Fourteen Shambolic Years of Conservative Rule

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The Tories are Exhausting.

This Thursday the 4th of July the UK will be overcast in the low 60s with some intermittent rain, and all the parliamentary seats will be up for grabs as the UK turns out for yet another insane British snap election. This one was called by Rishi Sunak, the Almost Certainly About To Be Former Prime Minister of the UK.

Snap elections as such don’t exist in the US. There are reasons for special elections to be called outside of the normal cycle, but they are extraordinary. A snap elections just means the Prime Minister wants to have a go at it. And Rishi Sunak called one. He seems tired of being PM, tired of Britain, maybe tired of life.

I’m going to explain roughly how these elections work, if you want to skip this part, that’s understandable. Just scroll down to the picture of a kitten.

Elections are quite different in the UK than the US. Eligible voters all over the four countries that make up the United Kingdom will head to the polls and vote for a local representative, sorted by party affiliation, one of which will be made their Member of Parliament. Many will just be voting for a party, rather than a person. Some local MPs are quite well known in their local constituencies,  and well enough loved to carry votes from across the spectrum, but many are not. Similar to Congressional elections, a lot of people who vote a party line rather than for a person are trying to influence the shape of the national government, not just local representive business.

That’s it, that’s all they get to vote for in these national elections. In this way, it’s much simpler than an American election.

There are 650 constituencies in the United Kingdom. The closest equivalent in America is probably Congressional districts. These constituencies are geographically contiguous and range from roughly 21,000 to 90,000 residents. There are sometimes accusations of gerrymandering in the UK, but it is strictly amateur stuff compared to the mathematical insanity of American redistricting.

Unlike America, the British don’t vote for governmental roles. The people don’t vote for the Prime Minister, at least not directly. Brits get one representative in the Parliament, and that’s that. The various jobs, privileges, and positions get worked out when this particular mob of election winners show up at Westminster Palace in London.

Great Britain uses a first-past-the-post (FPTP) electoral system, or what Americans think of as just how elections work. There are many other ways of structuring voting, used in jurisdictions all over the world, but they remain mostly undiscovered in America and the UK. First-past-the-post is a system everyone gets one vote, one time, and the guy with the most votes wins. This style of voting tends to favor two party systems, low diversity in political thought, and men. Voters are usually timid in FPTP systems — you pick a team and stick with it. If you want your vote to matter, you pick one of the two big teams. There’s even a concept for this in Political Science: Duverger’s law. Older democracies like America and the UK prefer FPTP because not much else had been discovered when they started trying to Democracy, and the politics around voting tends to be sticky. Criticizing the voting system often makes older people cranky in the traditional ‘we had it bad, why should you have it any better’ kind of way.

The UK doesn’t have a written constitution. If you mention that to them, they will angrily say that yes, they do, and point at a giant pile of Post-It notes going back to the 17th century. Then they will also mention a few things that aren’t written down and explain that it’s fine because everyone knows those bits. Well, everyone important, at least.

(I am not going to describe the devolved governments or the House of Lords, this is already too long.)

Whoever leads the party which won more than half the seats will be invited by King Charles to form a government. A minority government can also be invited, with the “supply and confidence” of a smaller party. This was the case with Theresa May’s government in 2017 which needed the assistance of the Northern Irish hard line Democratic Unionist Party to stay in government. But it’s often unstable. See Theresa May’s government in 2017.

The winners, now the government, sit on the right of the Speaker of the House of Commons. And the Opposition — the ones that didn’t win the election — sit on the left. (Being the Speaker of the House of Commons is nothing like the Speaker of the House. The term is a false friend.) The job of Speaker of the House of Commons involves calling on MPs who want to talk, telling them when to vote, and shouting “Orrrrdeh!” at grown-up politicians behaving like an out of control middle-school classroom.

If no one party gets a majority, two parties can enter into a coalition to govern together, but  they often fall apart — much like the House and Senate being at odds with each other and the President. (Though we just have to live with it for years, whereas the Brits can go back to the polls sooner with a snap election.)

The Prime Minister doesn’t run for the office of PM; they’re just another MP, technically. But they are generally the leader of their party. As for who gets what job, that’s an internal party matter, and surprisingly little of it is formally legislated. (The party leadership elections are a whole different process which varies by party by-laws.) From there the PM tries to pass laws and create policy, with the usual drama that entails in modern democracies.

The PM can call for an election anytime, with the provision that he or she has to call for one within a five year term. And that’s what Rishi Sunak did on May 22nd, when he called an election for this Thursday. He did this while trailing the opposition by about 20 points in the polls, which is just as much of a death sentence in the UK as the US. He called it while getting unceremoniously rained on, as if even the sky itself was saying “Nah, fuck this guy.”

OK. Civics lesson over.

How it’s Going? (Badly)

Kitten

We all need this right now

To thank you for reading this, I have provided a kitten picture.

The Conservative Party, also known as the Tories, has been in power for 14 years. It will almost certainly be wiped out at the polls, possibly even out of meaningful existence, but probably not. Modern democratic Britain is a conservative, capital T- Tory, country. They spent nearly 60 years in power during the 20th century, and one of the longest lasting Labour PMs, Tony Blair, basically got the job by being a Tory in all but name. Britain hates the Tories because they continually crash the country into a wall, the same wall their faces are currently planted in now. But Brits love the Tories because Tories tell them that Britain is the best, and they shouldn’t feel bad about the British Empire, and they can go it alone, because they’re made of sterner stuff, and meant to be the best rich white people that rich white people can be, and like Lucy with the damn football, the Brits fall for it every damn time.

Right now in normal, not Tory-fantasy-land Great Britain, everything sucks.

Fuel poverty is skyrocketing, a record number of people are relying on food banks, companies are dumping raw sewage into almost every waterway in England. The National Health Service has more patients on waiting lists for medical care than Ireland has people. The economy is trash, productivity has been flailing since the financial crisis, and the trains are barely running.

Homelessness is becoming common, and young people despair of ever owning a house even as their rents balloon. The country is at least 1.2 million houses behind what it needs.

House building hasn’t kept up with population. One in every 26 houses needed by British families… doesn’t exist. This drives house prices and rents up, but there’s just no way to shelter people if there’s no shelter. There are many reasons a particular person might be the one that become homeless, but that someone had to become homeless in the UK is simply math. The question of  is not why people become homeless, we know why. The only question is  who will become homeless — the ones left standing, when the music stops.

The prisons are overflowing, the police forces are undermanned. The buildings made with shitty RAAC (Reinforced autoclaved aerated concrete) are falling down piece by piece, including inside of  over two hundred primary and secondary schools in the whole UK.

Compared to the European Neighborhood, the UK is doing even worst than its own estimations.

The chances of seeing a dentist are slightly better than winning a lottery, and people are pulling out teeth at home. There’s not enough people to provide either childcare or eldercare, and not enough money to retain the people doing these jobs now. According to Tim Harford writing in the Financial Times, “Real household disposable income per capita has barely increased for 15 years,” and “the deficit is a permanent fixture, and interest payments on public debt have risen to levels not seen for 40 years.” Bigotry against trans people, nursed by the Conservatives, spans the political spectrum — perhaps a comforting distraction . The Tories would rather pay for flights to Rwanda for asylum seekers than pay their own NHS junior doctors.

And there’s more, and more… a litany of failure, complaints, and human misery.

David Cameron

Falling relative productivity since the financial crisis. This one’s on Cameron, and his stupid austerity.

Truly these last 14 years of Tory rule have been like no other, but to understand this you have to understand David Cameron, Conservative Prime minister, 2010 to 2016. Cameron is the Simone Biles of failing up. No matter how much he wrecked Great Britain, embarrassed himself, or both, he always stuck the landing like it was the easiest thing, like he meant to do it. He introduced Austerity to Britain after the 2009 financial crisis, and convinced his people to starve themselves half to death instead of trying to reform a corrupt banking system. He didn’t take care of his people, he told them, “stiff upper lip!” and went back to one of his multi-million pound homes in the English countryside.

There was no good reason to do austerity, and every country that did suffered terribly as the economy slowed. But most of them had Austerity forced on them, Cameron forced it on his own people. He then accidentally took the UK out of the EU when he didn’t mean to, trying to show off after managing to barely not lose Scotland. No one thought he was insane enough to accidentally leave the EU when he didn’t want to, but he was, and he didn’t care. After that, he walked away from the job, literally singing a little song to himself, and ushered in years of Brexit chaos all of Europe is still trying to get over.

Cameron might have thought he was done failing up after all that, but then he was asked back by Sunak last year to become Foreign Secretary of the UK. But since he wasn’t an MP, Sunak made him Baron Cameron of Chipping Norton, in the County of Oxfordshire. Now he’s Lord Cameron, he even gets a little Santa-looking cape to wear in the House of Lords. That’s all real things adult men did.

He recently fell for some Russian pranksters and talked about Ukraine policy with them because he thought they were the former Ukrainian president. I tried to check, but it’s unclear if this was a video call.

Theresa May

Cameron was succeed by Theresa May, the first Prime Minister to be eaten by Brexit and her own Tory MPs on the back benches of Parliament. She discovered quickly that a clean exit from the EU that involved taking a large chunk of the island next to Britain was impossible. Not the least because the Republic of Ireland has been sick of this shit for a good long time. The Good Friday Agreement had made the Troubles in Ireland kind of go away, but Brexit threatened to bring them back. The prospect of a hard Brexit with a hard Irish border was likely to see a lot of violence, and no one really knew what to do about it. The Brexiteers just failed to talk about it, back in the days of “Reclaiming Our Freedoms.” May failed again and again to get a deal that both the EU and her own party would agree to. Even when the EU was trying to ease the way, Boris Johnson, the next asshat in this story, would just gesticulate and yell that nothing was ever good enough, nothing what ever Brexit enough. Mostly because he was after her job.

May was just a nasty person. Before she was PM, she’d instituted a Home Office hostile environment policy in and effort to reduce migration. This policy amounted to the UK making itself so mean and incompetent that it would just be too hard and awful for migrants to stay. Her administration also deported people back to places where they would face human rights violations against international law. Eventually her hostile policy got so hostile that the government ended up detaining and deporting a bunch of elderly Afro-Caribbean migrants who had lived in the UK for decades legally, after answering the call from the British government to rebuild England post WW2. Yes, the victims of this scandal were color coded, for easy human rights abuses! Eventually the scandal lead to the establishment of a Windrush Day holiday in the UK, to commemorate the hard work and contributions of migrants, particularly Afro-Caribbean migrants, to rebuilding Britain.

This year the UK government celebrated Windrush Day by evicting an 89 year old woman born in Jamaica who came to the UK in 1960 to work in a factory. She built a life and and raised her children in the UK. But she doesn’t have a passport.

So that’s going well.

Eventually Theresa May resigned after three years in office, making way for Boris Johnson.

The Good Chap Theory of Government Meets Boris Fucking Johnson

That no one has bother to work out or write down the nature of the UK Constitution makes things complicated at times. The assumption of these well heeled and well educated (mostly) men is that if you were in the club, you were almost undoubtedly a Good Chap. This is actually a soft doctrine of British politics: that if you made it in the door, you’re probably an good guy and we should just trust that. The good chap is someone with manners, morals, and decorum. How well this idiotic principle of governance held up historically may be a matter of opinion, but it did not survived May’s successor, poisonous blancmange in human form, Boris Johnson. Johnson, a columnist who had jumped into politics presumably because he wasn’t getting enough attention, campaigned hard for Brexit. He was Brexit’s number one hype man, along with Lovecraftian Innsmouth monster Nigel Farage. Johnson has a kind of goofy golden retriever energy to him, a vague cover for the hedonistic nihilism he would show later and that would eventually bring him down. He tells truth and lies triumphantly and with gusto, never seeming to care which one he’s doing at the moment. The Tories tried to treat Johnson like a normal good chap, and he destroyed them. More than any other lousy ass in this list of incompetent, cruel, bigoted British rulers, Boris Johnson wrecked the Conservative Party. He broke the law partying during his own lock down. He lied continuously and obviously to the House of Commons. He lied to the people of Britain about his “oven ready Brexit deal” which did nothing to fix the problems May had encountered. He lied to everyone with the ease of a child laughing. Trying to treat Boris Johnson like a Good Chap was the political equivalent of kissing a nuclear control rod. The question isn’t if you’ll die, but when and how mangled you’ll be when you die.

Eventually beset with too many scandals and actual crimes for the House to ignore, he exited the scene. The only person who benefited from Johnson’s tenure was Nigel Farage. Farage is actually polling well enough to get a seat in Parliament right now. That’s how bad the Tories fucked up.

