David Weiss Maintains He Can Use Hunter Biden’s Diversion Statements at Failed Plea Hearing

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David Weiss has made a show of agreeing to Hunter Biden’s Motion in Limine to exclude statements from his failed plea colloquy but has done nothing of the sort.

In response, he claims that he has already agreed to this, but has submitted his own order because the scope Hunter is asking for is broader than that covered by rules of criminal procedure.

The United States, by and through undersigned counsel, respectfully submits this Response to defendant’s motion in limine (Doc. No. 137). The government previously advised the defendant that the government does not intend to introduce the defendant’s statements from the July 26, 2023, hearing outside the limits of Federal Rule of Criminal Procedure 11(f) and Federal Rule of Evidence 410. Because the relief he requests, the exclusion of such statements “in this matter,” is broader than Federal Rule of Evidence 410, the government asks the Court to grant his motion in part and enter the attached order to this pleading which conforms with the Rules.

FRE 410 has an exception, allowing prosecutors to use statements for use in false statements charges, as has been charged here.

(b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):

(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or

(2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.

Hunter’s proposed order is broader than that — it excludes such statements altogether.

Among the things Hunter agreed to at the plea hearing was language written by Weiss’ team describing Hunter’s well-documented struggle with abuse.

THE COURT: All right. Thank you. Okay. In the next paragraph, it says you have a well-documented and long-standing struggle with abuse and you did tell me already, I’m not going to ask you again about your efforts to treat that. But when we talk about well-documented, is there a particular thing that we’re looking at for where it’s documented or is that just based on your discussions?

THE DEFENDANT: Well, I believe the government is referring to a book that I wrote about my struggles with addiction in that period of time in my life. And quite possibly other news outlets and interviews and things that have been done.

In other words, prosecutors made a big show of agreeing, but instead have carved out their ability to use Hunter’s admissions to being an addict at trial.

To be clear: Under the rules of evidence they can use the plea colloquy (something that has come up over and over). Hunter is asking for broader exclusion, but Weiss is playing games to make it look like he’s agreeing (meaning Judge Noreika will not review the issue), while instead getting her to sign an order permitting them to use everything.

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Hunter Biden Prosecutor Leo Wise Aspires to Be the James Comer of John Durhams

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In a filing submitted last week opposing Hunter Biden’s [surely doomed] bid for a continuance of his California trial until September, Leo Wise argued that this is just a garden variety tax case that doesn’t merit any more time to prepare than the week between the Delaware case and the California case.

The defendant claims that he requires only “a small amount of additional time to adequately prepare” ECF 97, p. 5 (emphasis added). However, he asks for this “limited reprieve,” ECF 97, p. 4, of 77 days without providing any details about how those two and half months would be utilized. His filing is simply unclear about what the defendant would actually do with any additional time. His perception of this case as “uniquely challenging and high-profile,” ECF 97, p. 5, is unlikely to change if a continuance is granted. The fact that there may be more press coverage of this trial than others does not affect the preparation required by counsel in any way. This is a straightforward tax case, and the defendant has not alleged otherwise. He is not above the rule of law and should be treated like any other defendant. Every case has pretrial deadlines; the fact that they exist here cannot support a continuance request. Given the complete lack of specificity as to what needs to happen between now and trial (other than compliance with the usual pretrial deadlines which the defendant has known about since January), the factor of usefulness does not support a continuance. [my emphasis]

But a motion in limine filed by Hunter Biden reveals that claim is false.

Wise has no intention of treating this as a straightforward tax case.

After Hunter Biden agreed, in response to Weiss’ own motion in limine, not to mention how Leo Wise had been badly duped by Alexander Smirnov and instead of dropping the case, continued to give Russia what it intended all along, a political hit job on Joe Biden during the 2024 election, Hunter asked David Weiss’ team if they would likewise agree not to make this a trial about influence-peddling.

Weiss refused.

Defendant Robert Hunter Biden, by and through his counsel of record, hereby files this Motion in Limine to exclude from trial reference to any allegation that Mr. Biden (1) acted on behalf of a foreign principal to influence U.S. policy and public opinion, (2) violated FARA, (3) improperly coordinated with the Obama Administration, (4) received direct compensation from any foreign state, (5) received compensation for actions taken by his father that impacted national or international politics, or (6) funneled money to his father or any related alleged corruption (together, allegations of “improper political influence and/or corruption”). This evidence should clearly be excluded under the Federal Rules of Evidence 403 balancing test, as the risk of unfair prejudice is significantly outweighed by any marginal probative value. On May 17, 2024, Mr. Biden’s counsel asked for the Special Counsel’s position on this proposed motion in limine. On May 20, 2024, the Special Counsel indicated that he opposes this motion.

[snip]

Although the Special Counsel’s filed exhibit list (DE 88) contains upwards of forty descriptions that are totally insufficient to identify what document is being referred to (see, e.g., “Text Messages” (#073), “Notes” (#318)), it is clear that many exhibits the Special Counsel intends to introduce relate to allegations of improper political influence and/or corruption that are wholly outside of the scope of the Indictment. See, e.g., “Email from Eric Schwerin to Antony Blinken re: My Remarks In Latvia” (GX-267), “Email from Eric Schwerin to Sally Painter re: Amos Hochstein” (GX-262). Allowing in evidence or testimony related to the unsubstantiated claims of improper political influence and/or corruption run a real risk of the jury convicting Mr. Biden based on facts and allegations outside of the Indictment.

Defense counsel notes that it is ironic that the Special Counsel has filed a motion in limine to exclude evidence “alleging the prosecution of the defendant is somehow due to or part of a Russian malign election influence campaign,” which Mr. Biden did not object to. (DE 92 at 4.) Yet, the Special Counsel opposes the instant motion, which would preclude him from putting forward similar politically charged information to the jury. To prevent this trial from becoming a trial on politics rather than a trial on the charges in the Indictment, this Court should grant both the Special Counsel’s motion as it relates to a “Russian malign election influence campaign” and this Motion.

Having investigated for six years, David Weiss never substantiated a FARA case. But (as the exhibit list makes clear) he wants to drag that into what he claims is a straightforward tax case anyway.

The scope of Leo Wise’s aspirations to use the tax case as a vehicle to air James Comer’s fevered fantasies is made clear by something else Wise revealed in that same filing: The reason giving Hunter Biden more than a week between trials would harm the government is because they plan to make more than thirty people from around the country fly to California to testify against Joe Biden’s kid.

The defendant is not seeking a modest delay of a few days to obtain a piece of evidence or to procure a witness. He seeks a 77-day delay in a case the government has extensively prepared for following a detailed and lengthy investigation. This will inconvenience the United States. For instance, the government anticipates calling more than thirty witnesses, most of them out-of-state. See Declaration of Leo J. Wise, at ¶4 . Trial subpoenas began being sent to these witnesses over a month ago. Id. Many of these individuals are represented; the witnesses and their counsel have planned their summer schedules to account for this trial commencing in June and concluding in July.

You don’t need to call 30 witnesses to present your tax case against Hunter Biden!!

The key witnesses will be Hunter’s ex-wife, Katie Dodge, no more than eight people Hunter paid out of Owasco funds and then wrote off (including, it seems, Hallie Biden, whose testimony Weiss is compelling), maybe a sex worker or two to titillate Matt Gaetz (Weiss has similarly refused to exclude the sex workers), the accountant who filed Hunter Biden’s taxes in 2020, former Hunter business partners Rob Walker and Eric Schwerin, and some law enforcement witnesses to present all the paperwork. That’s around 16 witnesses.

