2024 Presidential Election Archives - Page 48 of 54

James Comer Finally Finds Evidence Supporting Impeachment — of Donald Trump

Back on October 7 (after Hunter Biden sued Garrett Ziegler on September 13, after Hunter Biden sued the IRS on September 18, after Hunter Biden sued Rudy Giuliani on September 26, and after Matthew Graves testified to the House Judiciary Committee on October 3) — Abbe Lowell sent Graves a letter asking him to investigate whether Tony Bobulinski lied to the FBI on October 23, 2020.

The letter was first reported by NBC.

Jamie Comer has now seized on the letter in his latest demand for more information — and testimony of Hunter Biden. But this time, the evidence implicates Donald Trump, not Joe Biden.

The substance of Lowell’s allegation boils down to a claim that Bobulinski lied in his FBI interview when he claimed to have attended a key meeting with CEFC on February 19, 2017. If Bobulinski didn’t attend the meeting, he therefore lied in his interview when he made claims about personally witnessing the involvement of Joe Biden in all this.

The most significant set of false statements is central to Mr. Bobulinski’s entire interview and self-aggrandizement. The memorandum states that “BOBULINSKI first met in person with members of the BIDEN family at a 2017 meeting in Miami, Florida. BOBULINSKI, GILLIAR, WALKER, HUNTER BIDEN, and YE all attended the meeting.”11 This is deliberately false; Mr. Bobulinski did not attend a meeting with Mr. Biden and his associates in Miami in 2017, nor did he meet members of the Biden family then. Around February 13, 2017, Messrs. Biden, Walker, and Gilliar traveled to Miami to meet with CEFC Chairman Ye, Director Zhang, and other CEFC members to discuss a possible business venture. It is here that Mr. Biden met Chairman Ye for the first time, and at that meeting, a tentative business agreement was reached in principle to set up a joint venture with CEFC, and a business structure was discussed.

Despite what Mr. Bobulinski told investigators to pretend he had firsthand knowledge, he was never in and did not attend this meeting in Miami on February 14, 2017. [bold emphasis Lowell’s]

That’s not the only allegation in the letter; Lowell accuses Bobulinski of a bunch of other lies.

The most important — aside from his provable presence (or not) at that February 2017 meeting — has to do with the origin of the “10 held by H for big guy” letter that Fox News has made a focus of their propaganda for three years.

Lowell provided background to a series of communications in May 2017, during a period when the proposed Joint Venture involving Hunter, Bobulinski, James Gilliar, and Rob Walker, was losing ground in the competition for CEFC’s support in the face of a group involving James Woolsey. That’s what led Gilliar — not Hunter — to propose getting Joe Biden involved.

It is in this context that, on May 11, 2017, Mr. Bobulinski and Mr. Gilliar discussed their concerns that Chairman Ye had skipped meetings with Mr. Biden in New York, while separately attending a party held by Mr. Witkoff. (Ex. G attached hereto.) Mr. Gilliar acknowledges this growing concern about competition for CEFC in a May 11 message to Mr. Bobulinski: “Man U are right let’s get the company set up, then tell H and family the high stakes and get Joe involved.” (Id.) Importantly, this notion of “get[ting] Joe involved” was referenced as an idea by Mr. Gilliar to Mr. Bobulinski in private, and never sent to Mr. Biden, as potential leverage to counter the competition for CEFC’s U.S. investment.

This is consistent with what Gilliar told the WSJ in October 2020, in the wake of Bobulinski going public with these claims (as Lowell notes in his letter). But as Lowell also noted, Bobulinski’s claims that a split involving Joe Biden was real and happened earlier rests on his claim — which Lowell asserts to be false — to have been at the CEFC meeting in Miami.

Mr. Bobulinski took this lie even further when he willfully told investigators that the reference, “10 held by H for the big guy,” originated from deal discussions that he witnessed as between Mr. Biden and Chairman Ye in Miami in February 2017. As explained above, Mr. Bobulinski was never at that meeting in Miami and this fantasy was his and Mr. Gilliar’s.

Lowell pointed to additional texts seemingly supporting the claim that the idea of involving Joe only ever came from Gillier and Bobublinski. Weeks earlier, Hunter laid out a 50-50 split with CEFC, in turn split four ways (not including his uncle), and days after, Bobulinski bitched that bringing Jim Biden in — as a fifth recipient — would only serve to up the proportions of the Biden family. Gilliar responded that bringing Jim Biden in as a 20% stakeholder was his own idea, to buy loyalty, not Hunter’s.

As laid out, this means that Bobulinski or Gilliar, not Hunter Biden, may have been contemplating monetizing access to Joe Biden with the Chinese in 2017.

This allegation will get litigated in days ahead, I’m sure. As noted, Comer pointed to this letter about Bobulinski to justify doing what they were already planning on demanding: calling Hunter to testify.

For now, I’m interested in some logistical aspects of the allegation.

First, while Bobulinski’s claims have long been out there, Lowell only has a hook to package it up in a letter to Matthew Graves because the IRS agent who spent five years investigating his client, Joseph Ziegler, released the Bobulinski and Rob Walker interview materials on September 27 in support of his insinuation that the Delaware US Attorney’s office dropped the ball by not doing follow-up interviews with Bobulinski.

While providing this information in front of agents with the FBI, Bobulinski makes multiple references to Former Vice President Joseph Biden’s potential involvement with Sinohawk and the CEFC joint venture. 5.

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

Note that the Bobulinski 302, unlike the Rob Walker or the Gal Luft 302s, is not the official 302.

The others, along with the IRS memorialization of James Biden’s interview, all appear in the official form and the FBI 302s have the “Official Record” stamp in the right hand corner.

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

Ziegler doesn’t even call this a 302 and his description of how it came into his possession is tortured (though it’s similar to his description of how he got the Luft 302, which was saved from Notes).

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

That is, the form of the interview report raises real questions about whether Ziegler was ever supposed to have access to it or even whether the report was ever officially filed (a question Chuck Grassley also has raised). Though in Tim Thibault’s interview, he referred to the interview report as a 302 and described asking those involved, “how are you sending this information to Baltimore,” and being, “advised it was like an [sic] e-Guardian system. So there’s receipts for that.”

It took just ten days — September 27 to October 7 — after reading that interview report for Abbe Lowell to write a letter about the problems with it. That would suggest writing this letter, calling out the problems with Bobulinski’s testimony, was not a close call.

The possibility that the story Bobulinski told the FBI was subsequently discredited would explain a lot. Gary Shapley-adjacent reporting from last summer complained that Bobulinski had not been asked to testify before a grand jury. Long after Democratic Ranking Members Jamie Raskin, Jerry Nadler, and Richard Neal would have gotten a copy of the Lowell letter, Chuck Grassley demanded details about how Bobulinski’s interview was treated. And Joseph Ziegler, who seems to have little appreciation for how badly his conspiracy theories have damaged the case he tried to bring against Hunter Biden, revealed that, “ultimately,” prosecutors described, “Bobulinski was not viewed as a credible witness.”

If Lowell’s letter is right, there’s a good reason why Bobulinski was not viewed as credible: Because prosecutors would have quickly identified holes in Bobulinski’s story, making his tie to the White House — made explicit in his FBI interview when he described getting a COVID test at the White House the previous day even if they didn’t see reports that he had been Trump’s guest at the debate the day before — absolutely toxic.

And after (per Ziegler’s claims) prosecutors decided they didn’t want Bobulinski anywhere near their prosecution and definitely didn’t want him in front of the grand jury, Ziegler decided to share the details of Bobulinski’s interview with the FBI for all the world to see, a world that includes Hunter Biden’s lawyers, who now know that prosecutors were repeatedly asked about Bobulinski but, presumably for reasons that had to do with preserving plausible deniability about Bobulinski’s actions, didn’t do anything that would have required providing details about Bobulinski in discovery.

The reason you don’t put someone whose location data and other comms show he wasn’t where he claimed to be in front of an investigative team, much less the grand jury, is to preserve a fragile claim that the entire investigation wasn’t a political witch hunt directed from the President, to hide from defense attorneys that the President of the United States had ties with someone who would pitch (per Lowell) false claims to the FBI. But Joseph Ziegler, goaded on by a trio of dumbass Republican Committee Chairman, decided to make that available to Hunter’s legal team anyway.

Lowell’s letter doesn’t describe where he obtained the exhibits attached, but they include texts involving Hunter Biden (and so presumably in his possession), texts not involving Hunter Biden, and a scan of a stapled printed email involving Bobulinski. Even for the texts involving Hunter Biden, Lowell appears to lack reliable metadata.

And these are definitely cherry picked communications, enough so to counsel caution about this being the full story. Then again, Bobulinski tried to cherry-pick the communications he provided to the FBI himself, offering up three devices but asking to delete most of the content first. I would imagine that after Rob Walker told the FBI of Bobulinski’s rumored tie to Viktor Vekselberg just 16 days later, they would have taken steps to obtain a set of his communications that he hadn’t cherry picked.

The point being, whatever Abbe Lowell has, we can assume the FBI has a far better set of data, including location and travel data to track where Bobulinski really was at what time on February 19, 2017. The FBI doesn’t need Abbe Lowell to tell them that Bobulinski lied in this interview, if in fact he did; this letter to Graves (as opposed to sharing copies of it with the three Ranking Democratic members of committees involved in the impeachment charade) serves only to advertise that the FBI could have, but has not yet, responded differently to Bobulinski’s involvement.

It serves to flip the script that Republicans have been inventing.

I mean, let’s be clear what Abbe Lowell alleges, with some backup: He’s accusing Tony Bobulinski of doing the same thing for which Trump’s hand-picked Special Counsel John Durham prosecuted Michael Sussmann. But unlike that case, in which multiple witnesses testified that the Hillary campaign would never have wanted to share information with the FBI, in this case, Bobulinski showed up at the White House the day before and waltzed into the FBI with a former Trump White House Counsel.

And, frankly, Lowell pulls his punches on this — a bunch of them.

He briefly mentions and footnotes the passages from Cassidy Hutchinson’s book that describe contacts with Bobulinski, both the night before and some weeks after his FBI interview on October 23. Lowell doesn’t mention Hutchinson claims that, in advance of the second meeting — the one where Bobulinski showed up in a ski mask, someone told her that “the boss” asked Mark Meadows to meet with Bobulinski.

When staff began to deplane, we climbed back down and made our way to the offstage announcement area. A senior campaign official jabbed his finger into my shoulder. Alarmed, I spun around. “Chief’s still on the plane talking to the boss,” he said. “He’s going to meet up with Tony Bobulinski. Can you go get him?”

I took a step back and crossed my arms. “What do you mean?” I asked. He said gruffly, “The boss asked him to meet up with Tony Bobulinski. He’s here. It has to be low-key, though, so just find somewhere away from any cameras.” I looked at Tony Ornato, expecting him to say something. Instead, he pointed at Mark leaving Air Force One. “He’s coming,” he said. The aide walked away.

I didn’t know much about Tony Bobulinski, just that he was a former business associate of Hunter Biden’s and had something to do with the laptop controversy. Trump had brought him as a guest to the presidential debate in Nashville on October 22. I wasn’t tracking the story closely enough to know more. But as Mark approached, I had a weird feeling that we were in danger. I couldn’t explain it, but the feeling was real. “Mark shouldn’t do this,” I said to Tony. “He’s being set up.” Tony shrugged. “Don’t overthink things. It’s not a big deal. Chief knows what he’s doing. Bobulinski came with us to Nashville, remember? Don’t worry, kid.” He patted my shoulder and walked away as Mark approached me.

“You’re not meeting Tony Bobulinski here, Mark. We can send someone from the campaign.” I heard my voice whine with childlike desperation. “Please, Mark. This isn’t a good idea. Just trust me.” Mark looked at his Secret Service agent, then back at me. “Just go find him, and work with Secret Service to find a hidden spot. Come get me once you have him there.”

[snip]

As Brian thanked him, I recognized a few of the men sitting in idling Secret Service vehicles and rushed over to them. I asked if they could park four of the vehicles in the shape of a square, and explained that the chief needed to have a quick meeting with someone out of sight. They were reluctant at first and questioned why Mark couldn’t just meet the person where staff were congregated. “The chief of staff needs to have a private meeting,” I said, lying with convincing confidence. “If you want me to ask Tony Ornato to explain more, I’m happy to call him over.” They began lining up the vehicles, and Brian and I made our way into the crowd, searching for the fenced-in house.

[snip]

“There,” Brian said, and pointed to the house. “I don’t want to talk to him,” I told him, as three men came out of the house. I tried to pick out Tony Bobulinski, but they were all wearing hats and ski masks. Brian introduced himself and explained that we would bring them to the chief. I spun around and started pushing through the crowd to make a path for the group a good distance behind me.

[snip]

“This is really stupid of you, Mark. I don’t know what’s going on, but it’s really stupid,” I said. He didn’t have time to respond as I ushered him into the makeshift area, away from cameras, as requested, but not from watchful Secret Service eyes.

In the shadows of the bleachers, I observed Mark and Tony Bobulinski’s interaction through a gap in the vehicles. When they said their goodbyes, I saw Mark hand Tony what appeared to be a folded sheet of paper or a small envelope. Mark walked toward me, staring at the ground. He was silent for several moments as we made our way back to the staff holding area. [my emphasis]

Lowell also notes that Hutchinson raised concerns about the lawyering of Stefan Passantino, who represented Bobulinski at the interview. But he doesn’t mention that by the time of Bobulinski’s October 23, 2020 interview, Passantino had pitched Bobulinski as a source to the WSJ — with the involvement of then-White House lawyer, Eric Herschmann, as well as Don Jr’s best buddy Arthur Schwartz.

