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

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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.

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

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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).

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

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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.

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Trump’s First Amendment Defense of Mobilizing His Violent Mob

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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.

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

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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.

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The Holding Pattern on the Non-Trump January 6 Charges

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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.

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

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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.

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“JIM IS COMING FOR YOU:” Aspiring Speaker Jordan’s Stochastic Lynching as Oversight

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[GRAPHIC CONTENT WARNING]

Because the way Capitol Hill beats work, the prospect of a vote that could put Jim Jordan second in line to the Presidency has focused on horserace.

To be sure, given the narrow margins and the historic incapability of Republican men to count votes, the horserace will be determinative. For example, to succeed, Jordan would not only have to win the support of most of the 55 people who voted against him last week in a secret ballot where he had no challenger, but if only 205 Republicans vote — as reportedly happened in that poll — then Hakeem Jeffries would be elected Speaker with the 212 Democrats expected to show up and vote for him.

But almost no reporting has focused on how catastrophic a Jordan Speakership would be — the earliest death knells of democracy that the election of Trump, which a Jordan Speakership would primarily serve, would guarantee.

What reporting there has been has focused on Jordan’s role, 30 months ago, in Trump’s attempted coup, which the January 6 Committee summarized this way:

Representative Jordan was a significant player in President Trump’s efforts. He participated in numerous post-election meetings in which senior White House officials, Rudolph Giuliani, and others, discussed strategies for challenging the election, chief among them claims that the election had been tainted by fraud. On January 2, 2021, Representative Jordan led a conference call in which he, President Trump, and other Members of Congress discussed strategies for delaying the January 6th joint session. During that call, the group also discussed issuing social media posts encouraging President Trump’s supporters to “march to the Capitol” on the 6th.661 An hour and a half later, President Trump and Representative Jordan spoke by phone for 18 minutes.662 The day before January 6th, Representative Jordan texted Mark Meadows, passing along advice that Vice President Pence should “call out all the electoral votes that he believes are unconstitutional as no electoral votes at all.” 663 He spoke with President Trump by phone at least twice on January 6th, though he has provided inconsistent public statements about how many times they spoke and what they discussed.664 He also received five calls from Rudolph Giuliani that evening, and the two connected at least twice, at 7:33 p.m. and 7:49 p.m.665 During that time, Giuliani has testified, he was attempting to reach Members of Congress after the joint session resumed to encourage them to continue objecting to Joe Biden’s electoral votes.666 And, in the days followingJanuary 6th, Representative Jordan spoke with White House staff about the prospect of Presidential pardons for Members of Congress.667

To be sure, in his role in the attack, Jordan exhibited utter contempt for democracy.

But what has gotten less attention is the degree to which Jordan has used his position chairing the Judiciary Committee and Weaponization Committee to serve the longer slow-moving attack on democracy.

A Jordan Speakership would undoubtedly escalate Jordan’s assault on rule of law generally and any prosecution of Donald Trump specifically. It would likely directly (by platforming Russian disinformation) and indirectly (by undermining further US aid) help Russia’s invasion of Ukraine.

Both would make it more likely Trump would win the 2024 election.

Indeed, that’s a telling aspect of Matt Gaetz’ comments when he first announced his (ultimately successful) attempt to depose Kevin McCarthy. Gaetz repeatedly complained that the House hadn’t yet subpoenaed Hunter Biden, and demanded that Republicans use “the power of the purse” to,

zero out the salaries of the bureaucrats who have broken bad, targeted President Trump, or cut sweetheart deals for Hunter Biden.

[snip]

Joe Biden deserves impeachment for converting the Vice Presidency into an ATM machine for virtually his entire family.

At least for Gaetz (who might well be rewarded with a gavel in a key committee, were Jordan to succeed), this is about shutting down investigations into Trump and fabricating investigations into Biden from the fumes of five year old dick pics.

There’s a specific aspect of Jordan’s actions, however, that deserves more attention in advance of tomorrow’s scheduled public vote: The degree to which Jordan has used the power of his gavel to engage in the same kind of stochastic terrorism that Trump uses to enforce his will.

I’ve already noted how the Gary Shapley media tour (in which Jordan cooperated with James Comer and Jason Smith) ended up getting the team of investigators, including ones still pursuing indictments of Hunter Biden, targeted. As Thomas Sobocinski — who continues to oversee FBI agents investigating Hunter Biden — explained in testimony in early September, the family members of his own team have been followed and AUSA Lesley Wolf has faced specific threats.

[T]his is affecting my employees. I now have FBI employees that names are out there. I have FBI employees and former FBI retired agents who’ve served for 20plus years whose parents are getting phone calls, whose photos with their girlfriends, who their children who are being followed. That is not something that we were prepared for, and I was concerned about having that continue or expand to other one of my employees.

[snip]

[W]ithout going into specifics, my office and the FBI have done things and initiated things to ensure that [Lesley Wolf] remains safe.

Again, some of these people are currently trying to indict Hunter Biden, and they’re getting swarmed by a mob teed up by Republican efforts.