If Weiss really does call over 30 witnesses, it will make this “straightforward tax case” into the largest Special Counsel trial in recent years (as laid out by the list below).

The sheer overkill of Leo Wise’s aspirations is clear when you compare Hunter’s case — for a failure to pay taxes from income that all came through the US — to Paul Manafort’s EDVA trial. Like the Hunter Biden case, that was a tax case, one for which tax evasion was charged for five years, not one, and one for which the scope of income was at least an order of magnitude larger. Because Manafort’s tax evasion involved keeping his Ukraine income offshore in Cyprus, that case also included charges of FBAR violations. It also included nine counts of bank fraud. So tax evasion, plus hiding his funds overseas, plus trying to cheat some banks in the US. Prosecutors called a bunch of local Alexandria vendors, because one way Manafort shielded his income was by wiring money directly to US vendors to pay for things like Ostrich-skin vests.

And for all that, at this stage of the proceedings, prosecutors estimated they would call 20 to 25 witnesses; they ultimately called 27.

Leo Wise wants to do something more spectacular than the Paul Manafort case — and given his close ties to Rod Rosenstein, I wouldn’t rule out the grandiosity of his aspirations as some kind of payback. Of course, there’s a straight through-line between the Manafort case and the Russian-backed effort to fuck over Joe Biden, so Leo Wise is giving Russia precisely what they wanted.

Leo Wise was sure he was smarter than Lesley Wolf and so chased the Alexander Smirnov allegation only to discover he was participating in an attempt to frame Joe Biden. Having been duped there, Leo Wise now refuses to back down. He will stage the most spectacular Special Counsel trial yet!

Update: My apologies to Judge Scarsi. He has apparently granted the continuance to September 5.

Other Special Counsel prosecutions

Scooter Libby: 10 Government Witnesses (plus three CIA briefers not called)

Roger Stone: 5 Government Witnesses (plus Andrew Miller, Michael Caputo, and Jerome Corsi, not called)

Michael Sussmann: 25 Government Witnesses (about 5 not called)

Igor Danchenko: 6 Government Witnesses

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How David Weiss Plans to Prove the Gun Case against Hunter Biden

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In addition to their ham-handed attempt to cover up that the gun shop at which Hunter Biden purchased a gun fluffs gun purchase documents for “celebrity” purchasers, David Weiss’ team submitted their trial brief for the gun case yesterday. That, taken in conjunction with their Motions in Limine, provides a good sense of the gimmicks they plan to use to win the case against Hunter Biden. (You can find all these filings at my Hunter Biden page, which for the Delaware case is up to date.)

Ignore the Gun Shop’s Celebrity Treatment

As noted, David Weiss’ crack prosecutors only discovered that the gun shop had altered the Hunter Biden gun form after the fact when Abbe Lowell told them that at a status hearing last week.

They quickly reinterviewed gun shop employees, only to discover their testimony conflicts about whether they got that second form of ID in real time, or instead blew off doing so because Hunter was a “celebrity” purchaser and everyone knew his father.

In their belated motion in limine trying to prevent Hunter Biden from revealing that the gun shop altered this very form after the fact, prosecutors argue that relying on evidence about alterations made three years after the fact would amount to putting the gun shop owner on trial.

Except it’s not that simple. Both the 302 of the gun shop owner and the guy who sold the gun make it clear that someone in a back room is responsible for ensuring that the paperwork is in order, along with a clerk who handles the documents a third time. “He would not have paid attention to the paperwork side of the sale,” sales guy Gordon Cleveland told the FBI, “because he had already done his part by working with the customer and making the sale.” That is, the only guy in contact with the customer is not in charge of ensuring that the paperwork is in order — some guy in a back room, who submits the form to the authorities, is in charge of that.

Gun shop owner Ronald Palimere explained that his shop bifurcates the roles that way to “prevent errors.” Except even the tracking number did not get added to this form until after it was submitted to ATF; they appear to have added it after it was clear there was an investigation into the gun. The bifurcated role did the opposite of ensuring compliance.

In other words, if Judge Maryellen Noreika allows Hunter Biden to present this scandalous detail, it provides one way to sow doubt: if the gun shop was willing to alter the form three years after submission to belatedly comply with requirements, who’s to say they weren’t the ones who asserted that Hunter Biden wasn’t an addict?

Continue to Misrepresent Hunter Biden’s Memoir

When this is all said and done, I’m going to count the number of times that David Weiss and the two Trump-appointed judges justified this prosecution with a claim that everything they needed for the prosecution appeared in Hunter Biden’s memoir, with prosecutors and Judge Noreika all making false claims about what’s actually in the memoir, in the prosecutors’ case, repeatedly.

The problem is that Hunter actually didn’t say much about what happened between the time he returned to Delaware in October 2018 and when he went to Massachusetts for Ketamine treatment at the hands of Fox News pundit Keith Ablow that November. All those claims that the memoir provided abundant evidence to prove the gun case against Hunter? Nope.

And, as I’ve laid out repeatedly, what prosecutors once claimed showed the state of Hunter Biden’s addiction in October 2018, when he bought the gun, and still claim presents his continued state of addiction from October 2018, is actually his description of his addiction after (Hunter describes) the Ketamine treatment made it 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]

And they keep massaging this timeline. In their latest iteration in the trial brief, prosecutors try to minimize how long Hunter was in Ablow’s treatment (which, in any case, is inaccurate in Hunter’s book).

In his book, the defendant describes that he had a short stint at a therapistrun wellness center in Newburyport, Massachusetts, where the defendant says he sought drug addiction therapy.

By “brief,” these prosecutors mean Hunter claimed he spent 8 weeks in Newburyport, but the available evidence shows his follow-up trip started in mid-January, weeks earlier than he claimed in the book.

I would make two trips up there, staying for about six weeks on the first visit, returning to Maryland, then heading back for a couple weeks of follow-up in February of the new year.

As noted here, prosecutors are trying to edit the memoir to say what they want it to say, cherry picking pages and presenting them out of context. After I noted that they had excluded the part that shows Hunter arriving back in Delaware, they’ve added it belatedly in their trial brief.

7 Page 203 was inadvertently omitted from the government’s excerpts at Doc. No. 119-1. The government includes this single page in Exhibit 1 to this filing (it is the only page added to the submission at 119-1).

Abbe Lowell unsurprisingly objected to this cherry picking.

Lastly, setting aside the admissibility of additional statements from Mr. Biden’s memoir, equally concerning is the Special Counsel’s selective redaction to statements contained in the pages in Exhibit 1, without regard to the completeness of those proffered pages. For example, on page 219 (Chapter 11 title page, “Saved”), the Special Counsel included the opening sentence, “By the time my plane touched down in Los Angeles in March 2019, I had no plan beyond the momentto-moment demands of the crack pipe.” Ex. 1 at 219. However, the very next sentence on the page is redacted: “I was committed to one thing: vanishing for good.” Such a statement—whether Mr. Biden was in such despair or depression that he wanted to disappear, or worse, relent to suicidal thoughts—again goes to Mr. Biden’s then-existing state of mind, and should Mr. Biden seek its admission at trial, it ought to be admissible subject to its relevance and probative value.

