IRS that required them to pay $19,485 each month toward their unpaid taxes. They made these payments each month from a Drake Ventures’ Wells Fargo account.

41. Roger Stone was indicted on January 24, 2019, and the indictment was unsealed on January 25, 2019.

42. After Roger Stone’s indictment, the Stones created the Bertran Trust and used funds that they owned via their alter ego, Drake Ventures, to purchase the Stone Residence in the name of the Bertran Trust.

[snip]

52. The Stones intended to defraud the United States by maintaining their assets in Drake Ventures’ accounts, which they completely controlled, and using these assets to purchase the Stone Residence in the name of the Bertran Trust.

53. The Stones’ purchase of the Stone Residence using funds they held in the Drake Ventures’ Wells Fargo account is marked by numerous badges of fraud. They include:

a. The Stones were in substantial debt to the United States at the time of the transfer, rendering them insolvent at the time of the transfer and unable to pay their debt to the United States;

b. The Stones faced the threat of litigation. Roger Stone had just been indicted;

c. The Stones anticipated that the United States would resort to enforced collection of their unpaid tax liabilities once they defaulted on their monthly installment payments to the IRS; [my emphasis]

It seems DOJ believed that Stone sought to shelter his wealth in a Florida residence that would be beyond the reach of any criminal forfeiture, just like his buddy Paul Manafort did.

And this is why it matters that David Weiss continues to bury his confession to Congress that, when he reneged on the plea deal, he was afraid for the safety of his family.

The crimes for which Stone was indicted — the prosecution which DOJ explicitly tied to Roger Stone’s efforts to defraud the government — involved real threats, not the hypothetical threat of an addict owning a gun.

Roger Stone was convicted for trying to intimidate Randy Credico against testifying to Congress and Robert Mueller. Credico has described that his first contact with the FBI in 2018 was actually a Duty to Warn meeting associated with the plotting of Stone’s militia buddies, not a witness interview.

And Judge Amy Berman Jackson applied a sentencing enhancement for the threat Stone — again, with his militia buddies — made against her personally.

The defendant engaged in threatening and intimidating conduct towards the Court, and later, participants in the National Security and Office of Special Counsel investigations that could and did impede the administration of justice.

Before the Proud Boys launched an attack on the Capitol to prevent the peaceful transfer of power, before Stone allegedly threatened to assassinate one or another Democratic Congressman as well as Leo Wise and Derek Hines’ colleague and Stone prosecutor, Aaron Zelinsky, Enrique Tarrio helped Stone threaten his judge.

That’s the weapon Roger Stone was found guilty of wielding: stochastic terrorism that posed a risk to justice. Just like Donald Trump attacked David Weiss before Weiss got threats that led him to worry about the safety of his family.

And yet, having systematically ignored the threats that Donald Trump and other Republicans ginned up against his family, David Weiss is arguing that Hunter Biden owning a gun unrelated to failing to pay taxes is more incriminating than DOJ’s claims in the tax complaint that Stone’s adjudged witness intimidation tied directly to Stone’s efforts to defraud the IRS.

One is connected to the charged crime. One is not. One led to threats against a key witness and a judge. One did not.

But David Weiss, still refusing to acknowledge his testimony that he feared for the safety of his family, claims the one unconnected to the alleged tax crimes explains his decision to charge the tax crimes. Weiss’ claims about Stone don’t help his case, they show that a criminal case against Stone had more merit than this one.

David Weiss claims Hunter’s memoir is great evidence and then proves it is not

Crazier still, David Weiss is claiming that Hunter Biden wrote a memoir “proving [his] crimes and drawing further attention to [his] criminal conduct” of being an addict (neither the gun for which he is charged nor his failure to pay his taxes appear in the memoir) but Roger Stone did not.

To raise the stakes of this (embarrassingly false) claim, Weiss dedicates three paragraphs laying out how Hunter’s memoir helps to prove the gun case that, prosecutors have admitted, is inversely related to the tax case.

Then, after announcing his awareness of a federal investigation in late 2020, the following year (2021) he chose to author, sell, and promote his memoir, Beautiful Things, and to release an audiobook in a lucrative deal that heightened his prominence and drew further attention to his crimes. 1

1 As outlined in the Indictment, the defendant made statements and admissions in the book relevant to the charges against him.

