Smirnov and [a]Blow
There should be a slew of Hunter Biden filings coming in today, most in CA.
I’ll post them here until I do a longer read.
But they’ve filed their first one — a reply on their motion to compel — that we can have fun with in the meantime.
Hunter’s lawyers mock David Weiss, first, for mistaking sawdust for cocaine (they cite me), and then raise the arrest of Alexander Smirnov.
The Smirnov bit is the more important argument, because it makes the same (in my very humble opinion) compelling argument I did: That the renewed focus on the Smirmov allegations are probably what led David Weiss to renege on a plea deal.
Another development, just last week, further informs Mr. Biden’s request for an now motion to compel discover. On February 15, 2024, Special Counsel David Weiss unsealed the remarkable indictment of former FBI informant Alexander Smirnov. United States v. Smirnov, 2:24-cr-00091-ODW (C.D. Cal.). The Special Counsel’s indictment notes that Mr. Smirnov expressed his “bias” against President Biaden and was telling a farcical tale that Burisma, a Ukrainian company, enlisted Mr. Biden as an unregistered foreign agent and paid bribes to him and then-Vice President Biden that proved to be so outlandish and unsubstantiated that the FBI field team recommended its investigation be closed and the then-FBI Deputy Director and thenPrincipal Associate Deputy Attorney General (Richard Donoghue) agreed in August 2020. 3 (Id. DE1 at ¶ 40 (“Smirnov Indict.”).) Nevertheless, with prodding from extremist Republican Members of Congress (who initiated an impeachment inquiry of President Biden based on the same baseless allegations) and the right-wing media, the prosecution team that was already pursuing Mr. Biden resuscitated the baseless investigation of Mr. Smirnov’s ridiculous claims against Mr. Biden thirty-four months later. (Id. ¶ 41.) It now seems clear that the Smirnov allegations infected this case, and why, on July 26, 2023, the Special Counsel answered as it did the Court’s question about whether the Diversion Agreement’s immunity provision would bar charges under the Foreign Agents Registration Act (7/26/23 Tr. at 55). 4
Lo and behold, some seven months later, the Special Counsel finally figured out that Mr. Smirnov was lying—which should have been obvious to everyone, certainly by August 2020 when DOJ closed the investigation. The Special Counsel charged Mr. Smirnov with lying and obstruction, but the more interesting part of this story is not that Mr. Smirnov lied. It is more remarkable that beginning in July 2023, the Special Counsel’s team would follow Mr. Smirnov down his rabbit hole of lies as long as it did. (Smirnov Indict. ¶¶ 41–46.) Disclosure about why the Special Counsel abandoned its June/July 2023 agreements with Mr. Biden and the role played by the Smirnov allegations may reveal flaws worse than mistaking sawdust for cocaine.5 Despite the prosecution’s strong words in its opposition to this motion, its actions demonstrate that the prosecution has gotten much wrong and provides good cause for Mr. Biden to question whether it has gotten its discovery obligations right.
3 Mr. Biden’s DOJ requests (see infra at 18–19), as well as his Rule 17 subpoena requests (DE 58) seeking communications and records from, among others, Principal Associate Deputy Attorney General Richard Donoghue and former U.S. Attorney for the Western District of Pennsylvania Scott Brady, bear directly on and are probative of the allegations in the Smirnov Indictment. The fact that Special Counsel Weiss handled the Smirnov investigation and is prosecuting the case makes Mr. Biden’s requests all the more important.
4 The discussion about the scope of the immunity agreement appears shaped by the prosecution’s investigation of the Smirnov allegations, which it began looking into just days before the July 26, 2023 hearing. (Smirnov Indict. ¶ 41 (noting the prosecution team began investigating Smirnov’s claims in July 2023).) While a host of possible crimes had been investigated, the defense understood that the FARA/bribery investigation had been closed and that the only pending issues concerned gun and tax charges. The Diversion Agreement resolved the gun and tax charges, which is why defense counsel believed the immunity agreement covered everything and would conclude the investigation. The push back from the prosecution and its discussion of an “ongoing” investigation—apparently tied to the Smirnov allegations—came as a surprise to defense counsel. (7/26/23 Tr. at 50, 54.) Having taken Mr. Smirnov’s bait of grand, sensational charges, the Diversion Agreement that had just been entered into and Plea Agreement that was on the verge of being finalized suddenly became inconvenient for the prosecution, and it reversed course and repudiated those Agreements.