[snip]

Just as importantly, these redacted pages ignore the common-law doctrine of completeness codified in Rule 106—limited to writings or recorded statements. Fed. R. Evid. 106, Adv. n.1. The rule’s purpose is to prevent a party from misleading the jury by allowing into the record relevant portions of the excluded testimony which clarify or explain the part already received. United States v. Ricks, 882 F.2d 885, 893 (4th Cir. 1989). But that is exactly what the Special Counsel has asked to do here—determining what it deems relevant, without regard to the complete context and conditions as Mr. Biden described it in his memoir.

This is one of just a few key decisions before Judge Noreika that may determine the outcome of the trial: whether she lets prosecutors effectively rewrite Hunter’s memoir so it tells a story that it really doesn’t.

Virgin Birth the Laptop

The other is what to do about the laptop.

Last August, prosecutors brashly told Abbe Lowell they didn’t need any laptop evidence to prove their case, that all of it also existed in Hunter’s iCloud data. That was, of course, over three months before they obtained the first warrant to search Hunter’s digital evidence for gun crimes, so they should not — and may not — have known how wrong they were.

Prosecutors now submitted what they bill as a summary chart of the communications they say support their case. Even more of the comms they’re relying on come from the laptop than when Derek Hines admitted they were relying on laptop comms in February.

Fully half — 148 out of 294 messages or videos — are sourced to the laptop (I’ve split out some of the laptop messages to highlight ones that are temporal outliers, which I may return to). And, as was true of Hines’ earlier filing, Weiss is relying on communications that only exist on the laptop to show Hunter’s state of mind in the period he owned the gun.

 

In a motion in limine, Weiss’ team tried to argue that because two FBI guys have certified that what they’ve shared is what they got from Apple and John Paul Mac Isaac, they don’t need to further validate these communications. They’re claiming this summary table is sufficient.

The government moves for a preliminary determination, as authorized by Federal Rule of Evidence 104, that a 1006 summary chart that summarizes the electronic evidence is admissible in evidence during trial, and the underlying evidence it summarizes is authentic pursuant to Federal Rule of Evidence 902(14). The summary chart satisfies the requirements of Rule 1006. The chart accurately summarizes electronic evidence derived from search warrants of the defendant’s Apple iCloud account and the defendant’s laptop and hard drive.

This ploy attempts to substitute the act of summarizing for the act of proving technical admissibility.

Unsurprisingly, the trial brief does not describe any plan to call the two technical experts — Robert Gearhart and Michael Waski — to describe the technical validity of the laptop. Weiss similarly is not calling Boyd Pritchard, the FBI agent who made a show of searching the laptop for gun crime evidence after Weiss finally got a warrant to do so.

In fact, Erika Jensen — the same woman who did interviews of the gun shop employees, at least one by herself — may be the only FBI employee (the forensic expert who tested the powder in the pouch that once held the gun may be the other) Weiss definitely plans to call to testify. And Jensen’s summary chart claims to rely on the original December 2019 laptop warrant rather than the December 2023 one as authority to have seized gun-related content.

This testimony will likely make or break any ongoing career at the FBI, because prosecutors are hanging this entire prosecution on her testimony (though I guess if Trump wins the election, she can expect a fat promotion). Particularly given that she’s the sole Agent to be involved in those key gun shop interviews, this could be more difficult than originally imagined.

It is common for prosecutors to try to “clean team” damning parts of the investigation — ensuring that investigative personnel privy to inconvenient facts never take the stand. Weiss has largely clean-teamed the entire underlying investigation.

This is, unsurprisingly, the topic about which Abbe Lowell had the most to say.

The Special Counsel seeks to exclude any authenticity challenge to six iCloud backup files included in its summary chart are self-authenticating pursuant to Rule 902(14). 1 That data, obtained in 2019 and 2020 from a search warrant to Apple, Inc. and, by subpoena and later a search warrant for The Mac Shop in Delaware, consists of more than 18,000 pages from various sources, including four iCloud backup files from Apple, Inc. and two backup files from a MacBook laptop and external hard drive subpoenaed from The Mac Shop in December 2019. (D.E.120 (“Mot.”) at 1, 3.) Defense counsel has numerous reasons to believe the data had been altered and compromised before investigators obtained the electronic material from Apple Inc. and The Mac Shop, such that the Special Counsel’s claim that the underlying data is “authentic” (id. at 4) and accurately reflects “defendant’s Apple Macbook Pro and [] hard drive” (id. at 2) is mistaken.

[snip]

Mr. Biden’s counsel told the Special Counsel on May 10, 2024 it agrees not to challenge the authenticity of the electronic data the Special Counsel intends to use with respect to it being what law enforcement received on December 9, 2019 from John Paul Mac Isaac (owner of The Mac Shop), and from Apple on August 29, 2019 and in a follow-up search on July 10, 2020. (Mot. at n.3.) However, Mr. Biden cannot agree this electronic data is “authentic” as to being his data as he used and stored it prior to Mac Issac [sic] obtaining it. Mac Issac [sic] claims he received an Apple MacBook laptop from a customer on April 12, 2019. FBI investigators did not obtain that data until December 9, 2019 through a grand jury subpoena, or gain lawful permission to access it until December 13, 2019 through a search warrant (No. 19-309M), some eight months after the Mac Isaac acquired the laptop. 2

2 The prosecution only received Office of Enforcement Operations approval to seek a search warrant for the laptop and hard drive on December 12, 2019, with the warrant issued the following day. See Gary Shapley, Laptop and Hard Drive Timeline (Oct. 22, 2020), Ex. 6 to Test. before H. Comm. on Ways & Means (May 26, 2023). Any access by FBI CART agents prior to December 12, 2019 was unauthorized, and Mr. Biden’s counsel objects to the any unlawful access of the laptop or hard drive prior to December 13, 2019.

Lowell only cites John Paul Mac Isaac’s claims about accessing the laptop (which Lowell presumably has gotten in sworn fashion as part of the lawsuit), media reviews of the laptop (which probably reflect the data post-dating the FBI’s receipt of the laptop), and Lev Parnas’ description of being offered the laptop as part of Rudy’s information operation.

I’ve shown repeatedly (for example, one, two, three, four, five) that there are more indices of compromise throughout this data — indices that Weiss tries to brush away with a frankly stupid explanation that Hallie Biden will testify Hunter often “lost” phones.

Witness 3 observed that the defendant frequently lost phones and changed phones, which explains gaps in time where there are no messages.

Given the way Hunter backed up his data except on the laptop that ended up being delivered to John Paul Mac Isaac, this should not create the gaps Weiss has identified. He may have even more problems explaining why there are isolated comms in particular places where — given the temporal patterns here — they shouldn’t be.

In any case, in the five pages Lowell had, I’m not sure he has made this case. Plus, Judge Noreika is vulnerable on this point herself, having ruled that there’s no proof Rudy Giuliani influenced this case even while claiming data that is publicly available because of Rudy instead derived to Hunter’s memoir.

David Weiss’ case should be far more solid than it is. The gun shop’s alterations of gun form data provides Hunter a way to question whether he asserted he was not an addict or whether gun shop employees did. Only through shameless cherry picking have prosecutors made the memoir say what they need it to say. And Lowell should be able to raise real questions about the provenance of all the data derived from the laptop which, as I noted, includes the most important communications.

The success of what Weiss obviously thought was going to be a slam dunk may depend on Weiss’ success at getting Noreika to buy off on his gimmicks to shore up weak parts of the case.