The three had pinned their hopes for re-electing the president on a fourth guest, a straight-shooting Wall Street Journal White House reporter named Michael Bender. They delivered the goods to him there: a cache of emails detailing Hunter Biden’s business activities, and, on speaker phone, a former business partner of Hunter Biden’s named Tony Bobulinski. Mr. Bobulinski was willing to go on the record in The Journal with an explosive claim: that Joe Biden, the former vice president, had been aware of, and profited from, his son’s activities. The Trump team left believing that The Journal would blow the thing open and their excitement was conveyed to the president.

That’s the story that ended in a flop, partly because records very similar to the ones Lowell included with his letter didn’t back Bobulinski’s story, and partly because Gillier refuted it in an interview with the WSJ.

Abbe Lowell doesn’t mention that, per the NYT story on this pitch to WSJ, Donald Trump knew the story was coming.

Mr. Trump and his allies expected the Journal story to appear Monday, Oct. 19, according to Mr. Bannon. That would be late in the campaign, but not too late — and could shape that week’s news cycle heading into the crucial final debate last Thursday. An “important piece” in The Journal would be coming soon, Mr. Trump told aides on a conference call that day.

Which means that when Lowell refers in his letter to,

The materials reveal the extraordinary lengths Mr. Bobulinski and other individuals were willing to go to implicate Mr. Biden or members of his family in some false and meritless allegations of wrongdoing. [my emphasis]

He never explicitly says that multiple sources say those “other individuals” include Donald Trump, personally.

Plus, Lowell goes easy on Bobulinski’s motives. Hunter Biden’s lawyer only assumes that Bobulinski allegedly lied, “to boost his own sense of self- worth,” not for any of a long list of more nefarious reasons that might involve being handed an envelope by the President’s Chief of Staff.

He relegates the allegations about Chinese cultivation of James Woolsey for his access to Trump in the Gal Luft indictment to a footnote. And while he raises Bobulinski’s possible ties with a range of hostile countries — including his alleged ties to Viktor Vekselberg — he doesn’t pursue the implications any of that would have for claims of foreign influence operations targeting Hunter Biden.

And Lowell plays coy about the reasons why Bobulinski would keep insisting on speaking with agents “read in[to]” any investigation into Hunter Biden.

In what can only be described as a strange exchange at the start of his interview, Mr. Bobulinski asked the interviewing agents whether they were “read in” on the information he was about to tell them. The interviewing agent responded that that was not how the process works and advised they did not have any specific knowledge of the information. Mr. Bobulinski and his attorney, Stefan Passantino, reiterated their request that Mr. Bobulinski only speak with agents who were “read in” to his testimony. The FBI agent then reminded Mr. Bobulinski that his testimony was voluntary. The expectation by Mr. Bobulinski and his attorney that FBI agents taking his voluntary testimony would be “read in,” whatever that means, is particularly troubling given that Mr. Bobulinski had met with President Trump and his campaign team the day before in Nashville.

Remarkably (or maybe not, as I’ll return to), the FBI seems to have anticipated that Bobulinski may have been sent by Trump to fish for information. Thibault explained that the reason Bobulinski was sent to the DC office rather than Baltimore was to keep the investigation secret. “[T]he whole idea that he came to WFO is they were trying not to disclose that there was an investigation in Baltimore is my belief,” described, later attributing that decision to the supervisor who set up the interview.

Again, none of these details are exactly new. But the specific circumstances created by Jamie Comer and Joseph Ziegler provided an opportunity to point out that Comer has more evidence worthy of impeaching Donald Trump than he does Joe Biden.

Jim Jordan Dragged Martin Estrada Away from Fighting Fentanyl To Chase Hunter Biden’s Dick Pics

November 2, 2023/33 Comments/in 2020 Presidential Election, 2024 Presidential Election, Drug War, Hunter Biden, January 6 Insurrection /by emptywheel

Yesterday, Ohio Senator JD Vance gave a speech explaining that he is holding up the confirmation of a US Attorney candidate for his own state because Donald Trump is being prosecuted for stealing classified documents but — Vance claimed in an earlier version of this rant — “the President and his family [go] completely untouched.”

Meanwhile, yesterday’s version of Vance’s harangue claimed that “it is Joe Biden’s border policies that have invited this fentanyl into our country at record levels.”

It’s an interesting take, given that Republicans keep dragging law enforcement away from fighting the fentanyl crisis so they can explain that the conspiracy theories right wingers believe about the investigation into Hunter Biden are false.

In a July hearing where both Jim Jordan and now-Speaker Mike Johnson complained — relying on Terry Doughty’s badly misinformed opinion — that (they claimed) the FBI had prevented millions of people from sniffing Hunter Biden’s dick pics before the 2020 election, Chris Wray pointed to the impact two drug busts had had in Marion, Ohio.

Just last month, for instance, the FBI charged 31 members of two drug trafficking organizations responsible for distributing dangerous drugs like fentanyl, cocaine, and methamphetamine throughout the area around Marion, Ohio. In that one investigation, run out of the FBI’s 2-man office in Mansfield, we worked with partners in multiple local police departments and sheriff’s offices to take kilos of fentanyl off Marion’s streets, enough lethal doses, I should add, to kill the entire population of Columbus, Cleveland, and Cincinnati, combined.

As I noted at the time, this was good staff work. Marion, Mansfield, and Lorrain are all in Jim Jordan’s district (and so all obviously constituents of Vance, as well).

Jim Jordan took time out of Chris Wray’s day so he could complain about Hunter Biden’s dick pics, while ignoring the drug problems facing his own constituents.

It’s not just Wray.

In testimony last week before Jordan’s committee, the US Attorney for Los Angeles, Martin Estrada, struggled to explain to Jordan’s staffers why his own top AUSAs didn’t think it smart to reallocate prosecutors to partner on the Hunter Biden investigation at a time his office was 40 prosecutors short of the number they’re supposed to have. As Estrada explained, instead, CDCA granted Special AUSA status to some prosecutors from Delaware and had done so even as Gary Shapley wailed that nothing was going on in LA.

Jordan’s top aide Steve Castor was incredulous that Estrada wouldn’t know specific details about what the Delaware prosecutors granted Special Assistant status to pursue a case against Hunter Biden in LA were doing.

I mean, this is a potential prosecution of the President’s son. If the lawyers from the District of Delaware were out in your district discussing the case, don’t you think you’d know about it?

When Estrada tried to get Castor to understand how different the priorities looked when you were running the country’s biggest US Attorney’s office, fentanyl was the first thing he raised.

I think a little context would be helpful. So, as I said, we have the largest district in the country. We have a Fentanyl epidemic which is one of the worst in the country’s. We’ve done more death-resulting cases than any other district in the country. We’re on pace to do more this year than we ever had before.

[snip]

There are a lot of high-profile cases, so I don’t meet with attorneys on every single high-profile case.

[snip]

We have a fentanyl epidemic. That includes not just death-resulting cases, it includes going after cartels which are distributing these pills, not just in powder form but in pill form. We routinely seize over a million pills at a time from vehicles, and we need to prosecute those cases. Each pill could be a death. And routinely now we’re finding cartels transporting fentanyl in liquid form, which is a new thing that they’re doing. So we have to do those cases.

Republicans claim to care about the fentanyl crisis. But in reality, they keep proving that they care more about Hunter Biden’s dick pics than they do about their troubled constituents in Marion, OH.

NYT Keeps Downplaying Trump’s Past Retribution Tour

November 2, 2023/39 Comments/in 2016 Presidential Election, 2020 Presidential Election, 2024 Presidential Election, Department of Justice, Hunter Biden, Impeachment /by emptywheel

Charlie Savage, Maggie Haberman, and Jonathan Swan keep teaming up to write the same story over and over: A second Trump term is going to be bad … really bad.

Just some of these stories, in reverse order from Tuesday’s latest installment, are:

There are several aspects to these stories: a bid to eliminate civil service protections, a personalization of power, and the elevation of people who proved willing to abuse power in his first term: Russel Vought (who helped obstruct the Ukraine investigation), Stephen Miller, and Johnny McEntee (who even before January 6 was making a willingness to invoke the Insurrection Act a litmus test for hiring at DOD), and Jeffrey Clark.

The series, thus far, skirts the language of authoritarianism and fascism.

At the core of the stories is that Trump is going to use a second term for retribution, to which the June 15 article is dedicated.

When Donald J. Trump responded to his latest indictment by promising to appoint a special prosecutor if he’s re-elected to “go after” President Biden and his family, he signaled that a second Trump term would fully jettison the post-Watergate norm of Justice Department independence.

“I will appoint a real special prosecutor to go after the most corrupt president in the history of the United States of America, Joe Biden, and the entire Biden crime family,” Mr. Trump said at his golf club in Bedminster, N.J., on Tuesday night after his arraignment earlier that day in Miami. “I will totally obliterate the Deep State.”

These stories admit that Trump did some of this in his first term. But they describe a process of retribution by the guy who got elected — with abundant assistance from Maggie Haberman — on a platform of “Lock her up!,” who breached the norm of judicial independence 24 days into office when he asked Jim Comey to “let this” Mike Flynn “thing go,” as something that took a while to “ramp up.”

In his first term, Mr. Trump gradually ramped up pressure on the Justice Department, eroding its traditional independence from White House political control. He is now unabashedly saying he will throw that effort into overdrive if he returns to power.

Mr. Trump’s promise fits into a larger movement on the right to gut the F.B.I., overhaul a Justice Department conservatives claim has been “weaponized” against them and abandon the norm — which many Republicans view as a facade — that the department should operate independently from the president.

Yet even though Savage did some important reporting on some of this (reporting that was counterbalanced by Maggie’s central role in helping Trump obstruct criminal investigations), these pieces always vastly understate how much politicization Trump pulled off in his first term, and never describe how that politicization continues at the hands of people like Jim Jordan.

In the spring of 2018, Mr. Trump told his White House counsel, Donald F. McGahn II, that he wanted to order the Justice Department to investigate his 2016 rival, Hillary Clinton, and James B. Comey Jr., the former head of the F.B.I. Mr. McGahn rebuffed him, saying the president had no authority to order an investigation, according to two people familiar with the conversation.

Later in 2018, Mr. Trump publicly demanded that the Justice Department open an investigation into officials involved in the Russia investigation. The following year, Attorney General William P. Barr indeed assigned a Trump-appointed U.S. attorney, John Durham, to investigate the investigators — styling it as an administrative review because there was no factual predicate to open a formal criminal investigation.

Mr. Trump also said in 2018 and 2019 that John F. Kerry, the Obama-era secretary of state, should be prosecuted for illegally interfering with American diplomacy by seeking to preserve a nuclear accord with Iran. Geoffrey S. Berman, a former U.S. attorney in Manhattan whom Mr. Trump fired in 2020, later wrote in his memoir that the Trump Justice Department pressured him to find a way to charge Mr. Kerry, but he closed the investigation after about a year without bringing any charges.

And as the 2020 election neared, Mr. Trump pressured Mr. Barr and Mr. Durham to file charges against high-level former officials even though the prosecutor had not found a factual basis to justify any. In his own memoir, Mr. Barr wrote that the Durham investigation’s “failure to deliver scalps in time for the election” eroded their relationship even before Mr. Barr refused Mr. Trump’s baseless demand that he say the 2020 election had been corrupt.

Where Mr. Trump’s first-term efforts were scattered and haphazard, key allies — including Jeffrey B. Clark, a former Justice Department official who helped Mr. Trump try to overturn the 2020 election — have been developing a blueprint to make the department in any second Trump term more systematically subject to direct White House control.

This effort was in no way haphazard!!! Most FBI personnel involved in the Russian investigation, from Jim Comey down to line analysts, had their careers systematically ruined, with Peter Strzok (who, the actual record of the Russian investigation shows, repeatedly took steps to protect Trump and Mike Flynn, even if he disliked Trump) offered up as an example of what will happen to people who don’t meekly just accept their punishment or, better yet, retreat to the private sector. The exceptions were the cyber guys who completely bolloxed the Alfa Bank investigation and people like Bill Barnett, who misrepresented the steps he himself took to provide “proof” of corruption on the Mueller investigation. That precedent has been sustained as right wingers take out other FBI agents deemed insufficiently loyal, like Tim Thibault, who personally opened an investigation into the Clinton Foundation in 2016 but who was targeted last year because in 2020 he didn’t mainline disinformation about Hunter Biden.

Yes, Bill Barr ordered Geoffrey Berman to investigate John Kerry. But he also set up a complex, systematic structure to halt any investigation into Rudy Giuliani so the President’s lawyer could get dirt from Russian spies, feed it to Scott Brady, who would then push that information into the investigations of Hunter Biden and others. When Berman and Jessie Liu refused to break (after a good deal of bending to Barr’s will), he fired them both.

Barr didn’t just pressure John Durham to prosecute high-level people: He skipped, hand-in-hand, with Durham as they used Russian intelligence to fabricate an attack on Hillary Clinton, the organizing logic of an investigation that swept up private sector people and who had the temerity to research Donald Trump or — worse!! — to help Hillary recover from a hack-and-leak. The effort even took out academic researchers who were simply trying to keep the US safe from Russian hacking. Trump did get DOJ to investigate Hillary, with investigations lasting the entirety of his presidency, and that investigation included precisely the kind of fabricated evidence and coached testimony that NYT imagines is a hypothetical left for Trump’s second term.