5 The prosecution’s outrage over criminal activity by those associated with its investigation remains rather selective. Last month, a former government contractor working at the IRS, who unlawfully leaked private taxpayer information concerning former President Trump , was sentenced to five years in prison—a significant sentence for a serious crime. United States v. Charles E. Littlejohn, No. 23-cr-00343-ACR (D.D.C. 2023). Nevertheless, two IRS agents on the prosecution’s team investigating Mr. Biden blatantly and publicly did the same thing, on television no less, and yet they have not been prosecuted or even fired by the IRS. Mr. Biden raised the agents’ misconduct several times with the Inspector General and Mr. Weiss. Neither have yet acknowledged the complaint. Thus, Mr. Biden brought a civil action based on these agents’ misconduct and their agency’s failure to act. Biden v. IRS, No. 23-cv-02711-TJK (D.D.C. 2023). Still, however, neither the IRS nor the prosecution has taken action against them. Ironically, the same extremist Republican voices who now angrily complain that Mr. Trump’s leaker got off too easy simultaneously claim the two IRS agents who leaked confidential tax information concerning Mr. Biden should be hailed as courageous “whistleblowers.” Chairman Jordan Opens Inquiry into DOJ’s Sweetheart Deal for Trump Tax Return Leaker, H. Judiciary Comm. (Feb. 8, 2024), https://judiciary.house.gov/media/press-releases/chairman-jordan-opens-inquiry-dojs-sweetheartdeal-trump-tax-return-leaker; Arjun Singh, Top GOP Rep Calls On More Whistleblowers To Come Forward, Pledges ‘Zero Tolerance’ For Retaliation, Daily Caller (July 19, 2023), https://dailycaller.com/2023/07/19/jason-smith-irs-whistleblower-retaliation/. The prosecution’s various actions and inactions send the very message that Mr. Biden’s motions to dismiss allege— misbehave when dealing with former President Trump and there will be consequences; do the same in the unprecedented charges against Mr. Biden and you will be praised.
This will be the last briefing Judge Maryellen Noreika gets before deciding on the motions to dismiss, so the timing of the Smirnov indictment becomes important.
Anyway, I’ll update when those other filings get posted.
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Thank you.
That “cocaine” is the dumbest thing… as you and others have noted, that’s sawdust. It’s atop a table saw, probably (from the color scheme) from Ridgid, commonly sold at Home Depot.
dumb
If someone had actually been snorting before getting back to work on a table saw, amputation would be almost certain to follow.
The whole Weiss case package is built on the foundation of dog poop, and if Judge Noreika rules to dismiss because of the various significant problems I see Weiss folding his hand very quickly.
I don’t know if she will, is there a timeline for when she will rule?
What’s the over-under on Noreika tossing this puppy before it turns into a five-alarm dumpster fire? Unless you already consider it at that stage of course. Nice work MW!
Yay! And kudos on the cite. Nice work all around.
Bravo! Emptyweel with the assist. I guess that also means Marco Polo with the hockey assist to help Hunter?
That Abbe Lowell and his team are citing Dr Marcy is an indication of how smart they actually are. If they’re reading the comments, good on you for recognizing a first class explicator.
Just when you thought it couldn’t get any weirder…yeah, it did.
“When the going gets weird, the weird turn pro”. (Hunter S. Thompson)
Words to live by!
Jamie Raskin sent a blistering letter today to Stefan Passantino, the lawyer for Tony Bobulinski.
https://www.washingtonexaminer.com/news/2864263/biden-impeachment-inquiry-tony-bobulinski-testimony/
It tore apart Bobulinski’s recent interview with the House committees. Coupled with indictment of Smirnov, and the sawdust fiasco, the worm has turned BIGLY on the Hunter Biden front.
Here is a copy of the letter
https://oversightdemocrats.house.gov/sites/democrats.oversight.house.gov/files/2024-02-20.JBR%20to%20Passantino%20re%20Bobulinski.pdf
A nice twist in the letter you cite is when Bobulinski claims to not know who set up the press conference where he launched the false allegations against Joe Biden, Raskin says Bobulinski should remember who dressed him.
He quotes a passage in Michael Bender’s 2021 book Frankly We Did Win This Election: The Inside Story of How Trump Lost.
“[Jason] Miller was annoyed to be stuck with the supremely stupid task of figuring out Bobulinski’s neck size and sleeve length and then finding a staffer to hustle to the department store to buy a button-down shirt.”
Passantino also served as Cassidy Hutchinson’s first lawyer, the one paid by team Trump who advised her not to remember all those things she remembered, and told her that if she followed direction she would be fine.
To my knowledge she has not confirmed whether this was accompanied by a pat on the head and the words “That’s a good girl.” But I have yet to read her book.
Given everything that’s a sweetest place I’ve ever seen for an independent journalist to be credited. You jumped the NY Times. You should feel good about this. I was wrong before. You don’t need them, though we do and they are failing. Thank you for doing what it takes in the tough job of watching all these cases and investigating that they won’t do! Thank you very much!
I am in awe. Weiss & Co. have some serious splainin’ to do!
Ah, the return of well-chosen adjectives and adverbs. From pages 1-2:
Not wrong.
Not very wrong.
