Elon Musk’s Machine for Fascism: A Tale of Three Elections

Since the spring (when I first started writing this post), I’ve been trying to express what I think Elon Musk intended to do with his $44 billion purchase of Twitter, to turn it into a Machine for Fascism.

Ben Collins wrote a piece — which he has been working on even longer than I have on this post — that led me to return to it.

Collins returns to some texts sent to Elmo in April 2022, just before he bought Twitter, which referenced an unsigned post published at Revolver News laying out a plan for Twitter.

On the day that public records revealed that Elon Musk had become Twitter’s biggest shareholder, an unknown sender texted the billionaire and recommended an article imploring him to acquire the social network outright.

Musk’s purchase of Twitter, the 3,000-word anonymous article said, would amount to a “declaration of war against the Globalist American Empire.” The sender of the texts was offering Musk, the Tesla and SpaceX CEO, a playbook for the takeover and transformation of Twitter. As the anniversary of Musk’s purchase approaches, the identity of the sender remains unknown.

The text messages described a series of actions Musk should take after he gained full control of the social media platform: “Step 1: Blame the platform for its users; Step 2: Coordinated pressure campaign; Step 3: Exodus of the Bluechecks; Step 4: Deplatforming.”

The messages from the unknown sender were revealed in a court filing last year as evidence in a lawsuit Twitter brought against Musk after he tried to back out of buying it. The redacted documents were unearthed by The Chancery Daily, an independent legal publication covering proceedings before the Delaware Court of Chancery.

The wording of the texts matches the subtitles of the article, “The Battle of the Century: Here’s What Happens if Elon Musk Buys Twitter,” which had been published three days earlier on the right-wing website revolver.news.

Collins lays out that the post significantly predicted what has happened since, including an attack on the Anti-Defamation League.

The article on Beattie’s site begins with a baseless claim that censorship on Twitter cost President Donald Trump the 2020 election. “Free speech online is what enabled the Trump revolution in 2016,” the anonymous author wrote. “If the Internet had been as free in 2020 as it was four years before, Trump would have cruised to reelection.”

The author said that “Step 1” after a Musk takeover would be: “Blame the platform for its users.” He or she predicted that “Twitter would be blamed for every so-called act of ‘racism’ ‘sexism’ and ‘transphobia’ occurring on its platform.”

After Musk’s purchase of Twitter was finalized in October 2022, he allowed previously suspended accounts to return. Among them, he restored the account of Trump, whom Twitter had banned after the Jan. 6 Capitol insurrection, as well as the personal accounts of far-right Rep. Marjorie Taylor Greene, R-Ga., and the founder of a neo-Nazi website, Andrew Anglin.

The article predicted that “Step 2” would involve a “Coordinated pressure campaign” by the ADL and other nonprofit groups to get Musk to reinstate the banned accounts. “A vast constellation of activists and non-profits” will lurch into action to “put more and more pressure on the company to change its ways,” the article reads.

The next step, the revolver.news article predicted, would be the “Exodus of the bluechecks.” The term “bluechecks” refers to a former identity verification system on Twitter that confirmed the authenticity of the accounts of celebrities, public figures and journalists.

Musk experimented with and ultimately eliminated Twitter’s verification system of “bluechecks.” As the article predicted, the removal resulted in a public backlash and an exponential drop in advertisers and revenue. Other developments, including Musk’s drastically reducing the number of staffers who monitor tweets and a rise in hate speech, also contributed to the dynamic.

The article predicted that a final step, “Step 4,” would be the “deplatforming” of Twitter itself. He said a Musk-owned Twitter would face the same fate as Parler, a platform that presented itself as a “free speech” home for the right. After numerous calls for violence on Jan. 6 were posted on Parler, Google and Apple removed it from their app stores on the grounds that it had allowed too many posts that promoted violence, crime and misinformation.

Collins notes that the identity of the person who wrote the post on Revolver and sent the texts to Elmo has never been revealed. He seems to think it is Darren Beattie, the publisher of Revolver, whose white supremacist sympathies got him fired from Trump’s White House.

I’m not convinced the post was from Beattie. Others made a case that the person who texted Elmo was Stephen Miller (not least because there’s a redaction where his name might appear elsewhere in the court filing).

But I think Collins’ argument — that Elmo adopted a plan to use Twitter as a Machine for Fascism from the start, guided in part by that post, a post that has some tie to Russophile propagandist Beattie — persuasive.

Then again, I’ve already been thinking about the way that Elmo was trying to perfect a Machine for Fascism.

2016: Professionalizing Trolling

One thing that got me thinking about Elmo’s goals for Twitter came from reading the chatlogs from several Twitter listservs that far right trolls used to coordinate during the 2016 election, introduced as exhibits in Douglass Mackey’s trial for attempting to convince Hillary voters to text their votes rather than casting them at polling places.

The trolls believed, in real time, that their efforts were historic.

On the day Trump sealed his primary win in 2016, for example, Daily Stormer webmaster Andrew “Weev” Auernheimer boasted on a Fed Free Hate Chat that, “it’s fucking astonishing how much reach our little group here has between us, and it’ll solidify and grow after the general.” “This is where it all started,” Douglass Mackey replied, according to exhibits introduced at his trial. “We did it.”

After Trump’s November win became clear, Microchip — a key part of professionalizing this effort — declared, “We are making history,” before he immediately started pitching the idea of flipping a European election (as far right trolls attempted with Emmanuel Macron’s race in 2017) and winning the 2020 election.

By that point, the trolls had been working on–and fine tuning–this effort for at least a year.

Most chilling in the back-story presented in exhibits submitted at trial is the description of how Weev almost groomed Mackey, starting in 2015. “Thanks to weev I am inproving my rhetoric. People love it,” Mackey said in the Fed Free Hate Chat in November 2015. He boasted that his “exploding” twitter account was averaging 300,000 impressions every day, before he mused, “I just hope all this shitlording goes real life.” Two days later Weev admired that, “ricky’s audience expands rapidly, he’s now a leading polemicist” [Mackey did all this under the pseudonym Ricky Vaughn].

Weev and Mackey explained their ideological goals. “The goal is to give people simple lines they can share with family or around the water cooler,” Mackey described to Bidenshairplugs in September 2015. When Weev proposed in January 2016 that he and Mackey write a guide to trolling, he described the project as “ideological disruption” and “psychological loldongs terrorism.” The Daily Stormer webmaster boasted, “i am absolutely sure we can get anyone to do or believe anything as long as we come up with the right rhetorical formula and have people actually try to apply it consistently.” And so they explained the objectives to others. “[R]eally good memes go viral,” Mackey explained to AmericanMex067 on May 10, 2016. “really really good memes become embedded in our consciousness.”

One method they used was “highjacking hashtags,” either infecting the pro-Hillary hashtags pushed by Hillary or filling anti-Trump hashtags with positive content.

Another was repetition. “repitition is key. \’Crooked Hillary created ISIS with Obama\’ repeat it again and again.” Trump hasn’t been repeating the same stupid attacks for 8 years because he’s uncreative or stupid. He’s doing it to intentionally troll America’s psyche.

A third was playing to the irrationality of people. HalleyBorderCol as she pitched the text to vote meme: people aren’t rational. a significant proportion of people who hear the rumour will NOT hear that the rumour has been debunked.”

One explicit goal was to use virality to get the mainstream press to pick up far right lines. Anthime “Baked Alaska” Gionet described that they needed some tabloid to pick up their false claims about celebrities supporting Trump. “We gotta orchestrate it so good that some shitty tabloid even picks it up.” As they were trying to get the Podesta emails to trend in October 2016, P0TUSTrump argued, “we need CNN wnd [sic] liberal news forced to cover it.”

Microchip testified to the methodology at trial.

Q What does it mean to hijack a hashtag?

A So I guess I can give you an example, is the easiest way. It’s like if you have a hashtag — back then like a Hillary Clinton hashtag called “I’m with her,” then what that would be is I would say, okay, let’s take “I’m with her” hashtag, because that’s what Hillary Clinton voters are going to be looking at, because that’s their hashtag, and then I would tweet out thousands of — of tweets of — well, for example, old videos of Hillary Clinton or Bill Clinton talking about, you know, immigration policy for back in the ’90s where they said: You know, we should shut down borders, kick out people from the USA. Anything that was disparaging of Hillary Clinton would be injected into that — into those tweets with that hashtag, so that would overflow to her voters and they’d see it and be shocked by it.

Q Is it safe to say that most of your followers were Trump supporters?

A Oh, yeah.

Q And so by hijacking, in the example you just gave a Hillary Clinton hashtag, “I am with her,” you’re getting your message out of your silo and in front of other people who might not ordinarily see it if you just posted the tweet?

A Yeah, I wanted to infect everything.

Q Was there a certain time of day that you believed tweeting would have a maximum impact?

A Yeah, so I had figured out that early morning eastern time that — well, it first started out with New York Times. I would see that they would — they would publish stories in the morning, so the people could catch that when they woke up. And some of the stories were absolutely ridiculous — sorry. Some of the stories were absolutely ridiculous that they would post that, you know, had really no relevance to what was going on in the world, but they would still end up on trending hashtags, right? And so, I thought about that and thought, you know, is there a way that I could do the same thing.

And so what I would do is before the New York Times would publish their — their information, I would spend the very early morning or evening seeding information into random hashtags, or a hashtag we created, so that by the time the morning came around, we had already had thousands of tweets in that tag that people would see because there wasn’t much activity on Twitter, so you could easily create a hashtag that would end up on the trending list by the time morning came around.

In the 2016 election, this methodology served to take memes directly from the Daily Stormer, launder them through 4Chan, then use Twitter to inject them into mainstream discourse. That’s the methodology the far right still uses, including Trump when he baits people to make his Truth Social tweets go viral on Twitter. Use Twitter to break out of far right silos and into those of Hillary supporters to recodify meaning, and ensure it all goes viral so lazy reporters at traditional outlets republish it for free, using such tweets to supplant rational discussion of other news.

And as Microchip testified, in trolling meaning and rational arguments don’t matter. Controversy does.

Q What was it about Podesta’s emails that you were sharing?

A That’s a good question.

So Podesta ‘s emails didn’t, in my opinion, have anything in particularly weird or strange about them, but my talent is to make things weird and strange so that there is a controversy. So I would take those emails and spin off other stories about the emails for the sole purpose of disparaging Hillary Clinton.

T[y]ing John Podesta to those emails, coming up with stories that had nothing to do with the emails but, you know, maybe had something to do with conspiracies of the day, and then his reputation would bleed over to Hillary Clinton, and then, because he was working for a campaign, Hillary Clinton would be disparaged.

Q So you’re essentially creating the appearance of some controversy or conspiracy associated with his emails and sharing that far and wide.

A That’s right.

Q Did you believe that what you were tweeting was true?

A No, and I didn’t care.

Q Did you fact-check any of it?

A No.

Q And so what was the ultimate purpose of that? What was your goal?

A To cause as much chaos as possible so that that would bleed over to Hillary Clinton and diminish her chance of winning.

The far right is still using this methodology to make the corrupt but not exceptional behavior of Hunter Biden into a topic that convinces half the electorate that Joe Biden is as corrupt as Donald Trump. They’ve used this methodology to get the vast majority of media outlets to chase Hunter Biden’s dick pics like six year old chasing soccer balls.

Back in 2016, the trolls had a good sense of how their efforts helped to support Trump’s electoral goals. In April 2016, for example, Baked Alaska pitched peeling off about a quarter of Bernie Sanders’ votes. “Imagine if we got even 25% of bernie supporters to ragevote for trump.” On November 2, 2016, the same day he posted the meme that got him prosecuted, Mackey explained that the key to winning PA was “to drive up turnout with non-college whites, and limit black turnout.” One user, 1080p, seemed to have special skills — if not sources — to adopt the look and feel of both campaigns.

And this effort worked in close parallel to Trump’s efforts. As early as April, Baked Alaska invited Mackey to join a campaign slack “for more coordinated efforts.”

And there are several participants in the troll chatrooms whose actions or efforts to shield their true identities suggest they may be closely coordinating efforts as well.

Even in the unfettered world of 2016, Twitter’s anemic efforts to limit the trolls’ manipulation of Twitter was a common point of discussion.

For example, as the trolls were trying to get Podesta’s emails trending, HalleyBorderCol complained, “we haven’t been able to get anything to trend for aaaages … unless they changed their algorithms, they must be watching what we’re doing.” Later in October as they were launching two of their last meme campaigns, ImmigrationX complained,”I see Jack in full force today suppressing hashtags.”

Both Mackey and Microchip were banned multiple times. “Microchip get banned again??” was a common refrain. “glad to be back,” Microchip claimed on September 24. “they just banned me two times in 3 mins.” He warned others to follow-back slowly to evade an auto-detect for newly created accounts. “some folks are being banned right now, apparently, so if I’m banned for some reason, I’ll be right back,” Microchip warned on October 30. “Be good till nov 9th brother! We need your ass!” another troll said on the day Mackey was banned; at the time Microchip was trending better than Trump himself. Mackey’s third ban in this period, in response to the tweets a jury has now deemed to be criminal, came with involvement from Jack Dorsey personally.

Both testified at trial about the techniques they used to thwart the bans (including using a gifted account to return quickly, in Mackey’s case). Microchip built banning, and bot-based restoration and magnification, into his automation process.

2020: Insurrection

The far right trolls succeeded in helping Donald Trump hijack American consciousness in 2016 to get elected.

By the time the trolls — some of whom moved into far more powerful positions with Trump’s election — tried again in 2020, the social media companies had put far more controls on the kinds of viral disinformation that trolls had used with such success in 2016.

As Yoel Roth explained during this year’s Twitter hearing, the social media companies expanded their moderation efforts with the support of a bipartisan consensus formulated in response to Russia’s (far less successful than the far right troll efforts) 2016 interference efforts.

Rep. Shontel Brown

So Mr. Roth, in a recent interview you stated, and I quote, beginning in 2017, every platform Twitter included, started to invest really heavily in building out an election integrity function. So I ask, were those investments driven in part by bipartisan concerns raised by Congress and the US government after the Russian influence operation in the 2016 presidential election?

Yoel Roth:

Thank you for the question. Yes. Those concerns were fundamentally bipartisan. The Senate’s investigation of Russian active measures was a bipartisan effort. The report was bipartisan, and I think we all share concerns with what Russia is doing to meddle in our elections.

But in advance of the election, Trump ratcheted up his attacks on moderation, personalizing that with a bullying attack on Roth himself.

In the spring of 2020, after years of internal debate, my team decided that Twitter should apply a label to a tweet of then-President Trump’s that asserted that voting by mail is fraud-prone, and that the coming election would be “rigged.” “Get the facts about mail-in ballots,” the label read.

