SDNY Obtained Warrant(s) for Foreign Agent Charges before John Demers Reviewed the Perfect Transcript

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Had DOJ followed its own rules in 2019, Donald Trump’s “perfect phone call” with Volodymyr Zelenskyy should have been linked to the ongoing criminal investigation into Lev Parnas. Instead, DOJ limited the review of the criminal referral of the whisteblower complaint in such a way that prevented investigators from making that link. The Parnas warrants recently liberated by NYT reveal that failure was even more damning than previously known.

On August 14, 2019, CIA General Counsel Courtney Elwood told National Security Division head John Demers that someone in the CIA had expressed concerns about the July 25 call. The next day, on August 15, 2019, Demers went to the White House to review the transcript of it.

Mr. Eisenberg and Ms. Elwood both spoke on Aug. 14 to John Demers, the head of the Justice Department’s national security division, according to three people familiar with the discussion. Ms. Elwood did not pass on the name of the C.I.A. officer, which she did not know because his concerns were submitted anonymously.

The next day, Mr. Demers went to the White House to read the transcript of the call and assess whether to alert other senior law enforcement officials. The deputy attorney general, Jeffrey A. Rosen, and Brian A. Benczkowski, the head of the department’s criminal division, were soon looped in, according to two administration officials.

Department officials began to discuss the accusations and whether and how to follow up, and Attorney General William P. Barr learned of the allegations around that time, according to a person familiar with the matter. Although Mr. Barr was briefed, he did not oversee the discussions about how to proceed, the person said.

While DOJ was dawdling over what to do, on August 12, the whistleblower went to Intelligence Community Inspector General Michael Atkinson and filed a formal complaint. ODNI made a criminal referral at the end of August. And then DOJ declined, almost right away, to investigate.

Ms. Elwood and Mr. Eisenberg learned only later about the complaint, filed on Aug. 12, and did not know it was sent by the same officer who had sent the information anonymously to her.

At the end of August, the office of the director of national intelligence referred the allegations to the Justice Department as a possible criminal matter. Law enforcement officials ultimately declined to open an investigation.

I have always pointed out the problem with this tale. Since 9/11, DOJ’s expectation is that when investigators obtain a tip about anything that might pertain to national security, they run it against FBI holdings to see if there’s a known link to any existing investigation.

Had DOJ’s investigators scrutinized the OCCRP story about Lev Parnas and Igor Fruman cited three times in the complaint, had they done searches on all the identifiers implicated by reference in the complaint, they should have found the ongoing investigation into Parnas and Fruman at SDNY. (On review, even the unclassified part of the complaint mentioned people, like Andriy Telizhenko, who were likely the focus of intelligence scrutiny already, though perhaps not yet at FBI.)

But investigators didn’t get the complaint. According to a public confession Kerri Kupec made in September 2019, they got only the call transcript.

“In August, the Department of Justice was referred a matter relating to a letter the director national intelligence had received from the inspector general for the intelligence community regarding a purported whistleblower complaint. The inspector general’s letter cited a conversation between the president and Ukrainian President Zelensky as a potential violation of federal campaign finance law, while acknowledging that neither the inspector general nor the complainant had firsthand knowledge of the conversation,” Kupec said.

Relying on established procedures set forth in the justice manual, the department’s criminal division reviewed the official record of the call and determined based on the facts and applicable law that there was no campaign finance violence [sic] and that no further action was warranted. All relevant components of the department agreed with this legal conclusion, and the department has concluded this matter,” Kupec concluded. [my emphasis]

They didn’t assess the complaint. They assessed the transcript.

That was always a self-evidently corrupt decision — a decision that, if Bill Barr (who definitely knew of the Parnas and Fruman investigation) and Jeffrey Rosen (who likely did) were involved would be provably an effort to prevent investigators from tying the President to Parnas and Fruman.

But the timeline looks worse given something revealed in the warrants from the investigation liberated by the NYT last week.