In the recent Matthew Graves testimony, Graves repeatedly refused to name the members of his team because he knew the transcript would be made public, resulting in threats against prosecutors, on top of the ones DC prosecutors have already faced.

What I can tell you is, I’ve unfortunately had way too many instances of documents getting into the public domain that have our prosecutors’ names in them and me receiving what we call urgent reports about security concerns because of threatening or harassing behavior that they’re receiving … and that we’ve had to take steps for a number of people in our office to mitigate the risk.

Nevertheless, Jordan persisted, to his very last question to include those names in this transcript (I assume he’ll send out letters under their names, as he has with others involved in these investigations).

In the Tim Thibault interview, in which it became clear over time that Republicans had ruined the career and reputation of the guy who had led investigations into two Democratic members of Congress and single-handedly opened an investigation, in 2016, into the Clinton Foundation off of Clinton Cash based off the unsubstantiated claims of others trying to get payback, Thibault described not just how he was targeted — for which he accepted a good deal of the blame on account of his social media posts — but how others were impugned by association.

[T]hose two agents that worked on the Tony Bobulinski EC, I’m aware that they received significant backlash for only doing their job. Why? Because of my social media conduct and Mr. Bobulinski thinking I was a bad agent, that put them in a bad spotlight. Those are the guys that are the victims, the true victims. And no one came and spoke on their behalf. Right? They — they’re just line agents doing their darn job.

As one Democratic staffer noted, though none of 18 sources for such claims to Jordan’s committees have offered any corroboration for the claims, Jordan and his staffers nevertheless continued to push the claims to the media. “[T]he public push or allegations that were being sort of repeated by this committee never stopped.” Jordan is cultivating rumors about the FBI and other agencies to foster retaliation campaigns in the media.

His actions with Fani Willis are perhaps most telling. Jordan first started tampering in Willis’ investigation in August, though — perhaps having learned his lesson when he similarly tampered in Alvin Bragg’s case — he has chosen to send letters rather than subpoenas.

As is the norm for Jordan, his claims are based on conspiracy theories from biased sources. His most recent letter for example, dated to September 27, sources his claim that “there are credible reports” that Willis coordinated with Jack Smith to two articles, one ten months old.

Finally, there are credible reports that your investigation and indictment was coordinated with the Department of Justice and Special Counsel Jack Smith. 30

30 Josh Gerstein, Prosecutor in Trump documents case has history pursuing prominent politicians, POLITICO (June 13, 2023); Jerry Dunleavy, Trump special counsel Jack Smith was involved in Lois Lerner IRS scandal, WASHINGTON EXAMINER (Nov. 25, 2022). [links added]

Not even the propaganda outlet, Washington Examiner, supports Jordan’s claim. Neither of those stories even mention either Willis or Georgia.

Notably, Jordan doesn’t note that in his September 12 interview — an interview conducted just over two weeks before he sent this letter — Thibault denied interacting with Willis’ team four times: “No, ma’am. … Never. … Never. … No, ma’am.” Jordan doesn’t note that this particular conspiracy theory — which, even if true, would be squarely within the expectation that state and federal law enforcement can cooperate and share information — has not been substantiated by a guy who would have had firsthand visibility (though, because of the delay in predicating an investigation against the fake electors, only on the earliest parts of the DC investigation; Jordan did not, publicly at least, ask Steve D’Antuono this question during his June interview).

A far more important detail from these letters is in Willis’ first reply, dated September 7 (which she resent as part of her recent response). After laying out constitutional reasons why Jordan shouldn’t get involved and referring him, as a non-member of the bar, to where he could information on Georgia’s RICO law, she provides ways that the House Judiciary Committee could more usefully spend their time, such as on funding for victim-witness advocates.

She then notes that Jordan should show more concern about the safety of people involved in the criminal justice system — precisely the kind of people that Jordan has instead sown threats against.

As it seems you have a personal interest in the Fulton County District Attorney’s Office, you should consider directing the USDOJ to investigate the racist threats that have come to my staff and me because of this investigation. For your information, I am attaching ten examples of threats this office has received. See Exhibits F through O. I am providing these examples to give you a window into what has happened to my staff and me as I keep the promise of my oath to the United States and Georgia Constitutions and do not allow myself to be bullied and threatened by Members of Congress, local elected officials, or others who believe lady justice should not be blind and that America has different laws for different citizens.

As noted, she included a number of the threats she and her office have received. We always hear about such threats, but only get to see what they include if they get charged.

The dripping racism of many of these threats is breathtaking.

Of particular interest are the two threats sent on the same day that Jordan first targeted Willis, on August 24, especially the one that echoes things Jordan included in his letter — such as the paragraph in which Jordan argues Willis should have charged this in 2021 and since she didn’t was obviously just trying to impact the election. Even more notably, this threat appears to invoke Jordan’s campaign against Willis explicitly.