Liz Truss

With Boris gone it was on to the next terrifying pasty Tory. After a contentious leadership election in which the Tory membership proved their mettle by overwhelmingly fighting to get Liz Truss into the Premiership over the desires of the people, the media, and the actual Tory MPs, who knew her and knew she was insane. But she got a chance to show the world her vision for a strong Britain. She took an economy David Cameron had spent years trying to ruin and managed to crash it completely in less than two months – Great British efficiency! The hurt she caused will be scarring the people of Britain for a generation, but at least she gets to hang out with Trump’s crew in America now.

And Finally, Dishy Rishi

It was time for the technocratic lanky human calculator to take the scene. Rishi Sunak, celebrated for his lack of understanding about how viruses and air work in the midst of a pandemic. He managed to make his very own wave of disability and death, with his Eat Out to Help Out scheme, and by this point doesn’t that seem like the top line of the CV for a Tory Prime Minister?

Sunak was as bad as all of them, though he never quite rose to their deliberate evil, more fumbling without caring who he hurt. Perhaps an improvement on the Tories’ active and hateful malice. In the end, Rishi Sunak was unlucky, last to be holding the premiership hot potato as the 5 year clock ran down. He decided on sudden death to go for it, try to get re-elected against all odds, or at least be done with it so he can move back to Venice Beach, gaze out at the Pacific from his mansion, and ignore the kids killing each other in gang fights behind his building. July 4th can be his independence day, and he can go back and re-up that green card.

Maybe even get a job at Facebook to keep him busy.

After 14 years of Conservative rule, Britain is broken and exhausted. Labour and Kier Starmer is almost certainly headed for a win, but like Tony Blair, Labour is  just trying to be the Tories Lite. No one is holding out much hope the Starmer will fix the nation, because he’s made it clear he won’t. He’s promising just slightly less of the same things the Tories are promising. So the British slog on to the polls tomorrow.

Perfidious Albion, indeed.

I’ll give the last word to the illimitable Douglas Adams, who knew his people well:

“…On its world, the people are people. The leaders are lizards. The people hate the lizards and the lizards rule the people.”
“Odd,” said Arthur, “I thought you said it was a democracy.”
“I did,” said Ford. “It is.”
“So,” said Arthur, hoping he wasn’t sounding ridiculously obtuse, “why don’t people get rid of the lizards?”
“It honestly doesn’t occur to them,” said Ford. “They’ve all got the vote, so they all pretty much assume that the government they’ve voted in more or less approximates to the government they want.”
“You mean they actually vote for the lizards?”
“Oh yes,” said Ford with a shrug, “of course.”
“But,” said Arthur, going for the big one again, “why?”
“Because if they didn’t vote for a lizard,” said Ford, “the wrong lizard might get in. Got any gin?”
“What?”
“I said,” said Ford, with an increasing air of urgency creeping into his voice, “have you got any gin?”

The “Wow, Pictures!” Tabloid Coverage of Trump’s Stolen Documents Is as Bad as Conspiracy Mongering

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The other day, I mined the documents and photographs released in the government’s response to Trump’s bid to throw out his indictment based on a complaint that the FBI failed to preserve the order of documents in boxes.

Doing so, I showed that Trump had stored ten of the documents charged against him — including one classified under the Atomic Energy Act — under bubble wrap and a Christmas pillow.

 

I had to do a fair amount of work to figure that out, building on work I did years ago. I had to cross-reference the item number (28, as shown in the picture) with the box number (A-73, which you can find on the warrant return) to determine which box this was. I then cross referenced that with the table of charged documents in the filing.

Then I annotated the picture to describe which charged documents were found in the box myself. You can cross reference that with the indictment to learn what kind of documents are included in the stack in the picture.

All that under the bubble wrap and the Christmas pillow!

But that’s not why DOJ included the picture in its filing. DOJ included this picture, along with the two other pictures in that exhibit and the two in this exhibit, “to provide a sense of the variety of items in the boxes.” And Jack Smith’s team did that to show that FBI agents who conducted the search had no way of knowing that Trump knew (according to the interview of a former White House aide of his) precisely what was stored in which box, and therefore no way of knowing he might cite document order in his own defense.

Furthermore, this is not a case where reams of identically-sized documents were stacked neatly in file folders or redwelds, arrayed perfectly within a box. To anyone other than Trump, the boxes had no apparent organization whatsoever. The boxes contained all manner of items, including, for example, papers of varying sizes, from folded large-format items to tiny notes; clothing; picture frames; shoes; magazines; newspapers; newspaper clippings; correspondence; greeting cards; binders; and Christmas ornaments. The photographs attached as Exhibits 3, 8, and 16 provide a sense of the variety of items in the boxes. The notion that the precise ordering of materials within these boxes possessed any exculpatory value that would be apparent to the Filter Team when they opened the boxes is absurd.

These pictures also corroborate what filter team agents said about their efforts to retain the order of items in these boxes as they searched them for any potentially privileged documents, such as Agent 5’s description that it was impossible to retain the order because of the “[loafers], newspapers, post-it notes, golf balls, etc” she found in the boxes. For the most part, these were not boxes of file folders (like the one found in Joe Biden’s garage, the order of which FBI also disrupted; they were boxes of Christmas pillows and bubble wrap, and that’s one of several reasons why the document order within boxes was not maintained in all boxes.

There was a purpose to these photos, and it went well beyond slob-shaming the former President or just showing how DOJ released these pictures to portray Trump as chaotic. The photos and other exhibits make a specific rebuttal to an argument Trump is making: that FBI willfully mixed up document order to undermine a foreseeable future defense that was radically different to the one — that he knew the documents were there, but had declassified everything — he had been making before the August 8, 2022 search.

There was a purpose to these photos: To rebut a range of conspiracy theories designed to undermine rule of law and truth itself.

The coverage from most mainstream journalists (I excuse those who were stuck in Aileen Cannon’s courtroom who just threw up a post after that tedium) consisted of little more than “ooh, pictures!” which quickly turned into slob-shaming that failed to provide any context about the legal significance of the exhibits or the chain of custody they depicted.

There were several other things the filing and pictures were meant to explain: notably, what and how cover sheets got put into boxes, and — because Julie Kelly is a shameless propagandist — whether the FBI brought cover sheets for the sole purpose of framing Donald Trump.

This conspiracy theory started when Stan Woodward spent 1:50 examining physical document boxes. He took this picture, of Box A-14, which has only around 35 documents in it, all stacked up neatly, but otherwise spent little time examining this box — just 6 minutes.

This box was originally segregated because it had potentially privileged documents in it. Days later, an FBI agent discovered a single document marked with Top Secret markings. That document, dated May 6, 2019 and describing a White House intelligence briefing, is charged in Count 4 of the indictment.

Woodward made no claim that the cover sheet in this box, wherever it is, was out of place.

Woodward spent more time reviewing box A-15: 18 minutes. He didn’t take a picture (but the FBI did). Box A-15 was found with a binder in it, containing 21 Secret documents and 11 Confidential documents.

When Woodward inspected this box, he discovered that the order of the cover sheets marking classified documents reflected in the scan done for the Special Master review conflicted with the order he discovered them when he reviewed the box itself.

For this box, because it was one originally inspected after the FBI ran out of cover sheets they brought with them (they didn’t expect so many classified documents!), there were three sets of cover sheets used with the document. The generic cover sheet marking the highest level of classification mark found in the box, depicted in the picture above, which the FBI took to document its search; hand-written cover sheets they used to mark individual documents after they ran out of the normal cover sheets the day of the search;

And cover sheets marked with each individual document index ID (the “ccc” in the picture) after they indexed everything.

The documents in this box were indexed as “ccc” through “iii” and then “www” through “tttt.”

For this box, each of those three cover sheets served a different purpose. The first played a role in an evidentiary picture, to document the search, and yes, the FBI put that cover sheet there on purpose to both cover up classified information and to mark how sensitive it was.

The second was a place marker for each document taken from the box and kept more securely, and the third was a cover sheet to track each individual classified document.

But this box, in particular, ended up getting particularly jumbled because there were so many classified documents all appearing in a binder.

11 The initial placeholder sheets that were put in Box A-15, unlike most of the others, included only the classification level and the number of pages. Because of the large number of documents with classification markings (32) in box A-15, which were found in a binder of information and therefore similar in nature, it was not possible for the FBI to determine from the initial placeholder sheets which removed documents corresponded to which classified document. In this instance, therefore, the FBI left the initial handwritten placeholder sheets within the binder to denote the places within the binder where the documents with classification markings were found. The FBI provided this binder for scanning at the top of the box. In addition, the FBI placed in the box 32 new placeholder sheets representing the 32 documents with classification markings in the binder. It placed them where the binder was within the box when the investigative team obtained it. None of the 32 documents is charged.

I don’t excuse that — the FBI flubbed boxes in both the Biden and Trump investigations. But as noted, in this case, it won’t be relevant to any defense Trump will offer because these documents aren’t charged.

The fact that FBI used cover sheets to mark and cover the contents of classified documents when documenting the search (as in the two pictures above) led propagandist Julie Kelly to imagine that the original photo released in an exhibit back in August 2022 must be a set-up, with the FBI using a bunch of classified cover sheets solely to make Donald Trump look worse than he was.

Julie got way over her skis claiming that Jay Bratt lied when he introduced a reference to the picture by saying that, “Certain of the documents had colored cover sheets indicating their classification status.”

The photo was a stunt, and one that adds more fuel to this dumpster-fire case.

Jay Bratt, who was the lead DOJ prosecutor on the investigation at the time and now is assigned to Smith’s team, described the photo this way in his August 30, 2022 response to Trump’s special master lawsuit:

“[Thirteen] boxes or containers contained documents with classification markings, and in all, over one hundred unique documents with classification markings…were seized. Certain of the documents had colored cover sheets indicating their classification status. (Emphasis added.) See, e.g., Attachment F (redacted FBI photograph of certain documents and classified cover sheets recovered from a container in the ‘45 office’).”

The DOJ’s clever wordsmithing, however, did not accurately describe the origin of the cover sheets. In what must be considered not only an act of doctoring evidence but willfully misleading the American people into believing the former president is a criminal and threat to national security, agents involved in the raid attached the cover sheets to at least seven files to stage the photo.

Classified cover sheets were not “recovered” in the container, contrary to Bratt’s declaration to the court.

The frothy right has been trying to claim this photo was a frame job from the start. But Julie’s theory was a particularly stupid version of the conspiracy theory. If the idea was that cover sheets make the documents look worse than, say, visible classification marks like the ones visible if you look more closely, and the more cover sheets the more useful for framing Donald Trump, why not use cover sheets on all of them? In a piece that otherwise struggled with the difference between [Box] Two and [Box] Ten, Julie counted seven cover sheets in the picture. I think there are at least eight (plus another form of cover sheet) but — another data point that undermines her conspiracy theory — a Secret cover sheet is buried in the middle of the stack, useless for the propaganda value Julie’s conspiracy theory has dreamt up.

While last week’s filing didn’t take on Julie’s conspiracy theory head on (notably, Trump has not adopted her conspiracy theory, which should tell you something), it did include the materials to understand how the initial evidentiary picture got put together.

As noted in the Jay Bratt language Julie quotes, the contents in that picture were found in a container in the “45 Office,” what Mar-a-Lago staffers called Trump’s office. The warrant return described the box holding the most sensitive documents, item 2, as a “leatherbound box of documents.”

That’s one of many ways we can be sure that this picture — which the “ooh pictures! people were very excited about mostly on account of the Diet Coke bottles, which I think short-changes the cult Donald Trump picture in the right side — depicts the same box.

The next picture in that exhibit shows how that same box got labeled Box 2, the box that Julie the Propagandist would one day confuse with Item 10.

Another picture shows what the top of the box looked like (since this is post taint search — the unsigned Sandy Hook letter that some “ooh photos” journalists claimed must be a super sensitive document, on account of hiding the name of the child gunned down at Sandy Hook — may not have been on the top of the stack when the FBI first found it).

The filing even includes the photo log showing how the photographer took pictures first of the closet (Room F), then of the box, then of the contents of the box.

Here’s that evidence photo again, which would have been taken in the foregound of the wide view picture above, with the rolled up paper and the seeming book now appearing at the top of the picture, and the tacky dresser on the left.

The picture was misleading when released, but not for the reason Julie the Propagandist suggests. It was misleading because it suggested that Trump put his Top Secret documents in with his Time Magazine covers. He didn’t. He put them in a different box, a few feet away, also in his office closet with the awful carpeting.

The filing that Julie the Propagandist claimed vindicated her conspiracy theory does the opposite. The government filing reiterates the claim — the claim that Julie the Propagandist claims caught Jay Bratt in a lie — that “Certain of the documents had colored cover sheets indicating their classification status.”