The indictment used to arrest Parnas and Fruman on October 9, 2019 only charged them for campaign finance crimes: Conspiracy to violate campaign finance law by donating — including to Trump’s PAC and Pete Sessions — in the name of their front company Global Energy Partners, false statements to the FEC about the donation to Trump’s PAC, filing a materially false document to the FEC about the same, and conspiracy to make cannabis-related political donations using foreign money. The Russian source of those funds, Andrey Muraviev was not yet public. And while the donation to Pete Sessions was intimately connected to the firing of Marie Yovanovitch, that wasn’t mentioned in the first indictment.

What appeared in that indictment was consistent with the first two warrants obtained against Parnas and Fruman. The first, served on Google and Yahoo on January 18, 2019, sought evidence of those foreign and straw donor crimes, along with money laundering and fraud. It cited contacts with Sessions’ office, with Ron DeSantis, and even (regarding what the investigation would ultimately show pertained to Fraud Guarantee), Rudy Giuliani. But even in the discussions of Sessions, there was no mention yet of Yovanovitch.

That began to change in the second warrant, served on Apple for iCloud content on May 16, 2019, the first one after Bill Barr would have started getting briefings. That warrant remained focused on those foreign and straw donor crimes, though added false statements for Parnas and Fruman’s claims to the FEC about what they were up to. It added Muraviev to the inquiry. It took out a request to look for communications with individuals who work at “[redacted].”

That second warrant affidavit included a three page section focused on Parnas and Fruman’s recruitment of Pete Sessions to help get Marie Yovanovitch fired. The most striking thing about that second warrant is that SDNY obtained it the day after public notice of her removal, which development it noted in the warrnt. The warrant affidavit appears to have removed a reference to an email sent to Rudy the day after the Campaign Legal Center first disclosed the Parnas and Fruman grift (perhaps upon discovering that it pertained to Parnas’ effort to recruit Rudy into Fraud Guarantee). Still, there was no mention in that second warrant — the one obtained the day after Yovanovitch’s ouster was confirmed — of any foreign agent ties.

On August 14, presumably blissfully unaware of all the efforts to cover up Trump’s extortion attempt in DC, SDNY attempted to get at least two warrants, one requiring Yahoo and Google to provide new email content, everything generated since the January 18 warrant, and another asking for permission to examine the previously obtained content for new crimes. I phrase it that way for two reasons: First, because those warrants were docket number 19 MJ 7593 and 7595; there’s undoubtedly at least one more, 19 MJ 7594, targeting something or someone else (possibly either Muraviev or Pete Sessions). And while Magistrate Judge Henry Pitman approved the warrant permitting SDNY to examine already collected content for new crimes, they bolloxed it somehow. As SDNY explained in an October 17 letter to Judge Oetken,

[T]he Government is not presently able to locate a copy of the August 14 warrant itself, which may be the result of a clerical error, although it is possible a warrant was not submitted in connection with the August 14 application. As such, the Government respectfully requests that the Court review the attached agent affidavit, which was sworn before Judge Pitman on August 14, and issue the attached warrant which would authorize the Government to seize the materials sought in the August 14 application.

But they did get that warrant, 19 MJ 7593, which required Yahoo and Google to provide new content, content that would be scrutinized under SDNY’s expanded focus.

For the first time, SDNY asked for permission to review Parnas and Fruman’s communications for evidence that they or others were unregistered agents of a foreign power under either FARA or 18 USC 951. Those warrants also asked to look for evidence of bribery (a prong of the investigation that appears to have been dropped after interviewing Sessions in the wake of the Parnas and Fruman arrest).

Normally, by the time a US Attorney’s office contemplates such charges, they involve NSD. According to Geoffrey Berman’s book, before SDNY charged Parnas and Fruman, they got Public Integrity’s approval, at 4AM in the middle of the night! It’s certainly possible the “Sovereign District of New York,” as people jokingly describe SDNY’s notorious independence, did not. But it certainly raised the stakes on the tie between Parnas and Fruman and the President.

By the time John Demers reviewed the transcript of Trump’s call with Volodymyr Zelenskyy, the topic of his call had already been made a national security investigation.