To the Biggest liar of A DA ever, WE ARE COMING FOR YOU FANI….. YOU TOUCH ANYONE ATTACHED TO TRUMP AND WE WILL BURN YOUR CITY TO THE GROUND WITH YOU IN IT. YOU ARE GOING TO GET REMOVED FROM OFFICE. IF THIS WAS REALLY A CRIME YOU WOULDVE DONE IT IN 2021. YOU ARE FAKE AS HELL. A DEMOCRATS PUPPET. YOU ARE ONLY DOING THIS TO KEEP HIM FROM RUNNING FOR PRESIDENT. WELL WE ARE GOING TO FUCK YOU U P. DON’T GO OUT AT NIGHT YOU BLACK BITCH, WE ARE GOING TO SEPARATE YOU FROM YOUR CAR & DRIVER. JIM IS COMING FOR YOU. HALLELUJAH!!!!, BUT HE’S ONLY GOING TO FIND A BODY …. [bold mine, all caps and other punctuation original]

This is, quite simply, the language of the lynch mob.

And if the taunt, “Jim is coming for you,” is, indeed, indication that the person who sent this threat had read Jordan’s earlier letter to Willis, it means it took just hours for Jordan’s threats, posing as oversight, to translate into violent racist threats against Willis, her daughter (in the other threat sent that day), and the entire city of Atlanta.

This is not new. Jordan has been sowing threats against Donald Trump’s enemies for years, since the focus on Peter Strzok and Lisa Page.

But even in his current position, Jordan is using his gavel as a means to tee up threats based on conspiracy theories, threats designed to make every single imagined opponent of Donald Trump worry about their careers, their safety, their life.

This week, Jordan will and already has been mobilizing similar mobs against his fellow Republican members of Congress in order to pursue even more power, an even bigger gavel.

Which is why all the stochastic threats Jordan has already mobilized deserve more attention.

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Five Years Ago Today, Hunter Biden Bought a Gun

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Yesterday, Judge Maryanne Noreika dismissed the gun-related Information against Hunter Biden, signed by Baltimore AUSA Leo Wise, that was filed on June 20, an Information tied to a diversion agreement that Leo Wise also signed.

At the arraignment on Hunter’s new charges — three charges replaced one — Magistrate Judge Christopher Burke reminded the Special Counsel’s team (Derek Hines had the speaking role at the arraignment, not Leo Wise) about the Information still on the docket.

Mr. Hines, one question on my end. The Indictment now obviously has been filed on the docket and that still has the prior felony information that was filed with regard to the prior gun charge back at the point where it was thought that there might be a plea. Did the Government intend to dismiss that charge?

MR. HINES: Yes, consistent with local practice, we intend to file a written motion within the next day.

THE COURT: Okay. And that will go to Judge Noreika and she will review that.

It took Leo Wise two tries — he forgot to sign the first motion to dismiss — but Weiss’ team did indeed move to dismiss the Information, and the docket identified the motion to dismiss that Noreika granted as the amended one, the one Leo Wise actually signed.

And so it was that on the last day off the fifth year after Hunter Biden purchased a gun, Judge Noreika dismissed one charge against him for doing so. Weiss’ team moved to dismiss the Information without prejudice to refiling it. But as of today, the statutes of limitation begin to expire on both that Information — charged under 18 USC 922(g)(3) and 18 USC 924(a)(2) — and the charges in the Indictment — which added charges under 18 USC 924(a)(1)(A) and 18 USC 922(a)(6) and 18 USC 924(a)(2), something Leo Wise noted at the failed plea hearing in July. Any charge tied to unlawful possession of that gun, as opposed to unlawful statements made during the purchase of the gun, will expire on October 23.

So, 9 days into the 30-day period during which Judge Burke gave Hunter’s team to file motions, things may begin to get interesting,

Since the failed plea, the two sides have been involved in a dance regarding whether the diversion agreement — which, as noted, Leo Wise signed on July 26 — remains binding on the government. Over and over, the government, with its evolving titles, has claimed it does not remain binding. Over and over, Hunter’s team preserves the record, insisting it does.

For example, when the government moved to vacate Judge Noreika’s briefing order with an August 11 filing — a motion signed by Leo Wise — claiming that, “there is no longer a plea agreement or diversion agreement,” Hunter’s lawyers responded two days later countering, “the parties have a valid and binding bilateral Diversion Agreement.” On August 15, DOJ filed a reply — signed by newly promoted Assistant Special Counsel Leo Wise — disputing Hunter’s claims, focusing not on whether Wise signed the diversion, but whether Judge Noreika approved the plea or Probation signed the diversion.

On September 6, in response to an order from Judge Noreika, DOJ filed a status update — once again signed by Leo Wise — stating (among other things) that the diversion had not been executed because, while it had been signed by Leo Wise, it had not been signed by Probation. Lowell responded — again, protecting the record — that the court had been provided an executed copy of the diversion agreement, the one signed by Leo Wise.