To the extent these stories talk about Trump’s pardons, they do so prospectively. There’s no discussion of how the pardons of Mike Flynn and Roger Stone rival any of the most corrupt in US history, but were necessary to prevent DOJ from developing proof that Trump conspired with Russia.

These articles don’t describe how Congress has served as a wing of this politicization, from the leaks to Mike Flynn in 2018 about how to undermine his own investigation to sham hearings — like the one with George Papadopoulos unencumbered by the documents that would have provide evidence of “collusion,” in which he spewed out conspiracy theories that Bill Barr and John Durham quickly got on a plane to chase. These articles don’t describe how the current unrelenting attempt to manufacture an impeachment out of the detritus of Hunter Biden’s life could not have happened if Bill Barr hadn’t made very systematic attempts to enable Trump’s retribution tour in 2020.

And these articles don’t describe the violent threats that have become routine for anyone deemed insufficiently loyal to Donald Trump. The threats Trump deployed against Lisa Page and Marie Yovanovitch — “she’s going to go through some things” — exist on an unrelenting continuum as the threats against Ruby Freeman and Lesley Wolf and Fani Willis and Don Bacon’s wife.

Yes, it’s important to warn about what Trump plans to do with a second term. But calling Trump’s past retribution “haphazard” is a journalistic cop-out, a way to avoid admitting that we don’t yet fully understand how systematic Trump’s past retribution was or — worse — don’t want to come to grips with our own central role in it.

For a warning to be effective, we have to show the human costs of all the past retribution — the thousands of Jan6ers who had their lives ruined, the significant degradation in US national security, the fear, especially the fear among Republicans — costs that no one, no matter how loyal, will ultimately escape.

Hours After Aileen Cannon Suggests She’ll Stall Florida Prosecution, Trump Moves to Stall DC One

November 2, 2023/61 Comments/in 2020 Presidential Election, 2024 Presidential Election, January 6 Insurrection, Leak Investigations /by emptywheel

Judge Aileen Cannon has not yet released a ruling describing how much she’ll bow to Trump’s manufactured claims of classified discovery delays in the stolen documents case, but she made clear that she will delay the trial somewhat. As reported, at least, that delay will come because of the competing schedule in DC.

Trump’s lawyers argued that they need a delay in the documents case because preparations for it will clash with the federal election case, which is slated to go to trial on March 4 and could last several months.

Trump’s indictment in the election case — which came days after Cannon set her initial timeline for the document case — “completely disrupted everything about the schedule your honor set,” Trump lawyer Todd Blanche told Cannon.

Another Trump lawyer, Chris Kise, personified the crunch the former president’s attorneys are facing, phoning into the hearing from a New York courthouse where Trump is undergoing a civil trial targeting his business empire.

“It’s very difficult to be trying to work with a client in one trial and simultaneously try to prepare that client for another trial,” Kise said. “This has been a struggle and a challenge.”

Note: as DOJ pointed out, Kise’s NY trial schedule was already baked into Cannon’s schedule.

Having secured that delay, Trump turned to delaying his DC trial, with a motion to stay all other DC proceedings until his absolute immunity claim is decided, a 3-page motion Trump could have but did not submit when he was asking for a delay before submitting his other motions. Everything he points to in that 3-page motion, the completed briefing on the absolute immunity bid, was already in place on October 26. But he waited until he first got Cannon to move her trial schedule.

As I laid out the other day, Trump is not making legal arguments sufficient to win this case — certainly not yet. He is making a tactical argument, attempting to run out the clock so he can pardon himself.

Update: LOL. Trump filed the DC motion too soon, giving DOJ a chance to notice the cynical ploy in DC before Aileen Cannon issues her order.

Yesterday, the Court conducted a hearing on the defendants’ motion to adjourn trial, in which defendant Trump claimed that trial in this matter should be delayed in part because “[t]he March 4, 2024 trial date in the District of Columbia, and the underlying schedule in that case, currently require President Trump and his lawyers to be in two places at once.” ECF 167 at 1. Defendant Trump’s counsel reiterated that argument during the hearing yesterday. However, defendant Trump’s counsel failed to disclose at the hearing that they were planning to file – and yesterday evening did file – the attached motion to stay the proceedings in the District of Columbia until their motion to dismiss the indictment based on presidential immunity is “fully resolved.” See United States v. Donald J. Trump, No. 23-cr-257-TSC, ECF No. 128 at 1 (D.D.C. Nov. 1, 2023), attached as Exhibit 1. As the Government argued to the Court yesterday, the trial date in the District of Columbia case should not be a determinative factor in the Court’s decision whether to modify the dates in this matter. Defendant Trump’s actions in the hours following the hearing in this case illustrate the point and confirm his overriding interest in delaying both trials at any cost. This Court should [sic] allow itself to be manipulated in this fashion.

Chuck Grassley and James Comer Brag that 40 Informants Couldn’t Substantiate a Crime against Biden

November 1, 2023/38 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

Philip Bump notes that James Comer is now fundraising not just off his own conspiracy theories, but also Chuck Grassley’s.

Comer presents himself as a warrior for the truth, standing up to the media and the left-wing hordes, etc. Then the money ask appears.

Now, I track Comer and the Oversight Committee’s work more closely than most, so what struck me wasn’t that the chairman was trying to fundraise off what he was doing (he’s done that more than once in the past) but that he was trying to fundraise off this. After all, the allegation about the informants wasn’t something that came from his and his party’s efforts. The pitch couches that a bit, asserting in boldface text that “[i]t has come to light” that these informants purportedly existed. But there’s no news release about it from the normally news-release-enthusiastic House majority and no mention of it on Comer’s X/Twitter feed. The account for the Oversight Committee did mention it once, pointing back to the source of the claim: Sen. Charles E. Grassley (R-Iowa).

[snip]

That Comer is raising money off Grassley’s claim — raising money by exaggerating the claim to assert that there were 40 informants for 50 years — is the point. This wasn’t his work; it was simply an allegation that those who would respond to an “I’m fighting Biden for you” appeal would find compelling. I once referred to Comer’s efforts as a fishing expedition, but he’s not simply throwing out bait to see what he gets, he’s throwing out as much bait as he can to vacuum up as many fish as there are in the sea.

Actually, Comer is fundraising off Fox’s breathless regurgitation of Chuck Grassley’s conspiracy theories, which appeared in a letter to Chris Wray and Merrick Garland.

I find Bump’s observation notable for several additional reasons, beyond what Bump lays out.

First, it comes as Jamie Raskin’s whack-a-mole efforts to track Comer’s lies have gotten punchy. Monday, Raskin released a new 9-page letter listing the top lies Comer told after sniffing too many dick pics, to which the Maryland Congressperson appended the previous 12 letters Raskin sent debunking Comer’s bullshit.

Falsely claimed that witness interviews actually conducted by Committee staff never happened;27
Referred to a fugitive from justice charged with multiple felonies as a “very credible witness;”28
Suggested you were present at a transcribed interview that you did not attend;29
Repeatedly mischaracterized the statements of witnesses in interviews while refusing to publicly release interview transcripts; 30
Claimed that the National Archives and Records Administration failed to turn over records to the Committee when they were actively cooperating;31
Wrongly claimed that a transcribed interview suggested the President was involved in his family’s business dealings; 32
Incorrectly asserted that suspicious activity reports, which you routinely mischaracterize as “bank violations,” implicate President Biden in wrongdoing; 33
Dishonestly suggested that the President had the prosecutor of Ukraine fired as part of a bribery scheme;34
Falsely accused the Biden-Harris Administration of obstructing the Committee’s investigation and interfering in U.S. Attorney Weiss’s investigation;35 and
Falsely denied the existence of bank records in the Committee’s possession.36

See below for Raskin’s footnotes to just these 10 bullet points.

One reason the far right might stoke the conspiracy fires via Chuck Grassley rather than Comer is because Comer’s claims never last more than 20 minutes before Raskin or Dan Goldman expose them as nonsense. Grassley can make wildly unsubstantiated and often recycled and debunked claims and no one in the Senate will mock him for it.

But his claims are, if possible, even more ridiculous than Comer’s.

Take the headline claim — the one Comer is fund-raising off of: Chuck Grassley claims that the FBI sicced forty informants on Joe Biden, his brother, and his son.

As just one initial example, I’ve been made aware that at one point in time the FBI maintained over 40 Confidential Human Sources that provided criminal information relating to Joe Biden, James Biden, and Hunter Biden. An essential question that must be answered is this: did the FBI investigate the information or shut it down? Indeed, if those sources were improperly shut down, it wouldn’t be out of the ordinary for the FBI, as this letter will address.

Four-zero. Forty.

When just three informants interacted with Trump’s Coffee Boy as part of the Russian investigation, Republicans squealed about it for years. They claimed it was a gross weaponization of the FBI, not against Trump’s Coffee Boy (who told one of the informants, “I have to be an idiot not to monetize” access to Trump and “if [Trump] loses probably could be better for my personal business”), but Trump himself. But Chuck Grassley rolls out the claim that the FBI used forty informants against Biden and his immediate family, some known examples of which would have come during the period when Biden was the expected or declared candidate against Trump, and somehow he doesn’t see flashing sirens of abuse at the FBI?

🚨🚨🚨🚨

Nope. Instead, he’s sure that the FBI must have ignored those forty informants because they haven’t yet substantiated any crime against Biden and his family.

Grassley makes a similar move when he raises the FD-1023 he recklessly released this summer, which showed that Mykola Zlochevsky said something different in late 2019, probably during impeachment, than he had said earlier in the year. Grassley points to what he claims as confirmation from Bill Barr, Chris Wray, and Paul Abbate that there’s an ongoing investigation into the allegation as proof that it must have validity (in reality, Wray and Abbate appear to have been trying to protect the viability of this and all other informants, which Grassley instead decided he should burn to the ground).

The report, including information on the Biden family 1023, was ultimately transmitted to U.S. Attorney Weiss who, according to Attorney General Garland, had every investigative tool at his disposal even before being designated as a special counsel. 14

Since making the Biden family 1023 public on July 25, 2023, it’s been made clear by former Attorney General Barr, Director Wray, and Deputy Director Abbate that the 1023 is part of an ongoing investigative matter, indicating its investigative credibility and authenticity. 15 As such, it’s essential that we examine the alleged attempts by FBI personnel to sweep it under the rug, as well as what steps U.S. Attorney Weiss has taken to use the document for his ongoing investigation.

The one person who said there was an ongoing investigation pertaining to the FD-1023 was David Weiss, in a letter to Lindsey Graham. The fact that the guy in charge of the Hunter Biden investigation said this is a pretty good indication it hasn’t been swept under the rug.

As to the rest of Chuck Grassley’s claims, they have been almost entirely debunked by the House investigation.

For example, Grassley cites to his own letter about Joseph Ziegler and Gary Shapley’s testimony to support a claim that Lesley Wolf “prevented investigators from seeking information” about Biden’s involvement in what he claims were Hunter Biden’s “criminal arrangements.”

Also on October 23, 2020, Justice Department and FBI Special Agents from the Pittsburgh Field Office briefed Assistant U.S. Attorney Lesley Wolf, one of U.S. Attorney Weiss’s top prosecutors, and FBI Special Agents from the Baltimore Field Office with respect to the contents of the Biden family 1023. However, the meeting did not include any IRS agents, and AUSA Wolf prevented investigators from seeking information about Joe Biden ‘s involvement in Hunter Biden’s criminal arrangements. 18

What the evidence actually shows, however, is that agents blew off Wolf’s restrictions on references to the then-President-elect, and asked those questions anyway. In response, Hunter’s former partner, Rob Walker, told investigative agents that Joe was never involved in Hunter’s business. “I certainly never was thinking at any time the VP was a part of anything we were doing.”

But even that was a cherry-pick. After Shapley revealed that claim, Ziegler released the full Walker transcript (compare the excerpt from Shapley’s deposition with the full transcript released in September). The excerpt Shapley released at first left out critical details, details that impact Grassley’s complaints that Tony Bobulinski hasn’t been treated as a star witness.

The full Rob Walker interview makes it clear there was a whole lot of bad blood between Hunter Biden and Bobulinski that should raise questions about Bobulinski’s biases. At least per Walker — at the time (in 2017), Hunter believed that Bobulinski was too close to some Russians, which Walker explained that he treated as credible because the first time Walker met Bobulinski, Bobulinski was with someone claimed to be Viktor Vekselberg’s son.

Walker: …but ah.., um.., I.., I think that he was “blown off” because um.., ah.., Tony’s a.., an asshole…,

Wilson: (Laughs).

Walker: …um, but um.., you know, I think Hunter ah.., at one point, was ah.., um.., a little “bent out of shape” with Tony and ah..,

Wilson: Hmph hmph.

Walker: …granted he wasn’t in his.., his right mind but ah.., he thought that ah…, um.., Tony had some weird ah.., business background stuff…

Wilson: Okay.

Walker: …and Hunter did tell me that he had Tony, ah, checked out at one time…,

[snip]

Walker: …and he ah.., he thought that ah.., Tony was ah.., close or too close to ah.., ah.., some Russians.