Luke Broadwater’s Attempt at Fact-Checking Covers Up Fabrications and IRS Sloppiness

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NYT has two articles out fact-checking GOP lies in support of impeachment.

One, from Adam Entous, is really worth reading. It describes how a text that Hunter Biden sent his daughter Naomi, which joked about the fact that Joe Biden had made his sons work their way through college, has been misrepresented to instead suggest that Hunter was giving his father 50% of his diminished 2019 earnings.

Hunter felt dejected, and, while apparently under the influence of drugs, wrote a series of angry and often nonsensical messages to Naomi in which he threatened to cut her off financially.

“Find an apartment with Peter by next week,” Hunter instructed. “And send me the keys and leave all of my furniture and art. I love all of you. But I don’t receive any respect.”

Then he sent the text message that Republicans have used to suggest that Hunter’s foreign income was going to enrich his father.

[snip]

Hunter’s oft-told story about giving half of his salary to his father appeared to originate during his freshman year at Georgetown.

His roommate at the time recalled Hunter telling him and his twin brother “a million times” that then-Senator Biden encouraged him to work, saying, “You can keep half of the paycheck, but you have to hand over the other half for ‘room and board.’”

It was a story, and a theme, that Hunter continued to invoke, especially after he married Ms. Buhle and they had three daughters — Naomi, Finnegan and Maisy — all of whom attended Sidwell Friends, a costly Washington private school, where they were surrounded by wealthier families.

Hunter told close friends that he was worried that his daughters had become spoiled. According to family members, he would frequently tell them the story about how he had to work in college and pay half of his salary to his father, in hopes of encouraging them to be more self-sufficient.

In other words, Republicans are literally trying to impeach Joe Biden because he made his sons work their way through college, and at a time he was broke, Hunter tried to do the same with his daughters.

Note that the underlying back story Entous describes, in which Hunter attempted to find specialized medical care for his daughter Finnegan, shows that while in Fox News pundit Keith Ablow’s care, Hunter was somehow cut off from the digital world.

Then Ablow responds to his own email, which this time is marked [External], noting that “His [apparently meaning Hunter’s] email is screwed up,” and then saying he had texted Rock.

From: Keith Ablow <kablow[redacted]>
Sent: Thursday, January 3, 2019 11:40 AM
To: Positano [redacted]; rhbdcicloud
Subject: [EXTERNAL]Re: From Keith

CAUTION: External Email.

Rock
His email is screwed up

I texted you

The doctor responds — happy to help — and provides his contact. Ablow thanks him. Hunter responds to that, plaintively,

Guys are you getting my emails?

And though neither of the external interlocutors ever said a thing directly to Hunter, Ablow says, yes, suggesting they had gotten his emails, then instructs Hunter to contact the doctor and “send him the x-rays,” even though in the original email Hunter already sent 2 jpgs.

Hunter then tried to email the doctor directly, using the same email included in Ablow’s email (possibly even using the link from the doctor’s own email), and it bounces, “RecipientNotFound; Recipient not found by SMTP address lookup.”

Hunter’s digital rupture from the outside world is part of the back story to how his digital life got packaged up for delivery, eventually, to Congress. And it should raise provenance questions about every other aspect of this investigation.

Which brings us to the other NYT story, an attempt to fact check that was, instead a confession that NYT scribe Luke Broadwater either doesn’t care or doesn’t know how to assess evidence and claims for reliability.

Broadwater feigns fact-checking Republican representations of a text Hunter sent in 2017, claiming to be sitting next to his father while he was trying to strong arm a business associate, which is another communication that Republicans are sure proves Joe Biden was in business with his son.

Before I show you what Broadwater wrote, let me reconstruct how we have the claim in the first place. Gary Shapley provided the texts to Congress in May. He shared them, he claimed, as proof that investigators were denied the ability in August 2020 to obtain location data — he doesn’t say for whom — and to search the guest house at Joe Biden’s house.