The 45 Office consisted of the “ante room,” where Trump staff members had desks (Room B); Trump’s office (Room C); a closet attached to Trump’s office (Room F); and two bathrooms (Rooms D and E). Ex. 9. Entry photos were taken of the ante room, Trump’s office, and both bathrooms. Id. Filter Team agents then discovered in the closet a blue, covered, leatherbound box full of various papers, including numerous newspapers, newspaper clippings, magazines, note cards of various sizes, presidential correspondence, empty folders, and loose cover sheets for classified information, as well as documents marked classified. Ex. 10. FBI 13 conducted the privilege review of this box, with some brief assistance from FBI 5. ECF No. 612-11 at USA01291471. FBI 13 was careful to return all items to the box after reviewing them, but did not maintain the order of the items. Id. at USA-01291472; Ex. 11 at USA-01291691. FBI 13 found no potentially privileged materials in the box. ECF No. 612-1 at USA-01291485. After FBI 13 placed all of the contents of the blue box back in the box, an ERT photographer took photos of the blue box with the cover off. Ex. 12. FBI 13 alerted the Case Team that s/he had found documents marked classified, and after s/he completed his/her privilege review, two Case Team agents reviewed the box and found numerous documents with classification markings, some of which had classification cover sheets already attached, as well as loose classification cover sheets. The Case Team agents seized the documents marked classified (as well as any cover sheets already attached) and segregated them. As they extracted the seized documents, they inserted placeholder sheets where they found them. [my emphasis]

To be sure, there’s still a step of this progression that the government didn’t include in its filing (again, this is not the primary focus of the filing because Trump has not adopted Julie the Propagandist’s conspiracy theory, at least not yet, and — one exhibit included last week also made it clear– Trump’s people had turned on CCTV surveillance before the search started, and investigators knew that).

Trump’s initial MTD included notes and last week’s filing includes a follow-up interview with Agent 13. Agent 13 was the primary person who did the filter search of the closet. The original notes describe the agent, “does recall seeing cover sheets inside box[,] don’t know one way or other if cover sheets in photo came from box.” In the follow-up, the agent described that the lid to the leatherbound box was on the box when they found it (meaning the evidence pictures thereafter reflect what happened after the filter search).

That testimony is utterly consistent with the picture: that at least some of the cover sheets in the picture are the ones Agent 13 found when they did the search. But you’d need to add the testimony of the photographer and the two investigative agents to learn whether all of them were, or learn whether any of the loose cover sheets in the box were also used in the photo.

Nevertheless, it’s a pointless conspiracy theory. Julie the Propagandist has made a big deal out of cover sheets used in the way cover sheets are supposed to be used: to convey that something is classified and prevent any incidental exposure. But the picture doesn’t, primarily, show cover sheets. Indeed, it shows at least ten documents without classified cover sheets (covered instead with blank cover sheets), virtually all with classification markings visible.

More importantly, what the filing and the original photo both show the chain of custody of a box that — no amount of squealing about cover sheets disputes — clearly shows at least 22 of the 24 documents alleged to have been found in the box, most with classification markings visible.

Tracking what these exhibits do explicitly and — with more effort — implicitly takes time. But responding to conspiracy theories with facile reporting squealing, “Ooohh pictures” serves nobody, except media outlets looking for free reporting and conspiracy theorists hoping to turn truth into a both-sides dispute.

Sammy Alito Makes a Great Case Trump Censored Fox News’ Accurate 2020 Election Reporting

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As Rayne noted, today a 6-Justice majority rejected the right wing conspiracy theory ginned up by Missouri and Louisiana’s since promoted Attorneys General claiming that the Federal government was making social media companies censor right wing speech.

Amy Coney Barrett’s majority opinion is worth reading for her footnotes attacking the Fifth Circuit’s credulous adoption of Judge Terry Doughty’s credulous adoption of conspiracy theories spawned by the likes of Matt Taibbi and Jim Jordan.

4The Fifth Circuit relied on the District Court’s factual findings, many of which unfortunately appear to be clearly erroneous. The District Court found that the defendants and the platforms had an “efficient report-and-censor relationship.” Missouri v. Biden, 680 F. Supp. 3d 630, 715 (WD La. 2023). But much of its evidence is inapposite. For instance, the court says that Twitter set up a “streamlined process for censorship requests” after the White House “bombarded” it with such requests. Ibid., n. 662 (internal quotation marks omitted). The record it cites says nothing about “censorship requests.” See App. 639–642. Rather, in response to a White House official asking Twitter to remove an impersonation account of President Biden’s granddaughter, Twitter told the official about a portal that he could use to flag similar issues. Ibid. This has nothing to do with COVID–19 misinformation. The court also found that “[a] drastic increase in censorship . . . directly coincided with Defendants’ public calls for censorship and private demands for censorship.” 680 F. Supp. 3d, at 715. As to the “calls for censorship,” the court’s proof included statements from Members of Congress, who are not parties to this suit. Ibid., and n. 658. Some of the evidence of the “increase in censorship” reveals that Facebook worked with the CDC to update its list of removable false claims, but these examples do not suggest that the agency “demand[ed]” that it do so. Ibid. Finally, the court, echoing the plaintiffs’ proposed statement of facts, erroneously stated that Facebook agreed to censor content that did not violate its policies. Id., at 714, n. 655. Instead, on several occasions, Facebook explained that certain content did not qualify for removal under its policies but did qualify for other forms of moderation.

I may come back to this.

For now, though, what I’m interested in is Sammy Alito’s apparent presumption that he should measure a media outlet — even a social media company!! — based on its apparent subservience to government actors.

To support his indirect argument that one of the plaintiffs, activist Jill Hines, has been injured, Alito first tries to lay out a case whereby Facebook has been cowed by the United States government, so he can later make a correlative argument that the Hines’ injury that, as ACB noted, “started [] before almost all of its communications [between Facebook and] the White House and the CDC,” was instead caused by it.

Alito really really wants to make this argument, because if he doesn’t he’s got nothing to show for this partisan effort! ACB even invokes a 7th Circuit quip about Alito’s efforts to go make this case for Hines: “[j]udges are not like pigs, hunting for truffles buried [in the record].”

Alito attempts this feat, in part, by arguing that social media companies are more susceptible to government pressure than other media companies. He claims that Presidents cannot put particular newspapers that cross him out of business, and then lays out ways that social media companies — Section 230, anti-trust, and (!?!?!) EU regulation — are more susceptible.

Second, internet platforms, although rich and powerful, are at the same time far more vulnerable to Government pressure than other news sources. If a President dislikes a particular newspaper, he (fortunately) lacks the ability to put the paper out of business. But for Facebook and many other social media platforms, the situation is fundamentally different. They are critically dependent on the protection provided by §230 of the Communications Decency Act of 1996, 47 U. S. C. §230, which shields them from civil liability for content they spread. They are vulnerable to antitrust actions; indeed, Facebook CEO Mark Zuckerberg has described a potential antitrust lawsuit as an “existential” threat to his company.4 And because their substantial overseas operations may be subjected to tough regulation in the European Union and other foreign jurisdictions, they rely on the Federal Government’s diplomatic efforts to protect their interests.

His first examples have merit. This last one?

A matter that may well have been prominent in Facebook’s thinking during the period in question in this case was a dispute between the United States and the European Union over international data transfers. In 2020, the Court of Justice of the European Union invalidated the mechanism for transferring data between the European Union and United States because it did not sufficiently protect EU citizens from Federal Government surveillance. Data Protection Comm’r v. Facebook Ireland Limited, Case C–311/18 (2020). The EU-U. S. conflict over data privacy hindered Facebook’s international operations, but Facebook could not “resolve [the conflict] on its own.” N. Clegg & J. Newstead, Our Response to the Decision on Facebook’s EU-US Data Transfers, Meta (May 22, 2023).23 Rather, the platform relied on the White House to negotiate an agreement that would preserve its ability to maintain its trans-Atlantic operations. K. Mackrael, EU Approves Data-Transfer Deal With U. S., Averting Potential Halt in Flows, Wall Street Journal, July 10, 2023.24

It doesn’t make sense. What he’s talking about is driven by Executive Branch surveillance equities — largely, the Section 702 program made better known by Edward Snowden. In the case of surveillance, Facebook is the one that has leverage over the US, because the government wants to keep its surveillance visibility, and so Facebook can and has demanded that the government set up special provisions for European citizens, so Facebook can keep operating seamlessly.

Having laid out his argument that Facebook, with its service to half the global population base, is more susceptible to pressure than other media companies, Alito then cites individual communications to opine that poor Facebook was bullied into subservience by Executive branch demands.

What these events show is that top federal officials continuously and persistently hectored Facebook to crack down on what the officials saw as unhelpful social media posts, including not only posts that they thought were false or misleading but also stories that they did not claim to be literally false but nevertheless wanted obscured. See, e.g., 30 id., at 9361, 9365, 9369, 9385–9388. And Facebook’s reactions to these efforts were not what one would expect from an independent news source or a journalistic entity dedicated to holding the Government accountable for its actions. Instead, Facebook’s responses resembled that of a subservient entity determined to stay in the good graces of a powerful taskmaster. Facebook told White House officials that it would “work . . . to gain your trust.” Id., at 9365. When criticized, Facebook representatives whimpered that they “thought we were doing a better job” but promised to do more going forward. Id., at 9371. They pleaded to know how they could “get back to a good place” with the White House. Id., at 9403. And when denounced as “killing people,” Facebook responded by expressing a desire to “work together collaboratively” with its accuser. 9 id., at 2713; 78 id., at 25174. The picture is clear.

[snip]

Internal Facebook emails paint a clear picture of subservience. The platform quickly realized that its “handling of [COVID] misinformation” was “importan[t]” to the White House, so it looked for ways “to be viewed as a trusted, transparent partner” and “avoid . . . public spat[s].” [my emphasis]

Facebook’s efforts to retain good relations with the Biden White House, media critic Sammy Alito says, “were not what one would expect from an independent news source or a journalistic entity dedicated to holding the Government accountable for its actions.”

That’s mighty interesting, because when I read his description depicting Facebook as subservient to a President, all I could think of were the filings Dominion submitted to get Fox News to settle its lawsuit.

I’ve never seen subservience like that depicted in Fox News communications as they faced the possibility that Trump would cut them off for telling the truth about the 2020 election.

Immediately after Fox News called Arizona for Biden, Trump’s team called to complain.

Within minutes of the 11:20 pm Arizona call,FoxNews SVP and ManagingEditorofthe Washington Bureau Bill Sammon received an angry text from a member of Trump’s team claiming itwas WAY too soon to be calling Arizona. Ex.192 Ex.140, Sammon 107:8-108:11. Minutes later Sammon received a similarly angry phone call from White House Chief of Staff Mark Meadows. Ex.140,Sammon 108:12-110:4.

As pressure built in response, top personalities talked about reckless demagogues attacking the network for their factual call.

Carlson wrote his producer Alex Pfeiffer on November 5: We worked really hard to build what we have. Those fuckers are destroying our credibility. It enrages me.” Ex.199 at FNN035_03890623 . He added that he had spoken with Laura and [Sean a minute ago and they are highly upset. at FNN035_03890624. Carlson noted: At this point we’re getting hurt no matter what. Id. at FNN035_03890625 . Pfeiffer responded: It’s a hard needle to thread, but I really think many on our side are being reckless demagogues right now Tucker replied: Of course they are. We’re not going to follow them. And he added: What [Trump]’s good at is destroying things . He’s the undisputed world champion of that. He could easily destroy us if we play it wrong. at FNN035 03890626

Tucker Carlson acknowledged that Trump could destroy Fox news.

And so, in response, Fox started censoring factual news about Joe Biden’s win and instead choosing to report false claims of election fraud.

Sammy Alito may believe that a President can’t take out a newspaper who crosses him.

But Donald Trump responded to Fox News’ accurate call of Arizona for him by demonstrating to Fox that he could take out the cable station, effectively replacing them in the media economy with NewsMax. And that threat from the sitting President of the United States, the threat to replace Fox News with Newsmax, led Fox News to censor themselves, even censoring Jacqui Heinrich specifically.

Meanwhile,later that night of November 12,Ingraham was still texting with Hannity and Carlson . In their group text thread,Carlson pointed Hannity to a tweet by Fox reporter Jacqui Heinrich. Ex.230 at FNN035_03890511 . Heinrich was fact checking atweet by Trump that mentioned Dominion and specifically mentioned Hannity’s and Dobbs broadcasts that evening discussing Dominion . Ex.232; Ex.231. Heinrich correctly fact-checked the tweet, pointing out that top election infrastructure officials said that There is no evidence that any voting system deleted orlostvotes ,changed votes ,or was in any way compromised Id Ex.232 .

Carlson told Hannity : Please get her fired. Seriously What the fuck ? actually shocked It needs to stop immediately , like tonight. It’s measurably hurting the company. The stock price is down. Not a joke.

Sammy Alito got it wrong when he said a President can’t take out a media outlet who crosses him. Donald Trump proved that in 2020, after Fox called Arizona for Biden. And Sammy Alito’s very psyche likely has been altered as a result, as Fox News continues to feed the propaganda Trump demands.