B. The Defendant Also Chose to Commit Serious Gun Crimes

The defendant’s crimes were not limited to tax violations. In 2018, he chose to purchase a gun, he chose to lie on background check paperwork by stating he was not addicted to drugs, and he certified that his answers on the paperwork were true, when in fact, he had lied about his addiction. See generally United States v. Robert Hunter Biden, Indictment, Dkt. 40 (D. Del). When he later chose to publish his memoir, he included countless admissions about his drug use in 2018 when he possessed the gun.

Again, prosecutors have described that these cases are inversely related. If you prove that Hunter was an addict, as Weiss says the memoir helps him do, you also make it harder to prove that the failure to file for 2017 and 2018 was willful.

Here’s how Weiss treats Hunter’s memoir in the equivalent filing in the gun crimes case.

After the defendant publicly announced his awareness of a federal investigation of him in late 2020, see ECF 63 at 5, the following year (2021) he chose to author, sell and promote his memoir, Beautiful Things, and to release an audiobook in a lucrative book deal. Relevant to the charges in this matter, the defendant made expansive admissions about his extensive and persistent drug use, including throughout the year 2018 when he purchased the gun. For example, the defendant admitted that he was experiencing “full blown addiction” to crack cocaine and by the fall of 2018 he had gotten to the point that:

It was me and a crack pipe in a Super 8, not knowing which the fuck way was up. All my energy revolved around smoking drugs and making arrangements to buy drugs—feeding the beast. To facilitate it, I resurrected the same sleep schedule I’d kept in L.A.: never. There was hardly any mistaking me now for a so-called respectable citizen. Crack is a great leveler.

Hunter Biden, Beautiful Things (2021) at 203, 208

In the Delaware case, Weiss is arguing something different than he is in the LA case, that is about how much evidence (Weiss claims) there is to prove the gun case. As I noted, that’s actually counterproductive in the selective prosecution response, because it proves that the evidence Weiss claims to think is so damning was available in 2021, before he decided to divert the gun crime in 2023, before he came to fear for the safety of his family and then reneged on that diversion agreement.

Oh. And also? Weiss again botches the evidence. The passage cited above about a crack pipe in a Super 8 on page 208 describes the aftermath, in February 2019, of the Ketamine treatment Hunter got from Roger Stone buddy Keith Ablow that — Hunter’s memoir describes — made things worse.

The therapy’s results were disastrous. I was in no way ready to process the feelings it unloosed or prompted by reliving past physical and emotional traumas. So I backslid. I did exactly what I’d come to Massachusetts to stop doing. I’d stay clean for a week, break away from the center to meet a connection I found in Rhode Island, smoke up, then return.

[snip]

Finally, the therapist in Newburyport said there was little point in our continuing.

“Hunter,” he told me, with all the exasperated, empathetic sincerity he could muster, “this is not working.”

I headed back toward Delaware, in no shape to face anyone or anything. To ensure that I wouldn’t have to do either, I took an exit at New Haven. For the next three or four weeks, I lived in a series of low-budget, low-expectations motels up and down Interstate 95, between New Haven and Bridgeport.

I exchanged L.A.’s $400-a-night bungalows and their endless parade of blingy degenerates for the underbelly of Connecticut’s $59-a-night motel rooms and the dealers, hookers, and hard-core addicts—like me—who favored them. I no longer had one foot in polite society and one foot out. I avoided polite society altogether. I hardly went anywhere now, except to buy. It was me and a crack pipe in a Super 8, not knowing which the fuck way was up. [my emphasis]

This is in no way a description of the state of Hunter’s addiction in “fall of 2018,” when he bought a gun. It’s a description of the state of Hunter’s addiction in February 2019, after treatment from Ablow exacerbated the addiction. To make things worse, Hunter gets the timing of the 2019 follow-up treatment wrong in the book, saying it happened in February when it started in January. This passage is utterly worthless to prove the gun crime, and instead helps to prove that memoirs, especially those written by recovering addicts, are prone to narrative embellishment and error.

