Hunter Biden Reply Motions to Dismiss

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As a few of you have noted, Hunter Biden has filed his replies on his motions to dismiss.

As I noted on Xitter, the Reply on Discovery confirms I was right when I pointed out that the Coke-in-Gun ploy actually undermined David Weiss’ argument.

They never bothered to send the gun out for testing until October 2023 — five years after local authorities decided not to charge this.

I’m finishing up my initial review and will comment at more length, but here are all these filings:

In addition, Abbe Lowell filed a motion to compel.

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37 replies
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  2. Peterr says:

    In the motion to compel, footnote three is what I’ve been waiting to see (emphasis in the original):

    The search warrant on December 4, 2023, which post-dates the firearm indictment by almost three months, is the first time in the course of this five-year investigation that DOJ obtained a warrant to search the alleged laptop (and iCloud account and backup data) for evidence of federal firearms violations. The prosecution then used that warrant to purportedly review and seize, for the first time, text messages, photos, and other evidence in support of its felony charges, several of which the prosecution cited in its pleadings on January 16, 2024. (See DE 68 at 8–9.) Moreover, that warrant contained testimony (in support of finding probable cause) about the firearm obtained from a witness in a grand jury empaneled in the Central District of California in November 2023 after this indictment had already been brought. Accordingly, the issue raised—as a result of the prosecution’s recent filings—is one to explore at the evidentiary hearing Mr. Biden requested (DE 64) and a motion to suppress which will be filed promptly.

    Gotta love legal footnotes.

    • Peterr says:

      Footnote four is also a shot across the prosecution’s bow:

      Questions remain about the provenance and total authenticity of the data on the laptop image and hard drive the government seized, as both had been reviewed and likely altered before coming into the hands of the prosecution.

      Two thoughts:
      1) This puts the prosecution on notice that they will have to prove chain of custody on the laptop and its data, and
      2) A good lawyer doesn’t put “and likely altered” in this sentence without something to back it up, and Weiss’ team will be worrying about just what that is as soon as they read this motion.

      • Badger Robert says:

        These issues will be addressed by expert testimony. At least the court will have to allow an expert to report that the hard drive was altered. Because there is no victim in the gun case, that’s all the defense needs. And the court may agree the whole thing is a waste of time.
        Thanks to Ms. Wheeler, as always.

        • emptywheel says:

          They can’t bring in laptop evidence w/o the persons who did the extracts. And that’ll add some challenges.

      • dogshelpgod says:

        There’s also the possibility that the prosecution’s worry is that they know what was likely altered and if it is shown not only what was likely altered but that they know or should have known that it was likely altered, they and their case may be in the shitter.

        • jecojeco says:

          Hi,
          I love Marcy’s erudite posts and the comments in response. Since probably 90% of this is over my head my observations are general.
          Abby Lowell seems super competent, such a contract to the legal lackeys that surround trump.

          Weiss crossed the Rubicon when he went ahead and charged Hunter after reneging on the deal, I see no graceful way out for him, he was willing to sacrifice his reputation to please trump and drag out l’arraire Hunter into ’24 election season. He was willing to be a useful fool/tool and will be another marker on trump’s legal Boot Hill.

          Lowell may not be able to get the charges dismissed outright but there seem to be so many questionable elements to this case I just can’t imagine a fair jury of 12 unanimously agreeing that Hunter is guilty beyond a reasonable doubt.

          The wildcard to me is one (or more) of the investigators being found to have tampered or mis-represented evidence.

          I’m praying the integrity of our legal system holds thru some really unprecedented times.

      • emptywheel says:

        It’s also why they’re asking prosecutors to ID precisely where they found particular texts: To hold them to that, forensically.

      • Bugboy321 says:

        It’s about time, too. This is one of those things I’ve been asking myself for over a year: “Isn’t anyone paying attention to the glaringly obvious issues with chain-of-custody here?”

  3. Peterr says:

    After a fast read of the whole motion to compel, it appears that the prosecution is calendar-challenged in all kinds of ways, such as indicting, then searching for evidence to support the charges; and affirming to the court that they have produced all relevant Brady materials, then months later producing some (and likely not all) Brady materials.

    The section asking for very specific, limited information about the grand jury is very, very interesting. Lowell was careful not to ask about testimony, but did ask very pointed questions about the way in which the GJ was handled. Asking to see the voir dire questions, the instructions given to the jurors, and whether there were folks involved other than the grand jurors, prosecutors, court reporters, and witnesses has got to be pretty basic when you are making a defense of selective and vindictive prosecution. But the prosecution has to be worried about this, wondering if Lowell has a specific reason to believe that there was something fishy in the GJ process.

    When you combine all this with a failure to properly identify the location of various texts and emails quoted in prosecution motions, nor to note those items with Bates stamps, there appears to be a disturbing pattern of behavior aimed as misleading the defense and the court. Whether it is lawyerly sloppiness or calculated acts to manipulate the judicial system, I can’t tell.