The irony of all this is that Alito repeatedly complains that the Biden White House raised Facebook’s role, as a platform, in fostering Trump’s insurrection.

To emphasize his urgency, Flaherty likened COVID–19 misinformation to misinformation that led to the January 6 attack on the Capitol. Ibid. Facebook, he charged, had helped to “increase skepticism” of the 2020 election, and he claimed that “an insurrection . . . was plotted, in large part, on your platform.”

[snip]

Facebook informed the White House that the video did not “qualify for removal under our policies” and thus would be demoted instead, ibid., but that answer did not please Flaherty. “How was this not violative?” he queried, and “[w]hat exactly is the rule for removal vs demoting?” Id., at 9387. Then, for the second time in a week, he invoked the January 6 attack: “Not for nothing, but last time we did this dance, it ended in an insurrection.” Id., at 9388. When Facebook did not respond promptly, he made his demand more explicit: “These questions weren’t rhetorical.”

But his description of a subservient media outlet far better describes Fox News, which was recruited to help sow insurrection by what, according to Alito’s measure, was Presidential censorship.

Sammy Alito says that if the President demands that a media outlet censor true content to publish favored content, that is impermissible censorship.

He makes a great case that Donald Trump unlawfully dictated Fox News’ coverage during the 2020 transition.

The Nuclear Weapons Document Trump Stashed under Bubble Wrap and a Christmas Pillow

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As noted, Jack Smith has filed his response to Trump’s bid to throw out his stolen document indictment because the order of certain boxes was not retained.

A key part of Smith’s response argues that document order within boxes hasn’t been central to any of Trump’s defenses to date, but in any case, his complaint about document order is a ruse (though Aileen Cannon likely won’t treat it as such). That’s partly because of the sheer variety of things found in boxes with classified documents, including “newspapers, thank you notes, Christmas ornaments, magazines, clothing, and photographs of himself and others,” making it far more difficult to retain document order.

And that’s partly because Trump kept moving items within boxes and boxes themselves around. The government included a Molly Michael interview, for example, where she described that some of the contents of boxes that she and Walt Nauta brought to Trump for sorting in advance of him returning 15 boxes to NARA in January 2021 got consolidated.

And pictures included as exhibits show that the spill of boxes Nauta discovered in the storage room was more extensive than previously disclosed — involving at least four boxes. Other exhibits show how the classified document exposed as part of that spill was found in the storage closet in box A-35 over a year later.

As the response and previous filings describe, that document — a Five Eyes document dated October 4, 2019 — was charged as Count 8.

A table included in the filing describes where all the charged documents were found.

So three of the charged documents were found in this box, the blue leatherbound box found next to Diet Coke bottles and some weird cult painting of Trump, in a closet off his office.

Those three documents, all classified Top Secret and at least two of which date to May 2018 (Matt Tait speculated after the search that one was a PDB pertaining to Trump’s withdrawal from the Iran deal), would be among the items included in this evidence picture.

This box is actually one of the only ones where the filter agent didn’t retain document order at all, so if Judge Cannon were to throw out charges because of document order (which would itself be unprecedented), it would implicate as few as three of the charges.

Side note: The narrative on this box confirms that Julie Kelly is a dumbass propagandist. It confirms that some of the documents in the box had cover sheets on them, and there were other loose cover sheets in the box.

After FBI 13 placed all of the contents of the blue box back in the box, an ERT photographer took photos of the blue box with the cover off. Ex. 12. FBI 13 alerted the Case Team that s/he had found documents marked classified, and after s/he completed his/her privilege review, two Case Team agents reviewed the box and found numerous documents with classification markings, some of which had classification cover sheets already attached, as well as loose classification cover sheets. [my emphasis]

Julie the Propagandist is nevertheless reading a different part of the filing — which described cover sheets that are not in this picture — and claiming she was right.

Seven of the documents were found among these boxes in the storage room (the box with the rectangle is where the FVEY document caught in Nauta’s December 2021 picture ended up).

And fully ten of the documents charged were found under some bubble wrap and a Christmas pillow in this box, which would have been found in the storage room, perhaps on the opposing wall to the picture above.

 

That means that one of the documents stashed under the bubble wrap and the Christmas pillow, charged as Count 19, was classified Formerly Restricted under the Atomic Energy Act, meaning it pertains to US nuclear weapons.

Just about the only interesting treatment of document cover sheets happens to pertain to this box, which also happens to be the one that Stan Woodward started this whole stink about.

 

As Smith’s filing explains, the box included 32 documents with classification markings (of which 11 were confidential), all in one binder (could this be the Crossfire Hurricane binder?!?!). Because everything in the binder was related, it was impossible to reconstruct which placeholder went with which document.

11 The initial placeholder sheets that were put in Box A-15, unlike most of the others, included only the classification level and the number of pages. Because of the large number of documents with classification markings (32) in box A-15, which were found in a binder of information and therefore similar in nature, it was not possible for the FBI to determine from the initial placeholder sheets which removed documents corresponded to which classified document. In this instance, therefore, the FBI left the initial handwritten placeholder sheets within the binder to denote the places within the binder where the documents with classification markings were found. The FBI provided this binder for scanning at the top of the box. In addition, the FBI placed in the box 32 new placeholder sheets representing the 32 documents with classification markings in the binder. It placed them where the binder was within the box when the investigative team obtained it. None of the 32 documents is charged.

But as described, none of them are charged.

To sum up, then. Of the boxes from which charged documents were found, only one — the blue leatherbound box found in Trump’s office — clearly lost document order (but partly that would derive from there being so many classified documents found). The one box where document order was a problem — the one that Stan Woodward made a stink out of — has no charged documents.

But thanks for helping us clarifying, Stan, that Trump stored his document about nuclear weapons under a Christmas pillow.

Links

Jack Smith Response

Exhibit 1: Search warrant and affidavit

Exhibit 2: Interview report with person 81 describing how obsessive Trump was about his boxes at the White House

Exhibit 3: Additional copies of 2021 spill of four boxes

Exhibit 4: Evidence photo showing boxes stacked in storage room at beginning of search

Exhibit 5: 230322 interview with Molly Michael describing how Trump consolidated some of the boxes she and Walt Nauta brought Trump in 2021

Exhibit 6: 220817 302 documenting search of Mar-a-Lago

Exhibit 7: Interview transcript with Person 29 (Trump Organization official) describing how they turned off the CCTV server, but then had it turned back on directly at Mar-a-Lago during the search

Exhibit 8: Showing evidence picture of items 14 and 23, with classified docs pulled out

Exhibit 9: Photo log describing photos documenting search, including Trump’s office

Exhibit 10: Evidence photo of item 2

Exhibit 11: 302 from June 20, 2024 phone call with filter agent FBI 13 regarding the search of the leatherbound box

Exhibit 12: Showing how item 2 — the blue leatherbound box in Trump’s office closet with the most sensitive documents — was found next to coke bottles and a cult painting of him

Exhibit 13: Showing where classified documents were found

Exhibit 14: Documenting belated discovery of Top Secret document in box 57

Exhibit 15: Instructions for document handling for Special Master scan

Exhibit 16: Showing what random things were found in boxes 10, 19, and 28

Exhibit 17: 302 describing picking up additional classified documents from Molly Michael on August 9

Trump Motion to Dismiss

Exhibit 1: 220926 After Action Report on search, describing filter teams

Exhibit 2: Version of search warrant return

Exhibit 3: 220809 email documenting meeting with Molly Michael to collect more classified documents, which Trump misrepresented

Exhibit 4: 230605 documentation of scan process

Exhibit 5: 220928 email describing scan process, including replacement of cover sheets

Exhibit 6: 231128 memorialization of 230711 meetings with filter team to discuss search

Exhibit 7: 220806 hand-written notes memorializing planning for search

Exhibit 8: 231009 Todd Blanche discovery request

Exhibit 9: 231016 DOJ response

Exhibit 10: 240521 memorialization of May 2024 meetings between FBI and Special Counsel about search

Exhibit 11: 240324 hand-written notes of interview with privilege team

Exhibit 12: 2405?? hand-written notes of interview with privilege team

Exhibit 13: 240523 discovery letter turning over filter team materials

Exhibit 14: 240305 memorialization of item split

Exhibit 15: Notes showing Stan Woodward looking in Box A-14 (of which he took a picture), A-15, A-16, A-45, A-71, and A-73

Exhibit 16: 220830 documentation of evidence split

 

“Double Jeopardy Protection … Is [Hunter Biden’s] Right”

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“Mr. Biden took the case to trial,” Abbe Lowell wrote in a reply brief arguing that an June 25, 2022 amendment to the statute that previously made 18 U.S.C. § 922(g)(3) a crime made the possession charge filed against Hunter non-viable retroactively, “so that either by conviction or acquittal from the jury or by this Court, he would have double jeopardy protection against future prosecutions. That is his right.”

The means by which Lowell hopes to make the third count of which Hunter was convicted go away are a bit tricker than that: basically, when Congress changed the gun law in 2022, they added another one, increasing the penalty on the charge. But there was no way (Lowell argues) to charge Hunter under a law enacted four years after he owned a gun if he hadn’t already been charged.

The Special Counsel’s invocation of the 1871 savings clause now found in 1 U.S.C. § 109 is off base, because that statute only saves prosecutions that already had been filed when the law was amended. It does not allow the Special Counsel to bring new prosecutions post-amendment based on conduct that violated a pre-amendment statute, which is exactly what the Special Counsel has done. Not only does the language of Section 109 itself make this clear, but the 153-year history since the statute was enacted confirms this reading. Congress regularly attaches savings clauses to legislation to allow new prosecutions to be brought for violations of prior law, when it chooses to do so, and it did not do so here.

As I said here, I was persuaded by Derek Hines’ argument that this complaint is untimely. I’m no longer so sure.

What I am humbly reconsidering, though, is whether when I scolded others for oversimplifying the reasons why Hunter would go to trial, I was not myself also oversimplifying.

Take the new motion Lowell filed today (though he accidentally posted, then withdrew it, last week), arguing that because the Third Circuit never issued a mandate after rejecting Hunter’s second bid for interlocutory appeal, Maryellen Noreika did not have jurisdiction over this case when she held a trial.

The Third Circuit entered an order dismissing Mr. Biden’s second appeal on May 28, 2024, and denied Mr. Biden’s rehearing petition on the first appeal on May 31, 2024. The Third Circuit, however, did not then and has not yet issued its mandate as to the orders dismissing either appeal. Thus, when this Court empaneled the jury on June 3, 2024 and proceeded to trial, it was without jurisdiction to do so.

This particular motion would not win an acquittal if it were to succeed. It would only get Hunter a new trial.

But if Lowell was really confident that this jurisdictional ploy would work, it might explain some of the things he appeared to let slide at trial. If Lowell expected he might get a second trial, potentially even one with the core gun charge eliminated, he might let some things slide he otherwise would not, thereby preserving those arguments for a potential second trial.

That leaves the substantive reply submitted today, Lowell’s post-Rahimi support for Hunter’s as-applied Second Amendment challenge, which like Derek Hines’ response, is longer than his initial Rule 29 motion (though the reply is still have the length of Hines’ response).

This fight — because of the nearly unique nature of the charges against a non-violent offender like Hunter, because of the circumstances of his charging, because of the timing — was always going to be interesting.

It does not disappoint.

This filing mocks SCOTUS as much as David Weiss’ folks.

The Special Counsel often relies on post-Founding Era purported precedents, but those come too late to inform what was intended by those who ratified the Second Amendment. As Rahimi explained: “A court must ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit, ‘apply[ing] faithfully the balance struck by the founding generation to modern circumstances.’” Slip op. at 7 (quoting N.Y. State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 29 & n.7 (2022); see also Slip op. at 3 (Gorsuch, J. concurring) (noting the relevant timeframe is the time of founding for interpreting the Constitution); Slip op. at 2 (Barrett, J., concurring) (explaining post-ratification practice may not reflect Founding Era views); Slip op. at 28 (Thomas, J., dissenting).

But the key point does something similar to the other tactical moves Lowell took today: It uses Leo Wise and Derek Hines’ prosecutorial dickishness against them. It notes that, against Lowell’s wishes, Judge Noreika granted prosecutors’ bid to keep all Second Amendment claims out of trial.

It was only told to find whether the statutes as written were violated—without any further finding necessary to satisfy the Second Amendment. 6/10/24 Tr. at 1298. In fact, the Special Counsel sought, and this Court granted, a motion in limine to prevent reference to a Second Amendment defense. D.E.189 at 3 (Order granting government’s motion (D.E.124) to exclude argument, evidence and questioning relating to the constitutionality of the firearm statute). The Sixth Amendment prevents Mr. Biden’s conviction from resting upon any judge found facts, those facts must be found by a jury beyond a reasonable doubt, and—over Mr. Biden’s objection—the jury was not even asked to find the facts necessary for his conduct to be a crime consistent with the Second Amendment. Erlinger, Slip op. at 11 (“Judges may not assume the jury’s factfinding function for themselves, let alone purport to perform it using a mere preponderance-of-theevidence standard.”).

