“Struck By Lightning:” The Deliberate Trump Politicization of the Hunter Biden Investigation
In his latest podcast, Popehat delivered this opinion about the two indictments of Hunter Biden and Abbe Lowell’s aggressive attack on them.
In a way — and I don’t think this comparison is going to endear me to people — I think he’s doing very much what Trump is doing with his cases all over the place, calling them out about how they’re political and illegitimate and that type of thing. The truth is, the gun case is complete chickenshit but the tax case is absolutely the real deal, it’s something that, you know, if you get struck by the lightning that is IRS deciding to select you out to investigate you, you will absolutely get charged on that stuff and you’ll absolutely go to jail on that stuff. So it’s not a political case to that extent. The way it’s been handled might be political.
You should definitely listen to or read the podcast, as he and Josh Barro are two of the only people who even pretend to have read the motions to dismiss Hunter filed last week and you should never read just me on a topic.
They don’t mention two aspects of the tax indictment, which impact on whether it’s “absolutely the real deal.” First, something that even Weiss included in the plea statement but left out of the indictment: that Hunter has paid off his tax debt, along with up to $400,000 in penalties, for the charged years. And second, that Hunter’s lawyers at least claim (but have not substantiated publicly) that his accountant overstated his income for 2018, the year for which felonies have been charged. So (Hunter’s lawyers claim) when Hunter did belatedly pay his taxes, he overpaid them. Abbe Lowell has claimed that would mean the indictment would violate IRS guidelines, but it will also make it much hard to prove that whatever misrepresentations Hunter made in his 2018 tax filings were intentional.
To their credit, Popehat and Barro managed to lay out the content of much of the four motions to dismiss submitted last week, which I summarized this way.
The only things they missed were the Appropriations claim against David Weiss’ appointment, and the Separation of Powers claim about Congressional influence — though perhaps Popehat meant to invoke that in his characterization of the MTD as “it’s all politics.”
What’s interesting about the podcast is that Popehat continues to cling to his article of faith that Hunter’s claims of politics (he has made the same claims about Hunter’s accusations, which are backed by public evidence, that Rudy Giuliani and others have hacked his data) are all prospective: an attempt to taint anything Trump might do in a second term as political.
In the event that Donald Trump is elected President [Hunter Biden] is likely to be charged with a lot worse and a lot crazier stuff. And so what they’re really doing, I think, is using every situation that comes up as ways to get ahead of that, to get intel on it, to undermine it, and that type of thing.
Popehat gets a great deal right about this case (including the near-impossibility of winning a selective and vindictive prosecution claim). But it borders on insanity that he would read that MTD and then dismiss Hunter’s claims of politicization as an attempt to stave off future attacks from Trump.
The MTD about which Popehat made this argument — that the possibility of Trump politicization is all prospective — cited the following evidence:
- In testimony he would subsequently caveat, Joseph Ziegler claimed that Bill Barr made the decision to put the tax investigation into Hunter Biden under David Weiss in May 2019, which would have been days after Joe Biden declared his run for President.
- During his first impeachment, Trump sent tweets attacking Hunter Biden on October 6, October 10, October 12, October 13, November 15, 2019.
- Rudy Giuliani traveled the world searching for dirt on Hunter Biden and got DOJ to open a dedicated channel, via Scott Brady, to accept the information he obtained.
- Trump sent another tweet attacking Hunter on September 24, 2020.
- Weeks before the election, Rudy Giuliani obtained what Hunter calls, “stolen electronic data,” manipulated it, and released it in an attempt to undermine Joe Biden’s election.
- After Rudy released the “laptop,” President Trump led chants of “Lock him up” about Hunter Biden.
- In the wake of the laptop release in mid-October 2020, Trump raised the Hunter prosecution with Bill Barr.
- Bill Barr admitted having personal knowledge of how information from Scott Brady got shared with Weiss’ team, including on October 23.
- In December 2020, after the investigation into Hunter was publicly revealed as a tax investigation but while Trump was still President, Trump tweeted twice more about the investigation.