So very wrong.
chef’s kiss
How does something like this affect Weiss’ attempts to wall off discovery as described last week? If the government can’t say they produced everything, how can they claim as they did that certain evidence (such as JMPI’s testimony) is off limits?
I don’t know, but maybe these these precedents are relevant.
Kyles v. Whitley, 514 U.S. 419 (1995): Supreme Court held that prosecutors have a duty to discover and disclose exculpatory evidence held by other government agents, including the police.
United States v. Giglio, 405 U.S. 150 (1972): The Supreme Court held that the obligation to turn over exculpatory evidence applies to all prosecutors in the office, not only the prosecutor who is trying the particular case in question.
Is evidence showing improper political pressure in a prosecution “exculpatory”?
What I mean is that such evidence may not ‘absolve guilt’ if that is the strict legal sense of exculpation. It wouldn’t excuse, justify, or absolve the defendant’s alleged fault or guilt. Maybe it would only involve the prosecutor’s professional conduct to purposefully withhold evidence supporting a defense petition in another prosecution because the evidence is not exculpating.
It’s hard to see how they can exclude JPMI’s testimony, since he was the originating source for the laptop, that they are trying to use as evidence in both cases.
Lo and behold. Indeed.
“(they cite me)”
Pro tip, everyone: read the footnotes!
Footnotes are indeed fun. For example, this one from Engeron’s judgement:
‘1 As this Court explained ad nauseum at trial, statutes of limitation bar claims, not evidence.’
There’s a judge who is sick to the back teeth of Trump’s lawyers’ BS.
“Disclosure about why the Special Counsel abandoned its June/July 2023 agreements with Mr. Biden and the role played by the Smirnov allegations may reveal flaws worse than mistaking sawdust for cocaine.”
Drag them, Abbe Lowell. Drag them.
That is some serious shade right there. I’d say “may” is doing some heavy lifting in that sentence.
I hope Judge Noreika orders an evidentiary hearing on this. That will be very interesting.
The most charitable explanation I can come up with is that Wise wasn’t fully briefed on the background of the investigation when he took over for Wolf and naively was accepting Smirnov’s allegations at face value. But given his ties to the Rod Rosenstein Wrecking Crew, I question that.
Judge Maryellen Noreika may want Lowell to be more specific, but ethics obligations might prevent him from making a more direct attack on the prosecution’s character or ethics. (Not that that has ever stopped a Trump attorney in or out of govt.)
It struck me when reading the filing that Biden’s team spends a lot of space on asking for the grand jury questions, procedures, and instructions, particularly because it seems a bit like fishing to me. Is there anything I am missing that would suggest why Biden’s team thinks something is there? IANAL, but it seems unlikely to me that they would find any misconduct in the jury questions/instructions/procedures. The only hint I could get from the filing was something about whether the same grand jurors were consistent throughout the proceedings, so maybe he thinks there was some weirdness there?
If, for example, any of the GJ instructions or voir dire questions related to the Smirnov stuff, that might beef up a motion to dismiss on the grounds that the GJ was not properly constituted or conducted. Likewise for attendance, etc., which might also implicate that the GJ wasn’t done right. Cf., the list of reasons for valid dismissal on pp. 17-18.
Yes, Biden might also be asking as much about what was not done – screening for grand juror bias through questioning – as what was done.
Eh, that’s going nowhere. And fast.
We’ll need to discuss that over a couple of cervezas in Sedona, but it’ll be a while.
That footnote #5 cited above is a thing of beauty, especially this sentence: “Nevertheless, two IRS agents on the prosecution’s team investigating Mr. Biden blatantly and publicly did the same thing, on television no less, and yet they have not been prosecuted or even fired by the IRS.”
Blatantly.
Publicly.
On television no less.
And the cherry on top is the legal slap at Jim Jordan.
There is not a wasted word anywhere. Each one is well-chosen, and they are strung together so as to maximize their argument. Tasty stuff!
On television no less.
That’s gotta smart. It’ll stick with me, and I hope it sticks in someone’s craw until they choke up the Brady material Lowell is after.
The last section, on the laptop, is interesting. It seems to be strongly implying – without stating directly – that Weiss et al got material from a compromised “laptop,” and only afterwards went looking for copies of said material in various backups. (Marcy has noted this possibility in several postings.)
I’m not sure that this really helps Lowell, unless it becomes the case that one or several bits of evidence can only be found on the device, and not in any backup. If that is the case, they may be relying on the deep dive they had Denver Riggleman perform on the data, and which (I’m speculating here obviously) did indeed turn up evidence that existed only on the “laptop” and not in the backups.
If the laptop (technically the information on the laptop) was improperly seized, then any warrants that predicated the laptop are invalid.