For example, in August 2020, we got the results back from an iCloud search warrant. Unlike the laptop, these came to the investigative team from a third-party record keeper and included a set of messages. The messages included material we clearly needed to follow up on.

Nevertheless, prosecutors denied investigators’ requests to develop a strategy to look into the messages and denied investigators’ suggestion to obtain location information to see where the texts were sent from.

For example, we obtained a July 30th, 2017, WhatsApp message from Hunter Biden to Henry Zhao, where Hunter Biden wrote: “I am sitting here with my father and we would like to understand why the commitment made has not been fulfilled. Tell the director that I would like to resolve this now before it gets out of hand, and now means tonight. And, Z, if I get a call or text from anyone involved in this other than you, Zhang, or the chairman, I will make certain that between the man sitting next to me and every person he knows and my ability to forever hold a grudge that you will regret not following my direction. I am sitting here waiting for the call with my father.”

Communications like these made it clear we needed to search the guest house at the Bidens’ Delaware residence where Hunter Biden stayed for a time. [my emphasis]

Already, at this point, the savvy interlocutor would have asked Shapley, “why do you need location data? You get about five different kinds of location information in an iCloud warrant. What more did you need?”

Which might have led Shapley to confess he really wanted to get a location warrant targeting Joe, not Hunter.

If these texts were ever introduced at trial, Hunter’s lawyers would likely point out that they were obtained in reliance on the laptop obtained from John Paul Mac Isaac. At the point they got those warrants in August 2020 — effectively obtaining text messages that were available on the laptop — the FBI still had never validated the laptop to make sure no one had tampered with it either before it got into the custody of John Paul Mac Isaac or while in JPMI’s custody. That is, the warrant to obtain these texts may well be a classic case of poisonous fruit, and the texts could be affected by an alteration done to Hunter Biden’s contact list in the period in January 2019 when he was staying in Keith Ablow’s property and seems to have been partially cut off from the digital world; his contacts were restored — from what, it’s not clear — on January 24, 2019.

As Shapley was walking Congressional staffers through these texts, he admitted that they weren’t WhatsApp messages themselves, they were summaries. He wasn’t sure who had done the summaries.

Q Okay. And these aren’t WhatsApp messages, these are summaries of WhatsApp messages, correct?

A Yeah, that’s correct. Because it was something about the readability of the actual piece, right? It was easier to summarize in a spreadsheet.

Q Okay. And who did the summary? Who prepared this document?

A It was either the computer analysis guy or [Ziegler], one or the other.

Who did the summaries matters, because whoever it was did a shoddy job. In one crucial case, for example, whoever did the summaries interjected their opinion about what a screen cap that showed in the message was. It is the only indication in the exhibit shared with Congress that identifies the first name of Hunter’s interlocutor.

This interjection — a parenthetical comment recording that this was “(believed to be Zhao)” but included inside quotation marks as if it was part of the screencap — is the only place where Zhao’s first name is identified. Elsewhere, he is always referred to as “Zhao” or “Z,” even in a summary also referring to “Zang” and “Zhang.” Nowhere in this “summary” is his WhatsApp identifier included, as it would be in reliable WhatsApp texts summaries (here, from Vladislav Klyushin’s trial). It’s not the only parenthetical comment included as if it were part of a direct quote, but as we’ll see, it is a critical one.

Even in spite of the inherent unreliability of this summary, the shoddiness of the underlying IRS work, Republicans love it.

Jason Smith took these unreliable summaries and fabricated them into texts, creating the illusion that they had a solid chain of evidence for these texts.

Smith’s tweets of these texts went viral.

In spite of the fact that Abbe Lowell has attempted to get Congress to correct this viral claim twice, Smith left it up.

The summary and the fabrications of the text and Smith’s use of the initials “HZ” matter because there’s a dispute between Republicans and their IRS source about the identity of the person involved.

Shapley said the texts involved Henry Zhao, consistent with Smith’s fabrication.

But in a later release, James Comer described the interlocutor as Raymond Zhao — which is consistent with the interjection in the summary (and other communications regarding this business deal).