It emphasizes that Derek Hines instructed the jury from the start that they were not to consider the one thing SCOTUS says should be considered: whether an individual is dangerous.

Beyond advancing this erroneous legal theory (or “invented” theory, according to Justice Thomas, Slip op. at 28 (Thomas, J., dissenting)), the Special Counsel is simply wrong in claiming that Mr. Biden posed any risk of violence. We do not quarrel with the Special Counsel’s claims and statistics that many users of crack are violent and have misused guns, but—while the Special Counsel has extensively chronicled Mr. Biden’s conduct over several years of crack use—the Special Counsel has not identified a single time in which Mr. Biden became violent. Not one. And there is no evidence whatsoever that Mr. Biden ever loaded, fired, brandished, or threatened anyone with a gun, or that it was ever even in his actual physical possession at any time in which he was allegedly using any drug.

Mr. Hines conceded this point in his opening:

To be clear, Mr. Biden is not charged with a violent offense, the gun was taken from him just after 11 days before anything like that could occur. But it’s important to note that whether the defendant is dangerous is not an issue that’s relevant for your determinations in this case. He’s just charged with possession of a gun. 6/4/24 Tr. at 341 (emphasis added).

Not only is this an acknowledgment that no violent offense did “occur,” Mr. Hines told the jury it would not be making any finding as to “whether the defendant is dangerous.” Id. And he was right about that—nothing in the jury instructions asked the jury to find whether Mr. Biden was dangerous. Thus, even if this is an element of the offense that must be read into the statute to make it constitutional, the jury was not asked to find this element met as is required by the Sixth Amendment.

And it notes that Derek Hines cannot now argue that Hunter Biden was dangerous categorically.

The Special Counsel devotes much of its opposition to claiming that Mr. Biden’s drug use made him dangerous(D.E.234 at Sec. I.B.), but Rahimi clearly rejected the government’s argument that this is a basis for disarmament. A more particularized historical analogy is required. As the Supreme Court explained in Rahimi, while “holding that Section 922(g)(8) is constitutional as applied to Rahimi,” the Court “reject[ed] the Government’s contention that Rahimi may be disarmed simply because he is not ‘responsible.’” Slip op. at 17; see Slip op. at 6 (Gorsuch, J., concurring) (“Nor do we purport to approve in advance other laws denying firearms on a categorical basis to any group of persons a legislature happens to deem, as the government puts it, not ‘responsible.’”) (emphasis added). At oral argument, the government explained that “when it used the term ‘responsible’ in its briefs, it really meant ‘not dangerous.’” Slip op. at 28 (Thomas, J. dissenting) (emphasis in original). With respect to this argument “that the Second Amendment allows Congress to disarm anyone who is not ‘responsible’ and ‘law-abiding,’” Justice Thomas emphasized: “Not a single Member of the Court adopts the Government’s theory.” Id. at 27. To highlight thisfact, Justice Gorsuch requoted Justice Thomas’ point in his concurrence. Slip op. at 6 (Gorsuch, J., concurring) (“Not a single Member of the Court adopts the Government’s theory”).

The reason for that is self-evident. The Government’s proposed justification is also far too general. Nearly all firearm regulations can be cast as preventing ‘irresponsible’ or ‘unfit’ persons from accessing firearms. In addition, to argue that a law limiting access to firearms is justified by the fact that the regulated groups should not have access to firearms is a logical merry-goround. As the Court has made clear, such overly broad judgments cannot suffice.

Slip op. at 15 (Thomas, J., dissenting).

It’s the jury’s job to make findings of fact that might be required by SCOTUS’s fiddling with gun laws.

The Special Counsel devotes much of his brief to arguing the facts, but he is directing his repeated closing argument to the wrong forum. This Court properly told the jury that “you are the sole judges of the facts,” and this jury was not asked to find the constitutionally relevant facts.

This won’t persuade Judge Noreika. But it will bollox the posture of this case, particularly if Hunter wins a retrial based on the jurisdictional ploy. What kind of jury instructions would Noreika give, post-Rahimi?

Finally, Lowell notes that if SCOTUS eventually does change the rules on 18 USC 922(g)(3) prosecutions — perhaps by requiring that a jury find a defendant also posed a danger as an addict — Hunter would never have had notice of this standard before he violated it.

That begs the question:* where is this line that separates not only what is legal from what is illegal, but where the exercise of a constitutionally protected right becomes a felony? How does a person have fair notice of when he or she is allowed to possess a firearm if they used a prohibited substance a day, a week, a month or, as the Special Counsel argued, years before? This Court has not said, and the jury that would have to find a constitutionally permissible charge to convict was not told either. In other words, whatever more facts must be proven beyond Section 922(g)(3)’s statutory language for a conviction to be proven—such as active intoxication while physically armed and terrorizing people—remains an unknown and were never found by the jury.

Moreover, once the Court does announce where this line exists, that guidance is only of value to the people of Delaware prospectively. It comes too late for people like Mr. Biden to be able to conform their conduct within the constitutional bounds of the law previously. Thus, while courts may impose limiting constructions on a statute to resolve constitutional problems with them in some circumstances, principles of due process notice prevent those new standards from being applied retroactively. See, e.g., Marks v. United States, 430 U.S. 188, 194–95 (1977); Bouie v. City of Columbia, 378 U.S. 347, 362 (1964). Additionally, when courts add a judicial gloss on a statute, that gloss must be charged in an indictment like any other element. See, e.g., Simmons, 96 U.S. at 363. There is no point in saving a statute from being found unconstitutional through a limiting construction if the grand jury that makes a charging decision and the jury that is asked to convict are never told what is required by a court’s limiting construction. Consequently, if the Court finds that the Second Amendment places a gloss on Section 922(g)(3) that narrows the constitutionally permissible scope of the statute, Mr. Biden must be acquitted on that ground alone.

None of this is about contesting the circumstances of Hunter’s addiction when he possessed a gun. Rather, it’s about contesting whether his addiction would be enough to satisfy any new standard SCOTUS might adopt.

But these problems were always inherent in charging a non-violent offender on gun charges just days before the statutes of limitation expired even as multiple post-Bruen challenges threatened to change the landscape of the crimes charged.

This won’t win acquittal on all charges for Hunter. But it may well complicate things.

* Note: Having called out Judge Scarsi for his misuse of “begs the question,” I must call out Lowell’s usage here, too.

Derek Hines Ensures that Two Likely Appeals Will Implicate His False Claims about Hunter Biden’s New Haven Crack Pipe

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Hunter Biden filed three Rule 29 motions after the government rested in its case in chief against him in Delaware: a motion claiming there was insufficient evidence against him that is a formality in advance of other appeals, a claim about a recent change in the gun law that David Weiss convincingly argued is untimely, and his promised Second Amendment as-applied challenge.

While I disagree with virtually every commentator that a Second Amendment challenge is Hunter’s best chance at overturning his conviction, the as-applied challenge, more than his more general Second Amendment challenge, may prove important in years ahead– and it will take years, not least because Judge Noreika is unlikely to grant this challenge.

After all, one thing that makes Hunter’s prosecution almost unique is that there was and is no other legal judgment to implicate a tie between his addiction and the purchase of the gun, such as a related crime. There was no legal fact-finding, as there had been in imposing the restraining order on Rahimi, that he posed a threat. No court had found Hunter’s addiction to pose a threat to others. When a Biden-hating cop interviewed him after Hallie filed a police report, that cop did not prosecute — or even test — Hunter for doing drugs in the recent days.

On Friday, hours after the Supreme Court ruled against Zackey Rahimi’s challenge to restrictions on domestic abusers’ gun ownership, Derek Hines filed Special Counsel’s opposition to Hunter’s as-applied challenge. Unsurprisingly (and uncontroversially), the opposition relies heavily on Rahimi decision.

At trial, the government proved that the defendant was a heavy crack cocaine user who frequently posed a danger to himself and others. Section 922(g)(3), as applied to the defendant, falls squarely within “this Nation’s historical tradition of firearm regulation” and comports with the Second Amendment. New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 17 (2022). The Supreme Court’s decision today in United States v. Rahimi, No. 22-915 (U.S. June 21, 2024) clarified that Bruen only requires the government to show “the challenged regulation is consistent with the principles that underpin our regulatory tradition,” not that it is “identical” to a regulation at the founding. Slip op at 7. This significantly undermines the defendant’s reliance on United States v. Daniels, 77 F.4th 337 (5th Cir. 2023), which cites repeatedly to the now-reversed Fifth Circuit decision in Rahimi. As to the Fifth Amendment challenge, because § 922(g)(3) provides fair notice of the conduct it prohibits, it is not unconstitutionally vague. The Court should therefore deny the defendant’s motion.

But aside from that tactical opportunism, Hines doesn’t argue why Hunter himself posed a danger as a gun owner in October 2018, beyond pointing to the specific gun paraphernalia that, Abbe Lowell argued fairly convincingly, Gordon Cleveland upsold Hunter Biden to purchase.

Indeed, having argued assertively at trial that Hunter was a very high functioning crack addict, Hines relies on general policy arguments about addicts’ impairment to explain the danger of him owning a gun.

It is beyond dispute that firearm possession while operating under significant cognitive impairment in critical areas like attention, speed of processing, emotional regulation, inhibition control, and the ability to prioritize negative long-term consequences—not to mention psychological and physiological effects like panic, paranoia, tremors, or muscle twitches—presents a significant public safety risk. Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 670-71, 674 (1989). The dangerousness of the defendant’s cocaine use is vividly shown by the evidence presented at trial, in which the loss of inhibition, emotional regulation, and self-control was demonstrated. See, e.g., Ex. 19 at 170-74 (discussing an episode in which the defendant drove a 500-mile road trip on which he wrecked a rental car when he hit the curb and spun into oncoming traffic, chain-smoked crack cocaine while driving, and chased a possibly hallucinatory barn owl at high speeds “through a series of tight, bounding switchbacks”).

As the Fried court noted, “unlawful drug use . . . causes significant mental and physical impairments that make it dangerous for a person to possess firearms.” 640 F. Supp. 3d at 1262-63. People who habitually use a substance like crack cocaine that impairs the ability to think, judge, and reason “are analogous to other groups the government has historically found too dangerous to have guns.” Id. at 1263; see also Wilson v. Lynch, 835 F.3d 1083, 1094 (9th Cir. 2016) (“It is beyond dispute that illegal drug users . . . are likely as a consequence of that use to experience altered or impaired mental states that affect their judgment and that can lead to irrational or unpredictable behavior.”); United States v. Carter, 750 F.3d 462, 469-70 (4th Cir. 2014) (finding “convincing” the government’s argument “that drugs ‘impair [users’] mental function . . . and thus subject others (and themselves) to irrational and unpredictable behavior’”); Yancey, 621 F.3d at 685 (“habitual drug abusers, like the mentally ill, are more likely to have difficulty exercising self-control, making it dangerous for them to possess deadly firearms”).

Perhaps the weirdest thing Hines does, as he did at trial, is to present evidence of Hunter’s later condition to substantiate his case, citing evidence of Hunter’s crack use in November and December 2018 and February and March 2019.

By March 2019, he claimed he had “no plan beyond the moment-to-moment demands of the crack pipe” and that this period followed “four years of active addiction.” Id. at 219-20.

[snip]

The defendant also discussed purchasing drugs in text messages with several individuals, showing a pattern of consistent drug use from spring 2018 to spring 2019. See, e.g., Ex. 18 at Row 1-22 (April 2018); id. at Row 23-65 (May 2018); id. at Row 66-72 (June 2018); id. at Row 73-85 (July 2018); id. at Row 86-87 (August 2018); id. at Row 169- 80 (November 2018); id. at Row 195-206 (December 2018); id. at Row 217-49 (February 2019). [my emphasis]

Admittedly, Hines would have had virtually all of this written before Rahimi. But the SCOTUS decision stresses temporary prohibitions, not permanent ones. And particularly absent a focus on Hunter’s drug use between the time of his August rehab and the gun purchase (Hines cites but does not quote Zoe Kestan’s testimony describing Hunter’s use in September 2018), Hines’ inclusion of so much evidence that post-dates Hunter’s ownership of a gun entirely makes the constitutional question more interesting.

Can an addict really lose his Second Amendment rights for future addiction?

And in the middle of one of those passages about Hunter’s future drug use months after he owned the gun, Hines includes the false claim he won’t stop making: that Hunter’s description of “me and a crack pipe in a Super 8” pertained to the state of his addiction in fall 2018, shortly after he owned a gun, rather than four months later, after Fox News pundit Keith Ablow’s treatment had made Hunter’s addiction worse.