On May 27, the morning after the label went up, the White House senior adviser Kellyanne Conway publicly identified me as the head of Twitter’s site integrity team. The next day, The New York Post put several of my tweets making fun of Mr. Trump and other Republicans on its cover. I had posted them years earlier, when I was a student and had a tiny social media following of mostly my friends and family. Now, they were front-page news. Later that day, Mr. Trump tweeted that I was a “hater.”

Legions of Twitter users, most of whom days prior had no idea who I was or what my job entailed, began a campaign of online harassment that lasted months, calling for me to be fired, jailed or killed. The volume of Twitter notifications crashed my phone. Friends I hadn’t heard from in years expressed their concern. On Instagram, old vacation photos and pictures of my dog were flooded with threatening comments and insults.

In reality, though, efforts to moderate disinformation did little to diminish the import of social media to right wing political efforts. During the election, the most effective trolls were mostly overt top associates of Donald Trump, or Trump himself, as this table I keep posting shows.

The table, which appears in a Stanford University’s Election Integrity Project report on the election, does not reflect use of disinformation (as the far right complains when they see it). Rather, it measures efficacy. Of a set of false narratives — some good faith mistakes, some intentional propaganda — that circulated on Twitter in advance of the election, this table shows who disseminated the false narratives that achieved the most reach. The false narratives disseminated most broadly were disseminated by Donald Trump, his two adult sons, Tom Fitton, Jack Posobiec, Gateway Pundit, Charlie Kirk, and Catturd. The least recognized name on this list, Mike Roman, was among the 19 people indicted by Fani Willis for efforts to steal the election in Georgia. Trump’s Acting Director of National Intelligence, Ric Grenell, even got into the game (which is unsurprising, given that before he was made Ambassador to Germany, he was mostly just a far right troll).

This is a measure of how central social media was to Trump’s efforts to discredit, both before and after the election, the well-run election that he lost.

The far right also likes to claim (nonsensically, on its face, because these numbers reflect measurements taken after the election) that these narratives were censored. At most, and in significant part because Twitter refused to apply its own rules about disinformation to high profile accounts including but not limited to Trump, this disinformation was labeled.

As the Draft January 6 Social Media Report described, they had some success at labeling disinformation, albeit with millions of impressions before Twitter could slap on a label.

Twitter’s response to violent rhetoric is the most relevant affect it had on January 6th, but the company’s larger civic integrity efforts relied heavily on labeling and downranking. In June of 2019, Twitter announced that it would label tweets from world leaders that violate its policies “but are in the public interest” with an “interstitial,” or a click-through warning users must bypass before viewing the content.71 In October of 2020, the company introduced an emergency form of this interstitial for high-profile tweets in violation of its civic integrity policy.” According to information provided by Twitter, the company applied this interstitial to 456 tweets between October 27″ and November 7″, when the election was called for then-President-Elect Joe Biden. After the election was called, Twitter stopped applying this interstitial.”* From the information provided by Twitter, it appears these interstitials had a measurable effect on exposure to harmful content—but that effect ceased in the crucial weeks before January 6th.

The speed with which Twitter labels a tweet obviously impacts how many users see the unlabeled (mis)information and how many see the label. For PIIs applied to high-profile violations of the civic integrity policy, about 45% of the 456 labeled tweets were treated within an hour of publication, and half the impressions on those tweets occurred after Twitter applied the interstitial. This number rose to more than eighty percent during election week, when staffing resources for civic issues were at their highest; after the election, staff were reassigned to broader enforcement work.” In answers to Select Committee questions during a briefing on the company’s civic integrity policy, Twitter staff estimates that PIIs prevented more than 304 million impressions on violative content. But at an 80% success rate, this still leaves millions of impressions.

But this labeling effort stopped after the election.

According to unreliable testimony from Brandon Straka the Stop the Steal effort started on Twitter. According to equally unreliable testimony from Ali Alexander, he primarily used Twitter to publicize and fundraise for the effort.

It was, per the Election Integrity Project, the second most successful disinformation after the Dominion propaganda.

And the January 6 Social Media Report describes that STS grew organically on Facebook after being launched on Twitter, with Facebook playing a losing game of whack-a-mole against new STS groups.

But as Alexander described, after Trump started promoting the effort on December 19, the role he would place became much easier.

Twitter wasn’t the only thing that brought a mob of people to DC and inspired many to attack the Capitol. There were right wing social media sites that may have been more important for organizing. But Twitter was an irreplaceable part of what happened.

The lesson of the 2020 election and January 6, if you care about democracy, is that Twitter and other social media companies never did enough moderation of violent speech and disinformation, and halted much of what they were doing after the election, laying the ground work for January 6.

The lesson of the 2020 election for trolls is that inadequate efforts to moderate disinformation during the election — including the Hunter Biden “laptop” operation — prevented Trump from pulling off a repeat of 2016. The lesson of January 6, for far right trolls, is that unfettered exploitation of social media might allow them to pull off a violent coup.

That’s the critical background leading up to Elmo’s purchase of Twitter.

2024: Boosting Nazis

The first thing Elmo did after purchasing Twitter was to let the far right back on.

More recently, he has started paying them money that ads don’t cover to subsidize their propaganda.

The second thing he did, with the Twitter Files, was to sow false claims about the effect and value of the moderation put into place in the wake of 2016 — an effort Republicans in Congress subsequently joined. The third thing Elmo did was to ratchet up the cost for the API, thereby making visibility into how Twitter works asymmetric, available to rich corporations and (reportedly) his Saudi investors, but newly unavailable to academic researchers working transparently. He has also reversed throttling for state-owned media, resulting in an immediate increase in propaganda.

He has done that while making it easier for authoritarian countries to take down content.

Elmo attempted, unsuccessfully, to monetize the site in ways that would insulate it from concerns about far right views or violence.

For months, Elmo, his favored trolls, and Republicans in Congress have demonized the work of NGOs that make the exploitation of Twitter by the far right visible. More recently, Elmo has started suing them, raising the cost of tracking fascism on Twitter yet more.

Roth recently wrote a NYT column that, in addition to describing the serial, dangerous bullying — first from Trump, then from Elmo — that this pressure campaign includes, laid out the stakes.

Bit by bit, hearing by hearing, these campaigns are systematically eroding hard-won improvements in the safety and integrity of online platforms — with the individuals doing this work bearing the most direct costs.

Tech platforms are retreating from their efforts to protect election security and slow the spread of online disinformation. Amid a broader climate of belt-tightening, companies have pulled back especially hard on their trust and safety efforts. As they face mounting pressure from a hostile Congress, these choices are as rational as they are dangerous.

In 2016, far right trolls helped to give Donald Trump the presidency. In 2020, their efforts to do again were thwarted — barely — by attempts to limit the impact of disinformation and violence.

But in advance of 2024, Elmo has reversed all that. Xitter has preferentially valued far right speech, starting with Elmo’s increasingly radicalized rants. More importantly, Xitter has preferentially valued speech that totally undercuts rational thought.

Elmo has made Xitter a Machine for irrational far right hate speech.

The one thing that may save us is that this Machine for Fascism has destroyed Xitter’s core value to aspiring fascists: it has destroyed Xitter’s role as a public square, from which normal people might find valuable news. In the process, Elmo has destroyed Twitter’s key role in bridging from the far right to mainstream readers.

But it’s not for lack of trying to make Xitter a Machine for Fascism.

The Timeline of the Hunter Biden Investigation Doesn’t Support Attacks on Lesley Wolf

Self-imagined IRS whistleblowers, Gary Shapley and Joseph Ziegler, continue to engage in an information campaign that not only hasn’t provided real evidence for impeachment, but also must be creating real difficulties for David Weiss as he attempts to charge the tax case against Hunter Biden.

The House Ways and Means Committee released a slew of documents provided by the IRS Agents the other day in advance of Thursday’s Impeachment Clown Show. Below, I’ve laid out just the documents pertaining to the investigation (that is, the purported topic of their whistleblower complaint), along with explanations of what the documents show. There are a bunch of other investigative documents (Shapley appears to have let Ziegler assume most of the legal risk of releasing the bulk of the new IRS and grand jury documents), some of which reflect a real sloppiness about parts of the investigation, which would pose still more problems charging this case.

I also plan to write a follow-up post laying out Gary Shapley’s actions in advance of the October 7, 2022 meeting. They show that the items he claimed presented a new “red line” for him in that meeting had instead been raised with him months earlier. He came into the meeting with an agenda — notably, that David Weiss should ask to be appointed Special Counsel (as opposed to Special Attorney) — and raised non-sequiturs given the posture of the case at the time.

As to some other key claims the IRS Agents have made, especially against Lesley Wolf, the record provides countervailing evidence on those too.

As noted, for example, the decision not to take overt steps in 2020 came directly from Donald Trump’s Deputy Attorney General’s office, from someone — Richard Donoghue — who knew first-hand about Russian efforts to tamper in the election by focusing on Hunter Biden. The IRS Agents and Republican Members of Congress have blamed Wolf for that.

One key complaint is that Gary Shapley wasn’t permitted to surprise Hunter Biden during the day of action on December 8, 2020. But as Wolf represented it in a call Ziegler memorialized on December 11, the norm would have been to work through Hunter’s lawyers for an interview. Her support of going with only a heads up to the Secret Service was a deviation from that norm, she claimed. There’s no support in these documents for Shapley’s claim (and Ziegler’s hearsay claim) that the Transition Team got a heads up from DOJ, so if Shapley had a credible source for it, it wasn’t documented notice.

Another complaint — one Republicans in Congress can’t let go — was that Wolf used a subpoena to get the contents of a storage facility Hunter had rather than a search warrant. But a month earlier than that, the plan wasn’t to get a warrant, it was to do a consent search. When Ziegler pitched her on a search warrant after the Rob Walker interview, he wanted to do the search immediately, within a week, in spite of what she represented would be the onerous approval process to get a warrant. According to what Ziegler records Wolf saying, all the lawyers involved in this decision agreed with her (not surprisingly, given that a taint review after going overt would involve the same level of defense attorney involvement as a subpoena would). When the IRS escalated this issue on December 14, they still didn’t know how a taint review would work in the Fourth Circuit, meaning they had not yet tested Wolf’s claims.

Importantly, the reason Ziegler thought it so important to do a search of the storage facility rather than serve a subpoena is that he wanted to find proof of foreign bank accounts, something for which Wolf claims there was no evidence.

Ziegler brought up the potential for foreign accounts and the records that he had seen thus far that indicate there are foreign accounts involved in this case. Wolf said that there is no indication what‐so‐ever that the Subject has foreign accounts and that any records related to that would be turned over [pursuant to subpoena].

Even in the most recent Republican documents, reflecting what Ziegler and Shapley turned over, I’m aware of no such evidence. The foreign payments Republicans claim are so suspect went right through corporations established in Delaware. Many of the payments appear to have gone through the same Wells Fargo accounts on which Ziegler predicated this investigation five years ago. And the IRS appears to have checked (one, two) with the most likely havens — Hong Kong and the Cayman Islands — about whether there were foreign accounts. I haven’t read all the investigative documents or the tax returns and investigators may find something else, but if this is correct, then it’s one hell of a money laundering claim these guys are chasing, consisting of payments through corporations headquartered right in Delaware and payments through Hunter’s main bank account.

It was already clear from Ziegler’s testimony that his complaints about delays in interviews in 2021 didn’t account for Wolf’s efforts to prioritize more important investigative steps, such as getting approval for a subpoena for Hunter’s attorney, George Mesires, rather than focusing on interviews with sex workers. The interview with Mesires took another year to schedule. But one set of emails from the time show it was Ziegler’s IRS supervisor, and not Lesley Wolf, that pushed back on his plans for interviews; the supervisor suggested he bring in “collaterals” to do some of the investigative work rather than do it all himself.

The IRS Agents and Republican Members of Congress similarly keep complaining that David Weiss let the statute of limitations expire on the 2014 and 2015 charges most closely focused on Burisma. There was already evidence (most especially in the hand-written notes that Shapley only belatedly shared) that it wasn’t so much that Weiss “let” SOLs expire, but that he made a prosecutorial decision — one Shapley refused to abide by — not to charge those years. Lesley Wolf first started raising questions about the sufficiency of the evidence in May 2021. This new trove of documents show that Shapley had been informed that DE USAO was disinclined to charge those years more than two months before October 2022, and again in August 2022. There is a good deal of evidence that Shapley’s manufactured panic about “letting” SOLs expire instead is an expression of disagreement with a prosecutorial decision.

Perhaps worst of all, the depiction the IRS Agents have made of Lesley Wolf does not reflect what appears in these documents, which show her to be more supportive of them than they claimed. On September 21, 2020, Wolf followed up immediately when the FBI showed reluctance to pursue parts of the investigation. In October 2020, she was supportive of the IRS’ wishes to do the Day of Action interviews sooner rather than later. In December 2021, she made a point of commending all the work Ziegler had done on the case. In June 2022, David Weiss recognized Ziegler’s work. In August 2022, Wolf noted that Ziegler was  busy dealing with a family issue and empathized, “know I am thinking of you and sending good thoughts.”

The one thing Wolf absolutely did push back on was the IRS Agents’ efforts to conduct a campaign finance investigation of the funds Kevin Morris provided to Hunter to pay off his taxes. At one point, her request that they prioritize the 2014 tax case first (which she said hadn’t been proven yet) was depicted as obstruction. At another — in Shapley notes that again appear to conflict with what he was writing in the official record — she provided several good legal reasons not to pursue the case, including that any “donation” from Morris to Joe Biden via Hunter was even more attenuated than the John Edwards case that failed. By recording and publicly releasing Wolf noting that the law was not clear on this issue, Shapley will make it almost impossible to charge, because anyone charged would simply point out that even DOJ agreed it wasn’t a clear campaign finance donation. And what the IRS Agents otherwise portray as Wolf’s disinterest in involving Public Integrity (PIN) because they would take authority away from her was (here and elsewhere) instead described as PIN requiring another layer of approvals, precisely the thing that IRS Agents were complaining about elsewhere.

The IRS Agents’ recriminations of Lesley Wolf have gotten her targeted with serious threats. And yet, their own record doesn’t substantiate the claims they have made against her.

Update: Corrected which countries IRS reached out to: the Caymans and Hong Kong, not Cyprus.


Timeline

September 21, 2018: Suspicious Activity Report from Wells Fargo.

October 31, 2018: Primary investigation initiated into other entity.

November 1-2, 2018: Request of support for SAR, only other agency investigating was DA office.

December 10, 2018: Primary investigation initiated into Hunter Biden.

January 18, 2019: Update from Wells Fargo on SAR.

Around February 2019: SSA informs Ziegler that DE USAO looking into SAR.

March 28-29, 2019 Exhibit 400: April 26, 2019, FBI FD 302, re: March 28, 2019, Interview with Gal Luft. It appears likely there were two 302s of these interviews (possibly three) because Luft’s alleged lies don’t appear in unredacted form in this one.