I don’t know who will win this dispute. I know that DOJ — in filings signed by Leo Wise — keeps saying that where the diversion agreement says “approval” in ¶¶ 1 and 2, it means approval by Probation, not the parties mentioned in ¶¶1 and 2. But from the moment DOJ first opened this docket — with a letter signed by Leo Wise — they referred to executed agreements that were signed that day.

I also know that DOJ keeps speaking of a plea agreement as it existed on July 26, not the agreement that DOJ entered into on some unspecified date in June before that, between which time and July 26, Leo Wise took over from Lesley Wolf and the scope of the immunity agreement started shrinking, one of two things that led the plea to fail on July 26.

At the arraignment last week, Lowell warned that several things were going to happen by or before November 3, when motions are due.

MR. LOWELL: Yes, a couple of things, Judge. First, I understand that Judge Noreika did advise the Government of their Brady obligations. I would want to talk to the Government about the overall discovery issues, especially with the thirty-day motions schedule. We would like to get discovery in the case obviously before we file the motions. We will talk to them. I don’t know that we’ll have any problems that we will need to bring for the Court’s attention, but we will see.

And second of all on those motions, I appreciate the date, I think we can conform to that based on the discovery perhaps, but I think there will be a number of motions which won’t be a surprise to Your Honor or to Judge Noreika, including motions to dismiss which we discussed during the last proceeding which would focus on our view that there was an agreement in effect which would prevent this charge from being filed as well as questioning the constitutionality of the statutes that have been cited and others depending on what happens. So that thirty days seems right, but we’ll talk to the Government.

[snip]

MR. LOWELL: The only other thing that would maybe not change the schedule but would add to the schedule, is that at least one of those motions, I think given what we all know about this case, we will be making a request for an evidentiary hearing. [my emphasis]

Lowell said he:

  1. Wanted Brady and other discovery before he filed motions
  2. Would make a request for an evidentiary hearing
  3. Would file motions (plural) to dismiss, arguing:
    • The diversion agreement prohibits these charges
    • The gun charges are unconstitutional
    • “others depending on what happens”

As a threshold mattter, Lowell seems to believe he had not, by last Tuesday, received all the Brady discovery, even though Chris Clark agreed he had received it back in July. That is, Lowell believes the government has evidence that either exculpates Hunter (which is unlikely) or impeaches the investigation or prosecution that DOJ has not yet turned over.

It’s not a mystery what some of this is. In an August 13 appearance on CBS, Lowell described that if Weiss decided to file charges other than what got filed in June, something must have “infected” the process.

LOWELL: But you asked me whether or not that has been part of the investigation and after five years and what we know happened in the grand jury, of course that had to be part of what the prosecutor has already looked at, as well as every other false allegation made by the right wing media and others, whether it’s corruption or FARA, or money laundering. That was part of what this prosecutor’s office had to have been looking over for five years. I can assure you that five years concluded that the only two charges that made sense were two misdemeanors for failing to file like millions of Americans do, and a diverted gun charge for the 11 days that Hunter possessed a gun. Everything else had been thoroughly looked at. So is that possible that they’re going to revisit it? Let me answer it one way. If the now Special Counsel decides not to go by the deal, then it will mean that he or they decided that something other than the facts and the law are coming into play.

[snip]

LOWELL: –Because I know we were a little rushed. So to answer your question squarely. People should keep in mind that while Mr. Weiss’ title changed last week, he’s the same person he’s been for the last five years. He’s a Republican U.S. attorney appointed by a Republican president and attorney general, who had career prosecutors working this case for five years, looking at every transaction that Hunter was involved in. So whether it was tax or the gun, or possible any other charge, if anything changes from his conclusion, which was two tax misdemeanors, and a diverted gun charge. The question should be asked: what infected the process that was not the facts and the law?

MARGARET BRENNAN: Or new evidence? I mean, are you confident your client won’t face new criminal charges?

LOWELL: I’m confident that if this prosecutor does what has been done for the last five years, look at the facts, the evidence and the law, then the only conclusion can be what the conclusion was on July 26. It’s new evidence, there’s no new evidence to be found. Some of these transactions are years old. They’ve had people in the Grand Jury, they’ve had data that was provided to them. I don’t know the possibility exists after this kind of painstaking investigation for them to be “oh, my gosh, there’s a new piece of evidence which changes.” The only thing that will change is the scrutiny on some of the charges, for example, the gun charge.

More spectacularly, in a September 14 appearance on CNN, after the gun charges were filed, Lowell casually mentioned that prosecutors, “don’t share their emails with me, at least as of yet.”

LOWELL: And that the only thing that changed, Erin, was not the facts and not the law, which has only gotten worse for law enforcement but the application of politics. If it turns out that they continue to escalate the charges, then that is an issue that should be explored.

BURNETT: Okay. So but you are saying that they would be doing that because they are under political pressure from Republicans, MAGA Republicans as you referred to them, in Congress.

LOWELL: Well, they don’t talk to me about their motives.

BURNETT: Yeah.