Update: Derek Hines — he of the sawdust as cocaine — has filed a table-thumping reply accusing Hunter’s team of not understanding the laptop. He describes that Hallie will validate the comms between her and Hunter during the days after he purchased the gun.

Messages between the defendant and Witness 3, beginning in row 88 because the defendant began using his ex-wife’s phone in October 2018 and her old phone was not synced to his iCloud account. Witness 3 will testify to the authenticity of these messages at trial.

These are, without exception, the most important pieces of evidence in the case.

But then he admits he doesn’t have validation for around 83 other messages (about 21% of the total), including a bunch of videos that have mixed metadata (for example, one taken on an iPhone 8 on October 22 but saved onto the iPhone XS, another captured on October 16 but first saved on November 27, during the period when Ablow was involved).

Messages in Row 85-86 (a message where the defendant says “I need more chore boy,” which is used consistently in the message with how the defendant described “chore boy” in his book), Rows 87 and 135-137 (messages where the defendant says he in Delaware, which is consistent with his ATM withdrawal activity, location information on photographs on his phone, and his admissions in his book), Row 214 (a photograph of the defendant with a crack pipe in his hand), and 216-292 (videos and photographs of the defendant with a crack pipe and drug messages from December to March 2019, consistent with the defendant’s characterization of his activity in his book).

Hines — he of the sawdust as cocaine — is demanding that Hunter prove absence of chain of custody rather than prosecutors proving it affirmatively.

The crazier complaint comes in the way Hines — he of the sawdust as cocaine — claims that because Hunter cited Lev Parnas’ description of Vitaly Pruss’ offer of the laptop in this time period, Hunter is “asking people to believe Russian intelligence when it suits his interests.”

The defendant also relies on an allegation that a Russian businessman told a third-party that Biden’s devices were compromised by FSB during his 2014 trip to Kazakhstan. This is yet another example of the defendant asking people to believe Russian intelligence when it suits his interests, but not to believe Russian intelligence when it doesn’t suit his interests.

I get that Rudy Giuliani’s role in all this is particularly sensitive — particularly given his role in the Brady back channel that David Weiss chased credulously. But I’m not aware of any time when Hunter has chased Russian intelligence. David Weiss did that, not Hunter.

I asked Weiss’ spox for clarification, but he nodded only to court filings.

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Hunter Biden Prosecutor Derek Hines Confesses He Failed To Do Basic Due Diligence, Again

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I’ve written about how David Weiss’ prosecutors indicted Hunter Biden before they had taken basic investigative steps — like obtaining a warrant to search the President’s son’s digital data for evidence of gun crimes, or sending the gun to the FBI lab for testing, or figuring out what the evidence actually showed.

But wow, this one is a doozy.

Prosecutors just filed a late Motion in Limine (it was signed by Derek Hines, the sloppier of two sloppy AUSAs calling themselves Senior Assistant Special Counsels), seeking to prevent Hunter Biden from introducing evidence about how the guys at the gun store belatedly added information to the form on which he allegedly lied. They want to prevent Hunter’s team from telling the jury about how three years after the purchase, people in the gun store added information to the form to make it look like they had properly demanded a second form of identification after Hunter used his passport to buy a gun.

In other words, the original scanned form…

 

 

Differs from the physical form that prosecutors would need to submit at trial.

 

The government says — citing what they claim is an interview with the gun shop owner, Ronald Palimere — that the gun store guy insists the original form is accurate (and it may well be).

Following the hearing on May 14, 2024, the government interviewed Palimere on May 16, 2024. Exh. 2. He confirmed that Certified Form 4473 was the accurate version of the form as it existed on the date the defendant purchased his firearm:

For the sale to Biden, all the fields completed on the certified 4473 were done before Biden left the store. . . Palimere scanned and emailed the certified 4473 to Reisch . . . The form was then filed away. Palimere did not handle the form again for three years and until he was requested to turn it over to ATF SA Veronica Hnat on September 23, 2021.

Id. at p. 3. According to the report, before he produced the form to ATF SA Hnat:

Palimere decided to write Delaware registration in the box labeled 18.b. Palimere does not know why that was chosen but he knew it had to be an official document and it was all they could think of. Turner was the one who wrote Delaware vehicle registration in the box. Palimere thinks that if Biden presented a vehicle registration on the day of the sale, it would have been documented on the certified 4473.

Id. at p. 4. With respect to annotating box 18.b., the report of Palimere’s interview states:

No one thought to get supplemental information because everyone in the area knows who lives at [the defendant’s father’s address]. The address is a celebrity address. At the time and to Palimere and the employees, the address was obvious. If a second form of identification with an address was presented by Biden, Palimere was not present when it happened.

Id. at p. 2. [my emphasis]

Only, these brain surgeons didn’t include Palimere’s interview 302. Exhibit 2 is, instead, the 302 from a guy named Gordon Cleveland — the guy who sold Hunter the gun. He told the FBI that he thinks Hunter got some kind of additional record, but “can not say with certainty.” But he “would not have paid attention to the paperwork side of the sale” because he had already made the sale.

In other words, the guy who sold Hunter Biden the gun testified that he didn’t much care about the paperwork.

Palimere’s described testimony (that no one bothered getting secondary ID because everyone knew Hunter’s father) is inconsistent with Cleveland’s (who claimed maybe he got the Delaware Registration).

The word “impeach” does not appear in this MIL. Instead, prosecutors complain that Palimere — the guy whose 302 they apparently didn’t provide — is not on trial and Hunter Biden shouldn’t be able to put him on trial.

Palimere is not on trial. Nor does his decision to annotate the Form 4473 years after the defendant bought his gun change anything the defendant did in 2018.

And while David Weiss’ guys are demanding that Hunter not get any extensions, they’re asking for one to clear this up.

1 The defense did not raise this issue until a hearing on May 14 and the government respectfully requests leave to file its motion in limine after the May 13 deadline imposed by the Court.

Meanwhile, Hunter Biden’s team is trying to subpoena these gun shop guys (Palimere, Cleveland), apparently thus far with no success.

Prosecute Hunter Biden, if you must. But for goodness sake, please try to exercise the most basic due diligence before you do so.

Update: David Weiss’ crack team has now submitted the exhibit they wanted to submit, as opposed to the one they did: the 302 from a video teleconference interview with gun shop owner Ronald Palimere. It revealed a number of things:

  1. Palimere has a proffer agreement, seemingly offering a gun shop owner legal protection for failures to fill out gun forms properly so long as his testimony is deemed truthful. In other words, David Weiss is now in the position of prosecuting Hunter for a 5-year old gun crime rather than doing anything about a gun shop owner who fudges on paperwork.
  2. The interview was conducted by Derek Hines and an FBI Agent Erika Jensen, with no second FBI Agent present. Jensen did the follow-up interview with Cleveland, linked above, by herself.  Jensen is the witness through whom prosecutors want to introduce all the digital evidence, which means she’ll have to take the stand and therefore be available for questioning based on these 302s.
  3. Derek Hines told Palimere that Agent Jensen found the discrepancies with the gun form, not Hunter Biden’s lawyers. That’s not a big deal, yet (the FBI is allowed to lie to witnesses), but could become one.
  4. In the filing, Hines relies on Palimere’s testimony to claim that, “For the sale to Biden, all the fields completed on the certified 4473 were done before Biden left the store.” Except he also testified that he, “never interacted with Biden” because he was “in the back of the building.” I assume the store has security cameras, but Palimere is not a direct witness to the documentation being completed while Hunter Biden was present. Jensen didn’t ask Cleveland (who is the witness they want to put on the stand) whether it was all completed while Hunter was still there.