April 12, 2019: Package submitted to DOJ-Tax

April 15, 2019 Exhibit 206: April 15, 2019, Email from Joseph Ziegler to Jessica Moran, Subject: Approx. Timeline. This shows the above timeline, about which Ziegler was not clear in his testimony.

April 29, 2019 Exhibit 207: April 29, 2019, Email from Matthew Kutz to Kelly Jackson, cc’ing Joseph Ziegler and Christopher Wajda, Subject: Robert Doe – FYI Venue issue. Kutz is the person to whom Ziegler attributed his understanding that Barr had assigned this to DE USAO himself, before backing off that claim. Kutz is also the person who was documenting 6A and inappropriate influence on the investigation. Ziegler provides none of that.

August 5-7, 2020 Exhibit 202: August 5-7, 2020, Emails Between Joshua Wilson, Lesley Wolf, Carly Hudson, cc’ing Susan Roepcke, Michelle Hoffman, Joseph Ziegler, and Joseph Gordon, Subject: BS SW Draft. This was a warrant for BlueStar emails. AUSA Wolf objected not just to the mention of Joe Biden in the warrant (which is the only thing Ziegler leaves unredacted), but also to a great deal of stuff that was outside scope of the warrant. The SDNY FARA investigation was active in this period, which may be why other stuff was included, but in short order, even the IRS seemed to concede the SDNY FARA investigation into CEFC (the one that would rely on Gal Luft’s interview) was not viable.

Exhibit 203: Draft of B[lue]S[star email] Warrant.

September 3-4, 2020 Attachment 2: September 3-4, 2023, Emails Between Joseph Ziegler, Lesley Wolf, cc’ing Carly Hudson, Jack Morgan, Mark Daly, Joshua Wilson, Susan Roepcke, Alyssa Ruisard, Antonino Lo Piccolo, Christine Puglisi, Stefania Roca, Michael Dzielak, Gary Shapley, and Joseph Gordon, Subject: Today’s Agenda. This is an incredibly helpful list of where key legal process stood:

  • 4 iCloud backups (Ziegler asked whether location data was necessary, which he and Shapley suggested was mandatory before)
  • Relevancy review of iPhone Backup (which tells you they were still scoping the phone when they got the iCloud warrants)
  • Search warrant for BlueStar (about which investigators disagreed in August)
  • Supplemental email search warrant (unclear on which account)
  • DropBox search warrant (which wouldn’t be served for some time, but which seems to have been an attempt to get emails they knew of but didn’t have)
  • Discussion of 2703-D orders (metadata) for two accounts belonging to Vadym Pozharskyi and one to Devon Archer; elsewhere Ziegler relies on the “laptop” for emails involving the two

The agenda also notes investigative developments involving SDNY (the FARA investigation), Pittsburgh (the FD-1023), and Comerica.

September 3-4, 2020: Memo of Meeting. At this meeting, there was a discussion of keeping Hunter Biden’s name off overt requests, to which Ziegler objected (as if he wanted it to be discovered). There’s a discussion of whether the investigation would continue or not after the election, which Wolf said it would. Wolf attributed sensitivities to Richard Donoghue. Note: Shapley doesn’t say who was involved in the follow-up call on September 4.

September 21, 2020 Attachment 3: September 21, 2020, IRS CI Memorandum of Conversation Between Gary Shapley and Mark Daly, Authored by Gary Shapley. This memorializes a meeting earlier that day in which Joe Gordon expressed uncertainty among FBI management about how many interviews they would participate in after the election. Lesley Wolf pushed back hard on this. This memo reflects double hearsay (Wolf to Mark Daly to Shapley) blaming Special Agent Josh Wilson for the reluctance on investigating Hunter, because he had just moved back to Wilmington with his family. Shapley also memorializes a call to his ASAC about the details. This is another instance where Wolf was pushing the investigation hard.

October 19, 2020 Attachment 5: October 19, 2020, Email from Gary Shapley to Lesley Wolf, Subject: Computer. This is an email Shapley read, in part, in his testimony, regarding IRS’ need to know what was going on with the laptop. Ironically, he notes that there may be specific disclosure limitations tied to the IRS warrant, a concern with which he has since dispensed.

October 21, 2020 Attachment 4: October 2, 2020, Emails Between Lesley Wolf, Joseph Ziegler, Gary Shapley, and George Murphy, Subject: Dates. This reflects ongoing discussion about when to do the day of action, in an attempt to avoid interviewing Hunter in Delaware, as opposed to LA. Lesley Wolf was again supportive of Shapley’s goals to do the interviews sooner rather than later.

October 21, 2020 Exhibit 210: October 21, 2020, Emails Between Jack Morgan, Lesley Wolf, cc’ing Mark Daly and Carly Hudson, Subject: Mann Act. Jack Morgan emails Lesley Wolf regarding nine communications, two with traffickers, that he says may support Mann Act exposure. In only two cases was the travel confirmed. There are no dates in this list. Three instances include travel to Massachusetts (and so might coincide with the apparent hijacking of Hunter’s digital identity while he was in Ketamine treatment).

October 22, 2020: Notes on laptop. As noted, Shapley wildly misrepresented what the notes on the laptop actually say. They show that 10 months after accessing the laptop, the FBI still hadn’t done basic things to validate the content on the laptop had not been tampered.

October 22, 2020 Attachment 6: October 22, 2020, IRS CI Memorandum of Conversation between Prosecution Team, Authored by Gary Shapley. Shapley records Wolf as saying that there would not be a warrant on the DE residence. He does not record why. He also records the briefing on the Pittsburgh lead, ordered up by PDAG (Donoghue). This meeting happened an hour after the laptop meeting, but Shapley treats it as a separate meeting (and doesn’t say who attended).

October 23, 2020 Exhibit 400A: Tony Bobulinksi FBI FD-302 Interview Memorandum. This interview happened on October 23, 2020; Bobulinski went straight from the White House to self-report at the FBI. He repeatedly refused to let the FBI image his phones. It certainly doesn’t help Bobulinski’s credibility as a witness.

October 23, 2020 Exhibit 400B: Attachment Tony Bobulinksi FBI FD-302 Interview Memorandum.

November 2-9, 2020 Attachment 7: November 8-9, 2020, Emails Between James Robnett and Kelly Jackson, cc’ing Michael DePalma, George Murphy, and Gary Shapley, Subject: 1 page brief needed. The day after networks called the election for Joe Biden, the Deputy Chief of IRS-CI ordered the team to put together a one-page summary of the Hunter Biden investigation, to be delivered to him by Tuesday, November 10.

November 9, 2020 Attachment 8: November 9, 2020, Email from Kelly Jackson to Gary Shapley, cc’ing George Murphy, Subject: Recipient of the 1 pager. Effectively, the IRS team checked how far this would circulate before drafting.

~November 9, 2020 Attachment 9: Sportsman Investigation, IRS CI One-Pager. This appears to be a draft, not the final, as there are inline questions and answers. This provides a good summary of where the investigation was, notes that the FARA investigation pertained to CEFC (and that investigators planned no overt steps). It also says that the plan was to do a consent search of the storage facility (and a residence, though it’s not clear which one), which puts the later dispute in context.

December 8, 2020 Exhibit 401: December 8, 2020, Transcribed Interview of John Robinson Walker.

December 8-9, 2020 Exhibit 204: December 8-9, 2020, Emails Between Joseph Ziegler, Lesley Wolf, Mark Daly, Carly Hudson, Jack Morgan, cc’ing Christine Puglisi and Gary Shapley, Subject: Storage Location Warrant. The discussion returns to a warrant for the storage facility outside of DC (in VA). Ziegler says he wants to execute it the following week. Wolf tries to explain that there will be too many approvals required and heavy filter requirements because the facility is in the Fourth Circuit.

December 10, 2020 Attachment 10: IRS CI Monthly Significant Case Report, Subject Name: Robert Hunter Biden, December 2020. This periodic report (Shapley only provided two, raising questions about whether there were others) includes the most substantive description of how the investigation was predicated off sex workers. Shapley bitches about Wolf forgoing the approvals and instead applying the subpoena to the storage facility (without noting that the initial plan was to do a consent search). He says that the only viable charges at that point were tax charges (meaning the SDNY FARA charges didn’t flesh out). This report also notes the election meddling allegations. Shapley also bitches that prosecutors aren’t responding to Congressional inquiries, a totally inappropriate stance, one he would repeat in a later report. He blames the December 2020 leak on DOJ, with no explanation. Unclear whether this really is dated December 10, before the December 11 call with Wolf.

December 11, 2020 Exhibit 205: Joseph Ziegler’s Notes re: Phone Call with Lesley Wolf About the Storage Unit Warrant. The notes of this call actually debunks several things Ziegler has claimed. Wolf notes that the normal way to interview Hunter would be to call his lawyers, but she worked hard to go through just Secret Service. She also notes that all lawyers involved agreed subpoenaing for the documents was the appropriate thing to do.

December 14, 2020 Attachment 11: December 14, 2020, Emails Between Kelly Jackson, George Murphy, and Gary Shapley, Subject: SM – call with DFO today. This escalated matters on the facility to Deputy Commissioner. At that point, one of the IRS people didn’t even knew how a taint would work after a search.

December 15, 2020 Attachment 12: December 15, 2020, FBI Electronic Communication, Title: Attempted Interview: Hunter Biden 12/08/2020. The 302 reflecting the non-interview of Hunter. Slightly over two hours later, Hunter’s lawyers contacted the FBI.

January 26, 2021 Exhibit 315A: January 26, 2021, Emails Between Joseph Ziegler, Stefania [redacted], and Carly Hudson, Subject: Can you send me the filter terms that have been used for Relativity? For some reason, Ziegler included these filter terms, which will be very helpful to Hunter’s lawyers. Notably, there were two sets of filters: tax and FARA, which may explain the source of Ziegler’s frustration that they didn’t get all results. At that point FARA was exclusively focused on Ukraine.

Exhibit 315B: Appendix A, Filter Keywords for Google Email.

Exhibit 315C: Appendix A – Laptop, Filter Keywords for Laptop Filter.

Exhibit 315D: Appendix A, Filter Keywords for Laptop FARA Filter.

February 5, 2021 Attachment 13: February 5, 2021, Emails Between Joseph Ziegler, Lesley Wolf, Carly Hudson, Joshua Wilson, Susan Roepcke, Michelle Hoffman, Antonino Lo Piccolo, Christine Puglisi, Stefania Roca, Michael Dzielak, Matthew McKenzie, cc’ing Joseph Gordon and Gary Shapley, Subject: Agenda 2/5 Meeting @ 12:30PM. This reflects Wolf and other lawyers briefing seemingly more than one AAG (unclear whether this is Acting, or Assistant, since no one was confirmed yet). Shapley was put out that NSD asked to be briefed on the tax side of the case.

April 27, 2021 Exhibit 1E: Transcript of Recorded IRS CI Interview with Jeffrey Gelfound, re: Hunter Biden Representation Letter and Discussion of Hunter Biden 2014 Tax Return. A fragment of an interview with Hunter’s accountant regarding a representation letter signed 3 months after the initial representation. Gelfound really didn’t seem as worked up about it as the IRS.

April 27, 2021 Exhibit 1F: Transcript of Recorded IRS CI Interview with Jeffrey Gelfound, re: Alleged Gulnora Deduction. The part of the Gelfound interview regarding how the sex worker came to be deducted.

April 27, 2021 Exhibit 1J: Transcript of Recorded IRS CI Interview with Jeffrey Gelfound, re: Hunter Biden’s Tax Payments. Gelfound suggested that the payments with a lien would be paid by Kevin Morris first, possibly because of publicity.

May 2021 Attachment 14: IRS CI Monthly Significant Case Report, Subject Name: Robert Hunter Biden, Month/Year of Report: May 2021. This notes the 2021 expiration of the 2014 tax year. It states that FBI is not sold on charging decision. It says FBI is actively involving FARA. And it claims there are campaign finance violations (pertaining to Kevin Morris paying off Hunter’s taxes), which Wolf wanted nothing to dø with, in part to avoid PIN involvement. She stated that 2014 could not yet be proved beyond a reasonable doubt, which is what she wanted them to focus on.

June 14, 2021 Exhibit 1G: Interview excerpt of Gulnora. This is the interview with the sex worker payments to whom Hunter deducted. She appears to have ties to the overseas escort service, so these payments could be the ones that triggered the entire investigation. Marjorie Taylor Greene misrepresented this interview in her campaign to turn Hunter into a sex trafficker.

September 9, 2021 Exhibit 208: September 9, 2021, Email Between Joseph Ziegler, Lesley Wolf, Stefania Roca, cc’ing Carly Hudson, Jack Morgan, Mark Daly, Christine Puglisi, Michelle Ann Hoffman, Susan Roepcke, and Joshua J. Wilson, re: Frustrations with Interview Delays. Ziegler complains that some interviews with sex workers have to be put off because DOJ Tax is still approving, among other things, a subpoena for Hunter’s lawyer George Mesires.

September 10-24, 2021 Attachment 15: September 10-24, 2021, Emails Between Gary Shapley and Jason Poole, Subject: Quick Call. Shapley’s own supervisor was blowing him off too, but he did follow-up twice to complain about approvals.

September 20, 2021 Exhibit 209: September 20, 2021, Emails Between Mark Daly and Joseph Ziegler, Subject: Re: email sent to mgmt with list of 10 [redacted]. Mark Daly gets involved and seems to move these forward.

September 20, 2021 Attachment 2: September 20, 2021, Emails Between Joseph Ziegler, David Denning, Christine Puglisi, Darrell Waldon, and Gary Shapley, Subject: Travel. Here Ziegler lashes out at his own supervisor, who suggests he send a “collateral” to do interviews in LA, rather than doing them himself. Contrary to wanting to go overt in the past, he claims he is trying to keep things quiet. Ziegler writes that this is “a case I’ve worked with very little problems and only support from my management, you’re making it hard for me to do my job” (though he may have only been referencing the IRS side).

September 20, 2021 Attachment 3: September 20, 2021, Emails Between Joseph Ziegler, David Denning, Christine Puglisi, Michael Batdorf, and Gary Shapley, Subject: Travel. Ziegler escalates to Mike Batdorf. He notes, “I don’t want to put some details in this email” and also says he’s only cc’ing Shapley “because I’ve briefed him on what has happened and because he’s been my management since day 1,” which is of course false.

September 22, 2021 Exhibit 506: September 22, 2021, Emails Between Justin Cole, James Lee, James Robnett, Michael Batdorf, Darrell Waldon, and Joseph Ziegler, Subject: Sensitive Case Heads Up. CNN reached out to IRS and said they had a recent witness saying the case was almost wrapped up, claiming to having a Hunter email saying that all this would go away when his dad became President, claiming there was a plea deal. Batdorf gets the question, sends it to Ziegler, he asks if he can share with the lawyers. Batdorf asks not to share the CNN side, even though they regularly share media reports. Ziegler reports back that Wolf said no plea had been offered.

