David Weiss Is a Direct Witness to the Crimes on Which He Indicted Alexander Smirnov

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On the day that Bill Barr aggressively intervened in the parallel impeachment inquiry and Hunter Biden prosecutions last summer, David Weiss’ office sent out a final deal that would resolve Hunter’s case with no jail time and no further investigation. Within weeks, amid an uproar about claims in an FD-1023 that David Weiss now says were false, Weiss reneged on that deal. With the indictment yesterday of Alexander Smirnov, the source of those false claims, Weiss confesses he is a direct witness in an attempt to frame Joe Biden, even as he attempts to bury it.

On June 7, 2023, Bill Barr went on the record to refute several things that Jamie Raskin described learning about Smirnov’s FD-1023. Specifically, the former Attorney General insisted that the investigation into the allegations Smirnov made continued under David Weiss.

It’s not true. It wasn’t closed down,” William Barr told The Federalist on Tuesday in response to Democrat Rep. Jamie Raskin’s claim that the former attorney general and his “handpicked prosecutor” had ended an investigation into a confidential human source’s allegation that Joe Biden had agreed to a $5 million bribe. “On the contrary,” Barr stressed, “it was sent to Delaware for further investigation.”

“It wasn’t closed down,” Bill Barr claimed. As I’ll show below, according to the indictment obtained under David Weiss’ authority yesterday, that’s a lie. “It was sent to [David Weiss] for further investigation,” Bill Barr claimed, not confessing that it was sent to Delaware on October 23, 2020, days after Trump had yelled at him personally about the investigation into Hunter Biden. According to Barr, Weiss was tasked with doing more investigation into the Smirnov claims than Scott Brady had already done.

In the Smirnov indictment, Weiss now says that he only did that investigation last year, and almost immediately discovered the allegations were false.

The same day the Federalist published those Barr claims, June 7, and one day after Hunter Biden attorney Chris Clark spoke personally with David Weiss, Lesley Wolf sent revised language for the diversion agreement that strengthened Hunter Biden’s protection against any further prosecution.

The United States agrees not to criminally prosecute Biden, outside of the terms of this Agreement, for any federal crimes encompassed by the attached Statement of Facts (Attachment A) and the Statement of Facts attached as Exhibit 1 to the Memorandum of Plea Agreement filed this same day.

That language remains in the diversion agreement Leo Wise signed on July 26, 2023.

According to an unrebutted claim from Clark, on June 19, 2023, Weiss’ First AUSA Shannon Hanson assured him there was no ongoing investigation into his client.

36. Shortly after that email, I had another phone call with AUSA Hanson, during which AUSA Hanson requested that the language of Mr. Biden’s press statement be slightly revised. She proposed saying that the investigation would be “resolved” rather than “concluded.” I then asked her directly whether there was any other open or pending investigation of Mr. Biden overseen by the Delaware U.S. Attorney’s Office, and she responded there was not another open or pending investigation.

That day, June 19, was the first day Wise made an appearance on the case.

On July 10, a month after the former Attorney General had publicly claimed that his office sent the Smirnov FD-1023 to Weiss’ office for further investigation in 2020, Weiss responded to pressure from Lindsey Graham explaining why he couldn’t talk about the FD-1023: “Your questions about allegations contained in an FBI FD-1023 Form relate to an ongoing investigation.” The next day, Hanson fielded a request from Clark, noting she was doing so because “the team” was in a secure location unable to do so themselves. “The team” should have had no purpose being in a secure location; they should have been preparing for the unclassified plea deal.

By July 26, the same day Leo Wise signed a diversion agreement that said Hunter wouldn’t be further charged, he made representations that conflicted with the document he had signed, claiming Hunter could still be charged with FARA. That was how, with David Weiss watching, Wise reneged on a signed plea deal and reopened the investigation into Hunter Biden, leading to two indictments charging six felonies and six misdemeanors.

According to the Smirnov indictment, sometime in July (tellingly, Weiss does not reveal whether this preceded his letter to Lindsey Graham, whether it preceded the plea colloquy where Leo Wise reneged on a signed deal), the FBI asked Weiss’ office to help in an investigation regarding the FD-1023.

In July 2023, the FBI requested that the U.S. Attorney’s Office for the District of Delaware assist the FBI in an investigation of allegations related to the 2020 1023. At that time, the United States Attorney’s Office for the District of Delaware was handling an investigation and prosecution of Businessperson 1.

It is virtually certain that the FBI asked Weiss to pursue whether any leads had been missed in 2020, not whether Joe and Hunter Biden had been unfairly framed. That’s because Weiss cannot — should never have — led an investigation into how the Bidens were framed. He’s a witness in that investigation. 

So it is almost certain that the FBI decided to reopen the investigation into the FD-1023, perhaps based in part on Bill Barr’s false claims. It is almost certain that this investigation, at that point, targeted Joe and Hunter Biden. It is almost certain that this is one thing Weiss used to rationalize asking for Special Counsel authority.

And that’s probably why, when Weiss’ team interviewed Smirnov on September 27, Smirnov felt comfortable adding new false allegations.

51. The Defendant also shared a new story with investigators. He wanted them to look into whether Businessperson 1 was recorded in a hotel in Kiev called the Premier Palace. The Defendant told investigators that the entire Premier Palace Hotel is “wired” and under the control of the Russians. The Defendant claimed that Businessperson 1 went to the hotel many times and that he had seen video footage of Businessperson 1 entering the Premier Palace Hotel.

52. The Defendant suggested that investigators check to see if Businessperson 1 made telephone calls from the Premier Palace Hotel since those calls would have been recorded by the Russians. The Defendant claimed to have obtained this information a month earlier by calling a high-level official in a foreign country. The Defendant also claimed to have learned this information from four different Russian officials.

Smirnov seemingly felt safe telling new, even bigger lies. In his mind, Hunter and Joe were still the target! Again, that is consistent with the investigation into Hunter Biden being reopened based off Bill Barr’s public pressure.

According to the Smirnov indictment, David Weiss’ team found evidence that proves Bill Barr lied and Scott Brady created a false misimpression — the former, to pressure him — Weiss — and the latter, in testimony to Congress that was also part of the pressure campaign against the Bidens.

Compare Bill Barr’s claim made on the day when Weiss agreed that Hunter would face no further charges with what the Smirnov indictment states as fact. The Smirnov indictment says that Scott Brady’s office closed the assessment, with the concurrence of David Bowdich and Richard Donoghue, which is what Jamie Raskin said (though Raskin said Barr himself concurred).

40. By August 2020, FBI Pittsburgh concluded that all reasonable steps had been completed regarding the Defendant’s allegations and that their assessment, 58A-PG-3250958, should be closed. On August 12, 2020, FBI Pittsburgh was informed that the then-FBI Deputy Director and then-Principal Associate Deputy Attorney General of the United States concurred that it should be closed.

But Barr told the Federalist that it was not closed down, it was forwarded — by Richard Donoghue, days after the President yelled at Barr about this investigation (though he didn’t say that) — to David Weiss for more investigation.

It’s not true. It wasn’t closed down,” William Barr told The Federalist on Tuesday in response to Democrat Rep. Jamie Raskin’s claim that the former attorney general and his “handpicked prosecutor” had ended an investigation into a confidential human source’s allegation that Joe Biden had agreed to a $5 million bribe. “On the contrary,” Barr stressed, “it was sent to Delaware for further investigation.”

Had it been forwarded to David Weiss for more investigation, had he taken those additional investigative steps Barr claims he was ordered to do, Weiss would have discovered right away the key things that proved Smirnov was lying, the claims that Scott Brady had claimed to investigate, the things that the Smirnov indictment suggest he newly discovered months ago.

According to Scott Brady’s testimony to Congress, his team asked Smirnov’s handler about things like travel records and claimed that it was consistent.

Mr. Brady. So we attempted to use opensource material to check against what was stated in the 1023. We also interfaced with the CHS’ handler about certain statements relating to travel and meetings to see if they were consistent with his or her understanding.

Q And did you determine if the information was consistent with the handler’s understanding?

A What we were able to identify, we found that it was consistent. And so we felt that there were sufficient indicia of credibility in this 1023 to pass it on to an office that had a predicated grand jury investigation. [my emphasis]

According to the Smirnov indictment, Weiss’ team asked the handler the same question — about travel records. Only, they discovered that Smirnov’s travel records were inconsistent with the claims the handler himself recorded in the FD-1023.

43. On August 29, 2023, FBI investigators spoke with the Handler in reference to the 2020 1023. During that conversation, the Handler indicated that he and the Defendant had reviewed the 2020 1023 following its public release by members of Congress in July 2023, and the Defendant reaffirmed the accuracy of the statements contained in it.

44. The Handler provided investigators with messages he had with the Defendant, including the ones described above. Additionally, the Handler identified and reviewed with the Defendant travel records associated with both Associate 2 and the Defendant. The travel records were inconsistent with what the Defendant had previously told the Handler that was memorialized in the 2020 1023.

Tellingly, when Brady was asked more specific questions about Smirnov’s travel records, his attorney, former Trump-appointed Massachusetts US Attorney Andrew Lelling, advised him, twice, not to answer.

Q And did you determine that the CHS had traveled to the different countries listed in the 1023?

Mr. Lelling. I would decline to answer that.

[snip]

Q The pages aren’t numbered, but if you count from the first page, the fourth page, the first full paragraph states, following the late June 2020 interview with the CHS, the Pittsburgh FBI Office obtained travel records for the CHS, and those records confirmed the CHS had traveled to the locales detailed in the FD1023 during the relevant time period. The trips included a late 2015 or early 2016 visit to Kiev, Ukraine, a trip a couple months later to Vienna, Austria, and travel to London in 2019. Does this kind of match your recollection of what actions the Pittsburgh FBI Office was taking in regards to this.