Fruit of the poisoned Apple
I think what Denver knows about these “laptops” is Abbe’s “hole card” and so far, it looks like Abbe is winning at shading these folks. I am proud of Biden’s legal team for turning to Marcy’s deep dives into the phuckery. I am grateful, on a daily basis, for Marcy and Allison Gill and the others for digging past the epidermis of these issues. Karma is our boyfriend and it could be coming for David Weiss who is a witness in his own case. This seems like super shady lawyering to me but IANAL.
Back on Jan 30, when we were discussing one Lowell’s earlier filings, I was struck by him raising the Grand Jury stuff — not their deliberations, but the process for impaneling them, the instructions they were given, and other “process” items about how the GJ went about it’s work. I could tell Lowell smelled a rat, and in today’s filing, he makes that even clearer (pp. 14-15):
Something tells me Lowell has reason to believe that grand jurors were *not* screened for bias. Maybe it’s just his poor opinion of Weiss as a prosecutor who cuts corners and doesn’t worry about the rules. Maybe Lowell has a witness, or perhaps an actual document.
Very interesting. Thank you for staying on this, Peterr, and taking us along with you.
Or perhaps they were screened for bias and chosen for that reason.
I learned the tactic of asking questions you already know the answer to much later in life than I should have, but I am familiar enough at this point to think… that’s awfully specific, isn’t it?
He might be looking for juror disqualification, which has happened in the past. It’s a long shot and he has to disqualify so that number is below the 12 vote threshold for the truebill, disqualifying below the required minimum 16 jurors present is not enough.
“Improperly screened for bias” plus “Told it was cocaine and shown pictures of sawdust” might get Lowell a long way. If I were the judge in this case I’d be asking Weiss some very hard questions, and I’d spend a long time on those questions, and I might just dismiss, because “told it was cocaine and shown sawdust” says a lot about the quality of the evidence presented.
We don’t know what evidence was presented to the jurors, it could have been eyewitness testimony years ago. The only problem with that is memories fade over time and can end up getting discredited on cross. Which could be why Weiss suddenly decided he needed some kind of physical evidence to prove the case (like three months after he got the indictment), but all he’s left with is some photos, texts and residue that was found only on the outside of a leather pouch that contained the unloaded firearm, autoloader and ammunition. None of these actually prove Hunter was using when he filled out the form. They have an added problem in that none of this was obtained from Hunter directly but through third parties not connected to Hunter.
From the bottom of page 4: “Mistaking sawdust for cocaine sounds more like a storyline from one of the 1980’s Police Academy comedies than what should be expected in a high-profile prosecution by the U.S. Department of Justice.”
Ouch.
Once, long long ago, I mistook sawdust on the floor for weed at Hussong’s Cantina in Ensenada, but to be fair I had been drinking tequila for several hours. What was Weiss’s excuse?
At this point it might almost be safer for Weiss to claim he was ALSO drinking tequila in Ensenada. Then he could claim he has an addiction problem and enter rehab. Treatment overseen by Dr. Ablow, of course.
While I admit to sharing in the feelings of ticklish schadenfreude that accompany a reading of this filing, I am kind of surprised at what appear to be multiple typographical errors in the first paragraph. All of their filings up until now have been really, really locked down. This feels like it may have been written by somebody different? Possibly on a tight deadline? Curious what people think about that.
They’re errors introduced by copying and pasting from a pdf: “and” became “an,” “discovery” became “discover,” “Biden” became “Biaden,” etc.
Happens all the time because the text file in a PDF underlies the visual file (page image), and is created by running OCR against the image. I once scanned an entire HG Wells novel and was dismayed to discover that nearly every instance of “w” had been rendered as “u u”. That particular OCR program also had zero luck dealing with ligatures (sh, th, ct, etc etc).
Thanks for asking, TS. I was wondering too, and the answers make sense.
All of the above is further evidence all is not well at the DOJ when it comes to right-wing bias clouding legal judgement.
The conviction rate of these folks is not typical of DOJ either.
And the malfeasance appears to be as in your face as Lowell’s filing.
Is Lowell accurate to say “days before”? July has 31 days so doesn’t that leave July 26, July 27, July 28, July 29, July 30, July 31 as options?
,
Bravo Talking Points Memo for having noted that the filing cited Marcy.
.
https://morningmemo.talkingpointsmemo.com/p/russias-staggering-success-in-duping
Hunter Biden lit into Weiss in the Delaware prosecution on gun charges, accusing Weiss of falsely claiming in a previous filing that what was merely a photo of sawdust depicted lines of cocaine.
“Mistaking sawdust for cocaine sounds more like a storyline from one of the 1980’s Police Academy comedies than what should be expected in a high-profile prosecution by the U.S. Department of Justice,” Biden’s attorneys wrote.
The Biden allegation seems to be supported by the surrounding context and documents.
A fun kicker: Biden cites Marcy Wheeler (a.k.a emptywheel) in the filing for being all over the cocaine/sawdust beat.