    But it stinks to high heaven.

    • emptywheel says:

      Several times, I’ve gone back to Lowell’s most recent high profile political win, that of Tom Barrack’s side-kick. There, he was sort of the off-lead, since Barrack’s were lead (and won acquittals all around). But they did go for grand jury instructions. But not precisely like this.

      Yes, he has something in mind. Still finishing up the final filing, but I am really humbled by what I think I’m seeing.

      Doesn’t mean it’ll work, but the way it works is like literature.

      • Peterr says:

        Also, related to the production (or lack thereof) of Brady (and other) materials, I love they way Lowell asks the judge to compel production, and if the prosecution says they’ve produced everything, then the court should require the prosecution to say so directly to the court and then be held to that if try to bring additional materials to the trial.

        Given the lack of Bates stamps on what they pulled off the “alleged laptop” and the hiding it among the proverbial haystack of materials, the section on why the prosecution has not yet fulfilled their Jencks and 404(b) obligations takes on more import. Lowell smells a rat with regard to future document dumps production of evidence, and wants to alert the court to it right now.

        • grizebard says:

          Will there actually ever be a trial, or will the entire prosecution collapse beforehand under the weight of its own fundamental rottenness?

          After all, this prosecution’s only real raison d’être is to serve Trump by keeping a constant drizzle of “Biden” smear going through to the November elections. Anything else before or after is a bonus (least of which the upholding of Law and Order).

        • Harry Eagar says:

          Well, Professor Wheeler has pretty well persuaded me that this prosecution cannot succeed. Problem for the prosecutors: How do they back out?

          Drop charges? Hope the court dismisses them without too much comment about why? Fight on?

          Any way they go, it will be awfully embarrassing, and I am minded that the young and accomplished lawyer Kirstjen Nielsen is still unemployed.

        • Bruce Olsen says:

          “Not so fast, my friend!”
          — Lee Corso

          She’s on the board of
          — D-Wave Systems (a struggling quantum computer maker)
          — The National Defense University Foundation (seems a bit oily, though I don’t know the organization)

          How much better might her life have been if she’d displayed a bit of integrity by refusing to separate immigrant children from their parents.

        • earlofhuntingdon says:

          If you don’t have a soul to begin with, selling it to work for Donald Trump won’t pay for much.

        • emptywheel says:

          These serve different purposes.

          Demanding Bates stamps for where in the digital evidence they found something is a way to pin them to theories of 4A and attribution (in my own analysis of the warrants, I noted several places where the warrants limited AND/OR required prosecutors to know who was wielding a device). There’s not a shred of evidence prosecutors could do that. None.

          Some of the rest is just normal and/or tactical. For example, some scenarios would envision calling Shapley or Ziegler as hostile witnesses. Or the FBI “computer guy.” But you gotta know whether prosecutors recognize that as a risk. And if you can, you get their discovery.

          Just fascinating to read, really.

        • Peterr says:

          I wouldn’t say different, but multiple purposes.

          You are right in your description of Bates stamps, and Lowell is also calling out the prosecution for throwing huge haystacks at him and forcing them to dig through it all to find the needle (his imagery, supported by legal quotes and citations, not mine). Both can be true at the same time.

          And yes, it is truly fascinating.

        • Badger Robert says:

          The firearm form is not fake. But the prosecutions claim of they found it is probably not true. Once the form was digitalized the FBI probably found it by scanning all federal records for Mr. Biden’s name.
          Now they have to invent, in the way Ms. Wheeler implies, a legal method of obtaining the form. The real way was non probable cause search of the weapon forms ordered by a high ranking DofJ former official. That seems to among the simpler explanations.
          That’s where an expert comes in.

        • dar_5678 says:

          > Once the form was digitalized the FBI probably found it by scanning all federal records for Mr. Biden’s name.

          If the Internet is truthful, ATF firearms registrations are, by legislation, explicitly “non-searchable” and “non-sortable”.

          Gun traces require starting with the dealer, and finding the gun (by serial number?) in a chronological list of purchases.

          This is to protect the well-regulated militia from having their freedom sticks confiscated by the gubmint.

        • EuroTark says:

          That sounds like a very novel approach to how to run a registry, but looking on the interwebs I found this from the NRA itself:

          Federal law requires those who purchase a firearm at a gun dealer (Federal Firearms Licensee or FFL) to fill out a form 4473. This record of the firearm transfer is then stored by the dealer on their premises. This creates a system whereby if a gun is found at a crime scene, ATF can trace the firearm to the last retail purchase. However, since the records are stored with each FFL, the system is decentralized in a manner that protects against government abuse of gun owner data.
          […]
          Gun dealers are required to maintain 4473s for 20 years. When a dealer goes out of business, they must send their last 20 years of records to ATF’s National Tracing Center to facilitate firearm traces.
          […]
          Upon receiving these records, ATF optically scans the 4473s into a digital database. The database is not searchable by a gun owner’s personal information. However, the database is searchable by a firearm serial number, which facilitates the tracing process.