LOWELL: They don’t share their emails with me, at least as of yet. All can I do, as you as a good reporter does, is make connections. So, if they thought after five years this was appropriate and then the political pressure came and now they think this is appropriate and if it’s no change in the facts and no change in the law, then let me ask you as a journalist would ask, what changed? And I’m telling you, the only thing that’s changed is the politics.

That is, Lowell insinuated that he would demand emails from the prosecution team to understand what led them to (to use the phrase used in the first Hunter filing signed by Lowell) renege on a plea deal.

I have said repeatedly when covering this case and I’ll repeat again, defense attorneys make the kinds of claims that Lowell is making — raising selective prosecution claims and insisting they haven’t gotten Brady discovery, for example — all the time. Such claims usually don’t work. Mind you, you would always need to take those claims more seriously when dealing with someone like Lowell; he’s a formidable lawyer. But even still, selective prosecution claims almost never reach the bar required to get an evidentiary hearing and DOJ has a great deal of flexibility in how they fulfill their discovery obligations. Lowell is making incredibly aggressive claims here, especially the casual suggestion he might get prosecutors’ emails.

The Hunter Biden case is different though. It’s different because Gary Shapley and Joseph Ziegler have spent months making easily debunked claims about politicization in favor of Hunter Biden, even while disclosing the existence of evidence showing the opposite, improper political influence to investigate Hunter. And it’s different because James Comer and Jim Jordan and Jason Smith and the chief investigative counsel they all keep swapping between committees like a cheap date, Steve Castor, keep forcing one after another investigative witness to go on the record about this investigation.

Take just one example: the emails that Gary Shapley belatedly claimed he was a whistleblower to try to explain away because David Weiss’ team demanded them in discovery. Michael Batdorf — the Director of IRS-CI Field Operations who described that Shapley uniquely escalated things to him because he has, “a tendency to go to level like grade 7 five-alarm fire on everything,” also described that Shapley wasn’t a mere supervisor on this team, he was playing an investigative role.

He was taking investigative steps with the special agents. I mean, he was one of the team.

So it wasn’t just an agent involvement. It was the supervisor involvement. He was, again, taking those actions as if he was a working case agent. (97)

Batdorf provided this description to explain why it was reasonable to remove the entire IRS investigative team (which Batdorf also repeatedly said was not retaliation, undercutting yet more of Shapley’s claims). But it would also serve to explain why it was totally reasonable for Weiss to demand Shapley’s emails in discovery, first in March 2022 and then, after Shapley refused to turn them over, again in October 2022. Batdorf also revealed that Weiss had to and did go over his head to get Shapley’s emails. If it was reasonable to obtain Shapley’s emails for discovery — and Batdorf has explained why it was — then it would be reasonable for Hunter Biden to expect to get them.

Republicans’ frenzied dick pic sniffing has also provided clear evidence, both in the form of testimony about whether Shapley’s notes accurately reflect what happened on October 7, which multiple witnesses say they do not, and in notes that clearly conflict with what he typed up and sent in emails, to demand Shapley’s hand-written notes, in addition to his more formal memorializations.

Normally, evidence that Shapley has been biased or dishonest would only matter for any tax case Weiss attempts to charge down the road. Weiss has time yet under the statute of limitations for tax charges, allowing him to see how this gun charge will go down, and possibly allowing him to delay responding to precisely this kind of discovery request until after the gun charges are resolved.

Except that thanks to frothy Republicans, there is already evidence showing that Shapley’s media tour “infected” Weiss’ prosecutorial team before they made the decision to “renege” on a plea agreement and add additional felony gun charges against Hunter.

When asked by Steve Castor in an interview on September 7 how Shapley’s media tour was affecting the ongoing investigation (which Thomas Sobocinski continues to oversee), the FBI Special Agent in Charge of the Baltimore office described that the media tour, “is affecting my employees,” so much so that the children of retired FBI agents “are being followed.”

Castor later asked a question I’m sure Abbe Lowell would love to know the answer to: Why Lesley Wolf was taken off court filings. Sobocinski balked at answering, even questioning whether Castor’s premise was “factually correct.” But Democratic staffers followed up to ask whether Wolf has faced threats. Sobocinski responded that “my office and the FBI have done things and initiated things to ensure that she remains safe.”

In other words, Shapley made himself relevant to not just the tax charges but also to all charges from David Weiss’ office by setting off a media frenzy that led to credible threats that — Hunter’s attorneys can and undoubtedly will argue — may have led prosecutors to ratchet up the charges against Hunter.

It turns out, though, that it wasn’t just the threats Shapley elicited that affected Lesley Wolf’s involvement in the case. Just five days after Sobocinski’s interview, Batdorf was willing to answer that question.

Q And looking at the individuals who were working on the case outside of IRS, so looking at the AUSA, for instance, to your knowledge, was there any change in the personnel of the AUSA from when it started in 2018 to now? Has there been a change, or has it been generally the same career people working the case the entire time?

A It’s my understanding that there had been a change in the AUSA, the prosecution team.