To sum up how dumb it is to use the memoir to rebut a selective prosecution claim at all: First, the existence of a 2021 memoir doesn’t help Weiss’ selective prosecution rebuttal in either case, because that evidence was available before Weiss decided to resolve both cases without jail time in June 2023 and so only raises more questions about why he reneged on that deal. The memoir actually isn’t all that helpful to prove the status of Hunter’s addiction in October 2018, because Hunter doesn’t provide as much detail of that as he did of his exploits in Los Angeles, from earlier in the year. Worse still, relying on a passage describing events in February 2019, after Ketamine treatment led Hunter to backslide, and claiming it describes the status of Hunter’s addiction in fall 2018 is only going to prove you never bothered to check your evidence before you indicted on gun crimes. And, finally, Weiss’ prosecutors have admitted there’s an inverse relationship between these two cases! Proving that Hunter was addicted in this period will only make it harder to prove that his non-payment in 2017 and 2018 was willful and may even provide basis to argue that Hunter didn’t willfully lie to his accountant in 2020, but rather couldn’t remember what happened in 2018. The fact that Hunter gets dates wrong in the memoir will actually help that case.

It’s all such a nutty argument, using this memoir as a distinguisher in the tax case.

Roger Stone’s memoir was far more closely connected to his crimes and tax evasion than Hunter’s was

Nuttier still, given the fact — fact! — that Roger Stone did too write a memoir about his crimes!

The claim that Stone didn’t write a memoir about his crimes is as transparently, embarrassingly false as David Weiss’ claim that a photo of a photo of sawdust was instead a picture of Hunter Biden’s cocaine.

Not only did Stone write a memoir about his claimed actions in the 2016 election, he reissued it in paperback, with a lengthy introduction in which he codified the cover story that would prove to be false at trial later that year. As noted in this post, that introduction made a number of claims that were part of Stone’s cover story, including:

  • Describes learning he was under investigation on January 20, 2017
  • Discounts his May 2016 interactions with “Henry Greenberg” — a Russian offering dirt on Hillary Clinton — by claiming Greenberg was acting as an FBI informant
  • Attributes any foreknowledge of WikiLeaks’ release to Randy Credico and not Jerome Corsi or their yet unidentified far more damning source while disclaiming any real foreknowledge
  • Gives Manafort pollster, Tony Fabrizio, credit for the decision to focus on Michigan, Wisconsin, and Pennsylvania in the last days of the election
  • Blames Jeff Sessions for recusing from the Russian investigation
  • Harps on the Steele dossier
  • Dubiously claims that in January 2017, he didn’t know how central Mueller’s focus would be on him
  • Suggests any charges would be illegitimate
  • Complains about his financial plight
  • Falsely claims the many stories about his associates’ testimony comes from Mueller and not he himself
  • Repeats his Randy Credico cover story and discounts his lies to HPSCI by claiming his lawyers only found his texts to Credico after the fact
  • Suggests Hillary had ties to Russia
  • Notes that Trump became a subject of the investigation after he fired Jim Comey [my emphasis]

Those two bolded bits are the core of the case that would be charged in January 2019 and convicted in November 2019. This introduction is part of the same cover-up, one that attempts to profit off his cover-up and protection of Donald Trump.

He reissued it, in part, for financial reasons, including an effort to pay collaborators in the 2016 story that were likely also trial witnesses. That paperback came out in precisely the period in 2019 during which, the tax claim against Stone alleged, he was shifting money to defraud the government because he had been indicted. Stone planned a media blitz that clashed with the gag imposed on him — imposed on him, again, because he and his militia buddies were posting pictures of Judge ABJ with a crosshairs on it.

We know all this because Roger Stone almost went to jail for it. This post describes that conflict.

On February 21, 2019, Amy Berman Jackson gagged Stone in response to the Instagram post targeting her, describing that his incitement might lead “others with extreme views and violent inclinations” to take action.

Let me be clear, at the time of his post he was permitted to criticize the special counsel, the designation of the cases related, and the previous decisions of the judge to whom the case had been assigned. But I am not reassured by the defense suggestion that Mr. Stone is just all talk and no action and this was just a big mistake.

What concerns me is the fact that he chose to use his public platform, and chose to express himself in a manner that can incite others who may feel less constrained. The approach he chose posed a very real risk that others with extreme views and violent inclinations would be inflamed. You don’t have to read the paper beyond today to know that that’s a possibility.

And these were, let there be no mistake, deliberate choices. I do not find any of the evolving and contradictory explanations credible. Mr. Stone could not even keep his story straight on the stand, much less from one day to another. There is some inconsistency in his telling me on the one hand that these public communications are an existential endeavor, essential not only to his income but his very identity, and then, on the other hand, telling us, It wasn’t me.

On March 1, Stone’s attorneys filed a “notice” arguing that the book should not be covered by her gag. On March 4, they submitted a filing saying, oops! it is too late. On March 5, ABJ denied Stone’s request that the book be excluded from the gag and ordered more briefing. On March 11, Stone submitted a bunch of documentation showing (among other things) that at least one of his attorneys was centrally involved in the book publication.