[snip]

Walker: The first time, which it didn’t seem so unbelievable to me because the.., the.., the first time that I met Tony, um, I was in ah.., Las Vegas. Ah, James came over, um, and ah.., I had a friend from here come up with me and ah.., some people from Los Angeles came over that were friends of James. One was Tony and Tony was with ah, a kid named Alex and ah.., Tony didn’t tell me this but Alex was Russian and they thought it was ah.., or I was told it was ah.., Viktor…

Soline: Hmph hmph.

Walker: …Vexelberg’s (phonetic) son who was ah.., who Viktor is.., at the time he wasn’t on the sanctions list I’m sure.., but I think he’s been sanctioned now…

[snip]

Walker: …Tony’s background was that he.., ah.., you know.., had been pushing deals in the past in New York.., in and around New York.., and um.., ah.., with ah.., ah.., Russians and ah.., Russian money.

At the time Walker shared these details in December 2020, he was absolutely livid about Bobulinski’s public claims after the release of the “laptop,” so Walker’s comments shouldn’t be credited all that heavily either. But Walker temporally placed both Hunter’s suspicions about Bobulinski and the even earlier incident in Vegas years before Bobulinski’s Fox News media tour. Walker wasn’t insinuating that Bobulinski had ties to Russia because he was involved with the laptop caper; he was describing what he and Hunter believed three years before the laptop caper.

That’s important background to Grassley’s similarly unsubstantiated claim that Bobulinski’s testimony — at which he was represented by White House Counsel Stefan Passantino — matched something in Gary Shapley’s testimony.

On October 23, 2020, Tony Bobulinski met with and was interviewed by James Dawson, a Washington Field Office Special Agent in Charge, Acting Assistant Special Agent in Charge Giulio Arseni, Special Agent William Novak, and Special Agent Garrett Churchill. 16 Bobulinski provided first-hand knowledge as an eye and ear witness to Joe Biden’s involvement in potentially criminal schemes with Hunter Biden. Notably, on October 13, 2022, I wrote a letter to the both of you and U.S. Attorney Weiss with respect to a summary of Bobulinski’s FBI interview that my staff reviewed which included, in part, reference to the Biden’s receiving an unsecured $5 million loan, intended to be forgivable, from CEFC in 2017 that would serve as payment for actions Joe Biden took during his vice presidency. This financial strategy to illegally treat income as a loan is consistent with IRS whistleblower testimony that indicated Hunter Biden attempted the same with respect to other income, including payments received from Burisma. 17

It’s true that Shapley made this allegation over and over (it’s also true that Hunter did rely on loans as he grew more and more broke overcome by his addiction). But Ziegler’s testimony and David Weiss’ own explanation for not charging the earlier Burisma years revealed that the circumstances of the Burisma payments were not as clearcut as Shapley claimed.

[N]ow that the U.S. Attorney looked at the case, they don’t want to move forward with it.

And essentially what he told me is that not only are they not going to join the case and give us assistance — so give us another AUSA, give us someone to help there — they also told our prosecutors that they don’t think we have — that we can — or they don’t think that we have the charges — or not the ability, but the evidence for the charges to charge in D.C.

Then there are the other Grassley complaints that had already been debunked by Tim Thibault’s and other House witnesses’ testimony.

Grassley complains that “an avenue of derogatory Hunter Biden reporting” was ordered closed by Tim Thibault.

In that same letter, I noted that in October 2020, an avenue of derogatory Hunter Biden reporting was ordered closed at the direction of Assistant Special Agent in Charge Tim Thibault. My office has been made aware that FBI agents responsible for the information that was shut down were interviewed by the FBI HQ team in furtherance of Auten’s assessment.

Grassley doesn’t admit what Peter Schweizer has admitted: that he was the “avenue of derogatory … reporting” in question: Steve Bannon’s sidekick and propagandist (and so two degrees from two influence operations the FBI investigated, that of Andrii Derkach and that suspected of Guo Wengwui).

Schweizer is one of the 40 informants Grassley boasted about and the reason why he claims that the other 39 informants may have been shut down too.

Grassley seems to have botched the details about his handlers being interviewed by the Foreign Influence Task Force: Thibault tried to get them into the briefing, but FBI refused — in part because the daughter of one was posting related content on Daily Caller).

As Thibault testified, there were two reasons why he shut down Schweizer (based on whose book, Clinton Cash, Thibault had opened an investigation into Hillary in 2016). The first was that the Baltimore FBI team didn’t want Schweizer’s reporting, some of which was sourced to the laptop, because they already had the laptop and follow-on warrants and Schweizer’s involvement would only provide something Hunter’s attorneys might one day use to undermine the credibility of the inevstigation.

Here’s how Grassley twists what must be that discussion.

On October 5, 2020, Supervisory Special Agent Eric Miller and Assistant Special Agent in Charge Thibault participated in a call with the Washington Field Office; Baltimore Field Office; Wilmington, Delaware FBI agents; and FBI management personnel. That call allegedly included Assistant Special Agent in Charge Alfred Watson, Supervisory Special Agent Joe Gordon, Special Agent Susan Roepcke and Special Agent Joshua Wilson. Notably, FBI agents from the Baltimore Field Office were attached to U.S. Attorney Weiss’s investigation. My office has been informed that on that call it was confirmed the Delaware case currently run by U.S. Attorney Weiss was opened as a money laundering and Foreign Agents Registration Act case, not a bribery case as the Biden family 1023 would appear to require, and that it was jointly worked with the IRS. On that call, it was made clear that Delaware FBI agents were in possession of email evidence that contradicted denials made by Joe Biden that he was never aware of or involved in Hunter Biden’s business arrangements.

When Grassley said that the Delaware team was in possession of email evidence that, “contradicted Biden’s denials,” he meant they had the laptop and probably the iCloud warrant returns. There, too, he appears to be parroting Shapley’s claims about the laptop, which spun Hunter claiming to involve his father in business calls as proof that Joe was involved.

The other reason Thibault shut down Schweizer is because of what he learned in a Foreign Intelligence Task Force briefing that provided more context about things. Grassley claims that what persuaded Thibault was a Brian Auten assessment about disinformation that “improperly” discredited claims about Hunter Biden as disinformation.

On July 25, 2022, I wrote to the both of you.5 In that letter, I described whistleblower allegations that the FBI developed information in 2020 about Hunter Biden ‘s criminal financial and related activity but ultimately shut it down based on false assertions that it was subject to foreign disinformation. It’s been alleged that the basis for shutting the investigative activity down was an August 2020 assessment created by FBI Supervisory Intelligence Analyst Brian Auten. That assessment was used by an FBI HQ team to improperly discredit negative Hunter Biden information as disinformation and caused investigative activity to cease.

Yet Laura Dehmlow testified to the House that the claim that, “there was an assessment on Hunter Biden disinformation,” was inaccurate and agreed that, “the allegations … with respect to Mr. Auten are just wrong.”

Grassley ends with a claim that his story is based on “multiple credible whistleblowers” and a wail about political infection.

Based on the information provided to my office over a period of years by multiple credible whistleblowers, there appears to be an effort within the Justice Department and FBI to shut down investigative activity relating to the Biden family. Such decisions point to significant political bias infecting the decision-making of not only the Attorney General and FBI Director, but also line agents and prosecutors. Our Republic cannot survive such a political infection and you have an obligation to this country to clear the air.

But we know these whistleblowers aren’t credible. Several of them are undoubtedly agents disgruntled because Thibault shut down a propagandist as a source. One likely disgruntled agent — the aforementioned father whose daughter was reporting related content on Daily Caller — went to work for Heritage Foundation after he quit the FBI rather than be reassigned from a position where he could politicize public corruption investigations. Another chased the ItalyGate conspiracy theory long after Richard Donaghue debunked it. Ziegler and Shapley’s claims have been debunked by every witness who testified and a great many of the documents they themselves shared.

And that’s just the whistleblowers. Consider what we know about those forty informants. They definitely or may include (as Raskin partly addressed):

Gal Luft, whose March 2020 claims came amid interviews where he also allegedly lied to the FBI
The aforementioned June 2020 FD-1023 reporting a late 2019 statement from Zlochevsky that conflicted with things Zlochevsky had said earlier in 2019
Steve Bannon flunky Peter Schweizer’s election 2020 season pitches
Probably at least three Ukrainian sources that were part of Rudy’s campaign efforts
People tied to Dmitry Firtash and Andrii Derkach

There may be localized people with their own political gripes, too; for example, in addition to metadata that could have been manufactured by anyone in possession of a “Hunter Biden” “laptop,” one reason the FBI treated John Paul Mac Isaac’s claims seriously was “intelligence” that said Hunter was in Delaware at the time.

The point being, even if the notion that the FBI used forty — 40!!!! — informants to investigate Donald Trump’s rival doesn’t set off alarm bells, the quality and the biases of the known informants should.

The House investigation has made it clear that Grassley’s credible whistleblowers aren’t credible whistleblowers. As DC US Attorney Matthew Graves charitably described it, Grassley’s sources delivered, “the garble that can happen when you layer hearsay on top of hearsay on top of hearsay. And when you look at a lot of this, it’s someone said that someone said that someone said.” The House investigation also made clear that at least some of Grassley’s forty informants aren’t credible sources, either.

And that may be why Republicans are recycling these debunked claims over in the Senate, where they’ll continue to churn up Fox viewers, but where they’ll avoid the scrutiny that has already debunked the claims in the House.

27 Letter from Ranking Member Jamie Raskin, Committee on Oversight and Accountability, to Chairman James Comer, Committee on Oversight and Accountability (Sept. 19, 2023) (online at https://oversightdemocrats.house.gov/sites/democrats.oversight house.gov/files/2023-09- 19.JBR%20to%20Comer%20re%20Schwerin%20Interview.pdf); see also House Republicans Downplay Meeting with Key Biden Aide, HuffPost (Sept. 19, 2023) (online at www huffpost.com/entry/eric-schwerin-oversightcommittee-joe-biden_n_65098430e4b0d98f39e80e1d).

28 Letter from Ranking Member Jamie Raskin and Rep. Dan Goldman, Committee on Oversight and Accountability, to Chairman James Comer, Committee on Oversight and Accountability (July 11, 2023) (online at https://oversightdemocrats.house.gov/sites/democrats.oversight house.gov/files/2023-07- 11.JBR%20Goldman%20to%20Comer%20re%20Luft.pdf); Rep. James Comer (@RepJamesComer), X (July 7, 2023) (online at https://twitter.com/RepJamesComer/status/1677414170411560962?s=20).

29 Rep. Dan Goldman (@RepDanGoldman), X (Aug. 7, 2023) (online at https://x.com/RepDanGoldman/status/1688667691584737280?s=20).

30 Memorandum from Democratic Staff to Democratic Members, Committee on Oversight and Accountability, Transcribed Interview of Former FBI Supervisory Special Agent (Aug. 16, 2023) (online at https://oversightdemocrats.house.gov/sites/democrats.oversight house.gov/files/2023-08- 16.Democratic%20Member%20Memorandum%20re%20FBI%20SSA%20Transcript.pdf); Transcript of Devon Archer Testimony Doesn’t Back Key Claims About Joe and Hunter Biden, PolitiFact (Aug. 4, 2023) (online at www.politifact.com/article/2023/aug/04/transcript-of-devon-archer-testimony-doesnt-back-k/); Devon Archer Said the Opposite of What Republicans Claimed, Washington Post (Aug. 3, 2023) (online at www.washingtonpost.com/politics/2023/08/03/devon-archer-transcript-biden/); Memorandum from Democratic Staff to Democratic Members, Committee on Oversight and Accountability, Oversight Committee Investigation into Presidential and Classified Records and Transcribed Interview of Former Executive Assistant to then-Vice President Biden (May 3, 2023) (online at https://oversightdemocrats.house.gov/sites/democrats.oversight house.gov/files/5.3.2023%20Chung%20Memo%20- %20FINAL.pdf).

31 Rep. Comer to Newsmax: Impeachment Inquiry Vote Possible Mid-Sept., NewsMax (Sept. 7, 2023) (online at www newsmax.com/Politics/newsmax-tv-biden-impeachment-inquiry/2023/09/07/id/1133671/); Committee on Oversight and Accountability Democrats (@OversightDems ), X (Sept. 8, 2023) (online at https://x.com/OversightDems/status/1700178556175692271?s=20).

32 Transcript of Devon Archer Testimony Doesn’t Back Key Claims About Joe and Hunter Biden, PolitiFact (Aug. 4, 2023) (online at www.politifact.com/article/2023/aug/04/transcript-of-devon-archer-testimony-doesnt-backk/); Devon Archer Said the Opposite of What Republicans Claimed, Washington Post (Aug. 3, 2023) (online at www.washingtonpost.com/politics/2023/08/03/devon-archer-transcript-biden/); Memorandum from Democratic Staff to Democratic Members, Committee on Oversight and Accountability, Transcribed Interview of Devon Archer (Aug. 3, 2023) (online at https://oversightdemocrats.house.gov/sites/democrats.oversight.house.gov/files/2023-08- 03.Democratic%20Member%20Memorandum%20re%20Archer%20Transcribed%20Interview%20Final.pdf).

33 The Faulkner Focus, Fox News (Apr. 21, 2023) (online at www.foxnews.com/video/6325510578112); Chairman James Comer (@RepJamesComer), X (Apr. 16, 2023) (online at https://twitter.com/jamescomer/status/1647645180260958211?s=46); Memorandum from Democratic Staff to Democratic Members, Committee on Oversight and Accountability, Chairman Comer’s Misuse and Distortion of Confidential Bank Information (May 10, 2023) (online at https://oversightdemocrats.house.gov/sites/democrats.oversight house.gov/files/2023.05.10%20Memo%20to%20Me mbers%20re%20Misuse%20and%20Distortion%20of%20Confidential%20Bank%20Information%20FINAL.pdf); Comer Releases Biden Family Probe Update Without Showing Link to President, Politico (May 10, 2023) (online at www.politico.com/news/2023/05/10/james-comer-biden-probe-00096067).