Mr. Lelling. Don’t answer that. Too specific a level of detail

Q You had mentioned last hour about travel records.

Did your office obtain travel records, or did you have knowledge that the Pittsburgh FBI Office obtained travel records?

Mr. Lelling. That you can answer yes or no.

Mr. Brady. Yes.

If Brady obtained those travel records, he would have discovered what Weiss did: Neither Smirnov’s travel records nor those of his subsource, Alexander Ostapenko, are consistent with the story Smirnov told.

o. Associate 2’s trip to Kiev in September 2017 was the first time he had left North America since 2011. Thus, he could not have attended a meeting in Kiev, as the Defendant claimed, in late 2015 or 2016, during the Obama-Biden Administration. His trip to Ukraine in September 2017 was more than seven months after Public Official 1 had left office and more than a year after the then-Ukrainian Prosecutor General had been fired.

[snip]

34. Further, the Defendant did not travel to Vienna “around the time [Public Official 1] made a public statement about [the thenUkrainian Prosecutor General] being corrupt, and that he should be fired/removed from office,” which occurred in December 2015.

Paragraph after paragraph of the Smirnov indictment describe how the travel records — the very travel records that the handler and Scott Brady claimed corroborated the allegation — proved Smirnov was lying.

The record is quite clear that Bill Barr and Scott Brady made false representations about activities that directly involved David Weiss in 2020.

And yet Weiss has been playing dumb.

Abbe Lowell made a subpoena request and a discovery request relating to these matters on November 15. Lowell not only laid out this scheme in his selective and vindictive prosecution claim, but he cited the Federalist story in which Barr lied. He cited these matters in his discovery request.

Rather than acknowledging that Weiss’ team had discovered evidence that proved the claims of Barr and Brady were misrepresentations, Weiss’ team lied about the extent of Richard Donoghue’s role — documented in a memo shared by Gary Shapley — in forcing Weiss to accept the FD-1023 on October 23, 2022.

Next, defendant alleges that “certain investigative decisions were made as a result of guidance provided by, among others, the Deputy Attorney General’s office.” ECF 58, at 3 n.4. In fact, the source cited revealed that the guidance was simply not to conduct any “proactive interviews” yet.

And now, on the eve of Abbe Lowell submitting a reply on his motion to compel and a selective prosecution and discovery request in California, David Weiss has unveiled a belated indictment proving that Lowell’s allegations were entirely correct. The indictment may well provide excuse to withhold precisely the discovery materials Lowell has been demanding for months, and it may create the illusion that Barr’s pressure led Weiss to renege on a plea deal. But it is a confession that there was an attempt to frame Joe Biden and his son in 2020.

What David Weiss discovered — if he didn’t already know about it — is that he was part of an effort to frame Joe Biden in 2020, an effort that involved the Attorney General of the United States. If Merrick Garland is going to appoint Special Counsels for these kinds of things, one should be appointed here, especially given that Donoghue required the briefing on the FD-1023 days after Trump personally intervened with Bill Barr.

But David Weiss can’t lead that investigation. He’s a witness to that investigation.

Update: Fixed how long it took Weiss to renege on the deal after Bill Barr’s false claim.

See Hunter Biden’s Eight Legal Chessboards for links to all the filings.

The Gaps in David Weiss’ Belated Indictment of Alexander Smirnov

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David Weiss has indicted the informant behind an FD-1023 that Bill Barr used to justify the ongoing investigation into Hunter and Joe Biden. Weiss charged Alexander Smirnov with one count of false statement and one count of obstruction.

The indictment alleges that Smirnov lied about the meetings he did have with Burisma, and lied about what Burisma officials told him.

The indictment ties Smirnov’s efforts to frame Joe Biden with Rudy Giuliani’s efforts, though without naming Rudy. For example, the indictment describes that both before and after this article, Smirnov promised his handler that Biden would soon be going to jail.

But the citations of the article simply omit mention of Rudy.  

In describing the side channel that Barr set up, it attributed the project to Jeffrey Rosen, not Barr.

It omitted mention that the side channel was primarily set up so that Rudy could share information, including information from Russian spies. And it didn’t describe that, per Scott Brady, he found Smirnov’s report by seeking information on Hunter and Burisma.

Q And the original FD1023 that you’re referring as information was mentioned about Hunter Bidden and the board of Burisma, how did that information come to your office?

A At a high level, we had asked the FBI to look through their files for any information again, limited scope, right? And by “limited,” I mean, no grand jury tools. So one of the things we could do was ask the FBI to identify certain things that was information brought to us. One was just asking to search their files for Burisma, instances of Burisma or Hunter Biden. That 1023 was identified because of that discreet statement that just identified Hunter Biden serving on the Burisma board. That was in a file in the Washington Field Office. And so, once we identified that, we asked to see that 1023. That’s when we made the determination and the request to reinterview the CHS and led to this 1023. [my emphasis]

It describes that after Pittsburgh closed their assessment (something Bill Barr has public disputed), the FBI interviewed Smirnov again, and he lied again.

It doesn’t describe that after Smirnov changed his story, and days after (in October 2020) Donald Trump yelled at Bill Barr about Hunter Biden, Richard Donoghue ordered David Weiss to accept a briefing on the FD-1023.

And the timing of the claimed investigation stinks.

It claims that some time in July 2023, the FBI asked David Weiss to help investigate the source that Weiss had been ordered to integrate into his investigation years before.

It doesn’t mention that Weiss was already under pressure from Lindsey Graham to use the informant report against Hunter Biden.

The FBI interviewed Smirnov’s handler on August 29 of last year. They interviewed Smirnov on September 27, where — they allege — he told still more lies.

But they did nothing when Hunter Biden asked for discovery on this on November 15, repeatedly misrepresenting Richard Donoghue’s role in it.

They only indicted after Judge Mark Scarsi suggested, in a preliminary hearing on January 11, that he would provide discovery on matters outside of prosecutorial deliberations.

Now they can withhold the details of how David Weiss used “a little more colorful language” when he acquiesced to accepting other materials from Scott Brady.

Great! They indicted another of James Comer’s great hopes to impeach Joe Biden.

But there are few people left in DOJ who are more conflicted on this prosecution than David Weiss.

Update: Took out a reference to the September 2023 interview that was out of timeline.

Where Derek Hines Claims to Have Gotten the Hunter Biden Dick Pics He Sniffed

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Even if Judge Maryellen Noreika threw out the gun charges against Hunter Biden today, I’d be grateful for the recent squabble over Hunter Biden’s motion to compel, and not just for the endless amusement of seeing an experienced drug prosecutor like Derek Hines claim sawdust on a table saw is cocaine.

That’s because by providing what he thinks is solid proof that Hunter was an addict in 2018, Hines has revealed a bit about where such evidence exists among the digital evidence he has in hand and where it doesn’t.

Most significantly, for this case, it appears Derek Hines relied exclusively on the laptop to get the texts surrounding the period immediately after Hunter Biden bought a gun. Particularly given the turmoil in Hunter’s access to his devices in those precise days, without validation of the texts in an Apple database, that would make the texts far harder to use at trial.

As a reminder, the Apple data at issue comes from three places:

In December, Hines got a warrant to search the existing data for gun crime evidence, but did not go back to obtain a warrant to access any backed up devices — if they exist — that would be more appropriate to the gun charges.

Hines claimed, in his response to Hunter’s selective prosecution bid that, “the results of the search” of the laptop “were largely duplicative of information investigators had already obtained from Apple.” In his response to Hunter’s motion to compel, he claimed that, “Many of the same messages, photographs, and information that were obtained from the iCloud warrants were also located on the defendant’s laptop,” but made no representations about the reverse — whether all the messages present on the laptop were in the iCloud production.

It appears they were not.

This table shows my rough transcription the 28 items included in Hines’ exhibit of gun-related evidence. Let me know of errors, particularly with my time conversations between UTC and “Hunter time,” which I’ve assumed was PT for the earlier texts and ET for the later ones. I’ve bolded those instances where “Hunter time” is the day before UTC time. My transcription of the hex identifiers, where Hines included them, are especially likely to have errors (and only include the first identified hex for each item).

These items include:

Items 1, 26-28: Four pictures, all of which he has presented without hex identifiers or EXIF metadata. Two come from iPhone backups obtained from Hunter’s iCloud (one being the iPad on which items 28-25 were found); two (including the sawdust picture) come from what is described as an iPhone 11 backed up to iTunes, apparently found on the laptop; I’m aware of no public record of Hunter owning an iPhone 11. Note: for the reason zscoreUSA notes below, Hines’ label of the sawdust picture as an iPhone 11 must be an error, as those were first released on September 20, 2019, too late to be on the laptop, and only possible to be included in the iCloud returns if Hunter got one the day they were released and backed up everything to an iPhone 11. So it may be a typo for iCloud backup 11, which would be an iPhone XR. 

Items 2-10: Nine texts, dated between May and July 2018, obtained from iCloud Backup 1, which the warrant return describes as an iPhone X. Six of those, items 5 through 10, appear to record a drug transaction arranged over the course of a half hour overnight on July 25-26. While this backup is associated with an iPhone X of uncertain vintage (Hunter went through at least three iPhone Xes in 2018), seven items were obtained from a device called XRNASHUA, an iPhone XR; Apple did not introduce the iPhone XR until October 2018 and Hunter is not known to have obtained his first one until spring 2019, in New Haven, not Nashua. The only two communications obtained from an iPhone X, Items 3 and 4, used an unknown phone number. Item 2 is a WhatsApp text.