Q And when was the change made? Do you know?

A I believe that it was made in roughly — I think it was May or June of this year when we decided to move forward with the investigation. (99)

According to Politico, Wolf remained involved in the plea negotiations at least as late as June 7. According to Batdorf, Weiss did ultimately remove her.

The process by which Weiss removed his own AUSAs from the prosecution team appears to have taken two steps. First, between June 7 and June 20, Leo Wise started signing things, including things that Lesley Wolf negotiated. While Wolf was never on the Hunter Biden docket, Delaware AUSA Benjamin Wallace was on early filings (and has not withdrawn from it). According to reports from the day, a number of Weiss’ prosecutors attended the scotched plea deal as well.

But since Weiss was named Special Counsel, just Wise and Hines have appeared on filings, using their new title, Assistant Special Counsel. In other words, it seems that Weiss may have belatedly — very, very belatedly — tried to create a prosecutorial clean team that might sustain charges against the President’s son.

Along the way, Wise made preposterous claims — such as that he was not aware of any leaked grand jury information — that suggest that on top of removing Wolf from the process, Weiss is serially attempting to sheep-dip the prosecution, to create a team unaffected by the bullshit that has gone on for five years, so as to create the illusion of apolitical, neutral prosecutorial decisions.

On a July 31, 2023, call, Assistant United States Atiomey Wise stated he was “not aware” of any leak of grand jury information by the Government during the courseof the Government’s investigation of our client. Such a statement was surprising given that Mr. Biden’s counsel have discussed such leaks with the Government on multiple occasions over the past two years and addressed these leaks in at least four prior letters and countless telephone calls with your Office.1 We incorporate by reference counsels’ prior correspondence on these issues, enclosed herewith as Exhibits A – D.

Not only does that ignore the press blitz Republicans have created, to which both Wise and jurors would have been exposed.

But at least in June, Leo Wise signed things negotiated by Lesley Wolf. You can’t claim that Wise represents a team isolated from the original investigative team if he was signing documents negotiated by Wolf.

That transition, from Wolf to Wise, is a central factual issue that would determine whether DOJ reneged on the terms of the plea agreement, as Hunter’s team insists DOJ did. That transition, from Wolf to Wise, will significantly determine whether that diversion agreement really does remain binding — meaning the indictment already charged would need to be dismissed, with statutes of limitation expired even for an Information to backstop any diversion agreement that remained in place.

Again, normally defendants would never get access to such details. Normally defendants would never contemplate, as Lowell did publicly, getting prosecutors’ emails.

But Jim Jordan and James Comer and Steve Castor have been jumping through hoops providing Lowell cause to do just that.

And so, on the fifth anniversary of the day when Hunter Biden purchased a gun, things may start to get interesting.

Update: Hunter’s attorneys have filed a consent motion to extend deadlines, with Hunter’s initial motions deadline extended to December 11 (provided Judge Noreika approves).

The parties in the above-captioned case have conferred, and respectfully submit the following proposed modified briefing schedule for all pretrial motions: (a) the defendant’s pretrial motions to be filed by December 11, 2023; (b) the government’s oppositions/responses to be filed by January 16, 2024; and (c) the defendant’s replies to be filed by January 30, 2024. The parties will be prepared to argue the motions, if the Court so directs, following completion of all briefing. This proposed schedule excludes deadlines for motions regarding jury selection, discovery, and motions in limine (which can be scheduled at a later time once a trial date is determined).

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The Utility of the Tim Thibault Smear for Insurrectionists

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Back on September 12, when Matt Gaetz’ plan to depose Kevin McCarthy was a seeming fantasy, he appeared on CNN to complain that McCarthy’s concession to open an impeachment inquiry wasn’t enough.

Even as Abby Phillip repeatedly (and laudably) noted that there was no evidence to support an impeachment, Gaetz claimed he had been “deposing” retired FBI Agent Timothy Thibault that day and further claimed that, as part of a cover-up, the Foreign Influence Task Force had “designate[d] any derogatory information about the Bidens as foreign disinformation.”

GAETZ: I mean, come on, he was — wait, hold on. Can you just acknowledge it calls into the business deals, he’s involved? When he calls dinners, you don’t think that’s involvement?

PHILLIP: First of all, this is not about innuendo. It’s not about what I believe. It’s a question, do you have evidence? If you had evidence that Joe Biden was linked to Hunter Biden’s business deals in a way that is illegal, we wouldn’t be having this conversation. You would probably have the votes for an impeachment inquiry, but you don’t, because of people like [K]en [B]uck, and people like Don Bacon, and many others in your conference.

GAETZ: Yes. But on the substance, look, you want to talk about how long we’ve had the evidence, the FBI had Hunter Biden’s laptops in 2019. So, this inquiry isn’t just going to be into the Bidens and the bad things they’ve done, it’s also going to be into the cover-up, and we do have that evidence.

I was deposing Tim Thibault today. Today, I was asking questions about the roles of foreign interference task force to go and designate any derogatory information about the Bidens as foreign disinformation when that was part of a cover up.