September 20-23, 2021 Exhibit 507: September 20-23, 2021, Emails Between Joseph Ziegler, David Denning, Christine Puglisi, Michael Batdorf, and Gary Shapley, Subject: Travel. Batdorf follows up again and Ziegler says “It seems to have been a miscommunication from my senior management. … I had a significant amount of trust in my prior management, and for some reason, that has gone away.”

November 16, 2021 Exhibit 1H: IRS CI Memorandum of Interview with Jeffrey Gelfound on November 16, 2021.J

November 23, 2021 Exhibit 402: John Robinson Walker FBI FD-302.

December 20, 2021 Exhibit 200: December 20, 2021, Email from Lesley Wolf to Mark Daly, Jack Morgan, Carly Hudson, Matthew McKenzie, Joseph Ziegler, Christine Puglisi, Antonino Lo Piccolo, Susan Roepcke, Michelle Ann Hoffman, Michael Dzielak, Stefania Roca, Joseph Gordon, and Joshua Wilson, Subject: Thank you! Wolf gives extra credit to Ziegler for all his work.

January 12, 2022 Attachment 16: Notes from January 12, 2022, Sportsman Call. Wolf gives good legal reasons not to pursue the campaign finance investigation, notably that the law is uncertain and the facts are even more attenuated here than they were for John Edwards. She doesn’t want to involve PIN because it would add another level of approval.

Janaury 27, 2022: Prosecution Memo. As described in Shapley’s testimony, this document is what goes through a series of approval processes.

February 15, 2022 Attachment 17: February 15, 2022, Email from Gary Shapley to Darrell Waldon, cc’ing Lola Watson, Subject: For Review/Approval: Sensitive T26 Prosecution Recommendation – SPORTSMAN – SA Ziegler. This was Shapley’s rebuttal to CT’s non-concur on prosecution, based on Hunter’s addictions. Though Shapley (and especially Ziegler) has elsewhere stated clearly that Hunter was totally incapacitated in this period, Shapley now claims, “the universe of his conduct clearly indicated he was lucid during his periods of insobriety and therefore a blanket lack of willfulness defense to the pattern of conduct is not reasonable nor logical.”

May 13, 2022 Attachment 18: May 13, 2022, Email from Gary Shapley to Michael Batdorf and Darrell Waldon, which Gary Shapley Forwarded to Joseph Ziegler and Christine Puglisi, Subject: Sportsman – 3rd DOJ Tax – Taxpayer Conference Delayed. Because of a delay in the tax conference at which the prosecution recommendation would be presented, Shapely pitches briefing Jason Poole and David Weiss on it in advance.

June 14-15, 2022 Exhibit 314: IRS CI Presentation re: Sportsman Investigation “Robert Doe,” Tax Summit, June 14-15, 2022. This is the slide deck presenting the case. Most of it — three pages — describe spin-off investigations. It shows the main remaining steps were to establish venue somewhere besides Delaware and get discovery production; at this moment, Shapley was refusing to turn over discovery production to DOJ.

June 30, 2022 Exhibit 1K: June 30, 2022, Email from Matthew Salerno to Mark Daly, Lesley Wolf, Carly Hudson, Jack Morgan, cc’ing Chris Clark, Brian McManus, and Timothy McCarten, re: 2018 Tax Defenses Proffered, wh ich Mark Daly Forwarded to Joseph Ziegler, Michelle Ann Hoffman, Christine Puglisi, and Michael Dzielak. This is Mark Daly forwarding Hunter’s lawyers’ rebuttal on some of the 2018 deductions, explaining while none of Hunter’s efforts to develop businesses worked, he was attempting. Ziegler has claimed there’s contrary evidence (from James Biden) in the record, but none of that is definitive and James Biden testified his memory wasn’t great on the matter.

June 21-28, 2022 Exhibit 201: June 21-28, 2022, Emails Between David Weiss, Joseph Ziegler, and Gary Shapley, cc’ing Lesley Wolf, Carly Hudson, Jack Morgan, and Mark Daly, Subject: Sportsman Request. After thanking Ziegler for all his work, Weiss asks IRS to have a revenue agent rerun all the loss numbers for 2014 and 2015. He asks for that, first, because that’s what is normally done, and second, because, “at trial we are going to need a testifier on this issue and that testifier can’t be Joe.” While Ziegler ultimately complied with Weiss’ request, Ziegler first appears to have redone the analysis himself. This email will give Hunter’s attorney cause to question the revenue analyst about Ziegler’s role in these numbers, if this ever gets charged.

July 29, 2022 Attachment 19: Notes from July 29, 2022, Sportsman Call. This includes details of the state of the investigation, including mentions of approval for a new prong of FARA investigation, with references to SDNY (CEFC) and Romania. The outstanding witnesses include George Mesires and family members, including James Biden (and possibly Hallie Biden, though that’s redacted), though an August 18 email lists Mervyn Yan among those left to be interviewed. Wolf clearly tells the team that if they don’t indict by September, it’ll be after November. She clearly says that prosecution decision will be collaborative with DOJ Tax. She clearly says she’s not inclined to toll the 2014 and 2015 tax years ago. In short, she clearly communicates, in July, all the things that the IRS agents claim were surprises in October.

August 5-8, 2022 Exhibit 503: August 5-8, 2022, Emails Between Joseph Ziegler and Lesley Wolf, Subject: Meeting with David. Wolf sets up an August 16 meeting that it appears Ziegler requested, at which only Weiss will be present from DOJ. She requests he run numbers on an early undetermined issue. Ziegler says he’s working with revenue agent — the one Weiss asked to involve in June — on that. Wolf is again warm with Ziegler.

August 11, 2022 Exhibit 501: August 11, 2022, Emails Between Mark Daly, Joseph Ziegler, Christine Puglisi, Michael Dzielak, Michelle Ann Hoffman, Susan Roepcke, cc’ing Jack Morgan, Carly Hudson, and Lesley Wolf, Subject: Meeting. An internal IRS meeting about charging decisions that would precede the meeting with Weiss.

August 12, 2022 Exhibit 502: Calendar Invitation, Subject: Sportsman – Call re Charging, Organized by Mark Daly, Required Attendees: Michael Dzielak, Michelle Ann Hoffman, Susan Roepcke, Jack Morgan, Carly Hudson, Joseph Ziegler, and Christine Puglisi, Scheduled for August 12, 2022. The tax meeting on charging decisions.

August 15-18, 2022 Attachment 4: August 15-18, 2022, Email Between Gary Shapley, Michael Batdorf, and Darrell Waldon, Subject: Sportsman Update. Shapley telling his supervisors that Weiss was still not inclined to charge 2014 and 2015. One of his complaints is that if 2104 and 2015 weren’t charged, it would take the Burisma stuff off the table, which doesn’t sound like a tax decision. He’s still worried about not collecting that revenue, though the revenue is not that much (even if you believe him about what was owed). He claimed that Weiss mocked CT’s non-concurrence, but DOJ Tax does seem to side with not charging some of this. Shapley also claimed that the reason he was only learning venue on CA was through lack of transparency, except that’s totally consistent with what Wolf had said earlier: You decide charges first, then venue.

August 15-18, 2022 Attachment 20: August 15-18, 2022, Emails Between Gary Shapley, Michael Batdorf, and Darrell Waldon, Subject: Sportsman Update. This appears to be a dupe.

August 18, 2022 Exhibit 211: August 18, 2022, Email from Mark Daly to Joseph Ziegler, Michael Dzielak, Michelle Ann Hoffman, Christine Puglisi, Lesley Wolf, and Carly Hudson, cc’ing: Jack Morgan, Jason Poole, and John Kane, Subject: Going forward. At this point, the three remaining interviews were Mesires, Merv[y]n Yan, and James Biden.

August 25, 2022 Attachment 21: August 25, 2022, Emails Between Garret Kerley and Lesley Wolf, cc’ing Joseph Ziegler and Mark Daly, Subject: Case Coordination. The FBI SSA (who may have replaced Joe Gordon) complains they’re not communicating enough between meetings and asks to start an email chain. Wolf asks him to stand down until they can meet — clearly an effort to avoid creating discoverable information. Shapley turns it into a Memo for his files.

September 20 – November 8, 2022 Attachment 29: September 20, 2022, Emails Between Gary Shapley, David Weiss, and Darrell Waldon, Subject: SM Meeting – Management. On September 20, Shapley asks for a quick call. Weiss responds that he would set up a meeting/call for updates in near term (what would end up being the October 7 meeting). Then on November 8, after the prosecution meeting is canceled, Shapley attempts to set up a meeting in December. Shapley then writes back on November 8 saying the FBI can’t make it on December 2, so asks Weiss to confirm that December 5 would work.

September 22, 2022 Attachment 22: Notes from September 22, 2022, 2:30PM, Conversation, at which Lesley Wolf and Mark Daly are Present. Shapley notes that Wolf and Daly both joined late but doesn’t say how late. He describes that the US Attorney (whom he refers to as “her” but has to be a reference to Martin Estrada, who was just confirmed on September 19) has only been sworn in and will need time to get up to speed. DOJ Tax also wanted to defer the charges until after the election. And DE’s finance guy had a number of remaining questions.

September 22, 2022 Attachment 23: September 22, 2022; 3:33PM ff, Email from Gary Shapley to Michael Batdorf, Subject: Conversation with Batdorf Michael T. Shapley texts Batdorf, then emails the texts, complaining about the decision to wait until after the election.

September 22, 2022 Attachment 5: September 22, 2022, 5:28 PM Email from Gary Shapley to Darrell Waldon, Lola Watson, and Michael Batdorf, Subject: SM Update. Shapley tells his supervisors that Wolf said they wouldn’t charge until after the election. Shapley complains that, “the statement is inappropriate let alone the actual action of delaying as a result of the election.” He claims ther are other items (which he doesn’t lay out) “that are equally inappropriate,” probably that they weren’t going to charge the gun charge in October. Shapley was told months ago about this, but is wailing now.

September 22, 2022 Attachment 24: September 22, 2022, Email from Gary Shapley to Michael Batdorf, Darrell Waldon, and Lola Watson, Subject: SM Update. This appears to be a dupe, with the news he had a doctor’s appointment redacted.

September 21-October 6, 2022 Attachment 25: September 21-October 6, 2022, Emails Between Shawn Weede, Ryeshia Holley, and Gary Shapley, cc’ing Garret Kerley and Lesley Wolf, Subject: Call on Charging Timeline. This is a thread between Shawn Weede, Ryeshia Holley (whose name the FBI tried hard to keep obscure), Gary Shapley, about setting up the meeting he wanted. Because he was in the Netherlands the last week of September they instead waited until he returned. Shapley sent out his list of agenda items, showing clearly that he came into the October 7 meeting with an agenda — listing “1. Special counsel 2. election deferral comment – continued delays 3. venue issue”. — and a wildly mistaken understanding of how Special Attorney status works. At 4:34PM, two hours after the WaPo story posted, she says the meeting will include, “Anything further that develops by tomorrow.”

September 21 – October 6, 2022 Attachment 1: September 21-October 6, 2021, Emails Between Shawn Weede, Ryeshia Holley, Gary Shapley, cc’ing Garret Kerley and Lesley Wolf, Subject: Call on 2 Timeline. This shows the last two emails to the earlier thread.

September 28-29, 2022 Exhibit 504: September 29, 2022, Emails Between Joseph Ziegler, Darrell Waldon, and Gary Shapley, cc’ing Lola Watson and Michael Batdorf, Subject: Sportsman. Darrel Waldon writes to note he requested a meeting with the US Attorney’s office. Ziegler notes he’s awaiting information about CDCA’s decision on charging 2017-2019. Hours later, Waldon asks him to call his cell. Seemingly after that call, Ziegler responds that, “we also need to request the presentation of 2014 and 2015 to the criminal chief / US attorney in DC.” This seems to be inconsistent with past claims about when and how closely DC USAO reviewed this case.

September 29, 2022 Exhibit 401: IRS CI Memorandum of Interview with James Biden on September 29, 2022. Ziegler has pointed to this interview — “James B was not sending RHB any deals while he was out in California.  … conversations were about getting RHB well at this point and not about business” — as proof that Hunter’s lawyers were lying about his attempts to do business in 2018; yet Hunter’s uncle made clear that he kept trying to engage him and also noted that his memory was not all that clear. The interview also raises questions about Tony Bobulinski’s motives and credibility (as Rob Walker already had). The interview timing is as important as anything else — Shapley went on a tear about the timing of charging before this key interview was even done.

October 6, 2022 Attachment 26: October 6, 2022, Emails Between Gary Shapley, Michael Batdorf, and Darrell Waldon, Subject: Sportsman. After responding to Holley, Shapley alerts his supervisors of the Devlin Barrett story that he would later claim he didn’t know where it was published, noting that it is likely to come up at the meeting the next day. He identifies that the leak was “purportedly from the ‘agent’ level, reveals he spoke with the IRS press person about it, and stated, “I have no additional insight that is anything but a rumor.” This marks the third or fourth inconsistent representation of Shapley’s knowledge of the leak.

October 6, 2022 Exhibit 505: October 6, 2022, Emails Between Joseph Ziegler and Carly Hudson, Subject: Sportsman Uncle question. One of the AUSAs tells Ziegler that Weiss asked about something Ziegler raised, and he states that DOJ-Tax didn’t expect the case to be indicted until 2023, as they were still working on approvals. Hudson sends the email at 10:07AM; Ziegler responds at 6:51PM. I find it exceedingly unlikely Shapley did not also know that the case would not be indicted until 2023.

October 7, 2022: Handwritten notes. As noted these notes show that Shapley misrepresented what David Weiss said and introduced the DC USAO review that would be mooted by the decision not to charge 2014 and 2015, something Shapley had been alerted to months earlier.

October 7-11, 2022: Shapley to Darrell Waldon. The original email Shapley shared, which makes it clear the meeting was dominated by the leak.

October 7-11, 2022 Attachment 6: October 7-11, 2022, Email Between Gary Shapley, Michael Batdorf, and Darrell Waldon, Subject: Sportsman Meeting Update. This adds Mike Batdorf’s response to both Shapley and Waldon, 3 hours after Waldon said he’d handle the referral to TIGTA.

November 7, 2022 Attachment 27: November 7, 2022, Notes, Subject: Telephone Call from FBI Special Agent Mike Dzielak and IRS-CI Case Agent Joe Ziegler. A 10-minute call in which an FBI Special Agent discusses with Shapley and Ziegler that DE USAO was asking for management level emails. Dzielak suggests that the FBI was balking, in the same way that Shapley still was. Shapley offered up that this was proof that DE USAO had no intention of charging, which is utterly debunked by the fact that they had made this request once before (he says in April-May here, but in his House Ways and Means testimony he said it was in March). There’s no mention of the leak.