Items 11-17: These texts, showing exchanges between Hunter and Hallie Biden on October 13, 14, and 23, derive from what Hines describes as an iTunes Backup. Hines doesn’t identify of which phone — not even the device type — nor does the metadata included identify which phone Hunter used. Just one of the texts Hunter sent, item 13, is described as “delivered” after it was “sent.” I’ll return to these below.

Items 18-25: These texts came from an iPad Pro called “Robert’s iPad” which, based on the serial number included in Gus Dimitrelos’ report, was purchased in November 2015.

iPad Pro 12.9-inch (1st generation) Wi-Fi
Purchase Date: November 2015

Serial Number: DLXQL4EUGMLD

Emails released on BidenLaptopEmails dot com show someone logging into Hunter’s iCloud, Facetime, and iMessage with an iPad Pro on November 11, 2015, the same day Gus Dimitrelos shows it — named as Roberts, no apostrophe, iPad — logging into Hunter’s iCloud account. The next day, a pricy iPad pencil was ordered from Apple, though it was on backorder until January 2016. On May 20, 2016, Find my iPad was used to play a sound on an iPad called “iPad 206” twice. The process of signing into iCloud, then Facetime and iMessage with an iPad Pro, was repeated on September 11, 2016, what Dimitrelos describes as the first access by iPad 206, the one already associated with Hunter’s account earlier that year. On October 26, 2016, Find my iPad was disabled on iPad Pro 206 and on November 13, 2016 the cards were removed and the device was deleted — presumably, given that Find my iPad had been disabled, in person. Those same publicly released emails show no other iPad Pros logging for the first time into Hunter’s account, though in August 2018, an iPad (not identified as a Pro) was deleted, with that process completing in September 2018. But Dimitrelos shows four other iPads named either “Robert’s” or “Roberts” iPad logging into Hunter’s account (February 19, 2013, August 24, 2017, October 21, 2017, January 21, 2018). Of the texts included in Hines’ exhibit, which were sent between November 8 and December 27, 2018, just one, item 20, was marked as delivered and read, and it wasn’t one of the ones sent to probable family members.

I’ll leave the technical discussion there, in case anyone understands how Apple tracks iMessage texts or the difference between texts saved in ChatStorage and SMS.

But several general conclusions stick out. First, it’s likely that two of the devices for which Hines got a new warrant for drug crimes in December 2018, iCloud Backup 2, a 6S, and iCloud Backup 3, seemingly a different XR, had no communications pertinent to the year in question, 2018 [update: unless the explanation for Hines’ error in labeling photos as iPhone 11 is a typo for iCloud backup 11]. That will be of interest if Abbe Lowell ever gets to file a suppression motion, since there could be no probable cause to obtain content from an unrelated period. Second, it’s not clear that any of these devices were the devices on which the communications in question were sent. Hines’ best evidence of a drug purchase — those texts from July 25-26, 2018 — would probably have been sent in an iPhone X and then synched onto an iPhone XR purchased quite a bit later. As with all the other digital evidence Hines seems not to have thought through, given how often Hunter lost devices with access to his iCloud account and how rarely he reset it, it’s not enough to show that texts saved through Hunter’s iCloud showed evidence of a drug purchase. You would have to show that the phone on which those texts were originally sent was in Hunter’s hand at the time the texts were sent.

And this problem is especially fraught for those October 13-14 texts sent between Hallie and Hunter in October 2018, by far the most important evidence for his case. Here’s how they fit in with the timeline I laid out here, showing how Hunter responded after realizing he had misplaced both his main phones on October 11. The two main texts (in bold below) appear to have been sent before Hunter first logged into his new replacement iPhone and before he changed his password, even while people were clearly trying to break into some of his accounts. So prosecutors would have to prove that those texts weren’t sent by whoever inherited the phones Hunter had just lost.

Timeline

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

joey

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

joey

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

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

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

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

October 13 10:30PM: I’m now off MD Ave behind blue rocks

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

October 14, 5:37AM: I was sleeping in a car

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

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

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

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

October 14, 7:48PM: (Email from Joey) “Overcoming myself”

When you have a minute, read ….

Open my shared note:

Exp[o]rt Reports: When David Weiss Claimed Keith Ablow’s Sawdust Was Hunter Biden’s Cocaine

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As Garrett Ziegler was confessing, again, to have accessed a password-protected phone backup (for which Hunter Biden is suing him), he described that this is a photo of a photo in the office of then-still licensed psychiatrist Keith Ablow, which Ablow sent Hunter Biden, explaining that the photo came from an expert carpenter who was trying to kick a coke habit.

Ziegler was even kind enough to include the June 2, 2022 extract date of the iPhone XS iTunes backup where he found the picture, even while bitching of the dishonor and incompetence of David Weiss and his team.

David Weiss says the picture isn’t one of sawdust passed on by Keith Ablow. He says it’s a picture that Hunter Biden took himself of “apparent cocaine” sometime in late 2018.

During November and December 2018, the defendant took multiple photographs of videos apparent cocaine, crack cocaine, and drug paraphernalia.

Weiss doesn’t provide a date for the photo. But he says it came from an iPhone 11 backup stored to iTunes, though he’s not telling whether he found it in an iTunes backup in Hunter’s iCloud account obtained in September 2019, or an iTunes backup found on a laptop attributed to Hunter Biden obtained in December 2019.

iTunes Backup (iPhone 11) – Production 1

Now, perhaps it’s a good thing that David Weiss didn’t know he was (at least per Ziegler, who — bizarrely — has more credibility than the people who have a stack of warrants and lots more metadata) falsely claiming that this picture depicted cocaine. Perhaps that means he didn’t breach Hunter’s privileged communications with Ablow and read what the then still-licensed psychiatrist had to say to his client.

But he has just made the competence of his team’s forensic analysis an issue, and done so in a filing in which Derek Hines appears to be claiming they don’t need any expert forensic reports.

In the motion to compel to which Hines was responding, Abbe Lowell had claimed that Weiss had not turned over any expert reports.

Mr. Biden requested the ongoing production of all materials subject to disclosure under FRCP 16(a)(1)(A), (B), and (D). (See DE 65.) Mr. Biden notes that his October 2023 Rule 16 requests also cover any expert reports that the prosecution intends to rely upon at trial; to date, however, no expert reports or materials have been identified or produced to defense counsel.

The prosecution produced a Delaware state police case file, which includes a summary of an interview Mr. Biden gave police in October 2018 and other information about the purchase, discard, and recovery of the firearm, as well as evidence photos from its case file. The prosecution also produced an ATF case file that has additional information about the firearm and statements about its purchase. Mr. Biden asks the Court to order the prosecution to either (1) confirm no further responsive documents or communications exists in its possession (which includes material in the possession of all relevant government agencies and officials), or (2) produce the requested documents (including any expert reports) and, if the prosecution believes any responsive documents are protected from disclosure, identify those documents and the reasons why the prosecution believes they need not be disclosed.

Not true!, responded Hines in the filing where he appears to have claimed a photo of sawdust taken by a Keith Ablow client was instead a photo of cocaine taken by Hunter Biden.

Hines described that the prosecution has provided two expert reports: that of the FBI chemist who — five years after the gun was seized — found cocaine residue in the pouch in which the gun was found, but didn’t look for fingerprints or try to date the cocaine.

The defendant does not allege any Rule 16 materials are missing from the productions other than one assertion that, “to date, however, no expert reports or materials have been identified or produced to defense counsel.” ECF 83 at p 6. He is incorrect. On November 7, 2023, the government produced to the defendant an expert report prepared by an FBI chemist who analyzed the cocaine discovered on the defendant’s brown leather pouch that had contained his gun.1 In this same production, the government also produced an expert report prepared by an agent related to the interstate nexus of the gun charged in the indictment.2 In addition to these reports, the government produced other materials for these two experts, including CVs, as well as a CV for an additional expert.3 By contrast, the defendant has failed to provide any discovery, including any expert discovery.

In addition, prosecutors provided the CV for the witness who’ll attest the gun had a nexus to interstate commerce and the CV for … Hines isn’t describing what kind of witness that is.

But there are at least four reports I expected to see that are missing:

  • The FBI agent John Paul Mac Isaac calls “Matt” who (at least per JPMI, who like Ziegler might be as reliable as Weiss at this point) described trying to boot up the laptop on December 9, 2019, four days before the known warrant to access the laptop
  • The FBI Computer Analysis and Response Team analyst named Mike Waski, from whom Josh Wilson claims to have obtained the laptop after he had already obtained the laptop four days earlier from JPMI
  • The FBI CART analyst, Eric Overly, who actually imaged the hard drive, which Gary Shapley notes happened after December 13; there may be a different CART analyst who imaged the laptop itself who would be on the hook for another expert report
  • A March 31, 2020 email about the completeness of the disk image that JPMI had done, which prosecutors were withholding from any agents who might testify at trial but which Shapley has kindly informed us exists
  • Any analysis “computer guy” did after October 22, 2020, which is when the FBI realized they had never bothered to check when files had been added to the laptop they had been using for ten months

Those kinds of expert reports are precisely what might have spared poor Senior Assistant Special Counsel Derek Hines from apparently claiming that a photo of a photo of sawdust taken by Keith Ablow is instead a photo of cocaine taken by Hunter Biden.

For example, here’s how Gus Dimitrelos used EXIF data — EXIF data he says he found on most or all of the photos Hunter took — to validate photos to Hunter on the laptop attributed to him.

In this case, Dimitrelos matched the photo to a known iPhone Hunter used and a known location he was at on a particular date and time.

To use photographs to attribute to Hunter Biden cocaine use, those photos are not only going to need to depict cocaine rather than sawdust, but they’re going to need to be accompanied by the kind of forensic data that could prove that a particular phone taking a picture was in Hunter’s hand at the time a picture was taken.