The Bertran Trust was not only an effort to keep money away from the IRS.

It was an attempt to keep the proceeds of a book that violated the gag order imposed to avoid more incitement. It was an attempt to profit off continuing to protect Donald Trump.

And David Weiss, after relying on a Hunter Biden memoir that might help prove the gun case but actually hurts his tax case, claims that memoir doesn’t exist.

And that’s before you consider the book introduction that Stone wrote for Keith Ablow, the guy whose therapy — Hunter’s memoir describes — made his addiction worse, the guy in whose cottage Hunter was staying when his life was packaged up to be sent to David Weiss to use in prosecution.

After looking at Keith Ablow’s sawdust picture and claiming it was Hunter’s cocaine, Weiss has now looked at Ablow buddy Roger Stone and claimed that a memoir that is more closely connected with his tax dodging and dangerous crimes and instead claimed that memoir simply doesn’t exist.

And that is the basis Weiss gives for charging Hunter Biden with tax crimes.

Timeline

October 30, 2018: ABC reports that Stone hired Bruce Rogow in September, a First Amendment specialist who has done extensive work with Trump Organization.

October 31, 2018: Date Corsi stops making any pretense of cooperating with Mueller inquiry.

November 6, 2018: Democrats win the House in mid-term elections.

November 7, 2018: Trump fires Jeff Sessions, appoints Big Dick Toilet Salesman Matt Whitaker Acting Attorney General.

November 8, 2018: Prosecutors first tell Manafort they’ll find he breached plea deal.

November 12, 2018: Date Corsi starts blowing up his “cooperation” publicly.

November 14, 2018: Date of plea deal offered by Mueller to Corsi.

November 15, 2018: Mike Campbell pitches Stone on a paperback — in part to ‘retake the narrative — including a draft of the new introduction.

November 18, 2018: Jerome Corsi writes up his cover story for how he figured out John Podesta’s emails would be released.

November 20, 2018: After much equivocation, Trump finally turns in his written responses to Mueller.

November 21, 2018: Dean Notte reaches out to Grant Smith suggesting a resolution to all the back and forth on their joint venture, settling the past relationship in conjunction with a new paperback.

November 22, 2018: Corsi writes up collapse of his claim to cooperate.

November 23, 2018: Date Mueller offers Corsi a plea deal.

November 26, 2018: Jerome Corsi publicly rejects plea deal from Mueller and leaks the draft statement of offense providing new details on his communications with Stone.

November 26, 2018: Mueller deems Paul Manafort to be in breach of his plea agreement because he lied to the FBI and prosecutors while ostensibly cooperating.

November 27, 2018: Initial reports on contents of Jerome Corsi’s book, including allegations that Stone delayed release of John Podesta emails to blunt the impact of the Access Hollywood video.

November 29, 2018: Michael Cohen pleads guilty in Mueller related cooperation deal.

December 2, 2018: Roger Stone claims in ABC appearance he’d never testify against Trump and that he has not asked for a pardon.

December 3, 2018: Trump hails Stone’s promise not to cooperate against him.

December 9, 2018: Stone replies to Campbell saying that because he never made money on Making of the President, he has no interest.

December 13, 2018: Tony Lyons and Grant Smith negotiate a deal under which Sky Horse would buy Stone out of his hardcover deal with short turnaround, then expect to finalize a paperbook by mid January. This is how Stone gets removed from the joint venture — in an effort to minimize his risk.

December 14, 2018: Mueller formally requests Roger Stone’s transcript from House Intelligence Committee.

December 17, 2018: Smith, saying he and Stone have discussed the deal at length, sends back a proposal for how it could work. This is where he asks for payment the next day, to pay someone off for work on the original book.

For some reason, in the ensuing back-and-forth, Smith presses to delay decision on the title until January.

December 19, 2018: It takes two days to get an agreement signed and Stone’s payment wired.

December 20, 2018: HPSCI votes to release Stone’s transcript to Mueller.

January 1, 2019: Stone includes Keith Ablow on his annual best dressed list.

January 8, 2019: Paul Manafort’s redaction fail alerts co-conspirators that Mueller knows he shared polling data with Konstantin Kilimnik.

January 13, 2019: Stone drafts new introduction, which he notes is “substantially longer and better than the draft sent to me by your folks.” He asks about the title again.