November 8-10, 2022 Attachment 28: November 8-10, 2022, Emails Between Gary Shapley and Ryeshia Holley, Subject: Next Meeting in Delaware. This reflects Shapley’s immediate effort to schedule a December meeting after the November prosecution meeting was canceled. One reason he did so was because of the request for his own emails.

December 13, 2022: Shapley email to Michael Batdorf. This is the email where Shapley asked Batdorf to ask him if he had any questions about the emails that got turned over.

December 13-16, 2022 Attachment 30: December 13-16, 2022, Emails Between Gary Shapley, Michael Batdorf, and Darrell Waldon, Subject: Meeting at Del USAO Today. Shapley emails Batdorf and Waldon to tell them that prosecutors and the FBI had an all-day meeting in Wilmington. Waldon asks if anyone from Tax participated.

January 6, 2023 Attachment 7: January 6, 2023, Notes, re: Call between Gary Shapley and Michael Batdorf on Whistleblowing. Shapley memorializes an either 8- or 13-minute call with Mike Batdorf, alerting him that on January 4, he lawyered up with “whistleblower” counsel. He gave a weird pitch (including that he would criticize the IRS, but that the IRS could boast that it was an IRS agent who “came forward.” Shapley claimed he would attend to 6103 and 6e matters he has not — including getting approval before sharing. He specifically left out the Senate Finance Committee. And he admitted that he expected DOJ to make “nefarious” allegations against him but hoped the IRS would support him. Batdorf said he hadn’t heard of any allegations.

January 20, 2023 Attachment 8: January 20, 2023, Emails Between Gary Shapley, Michael Batdorf, Darrell Waldon, and Lola Watson, Subject: Discussion – Sportsman. In the guise of finding out what was expected of him, Shapley claimed that FBI investigators had been brought back on the Hunter Biden case (which he learned via Ziegler).  He also noted that a third FBI Agent on the team retired before mandatory retirement. Waldon corrects Shapley that the FBI agents met with DE USAO on other issues, but only inquired about Hunter Biden.

January 25-February 10, 2023 Attachment 9: January 25-February 10, 2023, Email Between Gary Shapley and Michael Batdorf, Subject: For Review/Approval: Administrative Leave Request for Protected Whistleblower Activities – Shapley. Shapley asks Batdorf for paid leave for meetings, including with Congress, months before any overt meetings with Congress happened (suggesting he may have met with Grassley). Batdorf not only gives him leave but offers to pick up his work to enable it. Shapley offers to document with whom he was meeting (which given that this request preceded most overt outreach by months, would have been really helpful), but Batdorf says that’s not necessary.

April 13, 2023 Exhibit 212: April 13, 2023, Email from Joseph Ziegler to Lola Watson, cc’ing Gary Shapley, Subject: Sportsman. Ziegler updates Lola Watson (but not Kareem Carter), about meetings Hunter’s lawyers are having, including with Brad Weinsheimer (which leaked). He claims, without evidence, that Weiss was responding to the Merrick Garland testimony. And he addresses two investigations (which involves someone whose taxes would have implications for Hunter Biden — possibly Kevin Morris, would be consistent with Ziegler’s testimony) from which his team has been excluded.

Attachment 31: May 15, 2023, Notes from Conference Call with Kareem Carter, Lola Watson, Gary Shapley, and Joe Ziegler, Re: Sportsman. Memorialization of 17-minute call on which Kareem Carter took the International Tax team off the Hunter Biden case. Some of Shapley’s claims (such as that he documented complaints going back ot June 2020) are not substantiated in the emails released. And he was downright insubordinate on the call. Importantly, his memorialization does not reveal that Ziegler was not invited on the call, and in fact falsely suggests that Ziegler received an invitation to the call.

May 18, 2023 Exhibit 213: May 18, 2023, Email from Joseph Ziegler to Douglas O’Donnell, Daniel Werfel, James Lee, Guy Ficco, Michael Batdorf, Kareem Carter, and Lola Watson, Subject: Sportsman Investigation-Removal of Case Agent. Joseph Ziegler’s email in which he acknowledges breaking chain of command to complain about his removal.

“Reasonable Persons:” Trump’s Recusal Stunt Flops

Yesterday, Judge Tanya Chutkan denied Trump’s motion for her recusal.

Chutkan’s order was judicious, clinical, and never once responded to the ridiculous claims John Lauro made in his bid to remove a Black woman judge. In other words, it is a model of judicial temperament, and so will hold up under any appeal.

For example, rather than laying out how much video she had seen implicating Trump in the violence and lawlessness of January 6, Chutkan simply corrected the error Trump’s lawyers had made when they falsely claimed she had seen no video on which to base her comments in Chrstine Priola’s sentencing, and so (they insinuated) had formed opinions based on what she had seen on the news.

The statements at issue here were based on intrajudicial sources. They arose not, as the defense speculates, from watching the news, Reply in Supp. of Mot. for Recusal, ECF No. 58 at 4 (“Reply”), but from the sentencing proceedings in United States v. Palmer and United States v Priola. The statements directly reflected facts proffered and arguments made by those defendants. And the court specifically identified the intrajudicial sources that informed its statements.

[snip]

The court also expressly based its statements in Priola’s sentencing on the video evidence presented earlier in the hearing. Priola Sentencing Tr. at 11– 14, 29. Priola. The statements directly reflected facts proffered and arguments made by those defendants. And the court specifically identified the intrajudicial sources that informed its statements.

Here’s the proof, from the sentencing transcript Trump’s attorneys cited themselves, that prosecutors entered the video that Trump’s lawyers claimed they couldn’t find into evidence.

As we’ve discussed, I would like to play seven video clips which the government feels are the best evidence of the defendant’s conduct that day. The clips total about ten minutes. Each was an exhibit to the government’s sentencing memorandum. Before I play each clip, I’ll just preview a little bit about what each clip shows.

[Introduction of each of 6 videos, including notation that the videos were played.]

THE COURT: There’s no Exhibit 6. Is that right?

MS. ZIMMERMAN: No. That was a mistake, Your Honor.

THE COURT: Okay.

(Video played.)

[snip]

Does the Court have any questions about any of the videos?

THE COURT: No. Thank you.

Having established that the comments about which Trump complained arose in the course of her role as a judge, Chutkan described that she was obligated to directly address the bids that Robert Palmer and Christine Priola made for a downward departure because they were not as culpable as Trump.

To begin, the court’s statements reflect its obligation to acknowledge Palmer and Priola’s mitigation arguments on the record. As already noted, both defendants sought a lower sentence on the grounds that their culpability for the January 6 attack was lesser than that of others whom they considered to be the attack’s instigators, and so it would be unfair for them to receive a full sentence while those other people were not prosecuted. See supra Section III.A. The court was legally bound to not only privately consider those arguments, but also to publicly assess them. By statute, every judge must “state in open court the reasons for its imposition of the particular sentence.” 28 U.S.C. § 3553(c). For every sentence, the court must demonstrate that it “has considered the parties’ arguments,” Rita v. United States, 551 U.S. 338, 356 (2007), including a defendant’s arguments that their case involves mitigating factors that should result in a lower sentence, United States v. Pyles, 862 F.3d 82, 88 (D.C. Cir. 2017). That is what the court did in those two cases. A reasonable person—aware of the statutory requirement that the court address the defendant’s arguments and state its reasons for its sentence—would understand that in making the statements contested here, the court was not issuing vague declarations about third parties’ potential guilt in a hypothetical future case; instead, it was fulfilling its duty to expressly evaluate the defendants’ arguments that their sentences should be reduced because other individuals whom they believed were associated with the events of January 6 had not been prosecuted.

While Chutkan’s comment about what a “reasonable person” should know given sentencing obligations might be a dig at Trump’s lawyers’ claimed ignorance of this basic fact, it nevertheless adopts the standard for recusal: not what a defense attorney feigning ignorance might argue, but instead what a reasonable person might understand.

Chutkan similarly noted that Trump’s team had to adopt a “hypersensitive, cynical, and suspicious” in order to interpret her factual statements as if they necessarily addressed Trump himself.

But the court expressly declined to state who, if anyone, it thought should still face charges. It is the defense, not the court, who has assumed that the Defendant belongs in that undefined group. Likewise, for the sentencing hearing in Priola, the defense purports to detect an “inescapable” message in what the court did not say: that “President Trump is free, but should not be.” Id. at 2 (emphasis added). The court did state that the former President was free at the time of Priola’s sentence—an undisputed fact upon which Priola had relied for her mitigation argument—but it went no further. To extrapolate an announcement of Defendant’s guilt from the court’s silence is to adopt a “hypersensitive, cynical, and suspicious” perspective rather than a reasonable one. Nixon, 267 F. Supp. 3d at 148.

Again, this opinion should be rock solid in the face of appeal, even if it won’t impress those of “hypersensitive, cynical, and suspicious” disposition.

This opinion addresses what reasonable people should understand and believe. It certainly won’t persuade Trump’s groupies, because they are not reasonable people. But it soundly addresses the standard for recusal and the actual evidence before Chutkan.

The Still Ongoing Investigation into Where that Robert Menendez Cash Came From

Among the most interesting stories I’ve read on Robert Menendez since his indictment is this story, from the day before the indictment.

I find it interesting for how much of the story NBC already had — but more importantly, details from NBC that don’t show up in the indictment. The story reports on two of three prongs that appear in the indictment: It provides passing coverage of the IS EG Halal financing (though offers few specifics of the Egyptian favors) and extensive coverage of the Fred Daibes relationship.

The NBC story actually attributes the Mercedes, which the indictment directly ties to Menendez’ intervention in the state prosecution of a Jose Uribe associate, to IS EG Halal (Uribe does have ties to Wael Hana’s company). NBC doesn’t mention Menendez’s alleged intervention in the state prosecution of Uribe’s associate. Of more interest, it also describes a “a luxury D.C. apartment” that may have come from Hana’s company which is not mentioned at all in the indictment.

The story notes IRS-CI’s involvement in the case (as did Damian Williams at his presser announcing the charges); there’s no sign of tax charges, yet, in the indictment, or for that matter, of campaign disclosure violations (something the NYT reporter who has followed this closely is focused on).

As noted, however, the NBC story focuses much more closely on the Daibes prong of the investigation. It describes witnesses being asked if Menendez offered Daibes to interfere in the federal prosecution against him.

Sources say witnesses are now testifying before that federal grand jury. Part of the investigation centers on the senator’s ties to Fred Daibes, a New Jersey developer and one-time bank chairman. Officials with the FBI and IRS Criminal Investigation want to know if Daibes or his associates gave gold bars to the senator’s wife, Nadine Arslanian — gold bars worth as much as $400,000.

At the time of the gift handoff, Daibes was facing federal bank fraud charges that could have landed him up to a decade in federal prison.

Sources familiar with the matter say federal prosecutors have been asking if Menendez offered to help support Daibes with his criminal case by contacting Justice Department officials about the case. If the senator did offer to act in exchange for expensive gifts, legal experts say that could be a crime.

“For purposes of the Federal Extortion Act, it makes no difference if the senator took an official act so long as he accepted the money and there was knowledge the money was in exchange for that official influence, even if he never carried out what he had promised he would do,” NBC Legal Analyst Danny Cevallos said.

The indictment does not describe such an offer. The closest thing it describes is this exchange, after the prosecution of Fred Daibes was continued, when Nadine told Daibes that Menendez was “fixated” on Daibes’ fate:

On or about December 23, 2021, the trial of DAIBES, which had previously been scheduled for January 2022, was adjourned for reasons related to the COVID-19 pandemic. Later that day, DAIBES texted NADINE MENENDEZ, a/k/a “Nadine Arslanian,” the defendant, and asked how ROBERT MENENDEZ, the defendant, who had recently sustained a shoulder injury, was doing. NADINE MENENDEZ responded that MENENDEZ was doing better having heard that the trial date was adjourned, and that MENENDEZ was “FIXATED on it.” DAIBES responded, “Good I don’t want him to be upset over it. This is not his fault he was amazing in all he did he’s an amazing friend and as loyal as they come. How is the shoulder is he sleeping. Let me know if I can get him a recliner it helped me sleep.” DAIBES thereafter provided a recliner to MENENDEZ.

There’s also an incident where Daibes and Menendez, together, yell at Daibes’ attorney for not being aggressive enough; that’s not a crime, and in fact Menendez will use it to claim he intervened because he cared, not because he was paid.

NBC’s description of Menendez’ contact with US Attorney Phil Sellinger’s office differs in fairly significant ways from the indictment. It cites sources claiming that Menendez never contacted Sellinger or his office.

Sources told News 4 there is no indication U.S. Attorney Philip Sellinger or his office were ever contacted by the senator — but the two men had been close, with Sellinger appointed to the position with the senator’s support, and Sellinger previously serving as a campaign fundraiser for Menendez.

According to the indictment, Menendez did. The indictment alleges that Menendez raised Daibes before supporting Sellinger for the nomination.

In that meeting, MENENDEZ criticized the U.S. Attorney’s Office for the District of New Jersey’s prosecution of FRED DAIBES, the defendant, and said that he hoped that the Candidate would look into DAIBES’s case if the Candidate became the U.S. Attorney. MENENDEZ did not mention any other case in the meeting. After the meeting, the Candidate informed MENENDEZ that he might have to recuse himself from the DAIBES prosecution as a result of a matter he had handled in private practice involving DAIBES. MENENDEZ subsequently informed the Candidate that MENENDEZ would not put forward the Candidate’s name to the White House for a recommendation to be nominated by the President for the position of U.S. Attorney.

And Menendez allegedly called Sellinger’s First AUSA, Vikas Khanna.

b. On or about January 21, 2022, MENENDEZ called Official-3 and asked the identity of Official-3’s First Assistant U.S. Attorney (“Official-4”). As a result of Official3’s recusal, Official-4 had supervisory responsibility over the prosecution of DAIBES.

[snip]

d. On or about January 24, 2022, DAIBES’s Driver exchanged two brief calls with NADINE MENENDEZ. NADINE MENENDEZ then texted DAIBES, writing, “Thank you. Christmas in January.” DAIBES’s Driver’s fingerprints were later found on an envelope containing thousands of dollars of cash recovered from the residence of MENENDEZ and NADINE MENENDEZ in New Jersey. This envelope also bore DAIBES’s DNA and was marked with DAIBES’s return address. In or about the early afternoon of January 24, 2022— i.e., approximately two hours after NADINE MENENDEZ had texted DAIBES thanking him and writing “Christmas in January”—MENENDEZ called Official-4, in a call lasting for approximately 15 seconds. This was MENENDEZ’s first phone call to Official-4. On or about January 29, 2022—i.e., several days after NADINE MENENDEZ had texted DAIBES, thanking him and writing “Christmas in January”—MENENDEZ performed a Google search for “kilo of gold price.”