The defendant characterized his daily experience in November 2018 as “me and a crack pipe in a Super 8 [motel], not knowing which the fuck way was up,” explaining that “[a]ll my energy revolved around smoking drugs and making arrangements to buy drugs.” Id. at 208. According to the defendant, by March 2019, he had “no plan beyond the moment-to-moment demands of the crack pipe.” Id. at 219-20.

Now, Hines’ obtuse misrepresentation of this passage presents more problems for a defense against a vindictive prosecution appeal. After all, by repeating this false claim six times (he repeated it in his response to the sufficiency challenge, as well, because apparently Hines doesn’t know “which the fuck way [is] up”), Hines is either confessing that he grossly misread the memoir which he successfully argued before Judge Noreika distinguished Hunter from other non-violent addicts who never get charged…

…Or he simply framed Hunter Biden before the grand jury, just like a corrupt Baltimore cop would frame someone by planting a crack pipe, claiming that conduct that took place long after the charged crime instead took place just weeks later.

Derek Hines had little of the evidence he used to prove his case at trial when he indicted Hunter Biden in September of last year. He didn’t have the cocaine residue in the leather pouch, he didn’t have a warrant to search Hunter’s text messages for evidence of gun purchases, he had some, but not all, of Kestan’s testimony.

Did he falsely tell the grand jury, as he told Maryellen Noreika and insinuated to the jury, that this passage pertains to “fall 2018”?

Did he make an easily disproven false claim to the grand jury to get that indictment? (The materials below show how easy this should be for a literate prosecutor to understand.)

But it is in Kestan’s testimony where his continued recitation of this line poses problems.

To win this constitutional challenge, Hines needs Kestan’s testimony that Hunter was doing drugs between his August rehab and his October gun purchase to be credible, because otherwise there are questions about the status of his addiction when he purchased the gun.

Q. And this was September the 18th of 2018, right?

A. I believe I was in the room by myself when I took that photo, so I think the day that we woke up there and he left later was the 17th.

Q. Okay. The day or — and the night he was there with you, did you see him smoking crack at The Freehand?

A. Yes.

[snip]

Q. All right. Now, when you get there on September the 20th of 2018, you’ve already testified he was smoking crack at The Freehand. Was he smoking crack at the Malibu house, when you were there in that week starting on September the 20th?

A. Yes.

But — on top of the full excerpt and spending records I place below, showing that Hines is wrong about his claims about the Super 8 passage — Kestan’s testimony debunks Hines’ unhealthy obsession with that line about the Super 8.

Q. And when you got there, where was he staying?

A. He was staying on an island called Plum Island, next to, or part of a place called Newburyport, Massachusetts, he said he was doing a ketamine infusion treatment.

Q. What did you understand that to mean?

A. It sounded like it was an outpatient type thing, where he would go to a clinic during daytime hours and get the treatment. And he was staying in a, like a rental house on his own otherwise.

Q. And when you went to visit him, did he in fact leave for whatever these treatments were?

A. Yes.

Hunter Biden wasn’t in New Haven in November 2018, when Derek Hines claims he was smoking the crack pipe Hunter described himself smoking in a Super 8 in New Haven (though in reality, only a few of the hotels at which he stayed in New Haven were as sketchy as a Super 8, and the only obvious one was a Quality Inn, not a Super 8).

He was, per Hines’ most important witness for this as-applied challenge, in a house out on Plum Island, outside Newburyport, still getting the Ketamine treatments that preceded the scene that Hines won’t stop falsely claiming happened in 2018.

Again, Hines’ persistent false claims about New Haven matter more in a hypothetical selective prosecution challenge, because Hines’ false claim was central to his assertions that there was reason to charge Hunter when he did.

But this as-applied constitutional challenge will implicate the timeline, what came before and what came after. And Derek Hines has persistently and obtusely made false claims about the timeline so he could rely on his favorite passage from Hunter’s book, including in his response to this as-applied challenge.

Memoir excerpt

The following excerpt shows the full context of Derek Hines’ favorite passage from Hunter Biden’s memoir. The italicized text was not included in the exhibit and audio-recording presented to the jury, which clearly places this description after his treatment from Ablow.

The therapy’s results were disastrous. I was in no way ready to process the feelings it unloosed or prompted by reliving past physical and emotional traumas. So I backslid. I did exactly what I’d come to Massachusetts to stop doing. I’d stay clean for a week, break away from the center to meet a connection I found in Rhode Island, smoke up, then return. One thing I did remarkably well during that time was fool people about whether or not I was using. Between trips up there, I even bought clean urine from a dealer in New York to pass drug tests.

Of course, that made all that time and effort ineffective. I didn’t necessarily blame the treatment: I doubt much good comes from doing ketamine while you’re on crack.

The reality is, the trip to Massachusetts was merely another bullshit attempt to get well on my part. I knew that telling my family I was in rehab meant I could claim they wouldn’t be able to contact me while I was undergoing treatment. I’d made my share of insincere rehab attempts before. It’s impossible to get well, no matter what the therapy, unless you commit to it absolutely. The Alcoholics Anonymous “Big Book”—the substance abuse bible, written by group founder Bill Wilson—makes that clear: “Half measures availed us nothing.”

By this point in my life, I’d written the book on half measures.

Finally, the therapist in Newburyport said there was little point in our continuing.

“Hunter,” he told me, with all the exasperated, empathetic sincerity he could muster, “this is not working.”

I headed back toward Delaware, in no shape to face anyone or anything. To ensure that I wouldn’t have to do either, I took an exit at New Haven.

To ensure that I wouldn’t have to do either, I took an exit at New Haven. For the next three or four weeks, I lived in a series of low-budget, low-expectations motels up and down Interstate 95, between New Haven and Bridgeport. I exchanged L.A.’s $400-a-night bungalows and their endless parade of blingy degenerates for the underbelly of Connecticut’s $59-a-night motel rooms and the dealers, hookers, and hard-core addicts—like me—who favored them. I no longer had one foot in polite society and one foot out. I avoided polite society altogether. I hardly went anywhere now, except to buy. It was me and a crack pipe in a Super 8, not knowing which the fuck way was up. All my energy revolved around smoking drugs and making arrangements to buy drugs—feeding the beast. To facilitate it, I resurrected the same sleep schedule I’d kept in L.A.: never. There was hardly any mistaking me now for a so-called respectable citizen. Crack is a great leveler.

New Haven area spending, February to March 2019

The following collects a non-exhaustive summary of money Hunter Biden spent in and around New Haven between February 11 and March 9, 2019. There is no other similar presence in New Haven that is easily identifiable.

This timeline happens to coincide with some of Hines’ favorite proof of drug purchases, as well.

February 11, 2019: Courtyard, New Haven

February 13, 2019: Courtyard, New Haven

February 13, 2019: Purchase at Reruns Bar and Grill, West Haven

February 13, 2019: Non-WF ATM withdrawal Broadway, New Haven

February 14, 2019: Purchase at Zachary’s Package Store, New Haven

February 14, 2019: Purchase at Citgo, New Haven

February 14, 2019: Non-WF ATM withdrawal Broadway, New Haven

February 14, 2019: New Haven Parking

February 15, 20199: ExxonMobil, West Haven

February 15, 2019: Non-WF ATM withdrawal Whitney Ave, Hamden

February 15, 2019: Non-WF ATM withdrawal Elm Street, West Haven (4X)

February 15, 2019: Non-WF ATM withdrawal Sawmill, West Haven (2X)

February 15, 2019: Purchase at New Haven Pizza, New Haven

February 15, 2019: Non-WF ATM withdrawal Highland, West Haven (4X)

February 15, 2019: Purchase at Sawmill Package Store, West Haven

February 15, 2019: ExxonMobil payment, West Haven

February 16, 2019: Carriage House, New Haven

February 16, 2019: Purchase at Around the Clock, New Haven

February 16, 2019: Purchase at Walgreens, New Haven

February 17, 2019: Carriage House, New Haven

February 17, 2019: Purchase at CVS, Hamden

February 17, 2019: Purchase at Tommys Tanning, Hamden

February 17, 2019: Non-WF ATM withdrawal Whitney Ave, Hamden

February 18, 2019: Carriage House, New Haven

February 18, 2019: Uber used on new device in Hamden

February 18, 2019: Non-WF ATM withdrawal Hamden Plaza, Hamden

February 18, 2019: Non-WF ATM withdrawal Dixwell Ave, Hamden

February 18, 2019: Non-WF ATM withdrawal Whitney Ave, Hamden

February 18, 2019: Purchase at McDonalds, Hamden

February 19, 2019: Non-WF ATM withdrawal Whitney Ave, Hamden

February 19, 2019: Uber ride from West Haven to Hamden

February 19, 2019: Booking.com The Blake Hotel, New Haven

February 19, 2019: Purchase at Drizly, New Haven

February 20, 2019: Uber ride from Milford to New Haven

February 21, 2019: Uber ride from New Haven to Milford

February 21, 2019: ATM withdrawal Hemingway Ave, New Haven

February 21, 2019: Purchase at Zachary’s Package Store, New Haven

February 21, 2019: Purchase at Fatface Corporation, New Haven

February 21, 2019: Purchase at Patagonia New Haven

February 21, 2019: Parking paid in New Haven

February 21, 2019: Parking paid in New Haven

February 23, 2019: Booking.com Marriott Worcester

February 24, 2019: Purchase at Whiskey on Water, Worcester

February 26, 2019: Uber ride from New Haven to New Haven

February 26, 2019: Purchase at Energy, Berlin

February 26, 2019: Purchase at Walgreens, New Haven

February 26, 2019: Purchase at Pizza Plus, New Haven

February 26, 2019: Non-WF ATM withdrawal College Street, New Haven

February 27, 2019: Non-WF ATM withdrawal College Street, New Haven

February 27, 2019: Non-WF ATM withdrawal George Street, New Haven

February 27, 2019: Uber ride from New Haven to New Haven

February 28, 2019: New sign-in to Twitter on Safari in New Haven

February 28, 2019: Non-WF ATM withdrawal Chapel Street, New Haven (2X)

February 28, 2019: Non-WF ATM withdrawal Church Street, New Haven

February 28, 2019: Non-WF ATM withdrawal George Street, New Haven

February 28, 2019: Non-WF ATM withdrawal Broadway, New Haven

February 28, 2019: Purchase at Meat&Co, New Haven

February 28, 2019: Purchase at Rite Aid, New Haven

February 28, 2019: Pick-up iPhone XR at Apple New Haven

February 28, 2019: Uber ride from Naugatuck to New Haven

February 28, 2019: Uber ride from New Haven to Naugatuck

March 3, 2019: ATM withdrawal Campbell Ave, New Haven

March 4, 2019: ATM withdrawal Foxon Blvd, New Haven

March 4, 2019: ATM withdrawal Hemingway Ave, New Haven

March 6, 2019: Purchase at Sunoco, Naugatuck

March 6, 2019: Purchase at Family Dollar, Naugatuck

March 6, 2019: ATM withdrawal Whalley Ave, New Haven

March 6, 2019: New sign-in to Twitter on Safari in New Haven

March 6, 2019: ATM withdrawal Church Street, New Haven (X4)

March 6, 2019: Purchase at Temple Wine and Liquor Store, New Haven

March 6, 2019: Uber ride from New Haven to New Haven

March 6, 2019: Booking.Com Omni Hotel New Haven

March 7, 2019: Uber ride from West Haven to New Haven

March 8, 2019: Uber ride from point to point in New Haven

March 8, 2019: ATM withdrawal Hemingway, East Haven

March 9, 2019: Quality Inn, New Haven (2X)

An Egyptian Bank Claimed Details of a Suspected $10 Million Payment to Trump Might be in China

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Back on September 19, 2018, then DC Chief Judge Beryl Howell denied a motion brought by an Egyptian bank to quash a subpoena for information on a suspected $10 million payment made to then-candidate Trump in fall 2016. That set off litigation that continued, at the District, Circuit, and Supreme Courts, for at least nine months.

As CNN described in 2020, not long after the investigation got shut down under Bill Barr, investigators had been trying to see whether Egypt (or some entity for which Egypt served as go-between) provided the money that Trump spent on his campaign weeks before the election.

For more than three years, federal prosecutors investigated whether money flowing through an Egyptian state-owned bank could have backed millions of dollars Donald Trump donated to his own campaign days before he won the 2016 election, multiple sources familiar with the investigation told CNN.

The investigation, which both predated and outlasted special counsel Robert Mueller’s probe, examined whether there was an illegal foreign campaign contribution. It represents one of the most prolonged efforts by federal investigators to understand the President’s foreign financial ties, and became a significant but hidden part of the special counsel’s pursuits.

The investigation was kept so secret that at one point investigators locked down an entire floor of a federal courthouse in Washington, DC, so Mueller’s team could fight for the Egyptian bank’s records in closed-door court proceedings following a grand jury subpoena. The probe, which closed this summer with no charges filed, has never before been described publicly.