That’s particularly true in this case. Ziegler shows that Ablow texted this photo to Hunter on November 20, 2018.

That happens to be the day when someone first accessed Hunter’s droidhunter account — the one via which his digital life would be packaged up two months later — from a Mac device for the first time after the laptop ultimately shared with the FBI was first logged into Hunter Biden’s iCloud account.

But based on what is available on the public emails, after someone logged into Hunter’s iCloud account with a new laptop on October 21, 2018, it was weeks before a new Mac device logged into his Gmail accounts, starting with a November 16 attempt to log into Rosemont Seneca that was rejected by Google, followed by a reset of the droidhunter account and a login into that on November 20, followed by a login into Rosemont Seneca on November 24. Not only did those attempts come in the midst of a bunch of attempts to get into Hunter Biden’s Twitter account from a Mac. But on November 27, someone appears to have gotten into his iCloud account from Troutdale, OR.

That is, because this text was sent during a period when some crucially important anomalies were happening on Hunter Biden’s digital accounts, you’d need to ensure that whatever device with which Hunter seemingly engaged in this exchange with Ablow was actually in his hand in Newburyport, MA, and not in someone else’s hand in Troutdale, OR. That’s especially important with any conversation with Ablow, because in at least two known conversations — one in which he created the illusion for Hunter that he was speaking to some orthopedic surgeons, and another in which he entirely rewrote a Hunter comment subsequently published in Vanity Fair — Ablow presented as Hunter.

And by claiming a photo of sawdust taken by an Ablow client is instead a photo of cocaine taken by Hunter Biden, Derek Hines may have spoiled his effort to sand-bag Abbe Lowell and avoid a suppression challenge to all this digital evidence. Sure, Hines is claiming that Lowell missed his window to file a motion to suppress by December 11, 2023. But he apparently just claimed that he hasn’t validated the data he’s submitting, as an officer of the court, in filings before Judge Maryellen Noreika. And with this apparent flub, Hines has definitely made the importance of expert forensic reports an issue.

It appears increasingly likely that before Jim Jordan demanded a prosecution of Hunter Biden and before David Weiss started to worry about threats to his family, Weiss or someone who knew better realized that any prosecution that would rely on this digital evidence would be rife with these kinds of embarrassments. But then Weiss decided he’d go forward anyway, he’d bring in experts in prosecutorial dickishness to try to sandbag their way through the difficulties posed by the laptop.

Don’t get me wrong: Hines and Leo Wise have well earned their reputation for prosecutorial dickishness. This effort to avoid any suppression challenge relating to the laptop might yet succeed!

But without the least little understanding of digital forensics, that may not be enough to sustain this case.

Update: According to someone familiar with Ablow’s office in this period, the photo does appear to match one that was in the office. That’s important because the FBI and DEA would have photos of Ablow’s office from the 2020 raid.

Update: We’ve literally come full circle. Fox News is in a tizzy because of these photos, though they appear more careful than DOJ to claim the sawdust is Hunter’s.

 

Joseph Ziegler[‘s Filter Documents] Say Derek Hines Is Lying

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For years, there have been questions about whether, and if so how, Hunter Biden could ever be prosecuted using evidence from the laptop. As I noted here, David Weiss and Derek Hines revealed how they intend to do that yesterday. The answer is, by engaging in unbelievably dickish sandbagging of the President’s son.

The ploy involved two steps. First, prosecutors provided Hunter digital evidence in October, with warrants only for tax crimes. At that point, there was no reason to assess those warrants for suppression, because they did not permit searches for gun crimes.

Then, exactly seven days before the motions deadline in the case, they provided a new warrant, for the first time presenting a warrant covering gun crimes. They now claim that because Abbe Lowell did not move to suppress the laptop by that motions deadline seven days later, he has waived his opportunity.

I’m not saying that this kind of ethically problematic gimmick won’t work, nor am I saying it only happens to privileged white men like Hunter. But it is shocking that that is how they plan to bury legal and forensic problems with evidence from the laptop.

I think it likely Lowell may respond by saying there are a whole bunch of things — such as evidence the FBI conducted analysis long before they obtained the laptop and determined John Paul Mac Isaac had unlawfully accessed it and known forensic reports describing problems with the data — that he should have been provided. I expect Lowell will point to this gimmick and describe that it is proof these men are no longer entitled to the presumption of regularity, and therefore the gun charges should be reviewed for vindictive prosecution.

Lowell may also point out that evidence Joseph Ziegler made public shows that a key premise behind this gimmick is false.

Part of Hines’ gimmick is a claim that investigators could, and — the response suggests — did, find evidence pertaining to gun crimes while seeking evidence of Hunter’s state of mind pertaining to the tax crimes.

The warrant authorized investigators to search for the same violations referenced in the previous paragraph, that is, violations of 26 U.S.C. § 7201, Tax Evasion, 26 U.S.C. § 7203, Willful Failure to File Tax Returns or Pay Taxes, and 26 U.S.C. § 7206(1), False Tax Returns. Relevant to this case, this warrant also authorized investigators to seize “evidence indicating the state of mind of the owner and user of the TARGET MACBOOK PRO and TARGET EXTERNAL HARD DRIVE as it relates to the crimes under investigation.” Again, evidence that showed the defendant’s addiction to controlled substances indicates “the state of mind of the owner and user of the TARGET MACBOOK PRO and TARGET EXTERNAL HARD DRIVE as it relates” to the to the tax crimes enumerated in the warrant.

Except Joseph Ziegler helpfully told us what he looked for with that very same warrant when he provided the filter term document to Congress. While he included “halliebiden” (meaning a few of these texts might come in), porn, and girl, he did not include drugs, cocaine, crack, or any other drug-related term.

Cathay

Cathay Bank

CEFC

Cooper

debit

deduction

Dennis Louis

Devon

Dhabi

Dodge

draw

That is investigators wouldn’t find most of these communications as part of the tax investigation.

In fact, Garrett Ziegler has identified several that involve Hunter’s then still licensed psychiatrist, Keith Ablow, which would have been filtered, and aren’t drugs at all.

Again, to be clear, Hines intends to bypass all scrutiny of the laptop with his unethical sandbagging, and he might get away with it.

But in the process, he’s making claims refuted by public evidence.

David Weiss Claims to Have Plain Viewed Hunter Biden’s Dick Pics for Years

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In response to Hunter Biden’s notice of the schedule in California submitted in his Delaware case, Judge Maryellen Noreika asked what was up with Biden’s motion to compel submitted more recently.

ORAL ORDER re 84 Status Report – Having reviewed Defendant’s status report, which states that his motions to dismiss are fully briefed but is silent as to his most recently filed motion to compel discovery (D.I. 83), IT IS HEREBY ORDERED that, on or before February 14, 2024, the parties shall notify the Court whether the parties have reached an agreed-upon briefing schedule for the recent motion to compel or whether briefing will proceed pursuant to the Court’s Standing Order Regarding Responses to Defense Motions in Criminal Cases. ORDERED by Judge Maryellen Noreika on 2/13/2024.

David Weiss responded by explaining his legal basis for accessing Hunter Biden’s dick pics and claiming that Abbe Lowell has forfeited any ability to challenge evidence thus seized. It reveals how Weiss plans to introduce evidence from stolen data that was originally accessed without a warrant in a case against the son of the President of the United States.

It is breathtaking in sheer ethical shoddiness.

And, it may work.

Derek Hines describes that he provided Abbe Lowell the tax warrants to access the iCloud, the laptop, and backups in October, and that because those warrants permitted the search for the what the warrant claims was the email account owner’s state of mind, then searching for evidence of addiction was fair game.

Relevant to this case, investigators were authorized by these warrants to seize “evidence indicating the email account owner’s state of mind as it relates to the crimes under investigation.” Evidence that showed the defendant’s addiction to and use of narcotics indicates “the email account owner’s state of mind as it relates” to the tax crimes enumerated in the warrant. In addition, investigators were also permitted to seize evidence relevant to this case under the plain view doctrine, which they did. This evidence, from the defendant’s backups of his devices to his iCloud account, was produced with the warrants in Production 1 in an easily searchable format. The primary source of electronic evidence in this case is from the defendant’s iCloud account, which investigators were authorized to seize because it showed “the email account owner’s state of mind as it relates to the crimes under investigation” as well as under the plain view doctrine.

Production 1 also included the contract the defendant signed when he dropped off his laptop and hard drive at the computer repair store in which he agreed that, “[e]quipment left with the Mac Shop after 90 days of notification of completed service will be treated as abandoned.” Investigators also obtained a search warrant authorizing them to search the laptop and hard drive that was obtained from the computer repair store. See District of Delaware Case No. 19-309M, issued on December 13, 2019. The warrant authorized investigators to search for the same violations referenced in the previous paragraph, that is, violations of 26 U.S.C. § 7201, Tax Evasion, 26 U.S.C. § 7203, Willful Failure to File Tax Returns or Pay Taxes, and 26 U.S.C. § 7206(1), False Tax Returns. Relevant to this case, this warrant also authorized investigators to seize “evidence indicating the state of mind of the owner and user of the TARGET MACBOOKPRO and TARGET EXTERNAL HARD DRIVE as it relates to the crimes under investigation.” Again, evidence that showed the defendant’s addiction to controlled substances indicates “the state of mind of the owner and user of the TARGET MACBOOK PRO and TARGET EXTERNAL HARD DRIVE as it relates” to the to the tax crimes enumerated in the warrant. In addition, investigators were also permitted to seize evidence relevant to this case under the plain view doctrine. Evidence seized pursuant to this warrant was produced to the defendant in the specific format that he requested. Many of the same messages, photographs, and information that were obtained from the iCloud warrants were also located on the defendant’s laptop. [my emphasis]

In other words, for months, they were claiming that they had found evidence of addiction in the name of searching for tax crimes and if not that, then plain view and that’s all they were relying on while searching Hunter Biden’s dick pics for five years.