- On December 27, 2020, in the same hours-long phone call where Trump first floated replacing Jeffrey Rosen with Jeffrey Clark, Trump also raised the Hunter Biden investigation.
- During his January 6 speech, Trump claimed that if more people had known about the contents of the “laptop,” he would have won and he also taunted, “Where’s Hunter?”
- Trump posted about Hunter on March 31, 2023 after learning about the Alvin Bragg indictment.
- Trump posted about the Hunter Biden plea deal three times on the day it was released on June 20, 2023, in one case calling it “The Hunter/Joe Biden settlement.”
- On June 24, after the IRS agents’ transcripts were released, Trump made two more posts suggesting allegations against Hunter tied to Joe.
- On June 26, Trump linked to a post falsely claiming that Hunter had shared classified documents with “foreign regimes.”
- On July 11, Trump accused Weiss of giving Hunter a “traffic ticket instead of a death sentence.”
- On November 23, Trump asked whether Joe had paid taxes on money he [claimed Joe had] made from Hunter.
This is the document Popehat claims to have read and decided Hunter was only doing this to claim that Trump was acting politically in some future prosecution.
And that’s not even the only evidence about Trump’s past politicization that Lowell has cited. In the subpoena request Abbe Lowell invoked in the MTD package, Hunter’s lawyer further described that Richard Donoghue ordered Weiss’ office to accept a briefing on an FD-1023 reporting a claim Mykola Zlochevsky made in late 2019, a briefing that occurred on October 23, 2020. By date, this briefing happened after Trump called Barr about the Hunter Biden investigation.
In a letter Lowell sent to Matthew Graves about Tony Bobulinski’s interview with the FBI on October 23, 2020, he noted that:
- Bobulinski was Trump’s guest at the Nashville presidential debate on October 22.
- Bobulinski’s claim to have attended a 2017 meeting with CEFC with Hunter Biden, at which — he claimed — Hunter received a diamond, conflicts with Bobulinski’s own communications from the period.
- In her book, Cassidy Hutchinson described a clandestine meeting between Bobulinski and Mark Meadows weeks afterwards at which Trump’s Chief of Staff handed Bobulinksi something that might be an envelope; the excerpt describes Meadows having the meeting because, “The boss asked him to meet up with Tony Bobulinski.”
Plus, there’s a bunch that Lowell has not (to my knowledge) cited.
For example, FBI Agent Johnathan Buma claims that in January 2019, two Ukrainians with ties to the Prosecutor General’s Office — later deemed to be part of an information operation — shared allegations about Hunter Biden and Burisma with the Los Angeles US Attorney’s Office. The allegations were passed onto Baltimore FBI agents investigating Hunter Biden. The Ukrainians were later invited to an event hosted by the Trump White House.
In IRS agent Ziegler’s testimony, he described that it took him three tries before justifying a criminal (rather than civil) investigation into Hunter Biden; as part of that, he made claims about 2014 payments from Burisma that are explained in the tax indictment against Hunter. He similarly described learning, second-hand, that his supervisor during the first full year of the investigation documented repeated examples of potential improper political influence.
[M]y IRS supervisor, Matt Kutz, created memos which he put in the investigative files regarding the investigation potentially violating the subject’s Sixth Amendment rights. He also referred to Donald Trump’s tweets at the time.
On July 25, 2019 Trump withheld congressionally appropriated funds to support Ukraine to get Volodymyr Zelenskyy to announce an investigation of Hunter Biden and Burisma, asking him to contact Barr and Rudy, the men who would later set up the channel via which information was ultimately shared with the Hunter Biden team. Two impeachment witnesses testified that Zelenskyy brought up a Burisma investigation, though the name does not appear in the transcript.
In addition to the details of Scott Brady’s task that Lowell did cite, Brady also described that he and Weiss spoke every four to six weeks about “the assignment.” Brady also describes getting Weiss to order his team to provide Brady details of the Hunter Biden investigation, which Brady described as “interrogatories.”