Update: David Weiss has now gotten the DE Clerk to memory hole the Cleveland 302 that substantially conflicts with that of his boss.

Update: Judge Noreika has approved the subpoenas Hunter Biden’s team asked for, including (but not limited to) the gun shop employees, including the guy who altered the document.

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Jim Risch Demands that Avril Haines Formally Tell Us He Is Lying

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The Senate Intelligence Committee had a hearing on election interference yesterday. Among the pieces of news is that the US intelligence community is sharing intelligence with European partners in advance of the EU Parliamentary vote next month to alert them to foreign interference efforts, something that was pretty clear to me but which journalists and European-based privacy activists had denied.

The entire hearing was undergirded, however, by a truth and a lie aspiring Donald Trump running mate and Vice Chair of the committee, Marco Rubio, offered up.

The truth is that if the IC says foreign spooks are trying to hurt one candidate, supporters of the opposing candidate will refuse to believe that claim.

For eight years, of course, Republicans have institutionally refused to believe that Russia tried to hurt Hillary and tried to help Trump. That made supporters of both parties trust their party more than the spooks. And in the aftermath, Trump has carried out a sustained campaign to get his followers to distrust The Deep State.

So the problem, at least for the MAGAts that Rubio wants to make him Vice President, is worse than Rubio said.

Rubio made several false claims in his comment, however.

Rubio: No matter who puts it out there, the candidate on the other side of it, their followers are going to question whether it’s the government interfering in the election themselves. And it’s not helpful, and I use this example because it’s a very recent one, when the whole laptop situation happened, the Hunter Biden laptop, a number of former intelligence officials, I get it they’re formers, no longer in the employ of any of these agencies, but that title carries weight, all signed a letter saying, “this has all the hallmarks of a Russian disinformation campaign.” We know now that it was not a disinformation campaign. I don’t want to get into the particulars of what was on it, I’m just saying it was not a Russian disinformation campaign.

But the result of it was that social media companies would not allow anyone to post the articles — and there was a media blackout; it could not be reported in any other except for one place, and so what happens as a result of that, whether it had an influence on the election or not, the result of it now is that we have some section of the country who repeatedly says things like the intelligence community interfered. [my emphasis]

Most obviously, Rubio claimed that “the result of [the letter 51 former spooks sent out] was that social media companies would not allow anyone to post the articles.” The letter from the spooks was dated October 19. The social media companies started throttling links to the NYPost on October 14. Days before the spooks’ letter, the social media platforms had already begun reversing their decision.

Rubio’s claim of causation defies physics.

That’s not his only false claim. Rubio certainly believes that the release of the hard drive was not a Russian disinformation campaign. Which is not what the former spooks said anyway — they said it might be a Russian information operation. But even four years on, it’s not certain what happened to Hunter Biden’s laptop before it was turned over to the FBI, and Hunter claims with some evidence that it was altered by Rudy before it was released to the NYPost.

I laid out some reasons we couldn’t be sure back in October, when Bret Baier made this false claim in a gotcha with Leon Panetta.

There are still more. For example, the FBI’s apparent uncertainties about even the date of a payment made from Hunter’s Venmo to someone the government claims is a stripper suggest they have not reviewed what happened to Hunter’s digital life after one of his devices was stolen in August 2018. Hunter said in January 2019 — before the laptop ultimately shared with John Paul Mac Isaac was packaged up — that he believed that theft happened when he was with a Russian sex worker. More recent filings have made clear that — contrary to a whole lot of credulous reporting — the laptop shared with the FBI is not an exact match with his iCloud account, which means device content made while in treatment from Keith Ablow does not have the same kind of validation that other data does. And given there are signs of compromise to Hunter’s accounts going back years, it’s not clear anyone has ruled out earlier compromise.

The FBI has never even done an index of everything on the laptop.

Unless someone else in government did such analysis — unless David Weiss’ prosecutors are sitting on more thorough analysis than they have shared with Hunter Biden — the FBI simply never did the work they would have needed to do to find out if the President’s son was compromised by Russians, whether spies or criminals, or some other foreign actor.

I don’t doubt that Rubio believes that the IC is more certain though.

Things disintegrated from what I think was a good faith concern (albeit one without any kind of accountability) on Rubio’s part to a rant by Jim Risch.

He thinks it is Avril Haines’ job to call out people who have access to intelligence who make false claims. He says he’s as concerned that 51 private citizens made a claim that remains true — that, in their opinion, the laptop, “has all the classic earmarks of a Russian information operation” — as he is that Russia will attack US democracy again,

Risch: I’m as concerned with this sort of thing as I am with foreign interference on the election process. This was deplorable, these 51 people saying this was Russian activity when we all know now that it wasn’t. I mean, these were 51 people that had very significant influence in American society and they sent this letter saying this was Russian influence.

Again, Jim Risch says it is as bad that experts express their well-substantiated opinion as it is that hostile nations target our democracy.

He demanded that Haines promise to go out and tell the American people if private individuals say something false this year.

What about this sort of thing, where it’s domestic interference, that’s obviously false. Who’s got the responsibility for standing up and looking in the camera and saying, folks, don’t count on this it’s not true. Is that going to be your responsibility?

Haines: Sir, I think … look … my responsibility with respect to formers that speak out and provide the wealth of their experience and knowledge in such circumstances is not to determine what they should or shouldn’t say, but rather to ensure that they’re not disclosing classified information, that we’re protecting that, and dealing with that, it’s not —

Risch: What if it’s false? using their robes of, … having knowledge of security matters and intelligence matters and you know it’s false. Is that your response, or you just say, nah I’m not gonna get involved in that.

Haines tried to correct Risch’s false representation of what the spooks actually said, noting that their experience made them suspicious (but stopping short of stating as fact that it was an information operation).

Haines: I don’t understand, because I think — first of all, I think they said that their experience makes them deeply suspicious of that activity.

Risch lied and said they had said something more.

Risch: They went a little further than that, I think, but I’ll take your characterization of that. And if you know that that’s false? Then you come into the information that it’s false, is it your obligation or not your obligation to stand up, look in the camera and say, folks, when you’re voting don’t take this into account.

Haines: Sir I don’t think I could make sure that I’ve even read everything that a former might have said or that anybody else is on these issues, so no, I don’t think that it’s appropriate for me to be determining what is truth and what is false in such circumstances.

It went on and on, with Jim Risch wailing about people with privileged access to intelligence — people like him — who make false claims. Sadly, no one ever strongly laid out Risch’s false claims, and Mark Warner even professed to be sympathetic to Risch’s view.

Risch: But what if you know. You’re sitting here, you’re the center of intelligence in America, right there, and this has come out and you know it’s false. What’s your obligation? Or do you have any?

Haines: I think my obligation is to ensure that the best intelligence is being provided to the President, to the Federal government, to the Congress, and where possible, to the American people, through declassification, which we would do.

Risch: That’s not calling out someone who stands up and purports to have intelligence information that you know is false?

Haines: Sir, if I were to — first of all, I’m not sure I’m the best arbiter of what is true and false, and secondly–

Risch: Let’s say, in a particular instance, you’ve seen the paper. You know it’s false. Let’s take that instance. What do you do?