          Since this part supposedly started when the gun was found and turned in, the FBI would have cause to ask the ATF for a copy of that form to add to the casefile. Unless the dealer went out of business, they wouldn’t even have the form in their database, and would have to go hunting for it. Sounds like it’s worth exploring why they deemed that worthwhile for a gun that wasn’t linked to a crime (scene).

      • Bay State Librul says:

        You mean like a good detective novel.
        As one writer points out ” In other cases, the thriller is a journey through an onion, where the truth is hidden beneath countless layers of lies…..”

    • wa_rickf says:

      “…indicting, then searching for evidence to support the charges…”

      That’s the humorously incompetent Keystone Republicans stock-in-trade!

  5. dopefish says:

    Off-topic, but hilarious:

    After the recent E.Jean Carroll verdict, apparently Trump’s lawyer Alina Habba sent a letter to Judge Kaplan in which she claimed that there was some kind of conflict of interest arising from Judge Kaplan and E.Jean Carroll’s lawyer, Roberta Kaplan (no relation) both working for the same law firm at some point 30 years ago.

    Roberta Kaplan has now responded with her own rather entertaining letter, which ends with a not-so-veiled threat to “seek sanctions pursuant to Federal Rule of Civil Procedure 11”.

    • P’villain says:

      The paragraph starting on page two and continuing to the next page is devastating. She even quotes two of Kaplan’s own prior rulings on point! I hope she goes for and gets Rule 11 sanctions.

      • Rugger_9 says:

        Alina has already tried to backtrack by saying she was ‘just asking questions’ in the true Faux News tradition. I read Habba’s first letter to the judge and I can say Habba’s toast.

        • earlofhuntingdon says:

          Bless her heart, Alina definitely adopted the NYP’s alleged facts as her own, especially the canard that the not yet judge Kaplan was mentor to the associate Kaplan. The just asking questions line is thinner than her makeup.

        • Rugger_9 says:

          Apparently the NYP story was sourced from…Alina Habba. If so, Roberta Kaplan is going to skin her alive.

  6. matt fischer says:

    As many here have previously stated, Lowell points out:

    Mr. Biden’s case is quite literally the first of its kind in the history of this District, and there has been no one similarly situated who has been prosecuted under facts similar to Mr. Biden (e.g., charged in the absence of a violent crime or any other aggravating or additional criminal conduct unrelated to the possession of a firearm).

  7. Konny_2022 says:

    I like this passage in the Motion to Dismiss for Selective and Vindictive Prosecution (Document 81, Page 16 of 27):

    The prosecution seeks to place an impossible burden on Mr. Biden to prove a negative by objecting to his reliance upon statistics to show that DOJ does not charge the millions of people it could prosecute under similar circumstances, but has not. Opp. at 17. It is not clear how else Mr. Biden could be expected to prove why there is an absence of charges in similarly situated situations. Courts do not fault the use of statistical evidence, but as with any kind of evidence they do somehow question whether the relevant statistics have been presented. The strength of the evidence is what matters and, here, Mr. Biden has shown that the charges against him are a statistical anomaly. (DE 63 at 42–43.)
    The prosecution makes the right kind of argument in attacking Mr. Biden’s charging data as misleading (Opp. at 26–31), but the prosecution lacks the fact to support it. The prosecution ironically refers to Mr. Biden’s statistical claims as “misleading” before proceeding to spend pages setting forth incredibly misleading statistical claims. [my emphasis]

    And I agree with Peterr in the love for the footnotes, many of them real gems.

    • Konny_2022 says:

      Small correction: It wasn’t the “Motion to Dismiss for …” but Biden’s “Reply in Support of his Motion …”

    • c-i-v-i-l says:

      Pet peeve of mine: it’s possible to prove some negative claims (but not others), just as it’s possible to prove some positive claims (but not others). Two common ways of proving negatives are by logical contradiction and by inspection.

      However, it strikes me as next to impossible to prove the particular negative that the DOJ demands: “Here, the defendant needed to support his claim with specific examples of individuals who were not prosecuted but committed the same crime, and where the government had amassed at least the same amount of evidence against those individuals.” How could he possibly know about the amount of evidence amassed against people who weren’t charged?

      • Shadowalker says:

        You use data you have. The cases they did prosecute, and hammer the point home on the many differences, i.e. involved in a violent crime, co-charge for drug possession, etc.

  8. wa_rickf says:

    From the M-T-D filing:

    “…In response to that outcry from former President Trump, extremist House Republicans, and right-wing media looking to make Mr. Biden’s fate a political issue in the next presidential election, the prosecution blew up that deal…”

    Political motivations tainted special counsel David Weiss’ case after a plea deal was in the works last year? Say it’s not so!

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