On September 12, Tim Thibault testified that, after such time as Steve Bannon would have had the “laptop” in 2020, the FBI made his propagandist Peter Schweizer an informant regarding matters pertaining to Hunter. The lead FBI supervisor on the Hunter Biden case asked the Washington Field Office to stop sending Schweizer’s reporting because it would give Hunter’s attorney, if he were ever charged, evidence to discredit the investigation.
FBI supervisor Thomas Sobocinski and David Weiss, along with other House Judiciary Committee witnesses, have testified that after the IRS agents’ claims went public — and so after Trump posted six times between when the plea deal was released and the hearing at which it failed — the investigative team, especially AUSA Lesley Wolf, began to get “pervasive” threats.
These are the kinds of Trump attacks that, the DC Circuit has found, have “real-world consequences” on those he attacks.
The record also shows that former President Trump’s words have real-world consequences. Many of those on the receiving end of his attacks pertaining to the 2020 election have been subjected to a torrent of threats and intimidation from his supporters. A day after Mr. Trump’s “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” post, someone called the district court and said: “Hey you stupid slave n[****]r[.] * * * If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly b[***]h. * * * You will be targeted personally, publicly, your family, all of it.” Special Counsel Br. 5; see United States v. Shry, No. 4:23-cr-413, ECF 1 at 3 (Criminal Complaint) (S.D. Tex. Aug. 11, 2023). The Special Counsel also has advised that he has received threats, and that a prosecutor in the Special Counsel’s office whom Mr. Trump has singled out for criticism has been “subject to intimidating communications.” Special Counsel Mot. 12.
In all the litigation about the danger of Trump’s rhetoric, there has been no discussion of threats that Trump’s comments (or the members of Congress) may have ginned up against Hunter Biden’s prosecutors.
Again, all this evidence of Trump’s effort to dictate prosecutorial outcomes for Joe Biden’s son have already happened. They happened while he was President and while he was running against Hunter’s father. None of this is remotely speculative, and much of it has been described by Republican witnesses.
And the latter examples — the stuff Trump did while President — are particularly problematic. That’s because (as Abbe Lowell has noted on at least two court filings) it is a crime for the President to order up IRS investigations of someone.
77 President Trump initiated the investigation of Mr. Biden illegally. 26 U.S.C. § 7217 provides: “It shall be unlawful for any applicable person [including the President] to request, directly or indirectly, any officer or employee of the Internal Revenue Service to conduct or terminate an audit or other investigation of any particular taxpayer with respect to the tax liability of such taxpayer.”
A separate law prohibits someone, who does not need to be President anymore, to intimidate someone investigating tax crimes.
After unlawfully requesting that Mr. Biden be investigated, President Trump violated 26 U.S.C. § 7212 of the Internal Revenue Code by interfering with that investigation. The section has two substantive provisions. The “Officer Clause” forbids “corruptly or by force or threats of force (including any threatening letter or communication) endeavor[ing] to intimidate or impede any officer or employee of the United States acting in an official capacity under [the Internal Revenue Code].” (emphasis added). The second clause, the “Omnibus Clause,” forbids “corruptly or by force or threats of force (including any threatening letter or communication) obstruct[ing] or imped[ing], or endeavor[ing] to obstruct or impede, the due administration of [the Internal Revenue Code].” (emphasis added). Mr. Trump has done both.
Here, Lowell overstates. I’m aware of no evidence that Trump ordered up the IRS investigation of Hunter, like he did Peter Strzok and others.
The available evidence shows that at least one strand of the investigation into Hunter Biden — the one under Joseph Ziegler — started from a Suspicious Activity Report. And Barr is one of the people who would have been permitted to ask for an investigation into someone.
But it is nevertheless the case that the supervisor overseeing the investigation deemed Trump’s public demands for an investigation to be inappropriate. And at a time in 2020 after Trump knew there was an IRS investigation into Hunter, at a time he remained President, he privately and publicly pushed for an aggressive investigation. Those efforts, including publicly issued threats, have continued to this day.
The DC Circuit described how Trump uses social media posts to address people he knows are likely aware of his posts.