Plain view is the concept that if you see evidence of a crime while looking for other crimes, you can use that evidence at trial (usually, after getting another warrant).

Derek Hines described (there are ways to prove this is false, if Lowell gets his shot to do that, but Hines claims he has forfeited that chance) sniffing Hunter Biden’d dick pics for years, all in the name of tax crimes.

Then, Hines described, he got the December 4 warrant for the very same information, and Abbe Lowell acknowledged seeing it on December 5, which gave them another legal authority to sniff Hunter Biden’s dick pics.

On December 4, 2023, investigators obtained an additional search warrant for the defendant’s iCloud account, the backup data associated with his iCloud account, his MacBook Pro laptop, and the hard drive. See District of Delaware Case No. 23-507M, issued on December 4, 2023. This warrant authorized investigators to search for violations of 18 U.S.C. § 924(a)(6) and 924(a)(2) related to making a false statement during a background check to deceive a firearms dealer, violations of 18 U.S.C. § 924(a)(1)(A) related to making a false statement during a background check on records that the firearms dealer was required to maintain, and violations of 18 U.S.C. 922(g)(3). Among other items, the warrant authorized investigators to seize “all evidence relating to addiction, substance use, and controlled substances, to include conversations, message communications, photographs, documents, and videos.” The December 4, 2023, warrant provided yet another legal basis for investigators to seize information relevant to this case from the defendant’s iCloud account, his iCloud backup files, his laptop, and his external hard drive. The warrant was produced to the defendant that same day, December 4, 2023. The following day, December 5, 2023, defense counsel sent the government a letter that acknowledged it had reviewed this search warrant. Because the actual evidence relevant to this case that was previously seized from the laptop, hard drive, and iCloud backup files had already been produced to the defendant on October 12, 2023, there was no additional evidence produced in response to this warrant.

Effectively, Weiss is saying that because Lowell did not immediately move to suppress the laptop and its progeny with just six day’s notice, that claim has been mooted.

The defendant’s pretrial motions were due on December 11, 2023. ECF 57. The defendant did not file any motions seeking to suppress evidence related to the search warrants and evidence produced to him on October 12, 2023, in Production 1. The December 4, 2023, warrant does not entitle him to file any now. In fact, the December 4, 2023 warrant moots any issues that could have been raised by the defendant had he filed a motion to suppress those warrants, and, in any event, he did not elect to file motions to suppress the evidence from the August 29, 2019, December 13, 2019, or July 10, 2020 warrants that were produced to him on October 12, 2023.

As I will show, the places where they obtained communications are themselves problematic, but if this claim that the December 4 warrant moots any suppression claim works, then Lowell will have no opportunity to challenge the fact that David Weiss wants to use stolen data to prosecute the son of the President except by challenging individual communications at trial.

I’ve literally never seen something this ethically brazen. Ever. (Though admittedly, I only cover federal trials; this kind of stuff goes on in state cases all the time.)

And they’re doing it to get away with investigating Joe Biden’s son for years using stolen data.

How Robert Hur Ghosted Joe Biden’s Ghost Writer

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As I’ve shown, Robert Hur only seriously considered charging two sets of documents with classified information found at Joe Biden’s home.

First, classified entries in “diaries” that Hur persistently called “notebooks” to obscure the fact that the Presidential Records Act affirmatively excludes diaries from the statute and, presumably, to provide himself license to read through them all.

(3) The term “personal records” means all documentary materials, or any reasonably segregable portion thereof, of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. Such term includes–

(A) diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business;

Hur couldn’t charge those documents because DOJ didn’t charge Ronald Reagan for the classified entries in his diaries, which Hur always called diaries.

Then, two folders of documents pertaining to Afghanistan found in a ratty box in Biden’s garage. There was no direct evidence that Biden wilfully retained these documents, only to store them in a mostly-destroyed box collecting dust. Hur’s imagined motive for why Biden would — vindication that he was right about Afghanistan — is nonsensical, given that Biden had better vindication inside a desk drawer in his house, the 40-page memo Biden sent President Obama warning him it’d be a mistake to surge troops in Afghanistan.

To make the claim Biden did willfully retain them, Hur isolated a 66-word exchange Biden had with his ghostwriter in early 2017, Dan Zwonitzer, in which Biden mentioned “classified stuff.”

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. [my emphasis]

Then he (by his own confession) read into eight words stripped from the context of the explicit reference to that 40-page memorandum that better vindicated Biden’s judgement, repeating that “8-word utterance” over and over and over. Hur even invented an attorney-client privileged conversation that Biden’s attorneys insist didn’t happen to imagine that Biden knew the box was there.

But to even get to the place where Hur was reading into eight words of a 66-word utterance, he first had to get to Biden’s ghost writer, Zwonitzer.

Nowhere in his 388-page report does Hur describe how — or just as importantly, when — that happened. Zwonitzer is not mentioned in the section that purports to provide an overview of the investigation. With the exception of a description of the five month search (though June 2023) of Biden’s Speech and Debate protected records at University of Delaware, the last date included in that overview is January 20, 2023, eight days after Merrick Garland appointed Hur. Aside from the search of those Senate documents, that section provides few details of how Hur spent over $3 million in investigative expenses or what he did during the 384 days between January 20, 2023 and when he released the report: just the numbers of interviews he did and documents he obtained, not when those things happened. Worse still, Hur deviated from the practice set by Robert Mueller and John Durham by only providing dates for witness interviews if a given witness sat for more than one interview, which obscures his investigation still further.

Hur doesn’t provide an overview of the investigation, he provides an overview of the discovery of classified documents, followed by a description of the classification review of them.

And in spite of the fact that Hur engaged in an 11-page declination discussion regarding Zwonitzer’s attempted deletion of the audio recordings of his interviews with Joe Biden (which he did in part because he was afraid of being hacked), Hur didn’t provide any dates there, except in footnotes.

FBI agents contacted Zwonitzer to request an interview and to seek records related to his work ghostwriting two of Mr. Biden’s memoirs, Promise Me, Dad and Promises to Keep. Zwonitzer provided investigators records that included near-verbatim transcripts and some audio recordings. When reviewing these materials, investigators noticed that there were some transcripts for which there was no corresponding audio recording. They then learned from Zwonitzer’s attorneys that, before the FBI contacted Zwonitzer, he deleted the recordings of his conversations with Mr. Biden. Zwonitzer then provided all electronic devices that contained or were used to create the recordings and transcripts related to Promise Me, Dad.

[snip]

Zwonitzer gave two consensual interviews during which he provided relevant information without seeking immunity or any protections or assurances (such as a proffer agreement). Zwonitzer was forthright that he had deleted recordings. 1353 In his words, “I simply took the audio files subfolder from both the G drive and my laptop and slid them into the trash. I saved all the transcripts …”1354 Zwonitzer believed he did this at some point during the period between the end of January 2023 and the end of February 2023. 1355 He took this action before the FBI contacted him about the investigation and requested that he produce evidence. 1356 Zwonitzer explained that at the time he did so, he was “aware” of the Department of ,Justice investigation of Mr. Biden’s potential mishandling of classified materials. 1357

Hur describes that Zwonitzer didn’t expect he’d get sucked into the investigation and when the FBI contacted him, they had no idea he had had recordings.

Zwonitzer also explained that at the time he deleted the recordings, he did not expect the investigation to involve him.1369 and he did not think the audio recordings contained information relevant to classified information.1370

[snip]

[W]hen FBI agents contacted Zwonitzer, they were unaware that audio recordings existed or where Zwonitzer’s electronic devices were located.

The date Hur reached out to Zwonitzer is important. Hur had no basis to even consider that Biden willfully retained those Afghanistan documents until he read through Zwonitzer’s transcripts. He describes that Zwonitzer’s “cooperation was uniquely valuable as the evidence that he provided was highly probative and not otherwise obtainable.” But he doesn’t explicitly describe when or why that happened.

Hur interviewed Zwonitzer on July 31, 2023 and again on January 4, 2024.

The biggest hint of when he decided to call up Joe Biden’s ghost writer comes in the appendix, where he reveals that he first obtained Zwonitzer’s laptop and hard drive on June 29, 2023.

The evidence Hur obtained from Zwonitzer was the last but one piece of evidence Hur describes collecting. The last? The ratty box, which by description sat in the President’s house for a year because it wasn’t deemed all that important until Hur decided to do some unconvincing photo analysis to claim the box was moved to Biden’s office from the house in Virginia in 2019.

There’s no evidence that Robert Hur reached out to Zwonitzer (who by that point couldn’t remember whether he attempted to delete the recordings in January or February) until after Jack Smith had already charged Trump for stolen documents on June 8, 2023, an indictment Hur cites repeatedly (and inaccurately) in his own report.

Perhaps just as telling, Robert Hur didn’t interview Zwonitzer until after CNN first reported about the role of Mark Meadows’ ghost writer in that investigation on May 31, 2023.

To be clear, Hur might have decided to find Zwonitzer independently. There’s a folder with materials relating to the ghost writer in that tatty box, that may explain that investigative decision. There are Vice Presidential records that mention him and even consider making him an official historian. Hur chased a theory that he could match the marked classified records found in Biden’s home with passages in Biden’s two books, a theory that totally failed with regards to the book Zwonitzer and Biden worked on in 2017.

But on the record Hur chooses to provide in his 388-page report, it’s not clear whether he reached out to Biden’s ghost writer because obvious investigative leads led there or because Jack Smith indicted Donald Trump so Hur decided to redouble his efforts to try to find a similar crime he could pin on Biden.