Prosecutors suspected there could be a link between the Egyptian bank and Trump’s campaign contribution, according to several of the sources, but they could never prove a connection.

It took months of legal fight after Judge Howell denied that motion to quash before the Egyptian bank in question complied, and once they got subpoena returns, prosecutors repeatedly complained that the bank was still withholding information, which led prosecutors to reopen the investigation with a new grand jury.

That much we know from documentation unsealed back in 2019 (part one, part two, part three), in response to a Reporters Committee for Freedom of the Press request for unsealing.

On August 17, 2023, while she was still Chief Judge, Beryl Howell ordered the government to post newly unsealed sets of some of the orders she issued during the litigation. On Thursday, Chief Judge Boasberg ordered that newly redacted set of opinions to be released. While Howell released six opinions in June 2019 along with the other materials from the case — with redactions done digitally, thereby hiding the length of redactions — just three new versions of her orders got released last week:

These may be limited to orders incorporated as appendices in prior appeals, which might also explain why the first two appear twice in the newly-released materials.

Much of the newly unsealed material pertains to a fight over how much Alston & Bird, the law firm representing the Egyptian bank, could say about the litigation publicly. Among other things, prosecutors under Robert Mueller objected to their own names appearing publicly, out of a desire to tie this litigation to the narrow scope of Mueller’s investigation into interference in 2016.

One thing made clearer by a redaction in that January 2019 opinion on public comments is that the DC Circuit considered what public comments the two sides could make, in addition to SCOTUS, as part of its denial of cert.

It’s possible that the DC Circuit has weighed in, secretly. Among the details newly unsealed in the original opinion are the names of two of the bank’s other lawyers: Ashraf Shaaban (who appears to be or have been in-house counsel) and Mona Zulficar (who runs a Cairo corporate law firm). Those lawyers were named in conjunction with declarations they submitted arguing some part of the claim that Egyptian Anti-Money Laundering law would prohibit compliance with the subpoena as would unspecified law in a third country, described as Country B. 

Howell described that Alston & Bird are relying on,

conclusory declarations by [redacted] own Country A in-house and retained counsel, which themselves cite no legal authority on this question of [redaction] See Decl. of Ashraf Shaaban,, Mov’s Group Legal Counsel (“Shaaban Decl.”)¶7, ECF No. 3-6; Suppl. Decl. of Mona Zulficar, “Suppl. Zulficar Decl.”)¶ 4, ECF No. 12. The Court gives these declarations little weight. [bold newly unsealed, compare this passage with this one]

So if we can figure out who Shaaban works or worked for to ID the bank.

It’s the unspecific third country, Country B, that is the most interesting new disclosure, however.

The newly unsealed passages do not identify which country, described as Country A and which CNN identified as Egypt, owns this bank. But they do show that the bank or its lawyers wanted to share the subpoena with personnel in Cairo.

The newly unsealed passages do identify which third country’s laws, unspecified laws, might prohibit lawyers from searching for responsive documents in that country: China.

In other words, a bank owned by Egypt said it couldn’t comply with a subpoena seeking information on a suspected payment to Trump during the 2016 election, in part, because China’s laws would prevent that.

Update: Ashraf Shaaban works for the National Bank of Egypt.

The Threats that Hunter Biden’s Prosecutors Pretended Didn’t Exist Continue Unabated

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Twice in the lead-up to Hunter Biden’s first trial, Leo Wise and Derek Hines pretended that threats elicited by the political firestorm surrounding the case didn’t exist.

When Abbe Lowell raised the threats David Weiss faced and cited a story describing Weiss’ testimony about the safety of his family, Derek Hines continued to insist that there was no way Trump — who attacked Weiss personally after the plea deal was docketed — could have influenced the case (before Judge Noreika, prosecutors had claimed to be incompetent to find the offending Trump posts on Truth Social).

If the statements by politicians prior to the hearing truly influenced the prosecution in the way the defendant claims they did, why did the government sign the agreements and present them at the hearing? Second, to state an obvious fact that the defendant continues to ignore, former President Trump is not the President of the United States. The defendant fails to explain how President Biden or the Attorney General, to whom the Special Counsel reports, or the Special Counsel himself, or his team of prosecutors, are acting at the direction of former President Trump or Congressional Republicans, or how this current Executive Branch approved allegedly discriminatory charges against the President’s son at the direction of former President Trump and Congressional Republicans. The defendant’s fictious [sic] narrative cannot overcome these two inescapable facts.

Then, in a March hearing on that motion as well as one arguing that the publicity campaign from the disgruntled IRS agents had unlawfully influenced the prosecution, Leo Wise claimed there’s no proof that the IRS agent campaign started the dominoes that led Weiss to renege on the plea deal.

MR. WISE: So I think the Defense’s problem is the same problem you identified in the last motion, which is they offer no proof. None. None whatsoever that there’s causation.

I wrote down what Mr. Lowell said. He said the agents “did the causation.” What does that mean?

Where’s the proof that these two guys going on TV had anything to do with what we did?

Well, they said, “Oh, they started the dominoes.”

What dominoes? Where is the proof of any of that?

Other than insulting us, where is the proof that anything these two agents — who I couldn’t have picked out of a lineup — had anything to do with our decision-making?

Wise said that as David Weiss looked on. While neither Jim Jordan nor DOJ have released the transcript proving it, according to Special Agent in Charge Thomas Sobocinski, both Sobocinski and Weiss acknowledged, after Gary Shapley first started his media tour, that the publicity campaign, “would have had it had an impact on our case,” and that impact had been doxing and pressure on members of the investigative team.

Q After it became public that Gary Shapley was going to come to Congress and he gave, I think, an interview on CBS in the at the end of May before his congressional testimony, who did you discuss that with?

A My team within Baltimore, probably folks within the Criminal Investigative Division. Definitely David Weiss.

Q And what was the nature of your conversation with David Weiss?

A I need to go off the record for a minute.

Mr. [Steve] Castor. Okay.

[Discussion held off the record.]

Mr. Sobocinski. Yeah. In general, it was concerns about how this was going to affect the ongoing case and were there issues we needed to take into at least from the FBI side to move forward.

BY MR. CASTOR:

Q After Shapley’s testimony became public in June, did you have any conversations with David Weiss about that?

A We acknowledged it, but it wasn’t I mean, we didn’t sit there with the transcript going back and forth. We both acknowledged that it was there and that it would have had it had an impact on our case.

Q Okay. Did any of your conversations with David Weiss, you know, have anything to do with like, can you believe what Shapley’s saying, this is totally 100 percent untrue?

A I don’t remember that level of it.

Q If it was

A I was more concerned about how this 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. [my emphasis]

The transcripts in which David Weiss, Lesley Wolf, and Martin Estrada described the threats they and their families faced as a result of the pressure campaign from the IRS agents, House Republicans, and Trump have not been released. The outcome of any investigations into those threats likewise remains secret. Similarly, the efforts US Marshals made in response, especially, to the threats against Wolf and Estrada remains secret, though even Ken Dilanian described a special unit to investigate threats against FBI agents on these high profile investigations.

While Abbe Lowell did not focus on the threats elicited by the pressure campaign as much as he might have, to the extent he did, prosecutors simply pretended those threats didn’t exist.

And then, hours and days after the Hunter Biden verdict, the vicious conspiratorial threats went public with the arrest affidavit for Timothy Muller, a Trump supporter in Texas who, six hours after the verdict, called the FBI agent who picked up the laptop from John Paul Mac Isaac (and who may not have been involved in the case since 2021) and threatened him and his family.

Hey [j], you little cock-sucking pussy! You can run, but you can’t fucking hide. You covered up child pornography. You covered up [Hunter Biden] raping his own fucking neice, you fucking piece of fucking degenerate shit! So here’s how it’s gonna go: [Trump’s] gonna win the re-election. and then we’re gonna fucking go through the FBI and just start throwing you cock-suckers in jail. OR, you can steal another election, and then the guns will come out, and we’ll hunt you cock-suckers down and slaughter you like the traitorous dogs you are in your own fucking homes. In your won fucking beds. The last thing you’ll ever hear are the horrified shrieks of your widow and orphans. And then you know what we’re going to do? Then we’re going to string those fucking cock-suckers up. We’re going to slaughter your whole fucking family, you fucking pedophile! It’s like THAT now. So choose. Jail? Or getting strung up and lynched like the fucking traitor you are. That’s what happens when you cover up for fucking pedophiles, you piece of fucking shit!

Trump supporters are calling investigators and threatening to lynch them because they’re not prosecuting conspiracy theories ginned up by fellow Trump supporters.

When staffers asked David Weiss last November about these threats, he offered up the word, “intimidation” (then disclaimed understanding the motive for such threats).

Q Has this outsized attention led to increased attention on your office specifically?

A It’s led to increased attention for everyone who has touched the case. I think that’s correct.

Q Has the outsized attention given to this case resulted in threats and harassment against members of your office?

A Yes. Members of my office, agents assigned to the case, both from the IRS and from the FBI, doxing family members of members of my office. So, yeah, it’s part and parcel of this case.

Q Do you have concerns for the safety of individuals working in your office?

A Sure. I have safety concerns for everybody who has worked on the case, and we want to make sure that folks — yeah, folks are encouraged to do what they need to do with respect to the pursuit of justice generally and they not be intimidated in any way from performing their responsibilities.

[snip]

Q Do you have concerns for your safety or that of your family because of these threats?

A You know, I’m not — for myself, I’m not particularly concerned. Certainly I am concerned, as any parent or spouse would be for — yeah, for family, yep.

And at least as expressed by Muller, these threats are intimately tied (as exploitation of Rudy Giuliani’s copy of the laptop and Trump’s threats to replace DOJ officials with Jeffrey Clark were in the first place) to Trump’s false claims about the 2020 election, to Trump’s bid to become a dictator from day one.

And even as prosecutors serve up one after another humiliating trial during campaign season, they’re pretending the campaign against Hunter Biden isn’t all part of Trump’s bid for unaccountable power.

Leo Wise’s Performed Ignorance

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I want to look at a tactic that Leo Wise — who purports to be enforcing Rule of Law — used at the Hunter Biden trial, because it demonstrates how aggressively he polices the boundaries of his own plausible deniability, plausible deniability he used elsewhere in these proceedings to make claims he should know are false.

I’ve already pointed to the nutty response Abbe Lowell elicited from Jason Turner who, when he worked at the gun shop where Hunter bought a gun (he now works for the US Mint!), was in charge of ensuring paperwork was in order.

Turner’s testimony appears to be totally honest. He said, first, that he told Gordon Cleveland to get a second form of ID. And then, without saying whether Cleveland did do so or not, said that if he had, Turner would have written it on the line for doing that.

Q. Then you said that you told Mr. Cleveland something, right?

A. He needed to get further government issued identification with an address on it.

Q. Right. And if he did, what would you do with that?

A. I would have written it right in there. [my emphasis]

When Lowell asks Turner why it’s not on the form, Turner then changes from the conditional tense to the past tense. “I would have written it … I wrote that.”

Four times Turner asserts he did write that he had gotten a vehicle registration.

According to the publicly known facts, he did write it — two or three years after the fact.

Q. But you don’t see such writing in there, do you?

A. When I wrote that out, I wrote the car registration.

Q. You don’t see such a writing in there, do you?

A. When I wrote that out, I wrote car registration.

Q. When you wrote this out, you wrote car registration here or car registration there?

A. 18(b), car registration.

Q. You wrote it?

A. I wrote it.

Q. Where is it?

A. I wrote vehicle registration in there. [my emphasis]

But then Lowell asks him where it is on the form. “It’s not there,” Turner also truthfully describes.

Q. I’m asking you if you did and this is the form, where is it on the form that you say you wrote?

A. It’s not there.

Leo Wise — who purports to be enforcing Rule of Law — interrupts to halt this line of questioning. He states that this line of questioning has been excluded (expanding the already expansive limits on Hunter’s Sixth Amendment Judge Noreika authorized), and then offers up that poor Jason Turner is simply describing his memory of writing the form.

The second form of identity required by rule of law, Leo Wise — who purports to be enforcing rule of law — says, is irrelevant.

MR. WISE: Your Honor, may we approach side-bar?

(Side-bar discussion.

MR. WISE: So this line of questioning was excluded, he has a memory of writing it, he hasn’t established when, he’s not impeached him, he said he remembered writing it in. He’s asking him about the day, but he’s not distinguishing, and this is simply irrelevant, a secondary form of ID is irrelevant.

Lowell responds (and while all the lawyers in this case were willing to game the limits of trial conduct, in this case, this is completely believable) that he had no idea how Turner would respond to his question.

MR. LOWELL: Wow. I have no idea he was about to say what he just said, that he wrote in a different form of identification.

THE COURT: He’s confused as to the time.

