As I laid out here and here, David Weiss’ response to Hunter Biden’s motion to dismiss on selective and vindictive prosecution grounds seemed to rely on a warrant that post-dated the September 14, 2023 indictment charging Hunter with three gun crimes.
Here’s the language in question.
In August 2019, IRS and FBI investigators obtained a search warrant for tax violations for the defendant’s Apple iCloud account. 2 In response to that warrant, in September 2019, Apple produced backups of data from various of the defendant’s electronic devices that he had backed up to his iCloud account. 3 Investigators also later came into possession of the defendant’s Apple MacBook Pro, which he had left at a computer store. A search warrant was also obtained for his laptop and the results of the search were largely duplicative of information investigators had already obtained from Apple. 4 Law enforcement also later obtained a search warrant to search the defendant’s electronic evidence for evidence of federal firearms violations and to seize such data. 5
2 District of Delaware Case No. 19-234M and a follow up search warrant, District of Delaware Case Number 20-165M.
3 The electronic evidence referenced in this section was produced to the defendant in discovery in advance of the deadline to file motions.
4 District of Delaware Case No. 19-309M
5 District of Delaware Case No. 23-507M. [my emphasis]
I asked his spox whether that could possibly be true, but he declined to comment.
So I wrote a letter to Judge Maryellen Noreika seeking to unseal the dockets as judicial records, which would reveal the date.
Judge Noreika ordered the two sides to weigh in.
ORAL ORDER re 73 Letter: IT IS HEREBY ORDERED that, on or before close of business on January 26, 2024, the parties shall provide the Court with their respective positions on the request to unseal the dockets and warrants referenced in the letter 73 . ORDERED by Judge Maryellen Noreika on 1/25/2024. (mdb) (Entered: 01/25/2024)
Both sides have now responded (Abbe Lowell, Weiss), stating they do not oppose the request, so the dockets and some information about warrant scope should soon be unsealed.
But Weiss’ letter confirmed my suspicions:
That last warrant, 23-507M, is the only one he described to authorize searches for gun crimes. He didn’t obtain that warrant until December 4 of last year.
David Weiss has been investigating Hunter Biden for going on six years; he indicted the gun crimes just days before the statute of limitations expired on them.
And in all that time, Weiss had (at least per his description) never obtained a warrant to search the iCloud content he first started getting in August 2019 until December 4, 2023, 81 days after he indicted.
To be very clear: there’s absolutely no reason to believe that the December 4 warrant in any way failed to show probable cause (though the laptop may have tainted the July 10, 2020 warrant for other crimes).
Rather, this totally undermines David Weiss’ arguments about why he reneged on his diversion agreement.
In his filing, he claimed he had been considering charging those crimes for some time before he reneged on the diversion agreement. But if that were true — if it were remotely true he was seriously considering charging the gun crimes before Jim Jordan demanded he do so — then he would have obtained this warrant years before, probably in the 2020 warrant or at the very least after Hunter’s book was published in April 2021.
Update: Corrected Judge Noreika’s first name.