Rod Rosenstein’s Baltimore Club of Men Gunning for the Bidens

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In an interview yesterday with Jake Tapper (transcript), Rod Rosenstein exhibited more familiarity with the Robert Hur report, which had been public for just three days, than he was about the Mueller investigation that he oversaw for two years, during ten months of which, Hur played a key role.

Tapper: He was your deputy at the Justice Department. Do you agree with his decision that Biden should not be charged, it was not a prosecutable case?

Rosenstein: Yes, Jake.

And it’s — most people haven’t read the entire report. And I don’t blame them. It’s 345 pages, about 1,400 footnotes. It’s very dense and well-reasoned. And I think, if you read the whole report, you will conclude that Rob reached a reasonable decision that, given all the circumstances, that prosecution is not warranted.

After all, Rod Rosenstein was personally involved in drafting (though did not sign) the Barr Memo making a prosecution declination for Trump for his obstruction-related actions. Yet not even Rosenstein, who had been involved in the investigation from the start, thought to address the pardon dangles — a key focus of Volume II of the Mueller Report — that continued to undermine ongoing investigations.

Then, over a year later and under pressure from Lindsey Graham for having signed the worst of the Carter Page FISA applications, Rosenstein agreed with Graham’s false portrayal of the investigation as it existed on August 1, 2017, when Rosenstein expanded the scope of the investigation.

Lindsey Graham: (35:02) I am saying in January the 4th, 2017, the FBI had discounted Flynn, there was no evidence that Carter Page worked with the Russians, the dossier was a bunch of garbage and Papadopoulos is all over the place, not knowing he’s being recorded, denying working with the Russians, nobody’s ever been prosecuted for working with the Russians. The point is the whole concept that the campaign was colluding with the Russians, there was no there there in August, 2017. Do you agree with that general statement or not?

Rod Rosenstein: (35:39) I agree with that general statement.

Rosenstein’s endorsement of Lindsey’s statement about the evidence as it existed in August 2017 was egregiously wrong. Mueller had just acquired a great deal of evidence of conspiracy, including several details implicating Roger Stone and Paul Manafort that were never conclusively resolved. Crazier still, George Papadopoulos had just been arrested for lying to cover up when he learned that Russia planned to help Trump, an arrest of which Rosenstein would have personally had advance notice.

By comparison, days after its release, Rosenstein exhibited great confidence in his knowledge of the 1,400 footnotes his former deputy included in the report.

To be sure, Rosenstein’s defense of Hur did not honestly present the content of the Report. For example, the only other reason  he provides for why Hur didn’t charge Biden, besides Hur’s opinion that Biden is a forgetful old geezer, involved the tradition of Presidents taking things home.

ROSENSTEIN: I think so, Jake.

And you identified the controversial elements of the special counsel’s report. It’s a very long report, 345 pages, and has a lot of information in there, other reasons why prosecution would not be warranted. And one of them is the history and experience of prior presidents and potentially vice presidents as well taking home classified documents.

This is simply a misrepresentation of the evidence.

Even if you ignore Hur’s misstatement of DOJ’s application of 18 USC 793(e) in cases where there is no other exposure (in something like a leak) or the challenges in applying it to someone who, like both Biden and Trump, didn’t hold clearance, for the primary set of documents he examined — the two folders of Afghanistan documents found in Biden’s garage — Hur admitted he couldn’t prove his already inventive theory of the case. He couldn’t even prove that the documents in question had been in Biden’s Virginia home when Biden made a comment about something classified in his home.

Rosenstein is, as Hur already did, emphasizing the most unflattering part of the declination decision, not the fact that after blowing  over $3M and reading through Joe Biden’s most personal thoughts, Hur simply didn’t find evidence to support a charge.

Twice, Rosenstein disputed that Hur’s focus on Biden’s age was the kind of gratuitous attack for which he had made the case for firing Jim Comey, the second time in direct response to a question about the memo he wrote.

Tapper: I want to read from a memo you wrote in 2017 in which you criticized James Comey’s infamous press conference in which he criticized Hillary Clinton’s handling of classified e-mails, even as he declined to prosecute her, a similar circumstance, although he wasn’t a special counsel — quote — “Derogatory information” — this is you writing — “Derogatory information sometimes is disclosed in the course of criminal investigations and prosecutions, but we never release it gratuitously.

“The FBI director laid out his version of the facts for the news media as if it were a closing argument, but without a trial, it is a textbook example of what federal prosecutors and agents are taught not to do” — unquote. By going to the lengths he did to critique Biden’s age and memory, even as he was clearing him of a crime, how do you differentiate between what Robert Hur did that you say is OK from what James Comey did that you say is not?

ROSENSTEIN: Jake, there are several significant differences between those two examples.

One is, most fundamentally, that Jim Comey wasn’t the prosecutor. He was the head of the FBI. His job was to ensure the police collected the proper evidence, submitted it to the prosecutors. And, ultimately, it’s up to the prosecutors in the Justice Department and the attorney general to make a decision about what information is released.

Rob Hur was the prosecutor. It was his job to make that decision, to make that recommendation to the attorney general, who, as you acknowledged, has previously committed to make this report public. That’s one difference.

The second difference is the special counsel regulation. In the ordinary case, Hillary Clinton was not investigated by a special counsel. There was no procedure to make those reasons public. Here, it’s baked into this regulation.

Now we sit, Jake, 25 years down the road. That regulation was passed by Attorney General Reno in 1999. Now we have 25 years of experience. I think it’s worthwhile to sit back and ask whether or not this is the right procedure. Do we really think that we ought to have prosecutors writing reports for public release of everything they discover and all the reasons for not prosecuting?

Or is there a better way to do that without having all the embarrassing information come to public light?

The big tell in Rosenstein’s defense of his former deputy, though, is his suggestion there’s a comparison between Hur’s attacks on Biden’s age with what Mueller — under the direction of Rosenstein and Hur — included in his report, which spent far fewer pages laying out the prosecutorial analysis for far more potential criminal exposure by Trump.

The second issue is what you release in the public. And the problem here with — that’s really baked in the special counsel model is that it’s not really the function of a prosecutor to publicly announce the reasons why they’re not prosecuting.

And so when you layer that into the process, it can result in unfortunate consequences. The Donald Trump report, I think, got people upset in the same way that this one did.

Given his inclusion of Independent Prosecutor Lawrence Walsh here, Rosenstein’s comparison is insane, because he left out the Ken Starr Report (to which investigation, he reminded Tapper, he contributed), which included the most gratuitous descriptions of the subject of the investigation of any of these reports.

Rosenstein’s likening of the Mueller and Hur report is odd for a number of reasons. The part of the Mueller Report focused on Trump was 200 pages, far shorter than the Hur Report yet covering far more overt acts.

Mueller made absolutely no complaint that both Trump and his failson refused to appear before a grand jury whereas Hur’s attacks arose out of Biden’s willingness to sit for several days of a voluntary interview. Mueller let Trump’s decision to invoke the Fifth stand without ascribing criminal motive; Hur made Biden’s cooperation into cause for attack.

But even in smaller details, the reports don’t compare. One thing Hur made up, for example, is that Biden might have alerted his attorneys that there were classified records (in a ratty beat up old box) in his garage, but his team couldn’t find out because if they asked, the answer would be privileged.

We considered the possibility that Mr. Biden alerted his counsel that classified documents were in the garage, but our investigation revealed no evidence of such a discussion because, it if happened, it would be protected by the attorney-client privilege.

This claim only appears in the Executive Summary, where lazy journalists might find it. It appears nowhere in the body of the report (which has to deal with the fact that if Biden had really brought these documents home, he wouldn’t have so willingly let his attorneys search for them). It’s one of the things Biden’s attorneys asked to be corrected.

There are a number of inaccuracies and misleading statements that could be corrected with minor changes:

  • ‘We considered the possibility that Mr. Biden alerted his counsel that classified documents were in the garage but our investigation revealed no evidence of such a discussion because if it happened, it would be protected by the attorney-client privilege.” Report at 22. In fact, your investigation revealed no evidence of such a discussion because it did not happen–not because of any privilege. The President testified he was unaware that there were any classified documents in his possession. Tr., Day II, at 2, 41-42. You did not ask him in his interview or in the additional written questions if he had “alerted his counsel” about classified documents; if you had, he would have forcefully told you that he did not.

Hur’s decision to fabricate the possibility of an attorney-client conversation that did not happen — and his obstinate refusal to correct it — is especially telling given Mueller’s hands-off treatment of attorney-client privilege.

For example, Mueller didn’t even try to ask Jay Sekulow about his role in drafting Michael Cohen’s false claims about the Moscow Trump Tower, even though Cohen said Sekulow was involved.

The President’s personal counsel declined to provide us with his account of his conversations with Cohen, and there is no evidence available to us that indicates that the President was aware of the information Cohen provided to the President’s personal counsel. The President’s conversations with his personal counsel were presumptively protected by attorney-client privilege, and we did not seek to obtain the contents of any such communications.

Nor did Mueller attempt to interview John Dowd about whether he left a threatening voicemail for Mike Flynn’s then-attorney Rob Kelner, to find out whether Trump directed Dowd to make the threat.

Because of attorney-client privilege issues, we did not seek to interview the President’s personal counsel about the extent to which he discussed his statements to Flynn’s attorneys with the President.

In both cases, Mueller let privilege close off investigation into more egregious evidence of obstruction.

So where Mueller let Trump hide behind attorney-client privilege as a shield, Hur flipped that, and used a fabricated attorney-client conversation as a shield to insinuate evidence of guilt where none existed.

In short, Rosenstein went on teevee and made a bunch of cynical claims, defending Hur’s attack on Biden even while claiming that the Mueller Report was just as damning.