January 14, 2019: Stone sends the draft to Smith and Lyons. It is 3386 words long. Lyons responds, suggesting as title, “The Myth of Collusion; The Inside Story of How I REALLY Helped Trump Win.” Lyons also notes Stone can share the book with Senators.

Stone responds suggesting that he could live with, “The Myth of Collusion; The Inside Story of How Donald Trump really won,” noting, “I really can’t be seen taking credit for HIS victory.”

By end of day, Skyhorse’s Mike Campbell responds with his edits.

January 15, 2019: The next morning, Smith responds with his edits, reminding that Stone has to give final approval. Stone does so before lunch. Skyhorse moves to working on the cover. Late that day Campbell sends book jacket copy emphasizing Mueller’s “witch hunt.”

January 16, 2019: Tony Lyons starts planning for the promotional tour, asking Stone whether he can be in NYC for a March 5 release. They email back and forth about which cover to use.

January 18, 2019: By end of day Friday, Skyhorse is wiring Stone payment for the new introduction.

January 24, 2019: Mike Campbell tells Stone the paperback “is printing soon,” and asks what address he should send Stone’s copies to. WaPo reports that Mueller is investigating whether Jerome Corsi’s “severance payments” from InfoWars were an effort to have him sustain Stone’s story. It also reports that Corsi’s stepson, Andrew Stettner, appeared before the grand jury. That same day, the grand jury indicts Stone, but not Corsi.

January 25, 2019, 6:00 AM: Arrest of Roger Stone.

January 25, 2019, 2:10 PM: Starting the afternoon after Stone got arrested, Tony Lyons starts working with Smith on some limited post-arrest publicity. He says Hannity is interested in having Stone Monday, January 28 “Will he do it?” Smith replies hours later on the same day his client was arrested warning, “I need to talk to them before.”

January 26, 2019: Lyons asks Smith if Stone is willing to do a CNN appearance Monday morning, teasing, “I guess he could put them on the spot about how they really go to this house with the FBI.”

January 27, 2019: Smith responds to the CNN invitation, “Roger is fully booked.” When Lyons asks for a list of those “fully booked” bookings, Smith only refers to the Hannity appearance on the 28th, and notes that Kristin Davis is handling the schedule. Davis notes he’s also doing Laura Ingraham.

January 28, 2019: The Stones pay $19,485 to IRS.

January 28, 2019: The plans for Hannity continue on Monday, with Smith again asking for the Hannity folks to speak to him “to confirm the details.” In that thread, Davis and Lyons talk about how amazing it would be to support “another New York Times Bestseller” for Stone.

February 15, 2019: After two weeks — during which Stone was indicted, made several appearances before judges, and had his attorneys submit their first argument against a gag — Stone responded to Campbell’s January 24 email providing his address, and then asking “what is the plan for launch?” (a topic which had already been broached with Lyons on January 16). Campbell describes the 300-400 media outlets who got a review copy, then describes the 8 journalists who expressed an interest in it. Stone warns Campbell, “recognize that the judge may issue a gag order any day now” and admits “I also have to be wary of media outlets I want to interview me but don’t really want to talk about the book.”

February 18, 2019: Release of ebook version of Stone’s reissued book.

February 21, 2019: After Stone released an Instagram post implicitly threatening her, Amy Berman Jackson imposes a gag on Stone based on public safety considerations.

February 25, 2019: The Stones transfer $70,000 from Drake to Attorney account.

February 28, 2019: The Stones transfer $70,000 from Drake to Attorney account. The Stones pay $19,485 to IRS.

March 1, 2019: Ostensible official release date of paperback of Stone’s book. Stone submits “clarification” claiming that the book publication does not violate the gag.

March 4, 2019: Stone submits filing saying it is too late to hold the book.

March 5, 2019: The Stones establish Bertran Trust.

March 5, 2019: ABJ denies Stone’s request to exclude the book from the gag and orders further briefing.

March 11, 2019: Stone response to ABJ order, including exhibits showing that at least one of his attorneys knew of the imminent book release at the gag hearing.

March 22, 2019: The Stones purchase condo using $140,000 transfered from Drake Ventures account.

March 27, 2019: The Certificate of Trust recorded in Broward.

March 28, 2019: The Stones fail to make IRS payment, leading to default.

May 24, 2019: The Stones open three bank accounts in name of Bertran Trust.

June 2, 2020: Roger Stone writes forward to Keith Ablow book celebrating Trump.