So too if the defendant posts a message on “social media knowing that [witness] is a social media follower of his,” id. 33:20–23, or that the message will otherwise likely reach the witness. In each of these scenarios, the defendant’s speech about witness testimony or cooperation imperils the availability, content, and integrity of witness testimony.
Accordingly, the district court had the authority to prevent Mr. Trump from laundering communications concerning witnesses and addressing their potential trial participation through social media postings or other public comments.
So whether or not Trump ever directly spoke to someone in the IRS about the investigations into Hunter Biden, under this theory of “laundering” communications, his tweets would have qualified as indirect communication.
Sure, a second Trump term will be worse.
But Hunter Biden is demonstrably among the handful of people who have experienced the kind of wholesale politicization of criminal investigations journalists imagine will only come in a second Trump term.
Udpate: Added some more details from Brady’s testimony.
Update: Fixed intro to DC Circuit opinion.
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Projection is a key part of the playbook for Defendant-1, and as long as he can distract away from himself and his kids he’ll keep doing it. The press needs to push back and both the NYT and WashPo needs to stop the stenography.
The reason I’m surprised by Popehat’s insistence that the tax charges are “real” is that Hunter Biden paid off his IRS debt–and then some, it seems. How often, and for what reasons, are such tax infractions prosecuted given a fact pattern like this? It would seem in the IRS’s best interests to *encourage* rather than punish those who try to pay what they owe.
Almost never. Keep in mind though that Ken was an AUSA in that very court earlier on.
I found a pdf of the IRS Tax Crimes Handbook. It looks like paying the tax due does not end the prosecution, but the burden of proving “willfulness” is still very much on the state. I’m also not sure about the charges for the years the IRS has resolved civilly.
“ [e] Paying taxes due after the criminal investigation commenced does not negate willfulness. United States v. Pang, 362 F.3d 1187, 1194 (9th Cir.), cert. denied, 543 U.S. 943 (2004).” Page 35 of 176 PDF.
https://www.irs.gov/pub/irs-utl/tax_crimes_handbook.pdf
I can guarantee that is almost never prosecuted if the back due, penalties and interest are appropriately paid. As in pretty much never I have ever seen.
Agreed. Especially since “willfulness” is subjective, and unless Hunter gets a jury wholly composed of dickpic sniffers, it drops to misdemeanor and only if Weiss can prove taxes are still owed.
That’s the problem, once paid it is almost always over.
I actually am guilty of the same offense as HB, albeit at a much smaller scale. I neglected to report some consulting fees. It was one year and it was simply poor record keeping on my part. The IRS sent me a letter demanding the tax, back interest, and a small fine. I paid the entire amount the day I was notified. Ended the matter. Glad my father was not running for president.
Didn’t Weiss’s maneuvering (after the plea agreement dissolved) in fact *elevate* what were misdemeanor tax charges to felonies? And isn’t part of what Lowell is shadowing forth in these MTDs his own potential trial argument(s), to be made to a California jury?
It seems like Weiss should pray for the dismissal to forestall being humiliated in court. Among other facts, Rudy Giuliani seems to owe more back taxes (as yet unpaid) than Hunter ever did, and no one’s charging him with felonies.
No. It is never that simple.
He didn’t mention it, possibly bc the indictment doesn’t mention it.
This post started as a description of how people just KNOW about Hunter Biden, and as a result, really smart people making claims like Popehat did that ignore big parts of the evidence.
I’ve come to think of this as the ‘public box’ syndrome. Remember when Sondland said Trump was trying to put Zelenskyy in a public box by getting him to say there was (or would be) an investigation of Burisma and the Bidens? According to Donoghue’s notes, Trump did a similar thing by trying to get DOJ to “Just say that the election was corrupt + leave the rest to me and the R. Congressmen.”
To me, the Hunter Biden narrative and indictment are constructed in a similar manner to create a public box. Through repetition, insinuation, and manipulation of data, Trump and the R Congressmen have lured some people into their trap. If journalists are really concerned about democracy, they should be interested in the parts Weiss, Barr, et al. actually played to bring us to the brink.