As I and others contemplate how Merrick Garland made such a shitty choice for Special Counsel here, I keep thinking about the fact that there’s a little club of Rod Rosentein associates gunning for the Biden men. There’s Hur, and Rosenstein’s hypocritical and remarkably hasty defense of him.

There’s also the reference that Gary Shapley, who is based partly in Baltimore, made about a prosecutor who became Deputy Attorney General, a reference that can only describe Rosenstein.

Mr. Shapley. No. I think I’ve said it, that this is not the norm. This is — I’ve worked with some great guys, some great prosecutors that went on to be U.S. attorneys and went on to be the deputy attorney general and, I think I have experience enough to where it means something.

After having agreed with the IRS that the case against Hunter Biden couldn’t move forward if Shapley were on the team, David Weiss then decided to appoint two AUSAs who would have worked for Hur and Rosenstein as AUSAs in MD USAO, in the case of Leo Wise, for years.

That is, the cabal of men gunning for Joe Biden and his son — all of whom have already engaged in questionable games — have ties to Rod Rosenstein, who still seems to be trying to make it up to Trump for his role in appointing a Special Counsel.

And Rod Rosenstein, as he demonstrated in that interview, is giving Hur, at least, special license to engage in precisely the kind of conduct for which he endorsed firing Jim Comey.

Call and Response: Putin Demanded Greater Russia and Trump Agreed

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Over the weekend, Putin and Donald Trump seem to have come to public agreement that, if elected in November, Trump would help Putin pursue Greater Russia.

In his session with Tucker Carlson, after all, Putin corrected the propagandist, informing him that, no, he didn’t invade Ukraine because of concerns about NATO expansion, but because he considers Ukraine — and much of Eastern Europe — part of Greater Russia. He subjected Tucker to a half hour lesson in his, Putin’s, mythology about Russia.

Tucker Carlson:Mr. President, thank you.

On February 24, 2022, you addressed your country in your nationwide address when the conflict in Ukraine started and you said that you were acting because you had come to the conclusion that the United States through NATO might initiate a quote, “surprise attack on our country”. And to American ears that sounds paranoid. Tell us why you believe the United States might strike Russia out of the blue. How did you conclude that?

Vladimir Putin:The point is not that the United States was going to launch a surprise strike on Russia, I didn’t say so. Are we having a talk show or serious conversation?

Tucker Carlson:That was a good quote. Thank you, it’s formidably, serious!

Vladimir Putin: Your education background is in history, as far as I understand, right?

Tucker Carlson: Yes.

Vladimir Putin: Then I will allow myself – just 30 seconds or one minute – to give a little historical background, if you don’t mind.

Tucker Carlson: Please.

Vladimir Putin: Look how did our relations with Ukraine begin, where does Ukraine come from.

[snip]

Tucker Carlson: May I ask… You are making the case that Ukraine, certain parts of Ukraine, Eastern Ukraine, in fact, has been Russia for hundreds of years, why wouldn’t you just take it when you became President 24 years ago? Your have nuclear weapons, they don’t. It’s actually your land. Why did you wait so long?

Vladimir Putin: I’ll tell you. I’m coming to that. This briefing is coming to an end. It might be boring, but it explains many things.

And then, within a day, Trump told a fabricated story that served to promise that not only wouldn’t he honor America’s commitment to defend NATO states, but would instead encourage Russia to do “whatever they hell they want.”

One of the presidents of a big country stood up and said, “Well, sir, if we don’t pay and we’re attacked by Russia, will you protect us?,” I said, “You didn’t pay. You’re delinquent.” He said, “Yes, let’s say that happened.” No, I would not protect you. In fact, I would encourage them to do whatever the hell they want. You got to pay. You got to pay your bills.

Call and response.

I still owe you a post(s) about my full understanding of the Russian investigation, one of the last parts of my Ball of Thread before I describe how Trump trained Republicans to hate rule of law. But I want to point to some aspects of 2016 — how Russia used similar calls and response to lock Trump in as part of the help they gave him.

As Adam Schiff addressed to in the exchange where he walked John Durham through all the elements of what Schiff described as “collusion” of which Durham claimed to be ignorant, Trump first asked for help, then got it.

Mr. Schiff. Don Jr. when offered dirt as part of what was described as Russian government effort to help the Trump Campaign said, “if it’s what you say, I love it;” Would you call that an invitation to get Russian help with dirt on Hillary Clinton?

Mr. Durham. The words speak for themselves, I supposed.

Mr. Schiff. I think they do. In fact, he said, especially late in summer. Late in summer was around when the Russians started to dump the stolen emails, wasn’t it?

Mr. Durham. Late in the summer, there was information that was disclosed by WikiLeaks in mid to late July.

Only, it happened even more than Schiff laid out. And it happened in ways that ensured Trump would be stuck down the road.

The way it worked with the Trump Tower Moscow dangle may be most instructive (this is, obviously, a paraphrase).

Late 2015, Felix Sater to Michael Cohen: Do you want the biggest bestest tower in Moscow? Are you willing to work with a former GRU officer and sanctioned banks to get it?

Cohen: Yes.

January 2016, Sater: Okay, then call the Kremlin.

January 2016, Michael Cohen to Dmitry Peskov, writing on a server hosted by Microsoft: Can I have Vladimir Putin’s help to build the biggest bestest tower in Moscow?

[Peskov pockets proof that Cohen and Trump were willing to work with a former GRU officer and sanctioned banks. Before the first primary, Putin pocketed his first receipt.]

May, after Trump has sealed the nomination, Sater to Cohen: You should fly to St. Petersburg to meet with Putin.

Cohen agrees, but once the DNC hack is revealed, Cohen decides that’s a bad idea and calls it off. Already, the stakes of having agreed to work with a former GRU officer have now gone up considerably.

July 27, Trump responding to some totally predictable questions, between asking Russia to hack Hillary some more and stating he would consider recognizing Russia’s seizure of Crimeia:

TRUMP: No, I have nothing to do with Russia, John (ph). How many times do I have say that? Are you a smart man? I have nothing to with Russia, I have nothing to do with Russia.

And even — for anything. What do I have to do with Russia? You know the closest I came to Russia, I bought a house a number of years ago in Palm Beach, Florida.

Palm Beach is a very expensive place. There was a man who went bankrupt and I bought the house for $40 million and I sold it to a Russian for $100 million including brokerage commissions. So I sold it. So I bought it for 40, I told it for 100 to a Russian. That was a number of years ago. I guess probably I sell condos to Russians, OK?

[snip]

TRUMP: Excuse me, listen. We wanted to; we were doing Miss Universe 4 or 5 years ago in Russia. It was a tremendous success. Very, very successful. And there were developers in Russia that wanted to put a lot of money into developments in Russia. And they wanted us to do it. But it never worked out.

Frankly I didn’t want to do it for a couple of different reasons. But we had a major developer, particular, but numerous developers that wanted to develop property in Moscow and other places. But we decided not to do it.

[Peskov now has a secret with Trump and Cohen, that in fact this was a lie.]

By the time Trump told this lie, Roger Stone was already working on getting advance notice of the contents of the John Podesta emails, a more specific ask. And Konstantin Kilimnik was preparing his trip to meet in a cigar bar with Paul Manafort where they would discuss how to win the swing states, how Manafort could get paid, and how to carve up Ukraine.

Later Steele dossier entries, sourced through Olga Galkina, who had started working directly with Peskov, claimed that Cohen had direct contact with the Kremlin (he had!), and claimed he was fixing Trump problems (he was! Trump’s sex worker problem!), but instead claimed that Cohen was instead fixing a Russian tie problem.

By the time those October Steele dossier entries were written, and especially by the time the December one was, Russia had done the following:

  • Gotten Cohen (and through him, Trump) to agree to work with sanctioned banks and a former GRU officer to get the biggest bestest Tower in Moscow
  • Left evidence of this fact on Cohen and Sater’s phones, in Trump Organization call records, and Trump Organization emails hosted by Microsoft, where they would be discoverable in case of investigation
  • Established a secret between the Kremlin and Trump: that the statements Trump made on the same day Russia obliged his request to hack Hillary, denying that he had ongoing discussions with Russia, were a lie
  • Made the substance of the lie look far, far worse, thereby increasing the chances the lie would be discovered, which it was

Through a predictable mix of narcissism and sloppiness, then, Trump had compromised himself without even thinking through the consequences.

Trump always insisted that his request that Russia further hack his opponent on July 27, 2016 was just a joke (and never really accounted for the Crimea comment). But Roger Stone was inserting himself into Trump’s public foreign policy statements as early as April.

And, after two conversations with Trump on July 31, Stone scripted a number of pro-Russian tweets for Trump to post. Trump didn’t post the tweets Stone sent; his staffers were instead cleaning up from the “Are you listening” comment. But Stone may have posted the ones he drafted himself.

Of course the Russians hacked @HillaryClinton’s e-mail- Putin doesn’t want the WAR with Russia neo-con Hillary’s donors have paid for

HYPOCRISY ! @HillaryClinton attacks Trump for non-relationship with Putin when she and Bill have taken millions from Russians oligarchs

Trump wants to end the cold war and defuse out tensions with Russia. Hillary ,neocon wants war. Putin gets it. @smerconish @realDonaldTrump

,@RealDonaldTrump wants to end new cold war tensions with Russia-thru tough negotiation- #detente #NYTimes

That is, in 2016, days before Stone’s lifelong friend Manafort would discuss election help in the same conversation as carving up Ukraine, days before Stone himself got advance notice of the Podesta emails, the rat-fucker was promising that Trump would end cold and hot wars with Russia.