Haines: I mean, it depends on the situation. If we’re talking about a fake video that was

Risch: It’s just what I said: someone with intelligence credentials stands up and says I know this from an intelligence standpoint and you know, as the Director of National Intelligence, that it’s false.

Haines: No, I do not consider that to be part of my responsibility. If there is disinformation that is put forward — false information — then we have the capacity to authenticate it as false, we will do so, basically to our customers, and there will be a process [inaudible and crosstalk] it may be to the public, it might be classified information, it might be anything else, I don’t what the circumstances are. It’s too much of a hypothetical.

Risch: I’m not making progress so I’m going to give it back to you.

Warner: My sense is it would be the responsibility of the FBI if it were proven. I’m not sure if we want the Director of National Intelligence commenting about a domestic statement made by an American, but I understand your point.

Risch: Well, that’s the purpose of this hearing, is to find out how American voters are going to be, uh, kept informed if it is true or false.

Warner: It is, our purview, at least, is focused on that foreign influence. But I understand your point.

Of course, the logical end point of Risch’s complaint is quite clear: He has demanded that Avril Haines go make a public statement that, in spite of Risch’s privileged access to intelligence, he is lying. And Marco Rubio is too!

It doesn’t stop there.

If Haines is supposed to police truth claims by private citizens, she would be obliged to come out publicly and say that Rudy’s public claims about Joe Biden were not just false, but fabrications of the Russian spies he was soliciting.

According to Jim Risch, not only should John Ratcliffe have publicly debunked Donald Trump’s false claims about Italy hacking voting machines via the thermostat (or whatever version of that nutjob story he was telling), but Haines today should formally debunk false claims that Trump is making about Solar Winds as part of his criminal defense.

Jim Risch is demanding that Avril Haines intervene and call him — and call Donald Trump — liars.

 

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Three Things: Let the Tedious Bashing Commence!

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[NB: check the byline, thanks. /~Rayne]

Don’t you despise tedious media bashing which is often off base? Ha. I’m still laughing about this.

Quick, name five critics of U.S. media.

If you can’t rattle off at least five without a lot of thought, there isn’t enough media criticism.

We haven’t even touched the depths of tedious media bashing in this country let alone at this site.

~ 3 ~

Headline and subhead from The New York Times on May 9, 2024:

At a Dinner, Trump Assailed Climate Rules and Asked $1 Billion From Big Oil
At a private meeting at Mar-a-Lago, the former president said fossil fuel companies should donate to help him beat President Biden.

Headline and subhead from Washington Post on May 9, 2024:

What Trump promised oil CEOs as he asked them to steer $1 billion to his campaign
Donald Trump has pledged to scrap President Biden’s policies on electric vehicles and wind energy, as well as other initiatives opposed by the fossil fuel industry.

Guess who’s on the bylines for these two pieces. If you read Marcy’s work here frequently you’ll be able to take a good stab at it because of the consistency with which these journalists produce such dreck.

Neither of these articles use the word “bribe” or the phrase “quid pro quo,” and yet that’s exactly what Trump engaged in with fossil fuel companies.

The word “Ukraine” also doesn’t appear though Trump’s first impeachment was kicked off by a whistleblower disclosing a quid pro quo – no association made at all in the articles above with how transactional Trump has been, is, and may be should he win the 2024 election. Readers are supposed to know already just how corrupt Trump’s offer to fossil fuel companies is; they’re not to be so bluntly informed by the two major newspapers in the U.S.

Journalism by shovel. Not just burying the inconvenient, but shoveling bullshit like that POS NYT headline. “At a Dinner…” Really? That’s so critical to the public’s understanding of this candidate’s corrupt election behavior that we need to know this was just a harmless dinner?

If readers are surfing headlines to sift for important news to read, prefacing bribery with “At a Dinner” is one way to ensure readers speed on by.

So is ignoring the bribery.

Go to Google News and search for “trump oil companies” and compare and contrast headlines and articles since May 9. Amazing the consistency with which the Democrats are assailed for questioning a quid pro quo offered during a campaign event.

It’s ridiculous that it took 16 days to learn that the fossil fuel industry would receive a $109 billion return on investment if they paid Trump the $1 billion donation bribe he asked for.

And yes, the Guardian’s piece used the words “quid pro quo” though they quoted Sen. Jamie Raskin in doing so.

~ 2 ~

Jeff Jarvis, journalism prof at CUNY’s Newmark School, is succinct about this particular problem:

Jeff Jarvis @jeffjarvis@mastodon.social

I challenge you to find this good news on the home page of The New York Times. Go to Business and you’ll have to dig to find it. “News judgment” is bias….
S&P 500, Nasdaq and Dow all hit record highs after encouraging inflation data

https://www.cnn.com/2024/05/15/economy/consumer-price-index-inflation-april

May 16, 2024, 07:42

I’ll let the NYT’s front page speak for itself:

You can see today’s front page at https://cdn.freedomforum.org/dfp/jpg16/lg/NY_NYT.jpg

Coverage of the internal friction about the appearance of ideological bent between parent NBC and cable subsidiary MSNBC makes the front page. So does a sextortion piece (which could have been run any time in the last year), and a puff piece about everything becoming a “journey” for celebrities.

The NYT’s online front page is fresher but no better. At 10:25 a.m. as I wrote this, the word “inflation” didn’t appear at all.

Plenty about Biden’s loss of donors and Trump leading Biden in polling.

Can’t imagine why coverage of ideological bent in reporting is above the fold at this newspaper.

~ 1 ~

CNN announced the moderators for the June 27 presidential debate. Jake Tapper and Dana Bash, hosts of CNN’s Sunday talk show State of the Union are queued up.

Doesn’t sound like CNN handled this well in past, blaming the institution for confusion about the venue.

You’ll find all the posts at this site tagged with “Jake Tapper” at this link:

https://www.emptywheel.net/?s=jake+tapper

And all the posts at this site tagged with “Dana Bash” here:

https://www.emptywheel.net/?s=dana+bash

Pardon me if I am incredibly skeptical about the ability of these two to catch a lie on the fly – especially at a news media outlet under pressure from management to be more Fox News-ish.

~ 0 ~

This is an open thread. Bring discussion here which would be off topic in other threads.

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David Weiss’ Exhibit List Looks Like One Matt Gaetz or James Comer Would Assemble

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David Weiss’ team has submitted its exhibit list for Hunter Biden’s Los Angeles tax prosecution (as well as their motions in limine, which were — with the exception of a request to exclude mention that Hunter paid his taxes in 2021 — mostly uncontested).

The exhibit list includes a number of things that were expected — including:

  • Almost 40 exhibits pertaining to Hunter’s ex-wife Kathleen Buhle and their contentious divorce
  • Documents pertaining to Jeffrey Gelfound, the accountant who did Hunter’s taxes in 2020, who will almost certainly be a key witness on the most serious tax evasion charges
  • Payment records to Lunden Roberts, Hunter’s expensing of which is one of the most compelling pieces of evidence of intentional tax evasion

But it also includes a number of frothy right wingers’ favorite documents.

There is a Tony Bobulinski email that incorporates the “10 for the Big Guy” email — possibly an attempt to show that Hunter didn’t object to that claim, a complaint that comes straight from Matt Gaetz during Hunter’s testimony.