Because they’ve used a variety of means, including the magnetism and/or repulsion of prurient thoughts, the disinformation campaign is difficult to disentangle from the facts. I imagine it may be similar to the way cults brainwash people. I was particularly distressed when Katy Tur seemed to not have a grasp on the facts during her interview with Abbe Lowell (last week?).
Re cult methods – I agree. Cult leaders use “disorganized attachment” to attract and hold onto followers. That is, they alternate generating fear and then offering a consoling “solution” to that generated fear to keep their adherents always coming and going within their orbit, but terrified of fully leaving. (cf the body of work of Alexandra Stein in this regard).
Wait–you mean there are people who don’t start every day with at least two hours here at EW? Say it ain’t so, SL!
It seems like one key difference between a Marcy analysis and a Popehat analysis is that in Marcy’s interminable way, she draws comprehensive conclusions based on a synthesis from a wide variety of sources potentially going back years. Like some wild cross between the “mind palace” of Benedict Cumberbatch’s Sherlock Holmes and a cork board awash in pins, red string, and scraps of paper. Even when the lawyers and investigators Marcy is writing about have more access to data than she has, you can wonder sometimes if they have the same depth of understanding.
I like Popehat’s perspective as a prosecutor-turned-defender who has a knack for framing out complex technical concepts in accessible language, but he’s not doing anywhere near the level of research that happens here. No matter how insightful his takes are, they are going to be more of a surface-level reading than you’d get at EW.
Love the visual! (cork board awash in pins, red string, and scraps of paper) that’s what I would use. Somehow, that visual doesn’t fit my imagined Irish workspace in which Marcy (may I call her by her first name) operates. Nah. My imagined space is more like a study complete with the books & bookshelves, the leather chair, big windows overlooking rolling green hills, etc. Maybe a fireplace or wood stove to complete the scene? Oh, and a cat. But decidedly no cork board. Doesn’t fit ;)
Definitely not Marcy’s style. LOL
![](https://i.kym-cdn.com/photos/images/newsfeed/002/546/187/fb1.jpg)
I imagine a fire, a dog, and a lake. OK, Marcy isn’t Jane Hamsher, but still…
There was a little more to FDL than just Jane.
I do not know you, but I do Ken White, and he is a very good attorney. Your trite “prosecutor turned defender” view is bullshit. And, yes, we all have the same “access to data”, not just Marcy, whether we use it at every instance or not. Josh Barro is a little dipshit though.
Bmaz, is it necessary to be so relentlessly negative? “Prosecutor turned defender” sounds to me (I’m a huge fan of Ken’s) like a compliment, and Josh Barro is one of the few journalists who’s learned the kinds of questions to ask about legal subjects. I don’t know why you decided to respond in such a rude manner
[Welcome back to emptywheel. Please use the same username and email address each time you comment so that community members get to know you. This is your third username; you’ve most recently used “Andrew is Tired” without the underbar and with a capital T. Your comments may not clear in the future if you do not use the same username on each comment. /~Rayne]
Because I quite like Ken and think Barro a pile of shit. Hope that was not too rude for you. And Barro is not particularly a journalist.
Barro is really a blogger / editor / opinion writer who occasionally dabbles in journalism than a real journalist. His Wikipedia page makes this clear: https://en.wikipedia.org/wiki/Josh_Barro . He’s also somewhat of a self-righteous jerk, as one might suspect of a BA in Psychology from Harvard who interned for Grover Norquist in his youth.
His dad, Robert Barro, is a famous economist (Harvard, Hoover Institute) who a) has made real contributions to the field and b) displays some of the same traits. He has been on the shortlist for a Nobel Prize for a number of years.
Moderators here have suggested before that it’s probably more productive and less work for them if each commentator polices their own work. If you don’t like someone’s views, ignore them. There are obvious exceptions, such as advocating violence or infringing copyright, which site moderators here deal with expeditiously and at great cost to their personal time.
As for prosecutor-turned-defense counsel, that’s a common route. It’s not the only one. Another is to go straight to criminal defense work, often by joining a firm already doing it. There are perspectives to the work one never learns by being a prosecutor.