PHILLIP: Congressman, let me just move on here because I’m going to reiterate to the audience, because we need to be clear, there is not evidence linking President Biden to anything illegal having to do with Hunter Biden.

It’s true that Gaetz was in the deposition of Thibault that day. But unlike Jim Jordan, who was the only other member of Congress recorded as having attended the deposition, Gaetz doesn’t appear to have asked a single question.

Jordan asked over 70 questions. The aspiring Speaker asked about:

  • Thibault’s efforts to predicate an investigation against the Clinton Foundation based on Peter Schweizer’s Clinton Cash in 2016
  • Two separate warnings the Washington Field Office got against using Schweizer — and the copy of “the laptop” he offered them — as a source in the Hunter Biden investigation in 2020
  • Thibault’s role, also in 2020, in fielding an effort by Tony Bobulinski to share his phones but not any personal content from his phones
  • Questions from Baltimore to DC about a new prong of the Hunter Biden investigation in 2022 (possibly a campaign finance investigation into Kevin Morris’ donations to Hunter Biden)

The deposition arose out of the same stream of right wing complaints to Chuck Grassley (one, two) that lie at the core of the Republican campaign against Hunter Biden. The only thing that rationalizes the campaign is that in 2020 Thibault liked a number of Randall Eliason columns critical of Bill Barr’s corruption and even criticized Dick Cheney:

Of course, Grassley’s known and likely sources say far more partisan things online all the time.

Nevertheless Chris Wray has, per his norm, let Thibault weather the attack campaign alone, treating him as the legitimate subject of scrutiny as they have Peter Strzok and Lisa Page and Brian Auten and Jim Baker — every FBI agent except those (like John Durham’s cherished Cyber agents) who help sustain conspiracy theories favored by Trump and his allies.

What I wanted was someone from the FBI — because they know the truth — was someone to defend me after 26 years. I understand they can’t defend every allegation that’s made, so — I wish they would have. Right? I didn’t have that. And so that’s how I felt was I just wanted a defense. And I’m not blaming the FBI, because if they would respond to accusations against FBI agents from the media, they would be doing that a lot. So I’m not special.

But, when those accusations were made against me in July, I was, like, outraged. Why — no FBI agent that I know would put their reputation and honor on the line just to square up. They wouldn’t do that.

From there, Grassley and Jim Jordan have built entire pyramids of conspiracy theories, claiming that the guy who opened the investigations against William Jefferson and Jesse Jackson Jr and who rushed to open an investigation based solely off Schweizer’s Clinton Cash in 2016 abusively intervened to shut down — all of it! — the Hunter Biden investigation in 2020. All because, after several warnings about Schweizer, Thibault didn’t ignore warnings that Steve Bannon’s close associate, Schweizer, could discredit the Hutner Biden investigation (at a time when Bannon himself was coordinating with Guo Wengui).

Over the course of most of a day, Thibault addressed one after another of these conspiracy theories. One reason why Thibault ordered two agents to shut down an informant — Schweizer has since confirmed it was him — was because Schweizer was a less defensible source for allegations against Hunter Biden at trial than whatever means by which — including, undoubtedly, the laptop passed on by John Paul Mac Isaac — Delaware had already gotten materials on Hunter Biden. Using Schweizer rather than the sources Delaware already had, “could harm a case. It could cause problems when you get to prosecution,” Thibault explained that the Supervisory Special Agent, Joe Gordon had informed him in early October 2020, “and to open doors for defense attorneys.”

Within days of Gordon’s warning that Schweizer was an unwelcome source, the head of the Public Corruption Unit contacted Thibault to raise other concerns about Schweizer. In an October 21, 2020 classified briefing, members of the Foreign Intelligence Task Force provided more context, not just on Schweizer. The two warnings, together, led Thibault to instruct two agents to shut down Schweizer, someone less credible than Christopher Steele.

That’s probably what led to the complaints to Grassley.

One of the agents, Thomas Olohan, wrote a long memo claiming that Thibault was biased against Trump, before he left the FBI to join the Heritage Foundation. The other, whom Thibault had earlier mentored and considered a friend, would do more than that, as we’ll see.

It would have been three and four days after that when Thibault exchanged calls with Stefan Passantino regarding whether they could selectively image Tony Bobulinksi’s phones, which Jordan found suspect because, in an attempt to shield the investigation, the FBI had Bobulinski speak to the Washington Field Office rather than Baltimore. Jordan repeatedly invented conspiracy theories about of efforts to protect the investigation into Joe Biden’s son.

Jordan’s staffers also focused on Thibault’s role, like that of everyone else in the DC area, in investigating January 6. Except for his minor role in drafting the memo opening the investigation into the fake electors in 2022, Thibault’s role in investigating the attack on the Capitol was limited to freeing up his agents to help deal with the initial surge. Again, Jordan recycled Grassley’s conspiracy theories to treat any FBI agent who didn’t focus primarily on Trump’s enemies as suspect.