MR. LOWELL: I know he is and I’m not going there but he said it, so I just wanted to ask who wrote it, where is it, I didn’t know he was going to say that, judge.

MR. WISE: He did know that because the [Jencks] that we gave you from Palimere, said Palimere told him to write it.

MR. LOWELL: Two years later.

MR. WISE: That’s not your question.

MR. LOWELL: I’m asking him on that day, I’m asking him on that day.

THE COURT: What you can do now is you can just say there is nothing about the vehicle registration. It is not written in this box on this version of the form.

Ultimately, Judge Noreika believes that Lowell had no idea how Turner would respond, because she was surprised herself.

MR. LOWELL: Okay. But let’s be clear on the record, when you say I knew he was going — I had no idea he was going to say that.

THE COURT: I take your word for that. I didn’t know he was going to say that.

After that exchange, Lowell got Turner to concede that the registration was not marked on the form.

(End of side-bar.

BY MR. LOWELL: Q. So what I was asking you is from whatever you just said about the testimony of anything having to do with the registration, you and I can be clear that on this form that has the date on it, there is no such reference in line 18(b), right?

A. There should be.

Now, note that Leo Wise handled cross of Turner and — as we’ll see — of Ron Palimere, the gun shop owner. We know that Derek Hines attended an interview with Palimere in May, and neither prosecutor attended an interview with Cleveland; FBI Agent Erika Jensen did that by herself.

But Wise undoubtedly knows that Hines met with Palimere mere weeks ago, at which Hines reiterated the proffer that prohibited prosecutors from using Palimere’s admission that, “No one thought to get supplemental information” substantiating that Hunter lived at his father’s address because, “everyone in the area knows who lives” there. Wise undoubtedly also knows that Palimere described just writing something convenient in on the form, because “it was all they could think of.”

Palimere decided to write Delaware registration in the box labeled 18.b. Palimere does not know why that was chosen but he knew it had to be an official document and it was all they could think of. Turner was the one who wrote Delaware vehicle registration in the box.

Palimere thinks that if Biden presented a vehicle registration on the day of the sale, it would have been documented on the certified 4473.

Normally, they would call a customer if they found an error/omission and needed to annotate the Form 4473. The ability to annotate the Fom 4473 is allowed by the ATF. For this case, a typical customer would have been called and told they needed to come back in and bring registration to show the residency.

Palimere was not about to call Biden. Palimere felt they could not have him come into the store. Plus, Palimere did not want to contact Biden and tell him he needed to come in and he was being investigated.

Wise undoubtedly knows all that.

But he did something notable to pretend to have plausible deniability about it, to pretend to have nothing to do with any uncertainty that Lowell might introduce.

When Lowell asked Palimere a question he didn’t ask of Turner (whether they had ever met before, a fairly standard trial question), Leo Wise objected when Lowell said that Palimere had met with “prosecutors,” plural.

Q. My name is Abbe Lowell, we’ve never met?

A. No, sir.

Q. Never spoken?

A. No, sir.

Q. You have spoken to the prosecutors and investigators in the case, right?

A. Yes, sir.

Q. And we have —

MR. WISE: Your Honor, I object to that question, prosecutors and investigators, we’ve never met as well.

MR. LOWELL: I’m sorry.

BY MR. LOWELL:  Q. You have met with members of the FBI?

A. Yes, sir.

Q. Even recently; correct?

A. Yes, sir. [my emphasis]

Wise objected to the question, one that Palimere had already answered in the affirmative, creating the illusion of plausible deniability, one that served to obscure that Derek Hines had not only met with Palimere, but learned that Palimere knowingly sold a gun without proper paperwork.

Wise had no questions for Parlimere.

But he did for Turner.

Indeed, even before he introduced himself, he asked Turner whether Hunter’s attorneys had succeeded in meeting with him before trial. Turner didn’t respond. Instead he suggested that they had set up a meeting but Hunter’s attorneys, “can’t be on time for nothing.”

Q. Good morning, Mr. Turner.

A. Good morning.

Q. So you were subpoenaed by the defense as a witness, right?

A. Correct.

Q. Did they try to talk with you before they did that, before you testified here today?

A. That’s a whole mess of stuff right there.

Q. Really?

A. I got the subpoena, I had to call them.

Q. Uh-huh.

A. And they can’t be on time for nothing.

Q. What does that mean?

A. I work third shift.

Q. Uh-huh.

A. And so I should be sleeping right now.

Q. What does third shift mean?

A. Third shift, that’s on the other side of the clock from everybody else, I go in at 6:00 p.m., I get done at 5 a.m.

Q. Is that what you got done today?

A. Yes.

Q. All right. So I just have a — you and I have never met, right, Mr. Turner?

A. I don’t even know you from nobody.

Q. I just have a couple of questions?

In fact, Judge Noreika even interrupted to remind Wise to introduce himself!

THE COURT: Did you introduce yourself?

MR. WISE: I’m not sure. I will.

THE COURT: He said he doesn’t know you.

BY MR. WISE: Q. My name is Leo wise, I represent the United States in this case. Nice to meet you.

So if we could have government Exhibit 10A on the screen. This is the form that Mr. Biden filled out that Mr. Lowell asked you about, right?

A. Correct. Actually that form is wrong.

As she did not do when, for example, Kathleen Buhle answered a question that had been excluded from questioning by offering up that Hunter had, “gotten kicked out of the Navy for testing positive for cocaine,” Judge Noreika warned Turner not to answer questions prosecutors had not asked.

THE COURT: Just take it one step at a time, only answer the questions that he asks.

THE WITNESS: Yes, ma’am.

Wise badly wanted to know whether Lowell had learned any of the details prosecutors were hiding from him, so much so he forgot his manners.

Part of this was about preventing jurors from learning that Leo Wise’s application of Rule of Law is, in fact, selective, from learning that Wise’s sidekick Derek Hines had in fact already immunized a potential crime, one with potentially greater impact on society, from these witnesses.

But part of it was also about policing his own plausible deniability.

Denial and Forgetting at the Hunter Biden Trial

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Consider the levels of denial and forgetting that it takes to write this paragraph the week that Hunter Biden, charged by a Trump US Attorney turned Special Counsel using evidence significantly sourced from a laptop handed over by John Paul Mac Isaac, stood trial.

While president, Mr. Trump repeatedly told aides he wanted the Justice Department to indict his political enemies. The Justice Department opened various investigations of Mr. Trump’s adversaries but did not ultimately bring charges — infuriating Mr. Trump and contributing to a split in 2020 with his attorney general, William P. Barr. Last year, Mr. Trump promised that if elected again, he would appoint a “real special prosecutor” to “go after” Mr. Biden and his family.

Five years ago, Donald Trump was impeached for extorting Ukraine to announce an investigation into Hunter Biden. The press covered it — and the way Rudy Giuliani continued to solicit such dirt from known Russian spies as impeachment loomed — with seriousness.

The following year, when Rudy rolled out a “laptop” once associated with Hunter Biden’s Apple account days before the 2020 election, media outlets including WSJ and Fox exercised some skepticism about the story of Hunter Biden abandoning a laptop with a blind computer repairman who would then share it with the guy who had been seeking just such a laptop for almost two years. Even at the NYPost, some reporters withheld their byline.

Yet that caution, and the details disclosed by past diligent reporting, has disappeared. It seems that, over the course of the last five years, Hunter Biden has become icky, leading almost all interest in the source of this investigation that led to his conviction to disappear. And Hunter Biden has become icky precisely through the process of the unprecedented GOP hit job against him.

Even Judge Maryellen Noreika bought into the icky storyline, dismissing the claim that Rudy Giuliani had any impact on this prosecution by claiming that texts that only existed publicly thanks to Rudy Giuliani instead appeared in Hunter Biden’s memoir.

That process of making Hunter Biden icky enough that his due process didn’t matter simply got whitewashed in the trial.

WaPo described the guy who started snooping through Hunter Biden’s private data almost immediately, whose claims to the FBI about what he found have not borne fruit, and who then sought out Donald Trump’s personal lawyer and shared bootable hard drives of Hunter Biden’s laptop, “a sort of whistleblower.”

That John Paul Mac Isaac even shared the bootable hard drive with Rudy (who then shared it with Jack Maxey, who then shared it with WaPo) has disappeared from this narrative.

NBC’s biggest scoop of the week — one representative of their tabloid coverage of the trial — likewise laundered the hit job that led to this trial. In describing how Hunter’s spouse attacked the man who had spent years demanding criminal investigations into Hunter based on texts extracted from the bootable hard drive, Sarah Fitzpatrick described Garrett Ziegler as no more than a former Trump trade policy aide, not someone who played a key role in the Big Lie and the coup attempt.

In a tense moment outside the courtroom where Hunter Biden is on trial for gun charges, his wife, Melissa Cohen-Biden, confronted former Trump White House aide Garrett Ziegler, who has been in the courtroom.

Ziegler, who worked on trade policy in the White House, was part of an effort by Trump allies to make public the contents of a laptop to embarrass Joe Biden’s son in the final days of the 2020 election. Hunter Biden sued Ziegler and the company he founded, Marco Polo, in September of last year, claiming they broke state and federal laws in an effort to create a searchable online database with 128,000 emails.

And Fitzpatrick whitewashed the substance of the lawsuit, which focuses on Ziegler’s admission that he broke the encryption of a phone backup included on the hard drive. Hunter isn’t suing because Ziegler made the texts from that phone available (Ziegler also made Ashley Biden’s diary available). He’s suing because Ziegler took actions to access the content that go well beyond publication.

In his response to the lawsuit, Ziegler argued that because Hunter never owned the hard drive on which the phone backup had been transferred, cracking that password does not amount to hacking.

Finally, as noted, WSJ similarly laundered part of the campaign that brought Hunter Biden to the point of facing felony gun charges. As a story on Merrick Garland’s relationship with some Special Counsels (WSJ ignores John Durham), it describes that David Weiss asked for Special Counsel status so he could pursue a list of FBI tasks, specifically the Alexander Smirnov allegations.

By 2022, prosecutors and agents had already believed that Hunter Biden committed tax crimes, but Weiss still seemed no closer to charging him or resolving the case. FBI officials asked Garland’s office if he could help move Weiss along.

Garland refused to prod Weiss, saying he had promised him broad independence to pursue the inquiry as he saw fit.

FBI agents drafted a list of final steps to push the probe forward—including to follow up on allegations from an FBI source that tied Hunter Biden’s financial misdeeds directly to his father.

Weiss’s office reached a tentative plea deal with Hunter Biden in June 2023, in an agreement that would likely include no jail time. Republicans in Congress alleged that Hunter Biden was getting a sweetheart deal, which fell apart a month later. In August, Weiss asked Garland to make him a special counsel, pointing to the FBI’s list and asking for independence. Garland agreed, recognizing that he had earlier promised Weiss autonomy and any resources he sought. [my emphasis]

There’s so much that any story about the Smirnov allegation might include: the way in which Bill Barr effectively immunized Rudy’s dalliance with Russian spies and set up a side channel targeting Joe Biden’s kid, FBI’s failures to respond when Smirnov shared recycled Murdoch dirt, the pressure brought to bear by Bill Barr’s public comments last summer, Smirnov’s self-proclaimed ties to Russian spooks, Weiss’ own conflicts as a witness to the side channel.

But at the very least, describe that David Weiss sought Special Counsel status to chase an effort to frame Joe Biden, one he had had in hand since 2020, one identified because Barr set up a way to look for it.

The felony gun charges against Hunter Biden might never have happened without the Special Counsel status. And the Special Counsel status arose out of a foolish effort to pursue a transparently false effort to frame Joe Biden.

The jurors did their job Tuesday. They looked at the evidence provided to them, and judged that Hunter Biden had knowingly lied when he purchased a gun over five years ago.

It is not their place to measure whether the process by which Trump partisans relentlessly campaigned to demand the criminal investigation into Joe Biden’s kid — and with the Smirnov hoax, into Joe Biden himself — amounts to due process or justice.

But it is the job of journalists to remember how we got here, to convey the role that Trump’s effort to investigate Joe Biden and his kid has had in this process.

This prosecution happened because of stupid things Hunter did five years ago, during the depths of his addiction.

But it would never have happened without the partisan interventions of John Paul Mac Isaac, Rudy Giuliani, and Bill Barr (to say nothing of the House GOP chasing the files they all made available). It likely would never have happened if David Weiss hadn’t credulously chased a hoax from a snitch with ties to Russian intelligence. It might never have happened without the gun shop owner — the same guy who admitted selling a gun without proper paperwork because he wanted to get Joe Biden’s kid out of his store — making a stink about the gun purchase just in time for the election.

It is true that almost nobody else would have been charged based on the facts of this case.

It is also true that almost nobody else (with the possible exception of Hillary Clinton) has faced such an unrelenting partisan campaign demanding criminal prosecution.