[snip]

45. Official-3 and Official-4 did not pass on to the prosecution team the fact that ROBERT MENENDEZ, the defendant, had contacted them as described in the above paragraphs, and they did not treat the case differently as a result of the above-described contacts. In or about April 2022, FRED DAIBES, the defendant, pled guilty pursuant to a plea agreement that provided for a probationary sentence.

Frankly, I find this part of the indictment unpersuasive, not just because the evidence presented only ever ties Daibes’ payments to proximate acts, not to a specific quid pro quo, but also because it is not explained how this case went from imminent trial to a sweet plea deal in four months.

A cooperation agreement in this investigation might explain it, but there’s no hint of that, though NBC seems to agree with me that that would explain what we’re looking at.

So one reason I find the NBC piece interesting is it portrays that prosecutors were still trying to obtain proof that this interference was a quid pro quo on the eve of the indictment. And SDNY didn’t provide that evidence in the indictment.

Couple that with two other details.

First, there’s the widely mocked line in the Menendez presser, attempting to explain the large amounts of cash found at his home:

For thirty years, I have withdrawn thousands of dollars of cash from my personal savings account, which I have kept for emergencies, and because of the history of my family facing confiscation in Cuba. Now this may seem old-fashioned. But these were monies drawn from my personal savings account based on the income that I have lawfully derived over those thirty years.

This story is at best a partial explanation for the cash shown in the indictment, much less the checks from Daibes and the gold bars (though Menendez has treated some, if not all, of the gold bars as Nadine’s property).

But consider the utility of it. Most reporters didn’t note Menendez’ silence about the gold bars (Menendez said he’d address other issues at trial). And for less credulous supporters of Menendez, such an explanation is all you need to offer to win their continued support. As with Trump, for the kind of political support you need to try to fight this out, the explanation doesn’t have to be plausible, it just needs to exist.

More interestingly, there’s probably enough truth in the statement — some of the cash the FBI seized in the search last year likely did come from Menendez’ bank account, regardless of why he withdrew it — that if prosecutors attempt to use this video at trial, it could backfire. Prosecutors have called to seize all this cash in forfeiture.

Over $480,000 in cash—much of it stuffed into envelopes and hidden in clothing, closets, and a safe—was discovered in the home, along with over $70,000 in NADINE MENENDEZ’s safe deposit box. Some of the envelopes contained the fingerprints and/or DNA of DAIBES or his driver. Other of the envelopes were found inside jackets bearing MENENDEZ’s name and hanging in his closet, as depicted below.

[snip]

A sum of $486,461 in U.S. currency seized from the Englewood Cliffs Premises on or about June 16, 2022.

But there’s not a shred of evidence that they have the ability to tie all of it — or even most of it — to the specific quid pro quos alleged in the indictment, for which it has better evidence of gold bars as payment. It may come from crime, but if it does, it may not come from this crime.

Prosecutors alleged that all of this $486,000 ties to the crimes alleged in the indictment. If Menendez can prove that some of it doesn’t, then he can use that overreach to discredit the prosecution.

As such, the statement — as ridiculous as it has justifiably been treated — seems partly a taunt. Menendez seems quite confident that prosecutors can’t trace a good deal of this cash, certainly not to these specific crimes, even if they can trace it to Daibes.

Note that Menendez’ claims to care about Egyptian human rights includes a similar taunt, referencing a meeting he had directly with Abdel Fattah El-Sisi. Whether and how and which Egyptians, including Sisi, have evidence to support Menendez’s defense will be a topic of extended litigation. Imagine trying to litigate testimony from the Egyptian President? Similarly, Menendez may demand testimony from his (still) fellow Senators, who witnessed another interaction he had with Sisi.

Which brings me to Damian Williams’ presser.

One reason I’m struck by the NBC story is it suggested there was still some work before prosecutors would be ready to indict, and yet they obtained an indictment — an indictment that doesn’t map the Daibes corruption as closely as I assume they would like — the very next day. Since then, we’ve learned that SDNY unsealed the indictment without first waiting to arrest Wael Hana at the airport, as they did yesterday. It’s highly unusual to indict someone in a way that maximizes their opportunity to flee the country, unless you have good reason to believe they won’t do that.

Hana didn’t take that opportunity to flee.

The whole thing seems either rushed, perhaps in response to disclosures like NBC’s, or tactical, an effort to advance a larger investigation.

As Williams said in his presser,

This investigation is very much ongoing. We are not done. And I want to encourage anyone with information to come forward and to come forward quickly.

That’s a version of the statement Williams made (though nowhere near as forceful) in his first presser on the Sam Bankman-Fried arrest — “come see us before we come see you” — which preceded the announcement of cooperation pleas from two key SBF associaties the following week, at which Williams again invited cooperators to come foward: “we are moving quickly and our patience is not eternal.”

I may be alone in this judgement, but I don’t think SDNY has the Daibes side of these alleged corruption — by far the bulk of the money — at all locked down. The Daibes corruption was the topic of Menendez’ taunt about cash; he may be confident that prosecutors won’t succeed in doing so.

But Damian Williams, at least, seems to believe more is coming.

Update: I didn’t see this NBC report on an ongoing counterintelligence investigation until after I posted. Note that statutes of limitation on some of the allegations in the indictment (which started more than five years ago) would have expired.

“They Were Trying to Boot the Machine:” John Paul Mac Isaac Claims the FBI Really WERE That Incompetent

If you can believe John Paul Mac Isaac, the FBI did some incredibly bone-headed things after they obtained Hunter Biden’s laptop in December 2019. As he describes it in his book (which I read recently while stuck in a hospital awaiting foot surgery), on the very same day the FBI collected the laptop purported to belong to Hunter Biden, on December 9, 2019, someone named “Matt” told Mac Isaac they had tried to boot it up.

“Hi, my name is Matt,” said a voice I didn’t recognize. “I work with Agent DeMeo and Agent Wilson. Do you have a second? I have some questions about accessing the laptop.”

Confused, I responded, “Sure, what’s going on?”

“Did the laptop come with any cables or a charger? How can I connect the drive to a PC? When I plug it in, it wants to format the drive,” Matt said.

“PCs can’t natively read Mac-formatted disks. You will only be able to access the drive from another Mac.”

This is fairly common knowledge among most computer users, and I was surprised that any kind of tech person wouldn’t know it.

“Sadly, Hunter never left the charger or any other cables,” I went on. “I have a charger and everything you need back at the shop. You guys are welcome to it.”

I was feeling really uncomfortable. This Matt guy definitely didn’t seem to have the training or resources to be performing a forensic evaluation of the laptop. Hadn’t the whole reason for taking the laptop been to get it to a lab for proper evaluation and dissemination?

“Tell him we’re OK and we won’t need to go back to his shop,” Agent DeMeo said in the background. “We’ll call you back if we need to,” Matt said before hanging up.

[snip]

“Hi, it’s Matt again. So, we have a power supply and a USB-C cable, but when we boot up, I can’t get the mouse or keyboard to work.”

I couldn’t believe it—they were trying to boot the machine!

“The keyboard and trackpad were disconnected due to liquid damage. If you have a USB-C–to–USB-A adaptor, you should be able to use any USB keyboard or mouse,” I said. He related this to Agent DeMeo and quickly hung up.

Matt called yet again about an hour later.

“So this thing won’t stay on when it’s unplugged. Does the battery work?”

I explained that he needed to plug in the laptop and that once it turned on, the battery would start charging. I could sense his stress and his embarrassment at having to call repeatedly for help. [my emphasis]

To be sure, you can’t believe Mac Isaac.

His own story is riddled with questionable details and important discrepancies.

The most important discrepancy is his description of the laptop he turned over to the FBI, which he describes as a 2016 Mac, not the 2018 Mac identified by serial number.

I moved on to the last Mac, a thirteen-inch 2016 MacBook Pro. The drive was soldered onto the logic board. This one powered on but then would shut down. I suspected that there was a short in the keyboard or trackpad, and if I took it apart, I could at least get it to boot and possibly recover the data.

As I understand it, Mac Isaac’s claims that the hard drive was soldered onto the logic board is also inconsistent with the known details of the laptop shared with the FBI.

But there are important other discrepancies between the story Mac Isaac tells and the one the government tells. In his timeline of his interactions with the FBI, Mac Isaac gets the date for the actual handoff, December 9, correct, but other dates he uses differ from those that show up in Gary Shapley’s timeline. For example:

  • Mac Isaac says that Agent Josh Wilson (who is mentioned in Shapley’s notes) reached out to his father on November 1; Shapley’s notes say that happened on November 3
  • Mac Isaac says that Wilson called him on November 4; Shapley’s notes say that happened on November 6
  • Mac Isaac says that Wilson came to his home on November 19; Shapley’s notes say that happened on November 7

These discrepancies aren’t all that important, legally. But Mac Isaac’s dates seem tailored to the impeachment proceedings going on in the same period, and so to laying a foundation for sharing the laptop with Rudy Giuliani.

A far more important set of discrepancies pertain to Mac Isaac’s description of what happened on December 9, 2019.

The blind computer repairman first describes that the second agent, Agent Mike DeMeo, called him to ask for the device identifiers that morning, before coming to the shop to pick up the device.

Agent DeMeo called around 9:30 a.m. It caught me a little off guard. The only other time we had communicated was shortly after our meeting almost three weeks earlier. He had asked me then to text him the timeline of my interaction with Hunter. I figured that he wanted something in writing showing the chain of custody—or it was an effort to trap me into writing something that could be twisted into a charge of lying to the FBI.

This time, he asked me to text him the model and serial number of the external drive and laptop. I explained that I hadn’t made it to the shop yet. “I need this information before we head over,” he insisted. “It’s important.”

“Give me thirty-five minutes,” I responded, then hung up. I finished getting ready and headed to the shop. After texting the numbers to Agent DeMeo, I waited in the shop with the blinds closed and the lights out, so as not to announce that the store was open. [my emphasis]

Shapley described that the FBI obtained and confirmed the device identifier before they ever met Mac Isaac, on November 6 (though perhaps Mac Isaac only referred to other identifiers needed for the subpoena).

Nevertheless, this discrepancy is important for a number of reasons, not least that if the FBI looked at all closely at the returns on a subscriber subpoena to Apple, it should have raised significant alarm that someone was trying to hack Hunter Biden. But if they didn’t obtain this information until the day they obtained the laptop, then they couldn’t have reviewed the subscriber data very closely in advance. That negligence might, in turn, amount to negligence in missing clear signs that the then former VP’s son was being hacked.

As Mac Isaac describes it, it was not until Agents arrived at his shop that they told him they were going to seize the laptop with a subpoena rather than imaging the laptop there at the shop.

Both agents arrived at my door about a half hour late. “Where’s the tech?” I asked, holding the door open.

“We have a change of plans,” Agent Wilson responded. “Can we go in the back?”

I led the agents to the back, and Agent Wilson placed his bag on the workbench. “

I have a subpoena here to collect the laptop, the drive, and all paperwork associated with the equipment,” he said, pulling out a collection of very formal and important-looking paperwork. “I’ll need you to sign it.”

When Mac Issac asked why they had changed their plan, he claims, lead Agent Josh Wilson deferred to Agent Mike DeMeo, who told him that they were taking the laptop back to a lab to image.

“You guys scared the shit out of me!” I exclaimed. “So why the change of plans? Don’t get me wrong; I’m grateful that you’re taking this stuff out of my shop.”

Agent Wilson looked over at Agent DeMeo, who was buried in his clipboard. “Ah, Mike?” he said. Agent DeMeo paused his writing and said, “We have a lab that takes these things and is better equipped than our field tech.”

Mac Isaac also claims that at that same meeting, DeMeo told him only to contact him, not Wilson.

“Tell them you keep abandoned equipment offsite, like a warehouse location,” Agent DeMeo answered, taking over. “Tell them it will take a day for you to check and they should call back the next day. Then immediately text me at my cell number. From now on, only communicate through my cell number. Not Agent Wilson, just me. We need to avoid communicating through, ah, normal channels. I’m sure you can understand. Text me and we will get the equipment back to you and deal with the situation.”

This communication works the opposite of the way you’d expect. Often, second agents are asked to take the stand, so you’d want them to have a clean digital trail. Here, the lead agent, Agent Wilson, was protecting his communications, whereas the second agent was not.

And then, as Mac Isaac tells it, that very same day, someone else, “Matt,” called using DeMeo’s phone, asking really embarrassing questions about how to access the laptop.

The claim that someone at the FBI was trying to boot up the laptop is alarming enough — though as I noted in July, there is some corroboration for the claim in Gary Shapley’s notes.

FBI determined in order to do a full forensic review a replacement laptop had to be purchased so the hard drive could be installed, booted and imaged.

[snip]

Josh Wilson stated that (while laughing) so whoever [people wanting to review the laptop] are they are going to have to buy a laptop to put the hard drive so they can read it.

Where Mac Isaac’s claims are totally inconsistent with the FBI claims, in a way that would cause grave legal problems for the FBI, is the date: Mac Isaac claims that the FBI was trying to boot up the laptop that same day, on December 9.

According to Gary Shapley’s notes, the FBI didn’t have approval to even get a warrant on December 9, much less have a signed warrant itself.

The FBI didn’t have a warrant to access the “Hunter Biden” “laptop” until December 13.

And yet, if you can believe Mac Isaac, the FBI was already trying to boot it up, perhaps irreparably altering its contents, three days before they got a warrant.

Featured image showing known dissemination of the “Hunter Biden” “laptop” by Thomas Fine.

“Piker:” Donald Trump Rants as if Robert Menendez’s 22 Ounces of Gold Were as Big as Jared’s $2 Billion

The former President went on one of his classic rants of projection last night, demanding that every Democratic Senator resign because of the alleged corruption of Robert Menendez.

“They all knew what was going on,” Trump said, “and the way [Menendez] lived.”

All Trump’s rants are, at their core, at least partly an attempt to use projection to cast attention away from his own similar or worse corruption.

This one is a doozy, though.

Start with the fact that Trump was suspected of getting $10 million from Egypt in September 2016, money he used to stay in the Presidential race. That suspected bribe was investigated for several years, with the Egyptian state-owned bank suspected of making the payment fighting a subpoena all the way to the Supreme Court. The investigation was then closed in summer 2020, without ever subpoenaing Trump Organization, during a period when Bill Barr was shutting down all Mueller-related investigations of Trump. The allegation that, like Menendez, Trump was on the take from Egypt — a key prong of the Mueller investigation — has been ignored by most outlets, so I may return to describe what we know of it.