The indictment makes much of the fact that Hunter cut his partners out of this deal; there are multiple pieces of evidence that show one reason he did was he didn’t like Bobulinski’s Russian ties, which if David Weiss wants to talk about Bobulinski’s Trump and Viktor Vekselberg ties, by all means, let’s have it.

In any case, it doesn’t relate to non-payment of taxes, particularly not in 2018.

There are two references to the SDNY Patrick Ho docket — apparently to the docket itself, not the filing that redacted the name of someone believed to be Hunter.

Hunter did get a huge payment from Ho, ostensibly to find legal representation for Ho’s case. At a time when CEFC was recruiting Trumpsters like James Woolsey, Ho also kept ties with Hunter who — in 2018 — could be of no use to him (which is why CEFC was instead focusing on Woolsey).

Ho has recently claimed — for the benefit of frothers in Congress — that Hunter did nothing for huge payment he got for arranging legal representation in this case. It’s a remarkable claim at this late date and would be still more remarkable if introduced in a tax case.

And finally, prosecutors have included an email that probably dates to 2015 regarding the consulting set up with Blue Star Strategies.

On top of the fact that 2015 is not a charged tax year (indeed, the indictment says Hunter declared his 2015 Burisma income) and DOJ reviewed this for years and years and never substantiated a FARA charge, it is likely one of the almost 10% of documents that Joseph Ziegler sourced to the laptop. As I described in this post, the email I have in mind showed up in somebody’s mailbox recognizing “Burisma” as “Burials.”

Prosecutors had moved, with no objection, to prohibit Hunter from arguing that the prosecution team got sucked in by a Russian influence operation (in context, it was a reference to Alexander Smirnov). But if they’re going to rely on one of the most anomalous emails, potentially one only available on a laptop suspiciously similar to the one Lev Parnas said was being dealt by Burisma, the question of Russian influence operation should remain on the table.

Of these documents, only the Ho payment is even directly relevant to the 2018 taxes. And each of these documents would create all sorts of discovery problems and mini-trials about misrepresentations of Hunter’s motive.

Prosecutors have not yet filed their 404(b) notice; perhaps they want to turn the non-crime of monetizing a famous name into a crime?

Or perhaps David Weiss simply wants to use his tax case to feed right wing frothers during an election season.

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Hunter Biden Moves to Enjoin David Weiss Under an Appropriations Argument Trump Adopted

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Abbe Lowell has moved to enjoin David Weiss from spending any more unappropriated funds in the prosecution of Hunter Biden.

Mr. Biden moves to enjoin the Special Counsel’s investigation and prosecution of him from now into the future because the Special Counsel lacks a valid appropriation from Congress. Previously, Mr. Biden moved to dismiss the indictment as the tainted fruit of past Appropriations Clause violations (D.E.62). Had that motion been granted, no future violation would have occurred. That said, the Special Counsel insisted dismissal was not the proper remedy and that alleged Appropriations Clause violations “are ‘best seen as requests for injunctions.’” (D.E.72 at 24 (quoting United States v. Bilodeau, 24 F.4th 705, 711 n.6 (1st Cir. 2022)).) Although Mr. Biden preferred dismissal as a remedy (i.e., how could one enjoin past violations?), he did not object to injunctive relief, explaining: “Under either view, this case could not proceed, so it is unclear how the Special Counsel’s preferred remedy would benefit him.” (D.E.80 at 16.) This Court, however, found no Appropriations Clause violation, so it did not reach the question of the appropriate remedy. (D.E.101.) 1

1 At this morning’s hearing, the Court questioned the timeliness of this Motion. As explained above, the Motion is timely because the prior motion to dismiss the indictment was for past Appropriations Clause violations and Mr. Biden now seeks to enjoin future constitutional violations. While the time has passed for Mr. Biden to bring pre-trial motions to dismiss based on the Special Counsel’s past decision to indict, nothing prevents Mr. Biden from seeking to enjoin future constitutional violations. The Special Counsel cannot be given a blank check to indefinitely spend unappropriated federal funds in violation of the Appropriations Clause. The need to explicitly seek injunctive relief did not arise until the Third Circuit Motion Panel’s May 9, 2024 decision dismissed the appeal under 28 U.S.C. § 1292(a) because injunctive relief was not explicitly requested, and the Court declined to hear Biden’s claim for relief at law (dismissal) on an interlocutory basis. Parties frequently seek to cure defects identified by opinions, for example, plaintiffs often file amended complaints and prosecutors file superseding indictments following motions to dismiss all the time, and the situation is no different here. Additionally, the prior scheduling order for pre-trial motions were for motions to dismiss. (D.E.57.) The parties clearly understood there were other “pre-trial motions” that would be filed addressing future issues and this Court set a new schedule for addressing some of those issues (D.E.117 (e.g., motions in limine, expert disclosure motion)), and the Special Counsel filing several such motions in limine this morning. The Court has not limited the Special Counsel orMr. Biden’s from objectingto any kind of future conduct.

Lowell is doing so because the Third Circuit order finding that none of Hunter’s appeals merited interlocutory jurisdiction rejected his challenge to Weiss’ Special Counsel appointment (which argued both the appointing a sitting US Attorney SCO violated DOJ’s own rules and also that Weiss’ appointment was not appropriated) in part because Judge Noreika had not formally refused his injunction.

In the defendant’s third motion to dismiss, he argued (1) the prosecuting U.S. Attorney’s appointment as a special counsel violated 28 C.F.R. § 600.3(a)’s requirement that special counsel be “selected from outside the United States Government” and (2) the Special Counsel improperly used an appropriation established by Congress for “independent” counsel without the requisite independence. See United States v. Biden, No. 1:23-cr-00061-001, 2024 WL 1603775 (D. Del. Apr. 12, 2024). The defendant contends the denial of this motion is appealable because it, in effect, refused him an injunction. The District Court did not explicitly refuse to enjoin the continued appointment of the special counsel, nor the continued use of appropriation of funds, nor did the defendant explicitly ask for such an injunction. Furthermore, the defendant has not shown the order has a “serious, perhaps irreparable, consequence” and can be “effect[ually] challenged only by immediate appeal.” See, e.g., Office of the Comm’r of Baseball v. Markell, 579 F.3d 293, 297–98 (3d Cir. 2009) (citing Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981)). Accordingly, the denial of the defendant’s third motion to dismiss is not an appealable order denying an injunction.

The District Court’s denial of the defendant’s third motion is also not appealable as a collateral order. For collateral-order purposes, the rejection of the defendant’s claim that the Special Counsel’s appointment violated a regulation is analogous to other challenges to a prosecutor’s appointment or authority. Rejection of these challenges do not constitute collateral orders. See Deaver v. United States, 483 U.S. 1301, 1301–03 (1987) (Rehnquist, C.J., in chambers); United States v. Wallach, 870 F.2d 902, 907 (2d Cir. 1989); Deaver v. Seymour, 822 F.2d 66, 70–71 (D.C. Cir. 1987); United States v. Caggiano, 660 F.2d 184, 191 & n.7 (6th Cir. 1981). Moreover, categorically similar issues have been reviewed on appeal after a final or otherwise appealable decision. E.g., Morrison v. Olson, 487 U.S. 654, 668, 659 (1988); In re Grand Jury Investigation, 916 F.3d 1047, 1051 (D.C. Cir. 2019); United States v. Blackley, 167 F.3d 543, 545–49 (D.C. Cir. 1999); United States v. Wade, 83 F.3d 196, 197–98 (8th Cir. 1996); United States v. Prueitt, 540 F.2d 995, 999–1003 (9th Cir. 1976); In re Persico, 522 F.2d 41, 44–46 (2d Cir. 1975). Similarly, there is no collateral-order jurisdiction over the District Court’s rejection of the defendant’s appropriation argument and this order can be effectively reviewed after final judgment. E.g., United States v. Trevino, 7 F.4th 414, 420–23 (6th Cir. 2021); cf. United States v. Bilodeau, 24 F.4th 705, 711–12 (1st Cir. 2022) (finding appellant’s injunction request could not be effectively reviewed after final judgment). [my emphasis]

In other words, Lowell asked for this injunction so Noreika would refuse it, giving him a better shot at appeal before the Third Circuit.