34 Fox and Friends, Fox News (Mar. 31, 2023) (online at https://video.snapstream net/Play/8cJmJQ9KSgTuI2622JTEza?accessToken=cr1lk3ctb7qf0); Jesse Watters Primetime, Fox News (July 3, 2023) (online at www foxnews.com/video/6330534582112); My Fellow Republicans: One Disgraceful Impeachment Doesn’t Deserve Another, Washington Post (Sept. 15, 2023) (online at www.washingtonpost.com/opinions/2023/09/15/congressman-ken-buck-biden-impeachment/); Debunking 4 Viral Rumors About the Bidens and Ukraine, New York Times (Oct. 29, 2019) (online at www.nytimes.com/2019/10/29/business/media/fact-check-biden-ukraine-burisma-china-hunter.html); Memorandum from Democratic Staff to Democratic Members, Committee on Oversight and Accountability, Chairman Comer and Senator Grassley’s Decision to Publicly Release FBI Form FD-1023 (July 24, 2023) (online at https://oversightdemocrats.house.gov/sites/democrats.oversight house.gov/files/2023-07- 24.Dem%20Memo%20re%20Comer%20Grassley%20Letter%20FD-1023_.pdf).

35 Sunday Morning Futures, Fox News (Aug. 20, 2023) (online at www.foxnews.com/video/6334869612112); Kudlow, Fox Business (June 29, 2023) (online at www.foxbusiness.com/video/6330314725112); The Daily, New York Times (Sept. 15, 2023) (online at www.nytimes.com/2023/09/15/podcasts/the-daily/biden-impeachment html?showTranscript=1); McCarthy Launches Biden Impeachment Inquiry—With Zero Evidence, New Republic (Sept. 12, 2023) (online at https://newrepublic.com/post/175504/mccarthy-biden-impeachment-inquiry-no-evidence-not-enough-votes); Memorandum from Democratic Staff to Democratic Members, Committee on the Judiciary and Committee on Oversight and Accountability, IRS and FBI Witnesses Debunk Republicans’ False Claims About Political Interference in Special Counsel Weiss’s Investigation (Sept. 27, 2023) (online at https://oversightdemocrats.house.gov/sites/democrats.oversight house.gov/files/2023-09- 27%20Joint%20Democratic%20Memorandum%20re%20IRS%20and%20FBI%20Witnesses%20Debunk%20Politic al%20Interference%20Claims.pdf).

36 Mornings with Maria, Fox Business (Oct. 25, 2023) (online at www.youtube.com/watch?v=gFkB5qFBhaQ); Letter from Ranking Member Jamie Raskin, Committee on Oversight and Accountability, to Chairman James Comer, Committee on Oversight and Accountability (Oct. 26, 2023) (online at https://oversightdemocrats.house.gov/sites/democrats.oversight house.gov/files/2023.10.26.%20JBR%20to%20Com er%20re.%20Subpoenas.pdf); GOP Touts Bombshell Biden Payments—But Records Suggest Otherwise, Messenger (Oct. 26, 2023) (online at https://themessenger.com/politics/gop-touts-bombshell-biden-payments-but-recordssuggest-otherwise); Another GOP “Bombshell” About Joe Biden Turns Out to Be a Dud, HuffPost (Oct. 23, 2023) (online at www huffpost.com/entry/james-biden-payment-joe-biden_n_6536badee4b0689b3fbd8cf1).

Gary Shapley’s Handlers Revisit Past Leak Investigations into Chuck Grassley’s Staff

October 29, 2023/19 Comments/in 2016 Presidential Election, 2020 Presidential Election, 2024 Presidential Election, emptywheel, Hunter Biden, Leak Investigations, Mueller Probe /by emptywheel

According to a press release on the website for Empower Oversight–the group handling Gary Shapley’s now-debunked media tour–Empower’s founder, Jason Foster, was the subject of an FBI subpoena to Google in 2017.

Google first alerted Foster to the September 12, 2017 subpoena on October 19, 2023. That’s one of the reasons I find this FOIA so interesting. The notice came more than six years after the subpoena, suggesting FBI likely continued to investigate someone tied to the investigation for at least a year longer than statutes of limitation would normally extend.

Empower seems to suggest there’s a tie between the subpoena and one served on Google pertaining to Kash Patel’s personal email two months later, on November 20, 2017, as does Margot “Federalist Faceplant” Cleveland in this propaganda piece reporting on the subpoenas. While Empower says that this subpoena asked for information on other staffers, it only cites Kash to substantiate its claim that other staffers had also gotten notice of a past subpoena (Cleveland does report that a HPSCI staffer was also included).

Empower Oversight has information indicating that the other accounts listed in the subpoena belonged to other staffers, both Republicans and Democrats, for U.S. House and Senate committees also engaged in oversight investigations of the Justice Department at the time pursuant to their authorities under the U.S. Constitution.

[snip]

Other former staffers have publicly referenced receiving similar notices, including former U.S. House of Representatives Permanent Select Committee on Intelligence (“HPSCI”) staffer Kashyap Patel.

They’re from the same grand jury (16-3). But they not only have different file numbers, but the one on Kash’s subpoena — that is, the later subpoena, by two months — has a lower file number, 2017R01887, as compared to 2017R01896.

Kash is suing roughly the same people over his subpoena as Empower is FOIAing: Empower is asking about former DC US Attorney Jessie Liu, Rod Rosenstein, his one-time Principal Associate Robert Hur (currently the Special Counsel investigating Joe Biden’s classified documents), and Ed O’Callaghan, who replaced Hur, along with then DOJ Spox Sarah Isgur. Kash is suing Liu, Rosenstein, Hur, and O’Callahan, plus FBI Director Chris Wray and the two AUSAs behind the subpoena.

There are problems with both of their target sets. For example, Liu wasn’t even sworn in as US Attorney until September 25, 2017 — after the Foster subpoena (though before the Kash one). So Empower’s suggestion that Liu had some influence on the subpoena on him is nonsense. Rosenstein wasn’t sworn in until April 26, 2017, almost five months after the request for conversations with the press starts.

Similarly, Ed O’Callaghan, whom Kash describes as, “the Principal Associate Deputy Attorney General for Mr. Rosenstein at the time in question,” didn’t move from the National Security Division to Rosenstein’s office until April 2018, after Hur was confirmed as US Attorney for Maryland and long after both the subpoena implicating Kash and his blow-up with Rosenstein. Though if these were really sensitive leak investigations, NSD may have had a role in them. (Empower includes NSD within its FOIA.)

Those details don’t seem to matter for their projects: both men appear to be using the subpoenas as an excuse to settle scores.

Kash, ever the conspiracy theorist, brought a Bivens claim insinuating that Rosenstein and others violated Kash’s Fourth Amendment rights because DOJ served a subpoena — something not requiring probable cause under the Fourth Amendment — to obtain the subscriber information for a list of around 14 identifiers, of which his personal email was just one. There’s nothing on the face of the subpoena to suggest that DOJ knew his email was tied to someone who was a Congressional staffer at the time of the subpoena (though again, Federalist Faceplant seems to know at least one other person listed was a staffer). In fact, the subpoena asked for contact information going back to April 2016, a year before Kash moved from DOJ to HPSCI, so it could have pertained to a leak internal to DOJ.

Nevertheless, Kash spins a tale where the November 2017 subpoena is in some way connected with what he claims is Rosenstein’s threat, over a month later, to subpoena HPSCI staffers.

5. The illegitimate grounds for the subpoena were made clear when, shortly after the FBI and DOJ previewed what would become the “Nunes Memo,” which outlined significant issues with FBI’s and the DOJ’s manner of opening and conducting the Crossfire Hurricane investigation, then-Deputy Attorney General Rod Rosenstein (“DAG Rosenstein”) threatened to subpoena the records of the House Permanent Select Intelligence Committee staff, including Mr. Patel, during a closed-door meeting about producing documents requested by the Committee for their investigation into DOJ’s and the FBI’s, its subagency, conduct in the Crossfire Hurricane investigation.

6. The Department of Justice attempted to defend against the allegation of this threat to Legislative Branch employees, but admitted, at a minimum, that DAG Rosenstein did threaten to subpoena records of Congressional staff in contempt proceedings over the DOJ’s noncompliance with multiple subpoenas. Regardless, this characterization was disputed by multiple Committee staffers, and the matter was referred to the House General Counsel and Speaker of the House as a threat to subpoena records of staffers to halt their investigation.

7. DAG Rosenstein made this threat in January of 2018, approximately one month after his Department of Justice had already subpoenaed Mr. Patel’s email records from Google. This confrontation establishes that DAG Rosenstein and other Defendants were searching for a reason to subpoena Mr. Patel’s official accounts as well as the personal ones that DOJ was already improperly pursuing.

Contrary to Kash’s claim, DOJ didn’t concede Rosenstein threatened to subpoena the HPSCI records. According to a Fox News article Kash himself cites in his suit, DOJ said that Rosenstein was advising staffers to retain their emails so he could use them to defend against any accusation of contempt. Though Rosenstein did threaten to ask the House General Counsel to investigate Kash and whoever else was involved.

A DOJ official told Fox News that Rosenstein “never threatened anyone in the room with a criminal investigation.” The official said the department and bureau officials in the room “are all quite clear that the characterization of events laid out here is false,” adding that Rosenstein was responding to a threat of contempt.

“The Deputy Attorney General was making the point—after being threatened with contempt — that as an American citizen charged with the offense of contempt of Congress, he would have the right to defend himself, including requesting production of relevant emails and text messages and calling them as witnesses to demonstrate that their allegations are false,” the official said. “That is why he put them on notice to retain relevant emails and text messages, and he hopes they did so. (We have no process to obtain such records without congressional approval.)”

Further, the official said that when Rosenstein returns to the United States from a work trip, “he will request that the House General counsel conduct an internal investigation of these Congressional staffers’ conduct.”

This all seems like a retroactive attempt to politicize the investigation into some contact Kash had, potentially even before he joined HPSCI with a lawsuit claiming a violation of the Fourth Amendment under Bivens for a subpoena for toll records that a former DOJ prosecutor, especially, should know are not entitled to any expectation of privacy.

Foster’s claim, which is only a FOIA, not a lawsuit, is a bit less ridiculous (so long as you ignore his demand for communications involving Liu before she started as US Attorney and Rosenstein before he was DAG).

He seems certain that the subpoena for his phone (which he says was used by his spouse) pertained to a leak investigation. He’s filing it to find out if Rosenstein’s office ever got the same scrutiny in leak investigations that (he seems sure) some Congressional staffers got in 2017.

It begs the question of whether DOJ was equally zealous in seeking the communication records of its own employees with access to any leaked information.

[snip]

(5) All communications exchanged between members of the press and DAG Rosenstein, Robert Hur, Edward O’Callaghan, Sarah Isgur, aka Sarah Isgur Flores, and/or Jessie Liu for the period from December 1, 2016 to September 26, 2017, regarding (a) communications between Michael Flynn and Sergey Kislyak, (b) Carter Page, (c) Joe Pientka, (d) Bill Priestap, (e) congressional oversight requests, (f) Senator Charles Grassley, (g) Jason Foster, and/or (h) the Crossfire Hurricane investigation.

(6)All grand jury subpoenas issued for personal communications of DAG Rosenstein, Robert Hur, Edward O’Callaghan, and/or Jessie Liu between May 1, 2017 and May 1, 2018.

(7) All communications exchanged between the U.S. Attorney’s Office for the District of Columbia, the National Security Division, the Deputy Attorney General’s Office and/or the FBI and Verizon between March 15, 2016, and the present regarding obtaining communications data associated with devices that Verizon serviced for U.S. House Representatives or U.S. Senate. [my emphasis]

The time range of the Foster subpoena, December 1, 2016 to May 1, 2017, covers the period of the known leaks about Mike Flynn and Carter Page — the former, especially, one of the leaks Republicans have never stopped bitching because it wasn’t charged. Yet here, a key Republican is complaining there was “no legitimate predicate” in investigating people who were briefed on information that subsequently got leaked.

There appears to have been an extensive and far-reaching effort to use grand jury subpoenas and perhaps other means to gather the personal communications records of innocent congressional staffers and their families with little or no legitimate predicate.

Empower’s mention of Carter Page also situates the subpoena temporally. The subpoena that included a number associated with Foster was served in precisely the same time period that — the Statement of the Offense and sentencing memo for James Wolfe case show — FBI was investigating the leak of the Carter Page FISA. DOJ opened that investigation in April 2017. They had shown enough probable cause against Wolfe to obtain a warrant to covertly image his cell phone by October 2017. No one complained that Wolfe was prosecuted for his presumed role in leaking some of these stories, and his prosecution alone shows that the subpoena had predicate.

Foster may have other specific stories in mind too: In addition to the leaked stories about Flynn undermining US foreign policy with the Russian Ambassador, the FOIA asks about other Russian investigation stories, including Joe Pientka, whose role in briefing Mike Flynn Grassley made into a personal crusade.

Curiously, the Steele dossier is not on here, even though that was another personal crusade of Chuck Grassley.