Then consider that Trump told a comedian posing as Menendez, John Melenedez, that he believed Menendez had gotten a raw deal in his corruption prosecution. “Congratulations on everything,” Trump told the guy he thought was Menendez not long after DOJ dropped the first bribery prosecution. “We’re proud of you. Congratulations! Great job! You went through a tough, tough situation, and I don’t think a very fair situation. But congratulations!”

“They all knew what was going on, and the way [Menendez] lived,” Trump wailed. But so did Trump when he congratulated someone he thought was Menendez for getting away with accepting alleged bribes.

In fact, Trump even commuted the separate Medicare fraud sentence of Menendez’ first co-defendant, Salomon Melgen (like Menendez, the jury hung on bribery charges against Melgen). When Trump claims that Senate Democrats knew what was going on? Unlike Senate Democrats, Trump reviewed Melgen’s conduct closely enough to save him from most of a 204-month prison sentence. Trump specifically said that “the ends of justice do not require [Melgen] to remain confined until his currently projected release date of August 2, 2031.” There’s no question Trump doesn’t care about Menendez’ corruption because he used his presidential authority to eliminate most punishment against Menendez’ co-defendant.

Finally, the craziest part of Trump’s attempt to project his own corruption on Democrats: a key allegation in the Menendez indictment alleges that Menendez did exactly what Jared Kushner did, only for a tiny fraction of the payoff that Jared got.

As I noted in this post, most of Menendez’ Egypt-related corruption came before he and Nadine were married, and most of the payment was laundered through Wael Hana’s halal company, at which Nadine had a no-work job. That may make it hard to prove was a quid pro quo.

There’s one glaring exception to that: The 22 one-ounce bars of gold that, the indictment suggests, Menendez and Nadine received days after Menendez helped shield Egypt from repercussions tied to their role in the Jamal Khashoggi execution.

As the indictment explains, after Nadine’s relationship with Egyptian Official-4 had blossomed over time, the two of them set up a meeting between Menendez and a senior Egyptian intelligence official on June 21, 2021, before the same official would meet with other Senators.

On or about June 21, 2021, NADINE MENENDEZ and Egyptian Official-4 organized a private meeting between MENENDEZ and a senior Egyptian intelligence official (“Egyptian Official-5”) in a hotel in Washington, D.C. prior to a meeting between Egyptian Official-5 and other U.S. Senators the next day. On the day of the private meeting, MENENDEZ provided NADINE MENENDEZ with a copy of a news article reporting on questions that other U.S. Senators intended to ask Egyptian Official-5 regarding a human rights issue. NADINE MENENDEZ then sent that article to Egyptian Official-4, who responded, “Thanks you so much, chairman [i.e., MENENDEZ, the Chairman of the SFRC] also raised it today, we appreciate it.” The next day, NADINE MENENDEZ texted Egyptian Official-4 that she hoped the article she had sent was helpful, and stated, “I just thought it would be better to know ahead of time what is being talked about and this way you can prepare your rebuttals.”

A Michael Isiskoff story posted the same day explained what Egypt would need to “rebut:” Egypt’s Intelligence head, Abbas Kamel, was set to be grilled about Egypt’s role — providing training and drugs — in the execution of Jamal Khashoggi.

A just-released Yahoo News “Conspiracyland” podcast series about Khashoggi’s murder [] revealed that the Gulfstream jet carrying a so-called Tiger Team of Saudi assassins to Istanbul made a middle-of-the-night stopover in Cairo for the purpose of picking up a lethal dose of undetermined “illegal” narcotics.

The drugs were injected hours later by a Saudi Ministry of Interior doctor into Khashoggi’s left arm inside the Saudi Consulate in Istanbul — an operation that the CIA has concluded was authorized by Saudi Crown Prince Mohammed bin Salman, often known as MBS.

Abbas Kamel, the chief of Egyptian intelligence, is visiting Washington this week to meet with U.S. intelligence officials as well as members of the Senate Foreign Relations Committee. Staffers told Yahoo News that a number of senators are preparing to ask Kamel about the Cairo stopover — the subject of a Washington Post editorial on Sunday — and whether Egyptian intelligence officials delivered or helped facilitate the delivery of the drugs.

[snip]

There is also evidence that Egyptian intelligence may have provided training for the Tiger Team as well as previous support for Saudi abductions ordered by MBS. A Saudi source familiar with the matter told Yahoo News that the Egyptians assisted the Tiger Team with the 2015 abduction from Italy of Saudi Prince Saud bin Saif al-Nasr. An outspoken foe of MBS, the prince was tricked into boarding a plane he thought was flying to Rome but ended up in Riyadh. He has not been heard from since.

The indictment implies that whatever Menendez did to blunt the accusations of his fellow Senators, it had some tie to the 22 ounces of gold that Hana purchased two days later, at least some bars of which were found at the Menendez residence when it was searched a year later.

On or about June 23, 2021—i.e., two days after the private meeting between MENENDEZ and Egyptian Official-5—HANA purchased 22 one-ounce gold bars, each with a unique serial number. Two of these one-ounce gold bars were subsequently found during the court-authorized search in June 2022 of the residence of MENENDEZ and NADINE MENENDEZ. During the relevant time periods, the spot market price of gold was approximately $1,800 per ounce.

In his rant, Trump accused Menendez of being “piker” compared to others, but he got the comparison wrong.

After all, Menendez sold out cheap. If he received all 22 of those gold bars in 2021 in recognition of having laundered the reputation of Egypt, it would have been worth roughly $40,000.

That’s a miniscule amount compared to what Jared got — $2 billion — for whitewashing Saudi’s role in the Khashoggi execution.

Trump, who knows better than Senate Democrats what was going on, is right: Menendez was a piker. But he was a piker when you measure him against the corruption of Trump’s own son-in-law.

After Threats Elicited by Gary Shapley’s Misleading Testimony, Hunter Biden Prosecutors Reneged on the Plea Deal

In the wake of two news reports on the communications leading up to the aborted Hunter Biden plea, Jim Jordan et al demanded the documents shared with the Politico and NYT from Hunter’s lawyers. In response, Lowell sent the following documents, which Betsy Woodruff Swan published here:

While the letters include a familiar catalog of the Shapley and Ziegler media tour, there are a few details worth noting.

First, the August 14 letter goes to great lengths to distinguish the topic of Gary Shapley and Joseph Ziegler’s purported whistleblowing — prosecutorial misconduct — from the materials released, which focus on investigative material implicating Hunter Biden. That distinction ought be a way for DOJ to rein in the two purported whistleblowers, as Merrick Garland quickly did in the case of Michael Sherwin.

The letter claims, as Abbe Lowell has in the past, that some of the statements Shapley and Ziegler have made are false.

[T]he “facts” disclosed and conclusions reached are either false, legally incorrect, or were otherwise addressed during the various meetings between defense counsel and your Office.

If that’s true, Lowell should ask for a criminal investigation for their false statements before Congress.

It also reveals something that should be obvious but I hadn’t realized: The iCloud warrant which produced a bunch of WhatsApp texts, which Shapley discussed at length in his original testimony, has never been disclosed to Hunter himself, so must be sealed.

On several occasions during their testimony, Mr. Shapley and Mr. Ziegler discussed a sealed search warrant, and showed and discussed with the Committee certain fruits of that sealed search warrant. Because we have never been notified of any such “electronic search warrant for iCloud backup”— nor of any other warrant to search for and seize any property of our client 13—we must presume that Mr. Shapley and Mr. Ziegler were discussing, in violation of a sealing order, a search warrant that has been sealed. Nevertheless, Mr. Shapley purportedly produced WhatsApp messages that are the: fruit of these warrants, and they have now been published.” Moreover, Mr. Ziegler offered to produce to the House Oversight and Accountability Committee additional and more fulsome grand jury materials concerning these messages, with the intent of making such materials public.

So it’s not just that Shapley was violating grand jury secrecy (he was authorized by Ways and Means Chief Counsel to share tax information, but not grand jury information), he was also almost certainly violating a sealing order that remained in effect almost two months after Hunter Biden received a summons in conjunction with the tax charges (conveniently so for the purported whistleblowers, because the warrant affidavit may rely on poisoned fruit from their mistreatment of “the laptop”). Whatever judge authorized that warrant and gag — presumably DE’s Chief Judge, Colm Connolly — might be interested that investigative agents are just blowing off the gag they themselves presumably asked for.

The most alarming thing in the August 14 letter, though, is a claim that Leo Wise — who has taken the lead role in the prosecution — claimed in a July 31 call to be unaware of any grand jury leaks in the investigation, at all!

On a July 31, 2023, call, Assistant United States Attorney Wise stated he was “not aware” of any leak of grand jury information by the Government during the course of the Government’s investigation of our client. Such a statement was surprising given that Mr. Biden’s counsel have discussed such leaks with the Goverment on multiple occasions over the past two years and addressed these leaks in at least four prior letters and countless telephone calls with your Office.

[snip]

Yet, given your Office’s inaction in the face of a torrent of illegal leaks about your investigation of Mr. Biden, and now your reinvented denial that leaks ever happened at all—your Offices assurances are being rendered false.

It’s as if the guy Weiss brought in to salvage the case believes he has to simply deny what everyone watching can plainly see, that Shapely and Ziegler have set off a torrent of prejudicial information that could make it impossible for Hunter to get a fair trial, much less be exonerated if not charged.

In both the August 14 letter and the one from yesterday, Lowell claims that the political pressure Jordan et al have put on Weiss led the newly minted Special Counsel to ratchet up his charges.

The change to a rare misdemeanor failure to file/pay and a felony diversion for possession of a firearm (and now the actual filing of those firearm charges) occurred only after a chain of events starting with the improper disclosures arranged by you and your Committees of the so-called “whistleblowers” claims of prosecutorial misconduct and your, and the right-wing media with whom you coordinate, taking up those claims.

But there’s something that Lowell didn’t mention.

It’s not just political pressure that this media blitz has created.

It’s credible threats of violence.

As Ken Dilanian first reported, after Shapley started representing Lesley Wolf’s adherence to DOJ and FBI guidelines as political interference, she was targeted with credible threats. Thomas Sobicinski told the House Judiciary Committee how Shapley’s testimony had led to the harassment of employees, employees whose parents got calls and children got followed. He specifically agreed that Wolf “has concerns for her own safety.”

It’s not just that Shapley’s testimony has led to political pressure. It has led directly to credible threats of violence against the prosecutor who crafted the original plea deal.

And in the wake of those credible threats of violence, David Weiss decided to ratchet up the charges against the President’s son.

The threats of violence may not have caused Weiss’ subsequent decision to renege on the plea deal (though that is one thing that is likely to be the topic of litigation going forward).  But the public record, at least, makes clear that those threats of violence correlate with a decision to seek more punitive treatment of the President’s son.

And that’s a very chilling prospect: that MAGA right wingers could bully prosecutors into taking punitive action against Hunter Biden.

By the Time Kevin McCarthy Rolled Out an Impeachment Inquiry, the FBI Had Already Debunked a Key Premise

Yesterday morning, in a desperate bid to keep his gavel, Speaker McCarthy directed three committees, including the House Judiciary Committee, to begin an impeachment query.

As Philip Bump laid out, only one of McCarthy’s justifications for impeachment — that Biden knew more about his son’s business than he stated publicly (but not under oath) — has been substantiated; several of the rest have no basis in fact.

More importantly, just one relates to Biden’s current term as President: the allegation that his Administration has interfered in the investigation into his son. When Bump wrote his column, he noted that David Weiss — the Trump appointed US Attorney whom Biden retained precisely to give independence to the investigation — had disputed the claim.

“Finally, despite these serious allegations,” McCarthy continued, “it appears that the president’s family has been offered special treatment by Biden’s own administration, treatment that not otherwise would have received if they were not related to the president.”

This allegation does have one advantage over the preceding four: It’s actually related to Biden’s time in office as president.

The suggestion here is that the handling of Hunter Biden’s tax and gun case was unfairly lenient, thanks to pressure from the Justice Department. This was alleged by whistleblowers from the IRS who offered testimony in front of Congress. The U.S. attorney leading the Hunter Biden investigation, David Weiss, disputed the allegations.

Only, according to a report from the WaPo, by the time McCarthy made this allegation, it had been even further debunked.

Last Thursday, FBI’s Baltimore Special Agent in Charge Thomas Sobocinski appeared before the House Judiciary Committee. He testified that his memory of a key October 7 meeting conflicts with claims that purported whistleblower Gary Shapley made about the meeting.

Shapley said Weiss told FBI and IRS agents during that meeting that Weiss was not the “deciding official on whether charges are filed.” But Sobocinski, who was also there, said he did not hear Weiss say that and “never felt that [Weiss] needed approval” to bring charges.

Sobocinski, who is the special agent in charge of the FBI’s Baltimore field office, noted there was “bureaucratic administrative process” Weiss had to work through to bring charges outside Delaware but that his understanding was “that [Weiss] had the authority to bring whatever he needed to do.”

“I never thought that anybody was there above David Weiss to say no,” he said.

Pressed again on the issue later in the interview, he said, “I went into that meeting believing he had the authority, and I have left that meeting believing he had the authority to bring charges.”

Gary Shapley’s claims of politicization have been debunked twice now. The key claim of favoritism at the core of impeachment keeps crumbling.

Jim Jordan, at least, knew all this before McCarthy’s impeachment decision.

And yet McCarthy went forward anyway, with even less basis for the inquiry.

David Weiss May Have More Bluster than Tactical Leverage

There’s something missing from coverage of the claim, made in the second-to-last sentence of a Speedy Trial filing submitted Wednesday, that David Weiss will indict Hunter Biden before September 29, when — according to calculations laid out by prosecutor Leo Wise in the filing — the Speedy Trial Act mandates an indictment.

None of the coverage has considered why David Weiss hasn’t already charged the President’s son.

The filing was submitted in response to an August 31 order from Judge Maryellen Noreika; its very last sentence politely asked her to butt out: “[T]he Government does not believe any action by the Court is necessary at this time.” Given the unusual nature of this legal proceeding, there may at least be question about Wise’s Speedy Trial calculations. One way or another, though, the Speedy Trial clock and the statute of limitations (which Wise said in July would expire on October 12) are ticking.

It would take probably half an hour to present the evidence for the weapons charge — which would consist of the form Hunter signed to purchase a gun, passages from Hunter’s book, a presumed grand jury transcript from Hallie Biden, and testimony from an FBI agent — to a grand jury. It would take maybe another ten minutes if Weiss wanted to add a false statements charge on top of the weapons charge. There certainly would be no need for a special grand jury.

Any tax charges would be more complicated, sure, but they would be in one or another district (probably Los Angeles), ostensibly severed from the weapons charge to which the misdemeanors planned as part of an aborted plea deal were linked.

So why wait? Why not simply indict and avoid any possible challenge to Speedy Trial calculations?