By the time Stone did get those advance Podesta emails in mid-August 2016, the operation had already linked Stone to two Russian intelligence operations: the use of Julian Assange as a cut-out (and his request for a pardon), and the Shadow Brokers operation releasing NSA files publicly. That is, by chasing the carrot of stolen Hillary emails, Stone linked himself inextricably with two sticks, association with the most effective attacks on the US Deep State in recent history. Stone and Trump would have happily targeted the Deep State anyway, but Russia didn’t leave that to chance.

First Trump and Cohen compromised themselves by asking for help. Then Trump personally and through Stone made policy commitments. Along the way, Russia kept pocketing one or another receipt that would help bind Trump to those commitments, or if not, ensure some kind of leverage over him.

Here we are, eight years later, and that formula has only gotten more overt. At a time when winning the election is an existential necessity for Trump, one day after Putin made clear he is seeking not just Ukraine, but Greater Russia, Trump overtly promised to allow Russia to carve up NATO.

Past history suggests that may be no coincidence.

Update: Fixed a reference to Manafort.

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

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If you ignore the overreading Robert Hur confessed to in order to justify writing a 388-page report that should have been 75, if you ignore the way Hur improperly used prejudicial language to attack a Presidential candidate and set up impeachment frenzy among Republicans, there are some interesting historic details about Robert Hur’s report, such as the details of what classified documents investigators found.

Thirty-four pages of the report consist of appendices, describing what investigators found where. And because Hur spent 156 pages explaining why he didn’t indict Biden based on the actions of Senate staffers shipping 2,000 boxes of Speech and Debate protected documents first to the Archives and then the University of Delaware decades ago, there are descriptions of how virtually all of the documents got where they ended up (except, of course, the two folders of Afghanistan documents around which he builds the excuse to write a 388-page report).

One of the most interesting descriptions, for example, explains how some of the most sensitive documents the FBI found — an envelope of documents about Obama’s Iran deal, including several with a bunch of compartment markings — probably ended up at Penn Biden Center.

The report describes that the documents were compiled in anticipation of a January 29, 2015 breakfast meeting at the Naval Observatory at which Biden attempted to persuade six Senators who had traveled to Israel together to support Obama’s Iran deal. Biden’s staffers got a bunch of compartmented documents delivered in advance; they were properly signed off in person. A picture of the breakfast meeting shows Biden with an envelope that may contain the documents in question.

Another picture shows Biden with some of the handwritten notes that would end up at Penn Biden Center.

Unlike he did with the Afghan documents, Hur did not invent a narrative to explain why Biden might have wanted to retain these. He noted that Promise Me, Dad, barely mention the Iran deal (it similarly barely mentioned the Afghanistan memo, but that didn’t deter Hur).

Hur surmises that Biden simply kept these really sensitive documents on hand, and they got moved, by someone else, when he left office.

Given his practice of having his front office staff store files he wanted to keep close at hand, Mr. Biden likely gave the EYES ONLY envelope to his executive assistant to keep within reach for future engagement with members of Congress. He and his staff appear to have eventually forgotten about it-along with other older files in the front-office collection-and staff members unwittingly moved it out of the West Wing at the end of the administration.

That’s how Hur declined to prosecute some of the most sensitive documents discovered (documents that, it should be said, would require Senators to testify if they were ever charged).

Less interesting and far more tedious are Biden’s Senate documents. Under Hur’s supervision, the FBI spent what must have been days and days going through the boxes sent in several passes to University of Delaware, discovering decades-old documents, many labeled Confidential which, he conceded, could be either a classification mark or Senate discretion.

Some of the documents are marked “CONFIDENTIAL.” While that is a valid marking for classified information, the term “CONFIDENTIAL” is also used in other contexts not involving classified information. Senate staffers could have understood these to be internal committee documents or simply sensitive documents created by authors who wanted to limit the number of people who viewed them.

It should trouble Members of Congress that Hur never took Speech and Debate under consideration in his analysis, particularly given that these were documents that Biden specifically didn’t want to retain.

Hur spent almost four pages discussing two binders (and one corresponding document found at Penn Biden Center) titled, “Weekend with Charlie Rose,” which were not marked as classified on the front.

It was, quite obviously, a briefing book that got brought back from Aspen to the Wilmington house and never moved from there.

In searching the contents of the box in the garage where they found one of the “Weekend With Charlie Rose” binders, agents found binders from other trips Mr. Biden took as vice president in the same box. 1340 A naval enlisted aide recalled that Mr. Biden kept such binders after returning from his trips. 1311

There must be hundreds of similar briefing books top officials brought back from one or another Aspen conference. That’s a problem. It’s not a crime.

You can see how tedious — and unnecessary — parts of this exercise were.

It’s Hur’s analysis of Biden’s diaries that I find most interesting, and troubling. Hur’s approach to these diaries is one of the most obvious flags of political bias in a report full of them.

Take his use of language. The word “diaries” appears 103 times in the report [note: someone with interns should replicate this work, as it is inexact]. In about five of those instances, Hur quotes the people around Biden referring to these notebooks as diaries. Two instances discuss the Presidential Record Act’s language treating diaries as personal records, exempt from PRA. Maybe ten or so appear in a section where Hur envisions that Biden would describe these as diaries as a defense, but the word is always put in Biden’s mouth. Hur adheres to using “notebooks” here.

Mr. Biden will likely say, he never believed his notebooks, which he thought of as his personal diaries, fell within that arrangement. He treated the notebooks markedly differently from the rest of his notes and other presidential records throughout his vice presidency, for example, allowing staff to store and review his notecards, but not his notebooks. 914 This treatment, he will argue, and the extremely personal content of some of the notebooks, shows that he considered them to be his personal property. Mr. Biden’s notebooks included gut-wrenching passages about his son’s death and other highly personal material. 915 His claim that he believed he did not need to send what he considered to be his personal diary to be stored at a government facility will likely appeal to some jurors. 916

We expect Mr. Biden also to contend that the presence of classified information in what he viewed as his diary did not change his thinking. As a member of the exclusive club of former presidents and vice presidents, Mr. Biden will claim that he knew such officials kept diaries, and he knew or expected that those diaries-like Mr. Reagan’s-contained classified information. 917 He also understood that former presidents and vice presidents took their diaries home upon leaving office, without being investigated or prosecuted for it. [all emphasis mine]

But the overwhelming bulk of those remaining 85 or so uses of the word “diaries” describe Reagan’s (or in two cases, other Presidents’) diaries.

By contrast, there are 461 uses of the word “notebook” in Hur’s report. That’s the word Hur uses to refer to what he quotes people around Biden calling the President’s diaries.

Reagan had diaries. And as a result, when DOJ discovered them, they remained untouched.

Biden has notebooks. By calling these notebooks, Hur permitted himself to do with Biden’s most private thoughts what DOJ did not do with Reagan’s: review them all.

Mr. Biden’s notebooks, which contained, among other things, his handwritten notes taken during classified meetings as vice president, presented a challenge. None of the pages contained classification markings but investigators assessed some of the content was potentially classified. Classification review by intelligence agencies of unmarked information is more challenging and time-consuming than for marked documents. We therefore reviewed all of Mr. Biden’s handwritten notes and selected thirty-seven excerpts totaling 109 notebook pages to submit for classification review. Investigators selected entries they believed were most likely highly classified and that a jury of laypeople would find was national defense information under the Espionage Act. [my emphasis]

All the gut-wrenching passages about Beau and whatever else (likely including a great many gut-wrenching passages about Hunter)? They’re identified with footnotes to make it easier for Jim Jordan to find them. Not dick pic-sniffing, honest. Just an attempt to find 37 excerpts that a jury of laypeople might believe were National Defense Information, even though the Presidential Records Act has a clear exception for diaries, and so this was never going to be charged anyway.

I was interested in what Hur selected anyway, but this background — the linguistic games Hur played to be able to snoop in Biden’s diaries — made the inquiry more important. Some of the 37 excerpts he chose were predictable.

Several weeks after the killing of Osama bin Laden, for example, then-Vice President Joe Biden wrote down his recollections about it, just like every other person involved.

On June 19, 2013, not quite two weeks after the first Snowden leaks, Biden attended a briefing by the National Security Agency.

Because it’s Joe Biden, there has to be an Amtrak connection.

But the selection that fries my ass about this exercise — the selection that makes me confident this shit is intended to blow up later in the year — is this one.

I have no doubt in my mind that these two pages of Biden’s diary are his version of these notes, Peter Strzok’s memorialization of Jim Comey’s description of what happened in the January 5, 2017 White House meeting where Comey, Barack Obama, Joe Biden, Susan Rice, and Sally Yates discussed what the fuck they were going to do about the fact that Trump’s incoming National Security Advisor had been picked up on FISA intercepts undermining Obama’s policy on Russia.

The red outline, as most will remember, is where someone who participated in Jeffrey Jensen’s review added an inaccurate note to package this up for a campaign attack on Biden.

The reason this fries my ass is that this meeting is something that Donald Trump and his allies have spent years politicizing and — as proven by that added misleading date — lying about.

The other reason this fries my ass is that Trump has declassified details of this, over, and over, and over. Hell, he even declassified the intercepts that might explain the HCS-O classification. It’s not entirely clear who did the declassification review of this (Hur had State stand in for the National Security Council to avoid conflict, but not in this case).

But particularly given the politicized background of this investigation, Hur should have left this well enough alone. It should not be the case that by licensing himself to snoop in Biden’s diaries, Hur can dig out the things Donald Trump would most like to read.

Robert Hur licensed himself to rifle through Joe Biden’s most personal thoughts by calling Biden’s stacks of paper “notebooks” rather than “diaries.” He then provided specific details about not just where to find the painful memories of his family struggles. But also one event that Trump has spent years trying to misrepresent.