All that said, the timeline included in the FOIA is broader than that. Here’s how the various timelines overlap, or don’t:

Scope of Foster subpoena: December 1, 2016 through May 1, 2017
Rosenstein sworn in as DAG: April 26, 2017
Date of Foster subpoena: September 12, 2017
Jessie Liu sworn in as US Attorney: September 25, 2017
Scope of Foster’s FOIA for DAG communications with the press: December 1, 2016 through September 26, 2017
Date of Kash subpoena: November 20, 2017
Scope of Kash subpoena: May 1, 2016 through November 20, 2017
Scope of Foster’s FOIA for grand jury subpoenas targeting DAG: May 1, 2017 through May 1, 2018
Scope of Foster’s FOIA for Verizon records of Congressional staffers March 15, 2016 through October 24, 2023

Foster is FOIAing Rosenstein’s office, first, for conversations with the press — including about him — starting on December 1, 2016, before Trump was inaugurated and months before Rosenstein was sworn in on April 26, 2017. He is FOIAing conversations with the press that continue through the day after Liu was sworn in September 2017, still months before O’Callaghan was part of DAG.

Then he’s asking for any grand jury subpoenas (which he knows would be protected under grand jury secrecy rules and so won’t get) from the end date of the subpoena targeting him, after which point both the Flynn and Page investigations were underway, until May 1, 2018 — still four months before Legistorm shows Foster leaving his SJC job on September 4, 2018, but perhaps not coincidentally ending before the time when the Mueller investigation started to more closely probe fellow SJC staffer Barbara Ledeen’s role in Mike Flynn’s 2016 rat-fucking and two weeks shy of an interview when Mueller asked Flynn about Ledeen’s investigation of the investigation. A September 17, 2018 interview asked very specific questions about people leaking claimed details of the investigation to Flynn, as well as Flynn’s contacts with unidentified Congressional staffers.

Again, this request is a test about whether Rosenstein’s office was targeted for leaks, but the leaks that Foster suggest this subpoena pertains to — Mike Flynn’s contacts with Sergey Kislyak and Carter Page’s FISA — happened before any of these people were in DAG. Foster seems interested in leaks about leak investigations, not the leaks themselves.

It’s the final bullet I find the most interesting though. None of the subpoenas he raises in his FOIA — not the subpoena of Kash’s personal email, not the subpoena of his own Google voice phone, and not the subpoena to Apple targeting HPSCI members — target official phone records. But Foster FOIAs for official records as well: All communications between DC USAO, NSD, DAG, and FBI with Verizon — communications that might be something other than a grand jury subpoena — about obtaining phone records for the Congressional devices serviced by Verizon. He’s asking for a much broader period of time, too: March 15, 2016 — early enough to include the start date of Kash’s subpoena, but also to include some of Barbara Ledeen’s rat-fucking with Mike Flynn — through the present, late enough to include any contacts in which Chuck Grassley staffers used their official devices to share information about the Hunter Biden investigation with the press.

This last request is not about Rosenstein; Rosenstein was only DAG for two of the seven and a half years covered by this part of the FOIA.

This FOIA is, on its face, totally uncontroversial (though it attempts to do with a FOIA what DOJ IG is already doing, which it notes). It purports to test whether Rod Rosenstein exempted his own top deputies from the kind of investigative scrutiny to which Rosenstein — always a leak hawk — subjected Congressional staffers. Hell, I’m fairly certain Rosenstein and his top deputies were key undisclosed sources for a bunch of bullshit comments (though most of them were false, and therefore not criminal leaks). Some of those anonymous comments were to the same stable of journalists who also happen to serve as mouthpieces for Chuck Grassley propaganda (and as such, Foster may have specific reason to believe that Rosenstein teed up journalists’ questions to or about him).

And the FOIA for contacts with Verizon gets at important separation of powers issues: under what terms the Executive Branch can investigate the official business of the Legislative Branch, including times when the Legislative Branch is screaming for investigations into leaks that probably (and provably, in the case of Carter Page) include Legislative Branch staffers.

But it also serves as a fishing expedition, by the entity that championed the now debunked claims of Gary Shapley, into potential investigations into transparent ongoing efforts by Chuck Grassley to release details of criminal investigations in the guise of oversight.

In a meeting agenda sent September 3, 2020, Joseph Ziegler included the Senate investigation led by Chuck Grassley and Ron Johnson among topics for discussion.

No later than December 2020, a document shared by Empower Oversight client Gary Shapley reveals, the IRS agents running this investigation cared more about catering to demands from Congress, including from Chuck Grassley, than preserving the investigation.

The USAO and FBI received congressional inquiries concerning this investigation and have repeatedly ignored their requests, openly mocking the members of congress who made the request.

Another document shared by Empower Oversight client Gary Shapley shows that, in May 2021, the IRS agents running the investigation continued to be aware of — and interested in catering to — requests from Congress.

The USAO and FBI received congressional inquiries concerning this investigation and it’s believed they have ignored their requests.

A document released by Empower Oversight client Gary Shapley reflecting a January 6, 2023 call with IRS’ Deputy Field Officer Michael Batdorf alerting him — among other things — that he expected the Delaware US Attorney to make “nefarious” allegations against him, also recorded that by the time, two days after he notified IRS and DOJ IG Inspectors General he was seeking formal whistleblower status which happens to have happened on the day the GOP took the House, his attorney had already, “participated in calls and/or meetings” with “the Congressional Judiciary committees.”

DFO asked about the process and Shapley responded that the Congressional Judiciary committees, OSC, IRS OGC and TIGTA have been notified and have participated in calls and/or meetings with my counsel.

Yet when one of Shapley’s attorneys, Mark Lytle, formally contacted the Chairs and Ranking Members of those same “Congressional Judiciary committees,” the Chairs and Ranking Members of the relevant finance committees, along with Chuck Grassley on April 19, 2023, he did not treat those contacts with the judiciary committees as protected disclosures. The letter mentions that Grassley is a member of the Finance Committee, but doesn’t mention that Grassley is a member and former Chair of the Judiciary Committee.

That was the first moment, publicly at least, that Empower Oversight client Gary Shapley sought protection to share IRS protected information with Congress. That is, even according to Lytle, if Shapley shared any IRS protected information — to say nothing of grand jury protected information — prior to that, by the plain terms of his letter it was not under a grant of protection.

A month after Gary Shapley’s claims — facilitated by Empower Oversight — were soundly debunked by his own documentation and his colleagues, Empower Oversight filed a FOIA that would, among other things, attempt to learn whether the FBI was conducting any investigation of leaks to the press from Chuck Grassley’s staffers, covering the period in 2016 when a Chuck Grassley staffer attempted to reach out to hostile intelligence services to find dirt on Hillary Clinton, the period when a Grassley staffer was seeding press stories — some that were fabrications — about the Russian investigation, and the period of time when those investigating Hunter Biden were more solicitous of requests from members of Congress like Chuck Grassley than they were in protecting the ongoing investigation.

Trump’s First Amendment Defense of Mobilizing His Violent Mob

October 23, 2023/62 Comments/in 2020 Presidential Election, 2024 Presidential Election, January 6 Insurrection /by emptywheel

There’s a move in Trump’s motion for a stay pending appeal of the gag order Judge Tanya Chutkan imposed that deserves more attention.

Trump appealed the gag last Tuesday and requested the stay on Thursday, about which Judge Chutkan ordered additional briefing that same day; we’ll see more briefing about this all week.

MINUTE ORDER as to DONALD J. TRUMP: Upon consideration of Defendant’s opposed 110 Motion for Stay Pending Appeal, Request for Temporary Administrative Stay, and Memorandum in Support, it is hereby ORDERED that the court’s 105 Opinion and Order is administratively STAYED to permit the parties’ briefing and the court’s consideration of Defendant’s Motion. It is FURTHER ORDERED that the government shall file any opposition to Defendant’s Motion by October 25, 2023, and that Defendant shall file any Reply by October 28, 2023.

A substantial portion of the 33-page motion speaks for the First Amendment rights of his mob to hear, respond to, and amplify Trump’s speech. To defend this principle, Trump cites, among other things, the Missouri v. Biden that SCOTUS just agreed to review over the objections of Sam Alito, Clarence Thomas, and Neil Gorsuch.

Under the First Amendment, violating the rights of a speaker inflicts an equal and reciprocal constitutional injury on the listener. “Freedom of speech presupposes a willing speaker. But where a speaker exists, . . . the protection afforded is to the communication, to its source and to its recipients both.” Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756 (1976) (emphasis added) (collecting many cases); see also, e.g., Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 390 (1969) (“It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.”); Packingham v. North Carolina, 582 U.S. 98, 104 (2017) (recognizing the right to “speak and listen, and then … speak and listen once more,” as a “fundamental principle of the First Amendment”); Missouri v. Biden, — F.4th –, No. 23- 30445, 2023 WL 6425697, at *11 (5th Cir. Oct. 3, 2023) (holding that the “right to listen is ‘reciprocal’ to the … right to speak” and “constitutes an independent basis” for relief). Thus, injuring President Trump’s ability to speak injures the First Amendment rights of over 100 million Americans who listen to him, respond to him, and amplify his message.

The claim to have 100 million listeners is a bit like calling his NY penthouse 33,000 square feet, insofar as it relies on overlapping numbers, including the 87 million followers he has but does not tweet to on Xitter.

Trump necessarily dedicates a very long footnote to explaining how he has standing to appeal this gag on behalf of his mob.

3 President Trump unquestionably has third-party standing to defend the rights of his audiences in this context. The Supreme Court is “quite forgiving” of third-party standing requirements “[w]ithin the context of the First Amendment.” Kowalski v. Tesmer, 543 U.S. 125, 130 (2004). The First Amendment’s overbreadth doctrine, for example, relieves the third-party plaintiff of the burden to show the usual “close relationship” and “hindrance” required by the third-party standing doctrine, id.; instead, Article III injury is all that is required. See id.; United States v. Sineneng-Smith, 140 S. Ct. 1575, 1586 (2020) (Thomas, J., concurring) (“Litigants raising overbreadth challenges rarely satisfy either requirement [‘close relationship’ and ‘hindrance’], but the Court nevertheless allows third-party standing.”) (citing Dombroski v. Pfister, 380 U.S. 479, 487 (1965)); N.J. Bankers Ass’n v. Att’y Gen., 49 F.4th 849, 860 (3d Cir. 2022) (noting that “the requirement that an impediment exist to the third party asserting his . . . own rights” does not apply when the challenged government action “substantially abridges the First Amendment rights of other parties not before the court”). Further, as the Supreme Court held in Bantam Books Inc. v. Sullivan, it is particularly important to allow third-party standing to vindicate First Amendment interests because “freedoms of expression … are vulnerable to gravely damaging yet barely visible encroachments” and must be protected by “the most rigorous procedural safeguards.” 372 U.S. 58, 66 (1963); see also id. at 64 n.6 (upholding the third-party standing of book publishers to assert the rights of distributors because “[t]he distributor … is not likely to sustain sufficient economic injury to induce him to seek judicial vindication of his rights,” whereas the seller has a “greater . . . stake” in vindicating those rights). In addition, the doctrine of third-party standing applies “when enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties’ rights.” Kowalski, 543 U.S. at 130. Here, the interference and restriction of President Trump’s First Amendment rights “would result indirectly in the violation of third parties’ rights,” id.—i.e., the rights of his audiences to receive, respond to, and amplify his speech.

I think this footnote is suspect, legally and practically. I mean, the notion that Stephen Miller’s NGO for fascism couldn’t vindicate these rights is nonsense. But it is nevertheless telling.

Trump makes that argument even while complaining that Judge Chutkan had to rely on the potential actions of others — that very same mob riled up by the amplified false victimization of Trump — to justify the gag itself.

Unable to justify the Gag Order based on President Trump’s actions, the prosecution pivots to third parties, alleging that unnamed others, outside of President Trump’s control, acted improperly before this case began. Such concerns cannot justify the Gag Order. The Supreme Court has repeatedly explained that citizens of this country cannot be censored based on a fear of what others might do. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (“[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy . . . except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”).

[snip]

In entering the Gag Order, the Court relied heavily on the anticipated reactions of unidentified, independent third parties to President Trump’s speech. The Court found that “when Defendant has publicly attacked individuals, including on matters related to this case, those individuals are consequently threatened and harassed.” Id. at 2. But the Court cited no evidence that President Trump’s statements—as distinct from the statements of millions of others—caused such alleged threats or harassment, let alone that the statements were directed to inciting imminent lawless action.

Remember, Trump has repeatedly denied that the indictment accuses him of mobilizing the mob against Congress. Even after DOJ disabused Trump of that fantasy, he is playing coy about the fact that the crime he is alleged to have committed significantly involves riling up a mob to use as a weapon.

Indeed, Trump admits this is the plan to get elected: to rile up the mob again, this time by using this prosecution as a trigger.

The prosecution filed the indictment in this matter on August 1, 2023. Doc. 1. As this case is pending, President Trump continues to campaign for President, and one of his core messages is that the prosecutions against him are part of an unconstitutional strategy to attack and silence the Biden Administration’s chief political rival. To advance this message, President Trump has made many public statements criticizing individuals he believes are wrongly prosecuting him, including President Biden, Attorney General Garland, and Special Prosecutor Jack Smith and his team. This viewpoint—that the prosecution is politically motivated—is one shared by countless Americans.