Bmaz,
I greatly appreciate Ken’s work! I thought that came through. I wasn’t trying to be trite, just concise.
(FWIW, EW is how I discovered Popehat in the first place.)
“…in Marcy’s interminable way…”
Hey, Tech Support, ‘interminable’ isn’t a compliment! It’s typically reserved for obnoxious bores with little or nothing to contribute. I don’t think any of us would be here if that’s how we saw EW’s work. Maybe you misspoke?
Inexhaustible? Indefatigable? Those were my guesses of the word he meant, given the context.
LOL, the word popped into my head and I actually went to review a definition before I went ahead with it. Going back and looking at it again, only one of the three definitions offered by American Heritage sniffs negativity.
That said, I am more than happy to amend to, ah… relentless.
I’ll definitely listen to the podcast, but have to admit I thought similar to Popehat when reading the MTDs and RHB’s former counsel’s affadavit, as they taught me why immunity from future charges was a deal breaker for RHB and why so much energy was expended between counsels getting this language comfy for both sides.* Perhaps this is because it was the first time the language FUTURE PRESIDENTIAL ADMINISTRATIONS had jumped out at me. I didn’t think this was Lowell’s ONLY motivation, but it struck me to be a MAJOR one.
Oh, and, can somebody in Weiss’s world get him the memo?
No matter what actions you take, it will be seen as WRONG in the eyes of Trump and his MAGA loyalists in Congress and in MAGAmedia. You will also never be given credit, contemporaneously or retroactively, for taking any ‘correct’ action here; you may only be rewarded with ”Well, finally, but way too late.” Death threats won’t stop, and Congressional attacks on your actions and character will not cease, until you’ve long faded from public view. So, you might as well do the morally and legally right thing, because it too will also be viewed as improperly motivated or the wrong action to take, besides being untimely, of course, in MAGAeyes.
*And why (now, to me) it seemed inexplicable the SCO could claim immunity from all future prosecutions was NOT what ythe SCO’s understood the immunity language to mean.
MTW, thank you for tirelessly pounding this drum. The collective denial of prior and ongoing politicization is stunning.
The media can’t seem to own up to how poorly they reported from the golden stairwell descent to now.
Example: Salon reported today on Engeron’s response to Trump’s expert witness, but most of that is just parroting Trump’s misinformation (first!) before revealing what Engeron wrote. Salon as propagandist for Trump. Smh.
I wish there was more curiosity into origin of the Hunter Biden investigation as there was into “the oranges” of the Russia investigation. The timing of it stinks, as does the involvement of people like Schweizer, Bannon, and Giuliani. Does the IRS open criminal tax cases on every customer of foreign porn websites? Or is it only the ones who are already subjects of books by rightwing propagandists?
What was the predicate for a full-blown criminal investigation of a delinquent tax filer, instead of allowing the standard practice of correspondence and audits to begin the process?
The Clash: Lightning Strikes, Not Once Once but Twice
OT, bmaz’s gonna love this one:
Much as I detest Trump, I tend to agree that this back door solution is highly problematic.
OT:
Steve Vladeck:
“By a 4-3 vote, the Colorado Supreme Court has held that former President Trump is *disqualified* from holding future office—and thus cannot be on the presidential ballot in Colorado:
https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2023/23SA300.pdf
“The ruling is stayed until 1/4—presumably if #SCOTUS wants to step in. Whatever you think of the merits, it seems impossible to believe that this is the last word—and that the U.S. Supreme Court won’t now *have to* take up and resolve the question of Trump’s eligibility under Section 3. Today’s ruling forces the issue.”
[Off-topic] Something interesting happened in Colorado today.
That will be heading straight to SCOTUS.
Good.
My link-free OT re same got stuck in moderation – sorry!
This is a very slippery slope indeed.
I posted it. Mostly just to say it’ll keep SCOTUS busy in the near future.
I just hope this prods them into deciding the immunity claim first and fast. Without that decided, Colorado is moot; “absolute immunity” would arguably subsume insurrection within its capacious topcoat.
I like to remind MAGAs that Hunter paid way more taxes than Trump did for 2016 and 2017.