I’ve consistently said I think this challenge is garbage — garbage on precedent and garbage on DOJ rules.

I still do — though David Weiss’ persistent efforts to claim he is also, simultaneously, the US Attorney who made deals he has since reneged on with Hunter Biden could make the challenge more interesting down the road. Effectively, David Weiss is claiming to be both SCO and US Attorney, all while hiding discovery US Attorney David Weiss knows to exist.

That said, since Hunter first made this argument, Trump has adopted it (I’ve got a post started comparing these things, but remember that Trump was indicted on the stolen documents case two months before Hunter was indicted on gun crimes, but Hunter’s gun trial is scheduled to be done before any of these frivolous hearings start in Florida) — with backing from right wing luminaries like Ed Meese. And Judge Cannon is so impressed with the garbage argument she has scheduled a hearing on it for June 21.

And Hunter has argued this same (IMO, garbage) argument in Los Angeles and the Ninth Circuit, where precedents for such appeals are somewhat more lenient (which Lowell addressed in a follow-up after the Third Circuit decision).

I’m not saying any of this will work. I think Lowell might be better served asking to make an amicus argument before Judge Cannon, if it’s not too late, if only because that’ll disrupt the political bias with which Cannon has run her courtroom. (Though again, that would do nothing to spare Hunter a trial.) We have long since spun free of actual evidence much less law in all these three Trump appointed judge’s courtrooms.

But Hunter’s continued effort to push this may complicate Cannon’s effort to treat this as a novel right wing argument. It could even — though this is unlikely — create a circuit split long before Cannon gets her show hearing. Or it could confuse the right wingers on SCOTUS.

The SCO challenge, in my opinion, is not interesting at all on the law. But the way in which these two cases are working in parallel on this point in particular makes the effort to better frame an appeal immediately more interesting.

Update: Unsurprisingly, the 9th Circuit — a panel of all Dem appointees — rejected Hunter Biden’s bid for interlocutory appeals of his failed Motions to Dismiss.

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David Weiss Continues to Misrepresent the Damage Keith Ablow Did to Hunter Biden’s Addiction

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Prosecutors have submitted their motions in limine in the Delaware case. Those include:

Most of these are pretty standard and uncontroversial — though Abbe Lowell made it clear that he reserves the right to contest whether Hunter’s iCloud and laptop had been tampered with before the government obtained them.

Where David Weiss has doubled down on past error comes in his choice of book excerpts he wants to use.

He wants to exclude everything from the book except the excerpts he has chosen.

The government intends to admit into evidence only the excerpts of the book and audiobook that are in Exhibit 1. Federal Rule of Evidence 801(d)(2) provides the statement must be “a statement . . . offered against an opposing party.” Thus, a defendant cannot elicit his own self-serving statements without taking the stand and submitting to cross-examination. United States v. Willis, 759 F.2d 1486, 1501 (11th Cir. 1985); United States v. Wilkerson, 84 F.3d 692, 696 (4th Cir. 1996).

A defendant cannot sidestep the prohibition against hearsay by invoking the so-called “rule of completeness,” contained in Federal Rule of Evidence 106. This rule is designed to prevent “misunderstanding or distortion” caused by the introduction of only part of a statement that could only be cured by admission of the full record. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 172 (1988). It does not allow adverse parties to introduce any unedited statement merely because the proponent party has offered an edited version. Indeed, “it is often perfectly proper to admit segments of prior testimony without including everything, and adverse parties are not entitled to offer additional segments just because they are there and the proponent has not offered them.” United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996). The defendant has not identified for the government any portions of the excerpts that are misleading without additional surrounding context. The other portions of the book are therefore inadmissible hearsay.

The selections are not surprising. But in two ways, they are grotesquely dishonest. First, the chosen excerpts misleadingly lead from something that happened in August 2018.

 

 

To something that happened in February 2019.

Presented in the way it is, jurors will be wildly misled that Hunter’s New Haven exploits are what happened immediately after he relapsed in August 2018. They will be misled into believing the description of the New Haven depravity represent Hunter’s state in October 2018. They don’t.

Here’s what the language in the book describing his return to Delaware in fall 2018 looks like.

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

Neither happened.

For all the obvious reasons—my extended disappearances, my inability to stay sober, her need to stabilize and reorder her own life and family—Hallie and I called it quits. The relationship no longer helped either of us. Our attempt to reanimate Beau remained as doomed as it was from the start. The fallout piled up. I tried to explain things to my daughters, but how could I expect them to comprehend a situation I hardly understood myself?

Next on my agenda was getting clean. I drove up to Newburyport, Massachusetts, an old New England shipbuilding-turned-tourist town thirty-five miles north of Boston. A therapist ran a wellness center where he practiced a drug addiction therapy known as ketamine infusion. I would make two trips up there, staying for about six weeks on the first visit, returning to Maryland, then heading back for a couple weeks of follow-up in February of the new year.

Prosecutors were perfectly willing to use the transition into this passage in their response to Hunter’s MTD.

He wrote in Chapter 10 of his memoir, “I returned [to the East Coast] that fall of 2018, after my most recent relapse in California, with the hope of getting clean through a new therapy . . . Neither happened.” Id. at 203.

Perhaps now they’ve discovered that the book says nothing about Hunter’s state of mind when he was in Delaware, when he owned the gun.

More importantly, David Weiss repeats what might have been just another stupid error when he made it in response to Hunter’s motion to dismiss:

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.

David Weiss misrepresented this passage to Judge Noreika (and has not alerted her to the error). The scene in the Super 8 took place in February 2019.

Which means it took place after Keith Ablow’s treatment made Hunter Biden’s addiction 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. One thing I did remarkably well during that time was fool people about whether or not I was using. Between trips up there, I even bought clean urine from a dealer in New York to pass drug tests.

Of course, that made all that time and effort ineffective. I didn’t necessarily blame the treatment: I doubt much good comes from doing ketamine while you’re on crack. [my emphasis]

Weiss wants to exclude this critical context, imagining that Hunter included the Keith Ablow description because he knew that right wingers would demand he be prosecuted for the gun when he wrote it (Weiss emphasizes that Hunter started writing this in 2019, before he even knew of the investigation), and so said that the Ketamine treatment made his addiction worse for the moment he would be prosecuted.

I get what self-serving hearsay is. This is not it (though Judge Noreika has thus far been wildly favorable to Weiss’ misrepresentations).

This is basic facts of timeline — or more specifically, Weiss’ continued effort to misrepresent events that clearly happened in February 2019 as if they’re his smoking gun about 2018.

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