[snip]

President Trump’s speech in support of his re-election campaign—which is inextricably intertwined with this prosecution and his defense—lies “at the core of our electoral process of the First Amendment freedoms—an area . . . where protection of robust discussion is at its zenith.” Meyer v. Grant, 486 U.S. 414, 425 (1988) (citations and quotations omitted); see also Buckley v. Am. Const. Law Found., Inc., 525 U.S. 182, 186–87 (1999); McIntyre v. Ohio Elec. Comm’n, 514 U.S. 334, 347 (1995) (“[C]ore political speech” encompasses any “advocacy of a politically controversial viewpoint.” “No form of speech is entitled to greater constitutional protection than” core political speech.).

Some of this is just cynicism: by claiming all this is political speech, Trump does base his appeal on the most expansive First Amendment precedent. The legal arguments here, some of them, anyway, are not frivolous.

But he’s not wrong about his campaign strategy. The key to Trump’s political success since he was sworn in was to polarize the electorate based off false claims that any investigation of Trump’s crimes is an attack on him and his mob.

And at one point, Trump’s argument admits that this is all an argument about democracy.

The Gag Order’s carve-outs exacerbate the vagueness problems by imposing new layers of confusion upon the Order. Doc. 105, at 3. The carve-outs seem to authorize “criticizing the government generally, including the current administration or the Department of Justice,” but that does not seem to include criticizing the most relevant figure of the Department of Justice, i.e., Jack Smith. Id. The carve-outs supposedly allow President Trump to state “that his prosecution is politically motivated,” but the Gag Order prevents him from “targeting” the specific actors involved in his prosecution, so it prevents him from giving any specific or detailed justification for this claim. Id. Where claiming that the prosecution is politically motivated ends, and “targeting” the prosecutors against President Trump begins, is anyone’s guess. The carve-outs apparently authorize “statements criticizing the platforms or policies of . . . former Vice President Pence,” id., but the “platforms or policies” of candidates like Pence (and Biden) are deeply intertwined with their views on election integrity, with specific reference to the 2020 election. When does criticism of Mike Pence’s “platforms or policies” become a statement “that target[s] . . . the substance of [his] testimony,” id., when questions about the integrity of the 2020 election are “central” to the 2024 Presidential campaign?

Joe Biden (comments about whom this gag does not restrict) is running on democracy. Mike Pence is running on defending the Constitution.

Trump is running on a promise that none of that matters: no election outcome — not that of 2020, not that of 2024 — should be respected, unless he wins.

And the way to ensure that happens, Trump knows, is to guard the right of his mob to amplify and respond to his false claims of victimization.

As the GOP House Burns, James Comer Keeps Sniffing Dick Pics

October 21, 2023/74 Comments/in 2024 Presidential Election, Financial Fraud /by emptywheel

As of yesterday, the House had gone for 17 days without a Speaker. Patrick McHenry, McCarthy’s temporary replacement, says he no authority to do anything but schedule yet more futile votes (and, apparently, evict Nancy Pelosi and Steny Hoyer).

The government has less than four weeks of funding.

It’s not clear anything set up by McCarthy before his deposition should be proceeding.

But all the while — this entire time that House Republicans have been struggling to fulfil the most basic function of government — James Comer and his staffers have been hunched in a dark room somewhere, feverishly pursuing the same delusions of dick pics and … personal loans!! … they’ve been frothing over since January.

And so it was on Friday afternoon, after Jim Jordan’s third humiliating defeat in the House, that Comer ran out, like a child discovering a dead frog in a gutter, waving a check.

It was a check that James Biden — the President’s brother — used to pay off a personal loan on March 1, 2018, over a year after Joe Biden left the Naval Observatory, years before Joe Biden entered the White House, and six weeks after his brother gave him that loan.

As Democrats explained minutes after James Comer ran out waving his dead frog, after 3 million people had already poked around at Jamey’s dead frog, Joe Biden loaned his brother $200,000 six weeks earlier.

James Biden paid it off.

As of this moment, 8 million people have excited themselves with Comer’s transparent bullshit about that check, all the while Comer and Jim Jordan and Kevin McCarthy and Steve Scalise have proven themselves impotent to do the most basic things Nancy Pelosi did — in heels and backward — to keep the House running for years.

While millions of fragile-minded dupes glee over a check between brothers, Republicans haven’t managed to keep the House open or fund the Government.

Some guy from Kentucky fiddling while the House burns.

In the weeks since Comer got his stash of (as Democrats described) another 1,400 records payments for, “life insurance policies, doctor visits, holiday and birthday presents, groceries, vet visits and pet care, and plumbing repairs” and Matt Gaetz deposed the Speaker, the Trump Organization fraud trial in NYC has shown:

Eric Trump claimed he “pour[ed] concrete” rather than dealt with the appraiser who described that he had “lofty ideas” about valuation
Trump’s retired CFO and co-defendant Allen Weisselberg,
- Professed to be unable to answer 90 questions
- Claimed his $2 million severance had nothing to do with his criminal tax penalty, to say nothing of his forgetfulness
- Was accused, by Forbes, of lying on the stand about his involvement in Trump’s three-times inflation of his penthouses square footage
Weisselberg’s son Jack was involved in key loans pertaining to Trump Tower and another NYC property
Mazars complained that Trump Organization, “were not getting us all the documents” they needed to do their work

Every one of these is a scandal worth a congressional hearing. Every one of these should raise questions about whether the guy engaging in so much adjudged fraud while claiming it didn’t matter because he could just find some “buyer from Saudi Arabia” to make him good should be anywhere in politics, much less in the White house.

But instead, James Comer is waving his dripping dead frog around — a personal check for a personal loan between brothers — like he just found a $2 billion bribe from Saudi Arabia.

This is … fucking insane.

Republicans can’t keep their own caucus together. They may not be able to keep government open.

And all the while, James Comer is there writhing around about about easily debunked conspiracy theories about a personal loan.

The Holding Pattern on the Non-Trump January 6 Charges

October 18, 2023/59 Comments/in 2020 Presidential Election, 2024 Presidential Election, January 6 Insurrection /by emptywheel

There were two reports yesterday that relate to something I’ve been thinking about: The likelihood that most, if not all, of any more Trump-related January 6 charges will be delayed, at least until after his trial next year.

The first is a WaPo report that Jack Smith’s office withdrew a subpoena for records and testimony relating to Save America PAC — the fundraising Trump did off of false claims about voter fraud, which he has since used to pay lawyers and other things unrelated to the claims he made in raising the money.

The withdrawal of the subpoena earlier this month indicates Smith is scaling back at least part of his inquiry into the political fundraising work that fed and benefited from unfounded claims that the election was stolen, said the people, who spoke on the condition of anonymity to discuss an ongoing criminal investigation.

Save America was still working to gather all of the records sought in the subpoena when it was notified by Smith’s office that the demand for information had been withdrawn, two of the people familiar with the matter said.

[snip]

Broadly, the subpoenas and related interviews by Smith’s investigators sought information about the post-election, pro-Trump fundraising, and what people inside Save America and other groups knew about the veracity of the claims they were making to raise money, the people familiar with the matter said.

[snip]

While interviewing potential witnesses associated with Trump, Smith’s prosecutors have asked pointed questions about who is paying for their lawyers and why, people familiar with the questions have said. Trump advisers have said the Save America PAC, which raises most of its money through small-dollar contributions by Trump supporters across the country, is footing the legal bills for almost anyone drawn into the Trump investigations who requests help from the former president and his advisers.

[snip]

Four people with knowledge of the investigation said prosecutors had not asked questions about fundraising in recent months, after several subpoenas and witness interviews on that topic earlier in 2023.

Relatedly, while Jack Smith’s team had raised Stan Woodward’s payment arrangement when they first raised his conflicts with Chief Judge James Boasberg in June, it has not come up in the conflict review before Judge Cannon in Florida (the follow-up hearing to which is scheduled for Friday).

It’s certainly possible that something about the stage of the election has led DOJ to back off this focus. It’s equally possible DOJ has reviewed the advice given by Trump’s campaign finance lawyers, Jones Day, in 2020 and decided that advice of counsel would make charges unsustainable.

Then there’s this fascinating Bloomberg discussion, featuring abundant quotes from Zach Terwilliger, the son of George Terwilliger, Mark Meadows’ lawyer, about frustration among defense attorneys in the case regarding Smith’s uncertain instructions regarding whether witnesses are just that — witnesses — or also subjects of the investigation.

Three defense lawyers representing people sought for voluntary interviews say they’re frustrated that special counsel Jack Smith’s team insists on labeling their clients subjects without providing additional detail as to where they fit in the case or whether they could become a target. They’ve asked to remain anonymous to discuss sensitive matters.

Justice Department guidance doesn’t define what a witness is and prosecutors prefer the flexibility of the broad subject label, which covers anyone within the scope of a grand jury investigation.

Yet Smith’s search for corroborating witnesses aimed at proving the 2020 election case against the former president pressures prosecutors to incentivize people to talk, but without exposing themselves to counterattacks from defense lawyers and Trump supporters. How they navigate that balancing act could help shape the legal fate of Trump and his allies.

“It is an exercise in understandable murkiness. And it’s more complicated here,” said Jim Walden, a former federal prosecutor who’s now a criminal defense attorney. “Anyone in the Trump administration has at least potential liability if they helped him form strategy about his election loss.”

By sticking strictly to the subject designation, Smith’s team retains the ability to charge individuals who appear innocent but later turn out to have liability, while protecting itself from accusations they baited people into talking. At the same time, they’d risk undercutting their mission of expediting the Trump trial, as defense lawyers insist on negotiating drawn-out immunity deals before an interview. [my emphasis]

While the Bloomberg piece referes to a “mission of expediting the Trump trial,” neither of these articles mentions something that, to me at least, seems obvious: Whether or not a jury convicts Trump next spring, if Trump wins the presidential election, none of this may matter. The criminal exposure of Trump’s associates won’t matter, because any that remained loyal would just be pardoned, as Paul Manafort and Roger Stone and Mike Flynn and George Papadopoulos and Steve Bannon were pardoned during Trump’s first term.

While I could imagine DOJ charging a handful of people who linked the crime scene to Trump before the election, most everything else would simply expose parts of the investigation that would otherwise be better kept quiet.

Which adds yet another reason why we can’t expect to understand the steps Jack Smith may still be taking: because on top of all the other reasons prosecuting a former and potentially future President is unprecedented, the likelihood that he would just pardon himself out of any further mess is part of it.

No one seems to care anymore: but there are a good many Trump associates — not just his unindicted co-conspirators — who bear some responsibility for what happened on January 6, 2021. But DOJ may have decided it makes not sense to prosecute any of them until there’s certainty, at the very least, about Trump’s fate.

Gary Shapley’s “Red Line” Tantrum Actually Started Two Weeks Earlier

October 18, 2023/21 Comments/in 2022 Mid-Term Election, 2024 Presidential Election, emptywheel, Hunter Biden /by emptywheel

Days before an October 7, 2022 meeting at which, Gary Shapley has claimed for months, his “red line” was crossed, the thing he has used to excuse months of leaking as “whistleblowing,” he scripted the things — including a demand for a Special Counsel to make the decision that David Weiss announced having made in the meeting — that Shapley claimed to record in real time at the meeting.

Indeed, the documents House Ways and Means released last month purporting to support their complaints about the Hunter Biden prosecution show that Shapley’s tantrum had been going on for weeks and had started in significant part because the charges he was demanding wouldn’t be rolled out in advance of the 2022 election.

It has already been established that no other attendee at the October 7, 2022 meeting has backed Gary Shapley’s version of that meeting. No other attendee remembered David Weiss conveying that he didn’t have the authority to make this charging decision regarding Hunter Biden on his own. Most attendees have charitably explained that Shapley didn’t understand what he was hearing, particularly with regards to Special Attorney versus Special Counsel status. In his testimony to the House Judiciary Committee, Matthew Graves attributed Shapley’s claims to, “the garble that can happen when you layer hearsay on top of hearsay on top of hearsay. And when you look at a lot of this, it’s someone said that someone said that someone said.”

Even just Shapley’s own notes undermine his claim. As I have noted, between his hand-written contemporaneous notes and his emailed memorialization, Shapley reordered how things happened at the meeting, moving the reasons Weiss gave on October 7 for why he wouldn’t charge 2014 and 2015 — the charges against Hunter Biden that would have to be charged in DC — after Shapley’s own claim that David Weiss didn’t have the authority to make that prosecutorial decision.

Per his contemporaneous notes, the first thing discussed after the discussion about the leak was Weiss’ rationale for not charging 2014 and 2015, the two more substantive years that would have to be charged in DC. Once you’ve explained that, then whether or not Weiss got Special Attorney status for DC is significantly moot (2016 was only ever treated as a misdemeanor).

In his email to his boss, though, Shapley moved that discussion to after his argument, covering the DC charges, the LA charges, and the involvement of DOJ Tax Attorney, that Weiss didn’t have authority to charge. If Weiss had already explained his prosecutorial decision about the most problematic Burisma years — something Shapley’s hand-written notes record him has having done — then none of the other complaints about these years (that Weiss or Lesley Wolf let the Statutes of Limitation expire, that Weiss didn’t get Special Attorney authority in DC) matter. Shapely reorders his notes to hide the fact that the DC decision didn’t matter.

Shapley’s hand-written notes record Weiss sharing a prosecutorial decision — not to charge the 2014 and 2015 tax years. By making a decision not to charge in DC, Weiss was exercising the prosecutorial authority Shapley claimed Weiss said he didn’t have. Once you describe Weiss making a prosecutorial decision, then any claim that he didn’t have prosecutorial authority crumbles.