Tellingly, however, Jordan and his staffers asked no question about how the same agent who tried to open Schweizer as a source bypassed Thibault, who considered her a friend, to try to chase down the Italygate conspiracy theory months after Richard Donoghue’s judgement that it was “pure insanity” was published.

[I]t first came to my attention when I got a call from — a call from this supervisor, Special Agent from CR-15, and he said: Look, my agents are trying to do an interview of a subject with regard to election fraud, and the subject is in Italy. And he told me that they had tried to get the Legal Attache Office in Rome to do the interview and that they had declined.

Then they had tried to get funding through FBI Headquarters, Public Corruption Unit, to travel over to Italy to do the interview of this person, a potential witness who was in jail. And so I just got briefed on that.

[snip]

So I got off the phone with them, and my next call was to the Public Corruption Unit chief at headquarters, and I said: Hey, what’s the problem with funding?

And he goes: Are you kidding me, basically.

And I go: No.

And he goes: Do you know that this is to support an opening of a case that’s been sent to the Public Corruption Unit as a draft?

I said: I don’t know about that.

[snip]

He’s assuming at the time that I would have seen this because … Because of the gravity of the allegation and what it meant, he couldn’t believe that I hadn’t been briefed on it. He actually thought, I think, that I was approving it —

[snip]

So the head of the Public Corruption Unit tells me that he has received an email forwarded to him from Public Integrity, and it contains a draft opening language, and he was shocked that I didn’t know about this. Because of the type of case it was, you would expect that the ASAC would be in the loop.

[snip]

[S]o I’m trying to do due diligence. And, look, this isn’t the ASAC’s job. But, at this point, I was sort of losing some confidence.

[snip]

Because I wasn’t told about this, and even in my — I wasn’t told about it, number one. But, number two, when I was having conversations with people about this, no one told me — they didn’t raise Italygate. I wasn’t told about what — the allegation that this had previously been reviewed by, like, the Deputy Attorney General had made that comment. I wasn’t provided situational awareness. Right?

[snip]

6 months later, people want to travel halfway around the world to talk to someone who’s in prison. Any FBI agents knows, number one, first of all, an argument can be raised — and it was raised by people when we were discussing this at the squad level: Well, Tim, we talk to people all the time that appear to have kind of whacky theories.

And I was, like: Yeah, we might. We might go down the road to Manassas and talk to someone about some whacky theory. On a low-level case, we do do that.

But I think, you know, the situational awareness that I was gaining as an ASAC and working consistently with headquarters and learning, that Public Corruption Unit chief was unbelievable in terms of his knowledge of foreign influence. I had the benefit of that information. The case agents here did not.

[snip]

[T]here’s a term in the Bureau I learned a long time ago. You’re either working a source, or they’re working you. I was concerned that there wasn’t an element of 267 savviness here on the agent’s behalf, that maybe this source was working her. Q In what way? A It just seemed to me that, you know, you’re going and you’re trying to open a case, but you haven’t asked the very basic questions, like who — I couldn’t understand how they were trying to work a case without — we’ve got all the resources in the Federal Government to find out if a breach of information or a breach of data had occurred. We’ve got CISA. We’ve got the NSA.

[snip]

I was concerned that there was a lack of investigative rigor and the judgment issue, yes, because I wasn’t allowed to intervene, you know, where an ASAC is there for to help guide. This isn’t how CR-15 works cases. I was on that squad. We’re the flagship public corruption squad in the country. This isn’t how it’s done.

Jordan and his staffers expressed no interest or concern that the Public Corruption team at FBI was chasing already discredited conspiracy theories halfway around the world.

In the aftermath of this incident, Thibault asked the supervisor of the squad what was going on. The response was that supervisors were raising concerns about uncharacteristic partisan discussions.

And he said that senior members of CR-15, he didn’t tell me who, but had raised concerns to him that there was uncharacteristically partisan discussions happening on the squad floor.

This is the DC public corruption group — as Thibault described it, “the flagship public corruption squad in the country.” And Thibault discovered the hard way that even agents he believed to be friends were going behind his back to chase the conspiracy theories Trump wanted to chase.

For Jordan, who could be second in line to the Presidency within days, this was all an exercise of finding something within attempts at revenge that would substantiate his belief that the guy who took down two Democratic members of Congress was biased against Republicans.

But for Gaetz — the guy whose coup creates the opportunity for Jordan to become Speaker — it was something else: an opportunity to sit silently so that he could spin a refusal to accept foreign dirt on Hunter Biden as cause to impeach his father.

With the exception of a detailed NYT report in May, the attack against Thibault has passed largely unnoticed in the mainstream press, even as frothy right wingers have continued to impugn yet another stuff lifetime Feeb as a partisan simply because he treated Trump just like he treated the Democratic members of Congress he pursued.

But this Grassley-to-Jordan conveyor belt of bullshit continues to churn away, turning disgruntled hacks with allegations but no evidence into the enforcement wing of their effort to weaponize government.

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