The answer may lie in something included in a long NYT story citing liberally from an anonymous senior law enforcement official who knew at least one thing that only David Weiss could know. That story explains that Weiss sought Special Counsel status, in part, to get, “added leverage in a revamped deal with Mr. Biden.”

If Weiss indeed sought Special Counsel status to get leverage for a deal, then at least last month when he asked for it, he wasn’t really planning on indicting Hunter Biden. He was hoping to get more tactical leverage to convince Hunter Biden to enter into a plea agreement that would better satisfy GOP bloodlust than the plea that failed in July.

Now he has used the opportunity presented by Noreika’s order to claim he really really is going to indict Hunter, a claim that set off predictably titillated reporting about the prospect of a Hunter Biden trial during the presidential election.

Again, if you’re going to charge Hunter Biden with a simple weapons charge, possibly a false statements charge, why not do it already, rather than threatening to do it publicly? Why not charge him in the week after Noreika entered that order, mooting all Speedy Trial concerns?

Abbe Lowell appears unimpressed with Weiss’ promised indictment. He repeated in both a separate filing and a statement to the press that Weiss can’t charge Hunter because he already entered into a diversion agreement pertaining to the charge.

We believe the signed and filed diversion agreement remains valid and prevents any additional charges from being filed against Mr. Biden, who has been abiding by the conditions of release under that agreement for the last several weeks, including regular visits by the probation office. We expect a fair resolution of the sprawling, five-year investigation into Mr. Biden that was based on the evidence and the law, not outside political pressure, and we’ll do what is necessary on behalf of Mr. Biden to achieve that.

I think few stories on this have accounted for the possibility that that statement — “we’ll do what is necessary … to achieve” a fair resolution of the case — is as pregnant a threat as DOJ’s promise to indict in the next several weeks. That’s because everything leading up to David Weiss obtaining Special Counsel status actually squandered much of any leverage that Weiss had, and that’s before you consider the swap of Chris Clark as Hunter’s lead attorney for the more confrontational Lowell, making Clark available as a witness against Weiss.

As Politico (but not NYT, working off what are presumably the same materials) laid out, Hunter’s legal team has long been arguing that this investigation was plagued by improper political influence.

But even before the plea deal was first docketed on June 20, the GOP House started interfering in ways that will not only help Abbe Lowell prove there was improper influence, but may well give him unusual ability to go seek for more proof of it.

It appears to have started between the time the deal was struck on June 8 and when it was docketed on June 20. AUSA Lesley Wolf, who had negotiated the deal, was replaced by Leo Wise and others. When Weiss claimed, with the announcement of the deal, that the investigation was ongoing and he was even pursuing dodgy leads obtained from a likely Russian influence operation, it became clear that the two sides’ understanding of the deal had begun to rupture. This is the basis of Lowell’s claim that Weiss reneged on the deal: that Weiss approved an agreement negotiated by Wolf but then brought in Wise to abrogate that deal.

Whatever the merit of Lowell’s claim that the diversion agreement remains in place — the plea deal was such a stinker that both sides have some basis to defend their side of that argument — by charging Hunter, Weiss will give Lowell an opportunity to litigate the claim that Weiss reneged on the diversion agreement, and will do so on what may be the easier of the two parts of the plea agreements to make a claim that Weiss reneged on a deal, with Judge Noreika already issuing orders to find out why this stinker is still on her docket. I’m not sure how Lowell would litigate it — possibly a double jeopardy challenge — but his promise to do what’s necessary likely guarantees that he will litigate it. He’ll presumably do the same if and when Weiss files tax charges in California. It’s not necessarily that these arguments about reneging on a deal will, themselves, work, but litigating the issue will provide opportunity to introduce plenty more problems with the case.

That’s part of what was missed in coverage of this development this week. Weiss promised to indict. Lowell responded, effectively, by challenging the newly-minted Special Counsel to bring it on, because it will give Lowell opportunity to substantiate his claim that Weiss reneged on a deal because of political influence.

And those IRS agents claiming to be whistleblowers have only offered gift after gift to Lowell to destroy their own case. In their own testimony they revealed:

  • From the start, a supervisor documented concerns about improper influence and Sixth Amendment problems with this investigation
  • Joseph Ziegler, the IRS agent who improbably claims to be a Democrat, treated such concerns as liberal bias, evincing political bias on his own part
  • DOJ didn’t do the most basic due diligence on the laptop and may have used it in warrants, creating poisonous fruit problems
  • Ziegler treated key WhatsApp messages obtained with a later warrant with shocking sloppiness, and may even have misidentified the interlocutors involved
  • Ziegler didn’t shield himself from the taint of publicly released laptop materials (and Shapley was further tainted by viewing exhibits during his deposition)
  • Gary Shapley is hiding … something … in his emails

These two self-proclaimed whistleblowers have made evidence from this case public — all of which would never have seen the light of day if Weiss had honored the plea agreement — without the filter of a prosecutor to clean it up in advance.

All that’s before you consider the rampant leaking.

In both their depositions and their giddy public testimony before the House both Shapely and Ziegler did plenty of things that will provide basis to impeach them, not just as witnesses, but even as investigators, as did their anonymous FBI agent colleague’s laughable claim in his deposition that this was not an investigation riddled with leaks. James Comer seems intent on inviting all the other investigators who have complained they weren’t able to bulldoze rules designed to protect sensitive investigations to be deposed in an adversarial setting, which will provide still more surface area that Lowell can attack.

The gun charge is simple. But what investigative witnesses would present any tax case against Hunter Biden and would their testimony be impressive enough to sustain a case after Lowell serially destroyed Ziegler as the key investigator? And because Weiss has left Lowell with a viable claim that the diversion remains valid, he may be able to introduce the taint of the tax case into any gun prosecution.

Some of this shit goes on in any case, though not usually this much with politically exposed people like the President’s son. But prosecutors have a great number of tools to prevent defendants from learning about it or at least keeping it off the stand. Many of the IRS agents’ complaints were really complaints about Lesley Wolf’s efforts to preserve the integrity of the case. By bitching non-stop about her efforts, the IRS agents have ensured that Hunter Biden will get access to everything that Wolf tried hard to stave off from the investigation.

And there’s something more. Ziegler provided the name of his initial supervisor, who documented concerns that this case was politicized from the start. Both IRS agents identified for Lowell a slew of irregularities he can use to undermine any case. Republicans in Congress have bent over backwards to expose witnesses against Hunter to adversarial questioning (and both IRS agents got downright reckless in their public testimony). The way in which this plea collapsed provides Lowell reason to challenge any indictment from the start.

But the collapse also provided something else, as described in the NYT story: a David Weiss associate told the NYT that Weiss told them that any other American would not be prosecuted on the evidence against Hunter.

Mr. Weiss told an associate that he preferred not to bring any charges, even misdemeanors, against Mr. Biden because the average American would not be prosecuted for similar offenses. (A senior law enforcement official forcefully denied the account.)

If this witness makes themselves available to Lowell, it provides him something that is virtually unheard of in any prosecution: Evidence to substantiate a claim of selective prosecution, the argument that Weiss believes that similarly situated people would not have been prosecuted and the only reason Hunter was being prosecuted was because of non-stop GOP bloodlust that originated with Donald Trump. It is darn near impossible for a defense attorney to get discovery to support a selective prosecution claim. Weiss may have given Lowell, one of the most formidable lawyers in the country, a way to get that discovery.

And all that’s before Lowell unveils whatever evidence he has that Joseph Ziegler watched and did nothing as Hunter Biden’s digital life was hijacked, possibly by people associated with the same Republicans driving the political bloodlust, possibly by the very same sex workers on which the case was initially predicated. That’s before Lowell unveils evidence that Ziegler witnessed what should have been clear alarms that Hunter Biden was a crime victim but Ziegler chose instead to trump up a weak criminal case against the crime victim. I suspect that Weiss doesn’t know what Lowell knows about this, either, adding still more uncertainty to any case he charges.

Over four weeks ago, Leo Wise asked Noreika to dismiss the misdemeanor tax charges against Hunter so they could charge them in another venue.

In light of that requirement, and the important constitutional rights it embodies, the Government moves the Court to dismiss the information without prejudice so that it may bring tax charges in a district where venue lies.

Now he and Weiss have made promises of another upcoming indictment, without yet charging it. At the very least, that suggests that there are a number of challenges to overcome before they can charge Hunter.

They likely still have time on any 2019 tax charges — the ones where, reportedly, both sides agree that Hunter overstated his income, which will make a tax case hard to prove. I’m not saying that Weiss won’t charge Hunter. Indeed, he has backed himself into a corner where he likely has to. But with each step forward, Lowell has obtained leverage to make Weiss’ own conduct a central issue in this prosecution (and even Wise may have made himself a witness given the centrality of his statements during the plea colloquy to Lowell’s claim that the diversion remains valid).

The Speedy Trial filings seem to have hinted at an intense game of chicken between Weiss and Lowell. And thus far at least, Weiss seems more afraid of a Hunter Biden indictment than Lowell is.

Beloved By Toni Morrison

Index to posts in this series

My book club chose Beloved by Toni Morrison for our last meeting, so I was reading it along with the cases I’ve been discussing in this series. It’s a marvelous book, beautifully writtent. One piece of that craftsmanship is that although the events are not in chronological order we don’t have a problem following along because she gives a a few key words that place things in time.

This book can take different shapes for different people. I read it as stories about the people who endured the physical and psychological horrors of enslavement.

Kermit Roosevelt and Eric Foner describe the efforts of Black people to end slavery, by participating in abolition movements, by writing for themselves and for White people, and by the dangerous work of helping escapees. Some of these people appear in Beloved: John and Ella, for example, and Stamp Paid. The entire community helps newly freed people come to grips with their new status.

We know something about the cruelty of slavers from oral histories compiled by writers during the Depression and other sources. We have some first person accounts of slavery and escape. There’s some of that in the book. But for me, the power of Beloved lies in Morrison’s imagining of the reaction of newly freed people to freedom, and her instantiation of the psychic injuries inflicted by the slavers on her characters.

None of the psychological damage was discussed at the time as far as I know. And it’s certain that the voices of former slaves, their children, and their communities were never heard by the Supreme Court, which couldn’t even be bothered discussing the Colfax Massacre in US v. Cruikshank. I’ll discuss just two aspects of this powerful work.

1. Baby Suggs and Sethe react to being freed.

Baby Suggs was purchased by Mr. Garner from a slaver in North Carolina and taken with her children to Garner’s farm in Kentucky, Sweet Home. He was a decent slaver, who didn’t beat or mistreat his property. Years later he allowed Halle, Baby Suggs’ son, to buy her freedom. Garner takes her to Cincinnati. Morrison writes:

Of the two hard things—standing on her feet till she dropped or leaving her last and probably only living child—she chose the hard thing that made him happy, and never put to him the question she put to herself: What for? What does a sixty-odd-year-old slavewoman who walks like a three-legged dog need freedom for? And when she stepped foot on free ground she could not believe that Halle knew what she didn’t; that Halle, who had never drawn one free breath, knew that there was nothing like it in this world. It scared her.

Something’s the matter. What’s the matter? What’s the matter? she asked herself. She didn’t know what she looked like and was not curious. But suddenly she saw her hands and thought with a clarity as simple as it was dazzling, “These hands belong to me. These my hands.” Next she felt a knocking in her chest and discovered something else new: her own heartbeat. Had it been there all along? This pounding thing? She felt like a fool and began to laugh out loud. P. 166.

Sethe is Halle’s wife. A few years after Baby Suggs is freed, Sweet Home has been taken over by a vicious overseer, Schoolteacher. Sethe is pregnant, and is sexually assaulted and whipped senseless by Schoolteacher’s nephews. Sethe escapes. Just before crossing the river into Ohio, she gives birth to a daughter, Denver, and the last part of the trip is terrible. Then she reaches the safety of the home of Baby Suggs.

Sethe had had twenty-eight days—the travel of one whole moon—of unslaved life. … Days of healing, ease and real-talk. Days of company: knowing the names of forty, fifty other Negroes, their views, habits; where they had been and what done; of feeling their fun and sorrow along with her own, which made it better. One taught her the alphabet; another a stitch. All taught her how it felt to wake up at dawn and decide what to do with the day. … Bit by bit … she had claimed herself. Freeing yourself was one thing; claiming ownership of that freed self was another. P. 111-2.

The freedom Baby Suggs and Sethe share is touching in its smallness and fragility. I write about the abstract idea of freedom, as here, but this is so much more meaningful. In the long run, it’s not enough, but for these people in these moments it’s everything they can imagine.

2. Beloved.

Sethe’s 28 days of freedom end when Schoolteacher and other slavecatchers and the local sheriff find her. Sethe kills her two-year old daughter and tries to kill her two boys rather than let them suffer under slavery. Schoolteacher realizes she’s of no use as a slave, and leaves her in the hands of the sheriff. It’s unclear why, perhaps because of the intervention of anti-slavery advocates, but she only serves three months in jail and then is freed. This aspect of the story is loosely based on the life of Margaret Garner.

Sethe’s house is haunted. Everybody thinks it’s the murdered child. The community thinks it’s frightening, and cuts off Baby Suggs, Sethe, the two boys and Denver. Years later a strange woman appears, calling herself Beloved, the name engraved on the headstone Sethe purhased for her dead child. Beloved seems to exist as a separate, physical entity, but she has no history. The introduction of this character suggests she’s come back from the dead.

This is from the Wikipedia discussion of this part of the book:

Because of the suffering under slavery, most people who had been enslaved tried to repress these memories in an attempt to forget the past. This repression and dissociation from the past causes a fragmentation of the self and a loss of true identity. Sethe, Paul D., and Denver all suffered a loss of self, which could only be remedied when they were able to reconcile their pasts and memories of earlier identities. Beloved serves to remind these characters of their repressed memories, eventually leading to the reintegration of their selves. Fn. omitted.

I wonder about that first sentence. Morrison seems to confirm this reading in the forward to the Kindle edition.

In trying to make the slave experience intimate, I hoped the sense of things being both under control and out of control would be persuasive throughout; that the order and quietude of everyday life would be violently disrupted by the chaos of the needy dead; that the herculean effort to forget would be threatened by memory desperate to stay alive. To render enslavement as a personal experience, language must get out of the way. P. xvii.

The community of free Black people share the experience of haunting and sense the danger around Beloved. I assume they share some of the same psychic fragmentation. The community is there for the denoument, when the fragmentation seems to heal for all of them.

Now recall the offhand comment of Joseph Bradley in The Civil Rights Cases:

When a man has emerged from slavery, and, by the aid of beneficent legislation, has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws, and when his rights as a citizen or a man are to be protected in the ordinary modes by which other men’s rights are protected.

Just shake it off, like a hard hit in a soccer match. And Black people are expected to call Bradley “Mr. Justice”.
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