It crumbles even more given a few other details.

Shapley’s retroactive memorialization of the October 7, 2022 expresses great fury over Weiss’ decision not to charge the 2014 and 2015 years, as well as the delay of charges until after the election.

But Shapley learned of this weeks and even months earlier.

On July 29, for example, Joseph Ziegler asked Lesley Wolf about timing. Per Shapley’s own memorialization, she said Weiss was aiming to indict before the end of September, but Wolf herself expressed doubt that would happen. That comment on timing, coupled with her stated disinclination to toll the 2014 tax year, was a pretty solid indication that she was disinclined to charge 2014.

Zeigler

Any dates or goals?

Wolf

David has indicated that the end of September would be his goal to charge. The is reflective of keeping everything on track. They do not want to get any closer to a mid-term. If doesn’t happen by end of September it would have to wait until November after the elections. She stated she does not think that is likely to by charged by September.

Sol on 2014 blows on November 8, 2022.

X Factor on timing will include any delay defense counsel has requested and that they would be amenable to toll statutes. She is not leaning toward tolling again…but it is possible.

Current plan is that the prosecution recommendation will be collaborative with DOJ Tax and USAO.

[snip]

They will communicate any decisions on specific tax years and decision to charge or not charge to the prosecution team in advance of any final document. [my emphasis]

On August 16, the IRS investigators had a meeting with David Weiss, one that Wolf happily arranged on August 8. Because Wolf and other DOJ personnel could’t attend, that would be a second meeting the IRS had with David Weiss alone.

On August 11, DOJ Tax tried to set up a meeting for the following day, an invitation which Ziegler accepted; Shapley was not invited. There’s no memorialization of this meeting, at which DOJ Tax probably explained why it viewed the 2014/2015 tax years as weaker charges.

On August 15, in advance of the meeting with Weiss, Shapley reminded Darrell Waldon and Michael Batdorf about the forthcoming meeting with Weiss. Only Michael Batdorf, the second-level supervisor who testified that Shapley had a habit of, “a tendency to go to level like grade 7 five-alarm fire on everything,” responded. Shapley’s August 17 memorialization of the August 16 meeting, shared with those supervisors again, showed that Weiss was “leaning” towards only charging the CA charges, 2017 to 2019. Shapley recorded Weiss aiming to charge by the end of September, but said himself it’d be “October/November” (even though, in July, Wolf had said that if it wasn’t charged by September, it would be after November).

Here’s what Shapley said about 2014 and 2015 in that email:

We again pushed back on not charging 2014/2015. DOJ Tax continues the position that the defenses (load/taxes paid by another person on half the income) would make it too complex for the jury. I believe their position is unsupportable–both considering precedent and evidence. I made it clear that not only do we disagree with that position but that we could provide countless prosecution recommendations that included diverted income to nominees and various loan claims to support our position. The USA agrees with us but then talks to DOJ Tax and they convince him otherwise. This has happened a couple times. As a result, we will continue to communicate our position to ensure this moves forward consistent with how other tax cases would be treated with similar fact patterns.

I explained that 2014 is not charged how it would severely diminish of the overall conduct and would essentially sanitize some major issues to include the Burisma/Ukraine unreported income. I also explained that if 2014 is not charged and/or included in a statement of facts in a guilty plea, that the unreported income from Burisma that year would go untaxed. I believe leaving out 2014/2015 would deliver a message that is contrary to IRS’s efforts to promote voluntary compliance. [my emphasis]

Some of this is about getting taxes paid — the explanation Shapley would repeat in his memorialization of the October 7 meeting. But some of it is about tying Hunter’s tax crimes to Burisma.

Once again, Batdorf was the only who responded. He said he would escalate Shapley’s concerns still further, so the Chief and Deputy Chief of IRS could “at least show full support for the 2014/2015 years.” In Waldon’s testimony, he expressed being surprised at the October 7 meeting, because “I was not fully aware of a decision regarding some of the investigative years,” (49) a view that may stem from Shapley’s efforts in August to reverse this decision.

On August 18, Mark Daly from DOJ tax sent the investigative team (but not Shapley) an email that seems consistent with presenting to grand juries in both Delaware and Los Angeles in September — but not DC, once again consistent with a decision not to charge 2014 and 2015. Of note: this email was saved on June 27 of this year, before Ziegler and Shapley testified to the Oversight Committee on July 19 and Ziegler offered to go back to find more materials. Ziegler appears to have already taken steps to share information that he feigned was just a response to Congressional inquiries.

Shapley appears to have memorialized an August 25 email from Lesley Wolf asking a newly added FBI agent, along with Ziegler and Mark Daly, not to use email to coordinate between meetings. Shapley wasn’t a recipient of this particular email. It’s an example of the double set of books Shapley confessed to in his original deposition.

On September 20, 2022, over a week before the interview of James Biden (Hunter’s uncle and sometime business partner and Joe’s brother) and the day after Martin Estrada was confirmed as US Attorney for Los Angeles, Shapley emailed Weiss, cc’ing no one else, asking for a call in the following two days. The next day, September 21 at 1:23PM, Weiss said he would set up a meeting “in the near term,” including IRS and FBI, to provide an update. This email thread, which Shapley would pick up over a month later, would become the one where Shapley’s paranoia about Weiss cutting off communication with Shapley first expressed. As we’ll see, this Shapley request to Weiss was also the ultimate genesis of the October 7 meeting.

Just over two hours after Weiss promised an update shortly on September 21, Shawn Weede, Weiss’ Criminal Chief, wrote to set up the meeting Weiss had promised, proposing the meeting for September 28 (still one day before the interview of James Biden). Shapley responded 22 minutes later, noting that he would be in the Netherlands on the day of the proposed meeting, but would be willing to call in.

The next day, at 11:15AM, Weede wrote back to say a “sanitized” meeting was unworkable, and so proposed the meeting for the week of October 3, after Shapley got back.

Also on September 22, Shapley memorialized a meeting that started at 2:30PM noting that Lesley Wolf and DOJ Tax’s Mark Daly joined the meeting late, but without documenting anyone else who attended. The memorialization was closely focused on briefings of Estrada’s office on the case (though Shapley refers to Estrada as “her”). It also clearly records DOJ tax still conducting their review, as well as a decision not to charge either the gun charge and/or anything else until after the election — precisely the eventuality that Wolf had warned would happen almost two months earlier.

Gun charge will likely not be indicted in October.

[snip]

USAO and DOJ Tax made the decision not to charge until after the election. They said why should they shoot themselves in the foot by charging before.

Within an hour after the start of the call, Shapley was going ballistic about precisely that eventuality. Starting at 3:34PM, Shapley alerted Batdorf — but not his immediate supervisor, Waldon,

Big news on Sportsman. Joe Ziegler and I need to speak with you as soon as possible.

In a follow-up, Shapley explained that the “bad news” he had was precisely what he had been warned about in July, that the charges would be delayed until after the election.

Bad news. Continued inappropriate decisions affecting timing. i.e. Election. We can talk later if you are busy….I believe their actions are simply wrong and this is a huge risk to us right now.

Note: There was no risk to the IRS of delay after the election. It would mean the 2014 charges would toll (unless Hunter’s lawyers agreed to waive tolling, as they had before), but that’s another thing Shapley was warned about. A significant part of Shapley’s tantrum seems to stem from a personalized concern that charges would not come out before the election.

Batdorf ended the exchange by instructing, “Please ensure your ASAC and SAC are updated as well.”

Shapley did that, but not until almost two hours later, in a 5:28PM email to Darrell Waldon (his ASAC), Lola Watson (his SAC), and Michael Batdorf. Without noting that he had already bypassed chain of command, Shapley complained,

During todays SM call there was some information provided to the team concerning decisions made by the USAO and DOJ that need to be discussed. For example, the AUSA stated that they made a decision not to charge until after the election. In itself, the statement is inappropriate let alone the actual action of delaying as a result of the election. There are other items that should also be discussed that are equally inappropriate.

None of those other items “that should be discussed” were obviously reflected in his memorialization of that call.

At least on paper, this tantrum, made two weeks before a pre-election leak to the WaPo, was about something he had been warned of in July, not news at all, but one tied — explicitly in his mind — to the election, not timing per se.

Side note: Unlike Ziegler’s, many of the documents Shapley shared are stripped of all metadata. Not this email, though. This email — which he shared twice (Attachment 5, Attachment 24) — both reflect a creation date of September 20 (this is European notation), over eight hours apart, with the second reflecting Tristan Leavitt as document author.

That would mean these documents were saved after Darrell Waldon (September 8) and Michael Batdorf (September 12) testified. There’s good reason to believe these documents were chosen with some knowledge of the IRS supervisors’ testimony.

To make it plain: For months, Gary Shapley claimed that his red line was crossed on October 7, 2022. But the emails he himself turned over show that’s not true. His red line was crossed on September 22, 2022, and the red line had a lot to do with making charges public in advance of the election.

Importantly, that means his red line was crossed before the leak to the WaPo, not afterwards.

The day after Shapley’s tantrum started — which no one at DE USAO or FBI would have known about — the FBI ASAC seconded the plan to wait until Shapley returned before holding the meeting that would become the October 7 one, noting that then Weiss could be present.

Meanwhile, on September 28, Waldon emailed Ziegler and all the other people Shapley had involved in his tantrum, noting that he was trying to arrange a meeting with Weiss and Poole. Ziegler responded to everyone, on the morning of September 29, promising any update from prosecutors in CA. Waldon responded asking Ziegler to call him. And Ziegler responded, suggesting they should do a pitch on the 2014 and 2015 years to DC prosecutors: “we also need to request the presentation of 2014 and 2015 to the criminal chief / US attorney in DC – similar to what we would do in California for 2017 2018 and 2019.” Again: Waldon seems to have been surprised when, at the October 7 meeting, Weiss announced that the decision had been made.

That was at 11:11AM on September 29. At 2:25PM, Ziegler went into the interview with James Biden, Hunter’s uncle. Lesley Wolf and two other prosecutors who, like Ziegler, would not be at the October 7 meeting, also participated in the interview. The interview focused largely on the 2017 to 2019 years (though also asked questions that might reflect a campaign finance investigation into Kevin Morris), but which Ziegler now points to as critical testimony supporting his argument for felony charges in 2018. Shapley was already a week into a tantrum about charges not being filed before the election before this interview.

Seven minutes after the James Biden interviewed finished — based on public records, at least, the last major investigative step in the investigation, Weede proposed and the ASAC confirmed a meeting for October 7 at 11AM. The FBI ASAC confirmed as well. Then the next day, a Friday, the ASAC followed up to confirm once again, management and investigators would be present. She followed up again at end of day Monday, October 3, confirming she and her boss, Thomas Sobocinski would attend. Weede confirmed. The ASAC touched base once again on Tuesday morning.

Only at that point, on October 4 — with no record in the thread that Shapley had told his own boss, Waldon, that this meeting was in the works, did he respond to the ASAC alone, asking for her top three items “so we can be on the same page.”

His own list might was effectively a first draft of the things he would record as having happened in notes and a memorialization email days later: Special Counsel, the delay until after the election, and venue.

At 2:26PM, WaPo posted the story that preempted prosecutors’ decision to wait until after the election before charging — the decision Shapley first learned of in July but staged a tantrum about more recently.

At 4:34, the ASAC responded, asking if Shapley’s ASAC (Waldon) would attend, and describing her own agenda as:

Delays
Venue
Communication
Anything further that develops by tomorrow

Of course: that “anything further that develops” had already developed: the story in the WaPo.

Shapley responded a minute later, saying, he had just tried to call her, but that yes, both Shapley and his SAC would attend.

Nine minutes after that exchange occurred with no mention of the WaPo story, Shapley informed his bosses about it.

Just an FYI that there was a media leak today purportedly from the “agent” level on Sportsman. I imagine it will be a topic of discussion at tomorrows meeting in Delaware. I spoke with Justin Cole about this to provide anything he may need.

I have no additional insight that is anything but a rumor.

Federal agents see chargeable tax, gun-purchase case against Hunter Biden – Espotting.com

Just keeping you informed.

[Link to original WaPo story, but note that Shapley shared an Espotting link]

As I’ve noted, Shapley’s reference to rumors is inconsistent with his past statements about the leak.

As all that was going on, the other DE AUSA besides Wolf, Carly Hudson, wrote Ziegler at 10:07AM on October 6, asking him what he was supposed to remind her about — something he heard immediately after the James Biden interview on September 29.

David asked me to remind him what you [s]aid “regarding the call you received from management after the James Biden meeting.” I’m not 100% sure what he means. Would you mind reminding me about that call so I can remind him?

Ziegler didn’t respond until 6:51PM, well after the WaPo had published the story. Ziegler explained that IRS management had been informed that DOJ Tax didn’t anticipate charging until 2023; they weren’t done with the approval process.

They heard from DOJ-Tax that they don’t expect the case to be indicted until 2023 as they still have various levels of approval. I think this is what you are asking about.

There’s no documentary record of it, but it would be inconceivable that Ziegler hadn’t shared this with Shapley when he heard it, on September 29. Which is to say that Shapley knew there were reasons — beyond the fact that James Biden wasn’t interviewed until September 29 and beyond the election — why Hunter wasn’t going to be charged until after the election.

Nevertheless, going into a meeting he would much later pitch as his “red line,” a meeting that ended up significantly focused on a pre-election leak promising charges, Shapley would claim the election was what was causing the delay.