On July 30, 2017, Hunter Biden sent a WhatsApp message to Raymond Zhao—a CEFC associate—regarding the $10 million capital payment:

As we’ll see, Broadwater predictably “fact checks” this as a dispute between Democrats and Republicans. It’s not. Before you get there, you first have to adjudicate a conflict between the guy who led the IRS investigation for more than two years, Gary Shapley, and James Comer. It’s a conflict sustained by the shoddiness of the underlying IRS work.

This is a story showing not only that James Comer and Jason Smith don’t know what they’re talking about, but are willing to lie and fabricate nevertheless, but even the IRS agents may not know what they’re talking about, and if they don’t, it’s because the standard of diligence on the investigation of Joe Biden’s son was such that they didn’t even include the identifier of the person to whom Hunter was talking, which would make it easy or at least possible to adjudicate this dispute.

This is a story that discredits the IRS agents — for their sloppy work and for their bogus claims to need location data to further investigate this and the conceit that it ever would have been appropriate to get location data for Joe Biden or search his guest home in August 2020. It is a story that shows that when faced with uncertainty created by the sloppiness of their IRS sources, Republicans instead just make shit up.

But here’s how Luke Broadwater describes the conflict:

‘I am sitting here with my father’

One WhatsApp message that has received much attention was provided by an I.R.S. investigator who testified before Congress under whistle-blower protections. In it, Hunter Biden invoked his father, who was then out of office, while pressing a potential Chinese business partner in 2017 to move ahead with a proposed energy deal.

“I am sitting here with my father and we would like to know why the commitment has not been fulfilled,” the message states. On its face, the message seemed to suggest Joe Biden was in league with his son pressuring for a payment to the family.

But Democrats have argued it is more likely an example of Hunter Biden’s bluster than an accurate statement of Joe Biden’s involvement in a shakedown. A lawyer for Hunter Biden says he does not remember sending the message.

The president has denied he was present at the time.

Broadwater turns this into an unknowable question about whether Biden was sitting next to Hunter, and claims it’s just about competing partisan arguments.

But this is a confession about Broadwater’s own abilities or work ethic, not a fact-check of truth claims. Because if you don’t understand or explain that the claim itself builds off provenance problems, you’re actively covering up several layers of shoddiness in this impeachment stunt.

If the point is to test the reliability of the impeachment inquiry, it’s that other story that needs to be told.

Hearing Footsteps: The Paper Trail of Political Interference David Weiss Is Trying to Bury

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Update: Given confusion mentioned in comments, I thought I’d do another handy dandy chart to describe the motions to dismiss, like I did for Trump’s. This post addresses the MTD Selective Vindictive Separation of Powers. 

Abbe Lowell’s motion to dismiss the gun charges against Hunter Biden for selective and vindictive prosecution and violation of separation of powers only asks for discovery in passing.

Often, MTDs for selective prosecution are requests for discovery. For comparison, in a bid to argue that Jan6er David Judd was charged more harshly than Portland rioters, his excellent public defender, Elizabeth Mullin, conceded that she did not yet have proof he was treated worse because he was a Trump supporter, but then asked for six specific things to prove the case.

Mr. Judd does not yet contend the allegations below are sufficient for dismissal of the charges against him. However, they are sufficient for the Court to compel specific discovery regarding disparities in charging decisions.

[snip]

(1) Communication between the Department of Justice (“Main Justice”) and the U.S. Attorney’s Office for the District of Oregon regarding prosecution of defendants arrested in connection with protests in 2020.

(2) Communication between management at the U.S. Attorney’s Office for the District of Oregon and line Assistant U.S. Attorneys regarding prosecution of defendants arrested in connection with protests in 2020.

(3) Communication between the Department of Justice (“Main Justice”) and the U.S. Attorney’s Office for the District of Columbia regarding prosecution of defendants arrested in connection with the January 6 demonstrations at the U.S. Capitol.

(4) Communication between management at the U.S. Attorney’s Office for the District of Columbia and line Assistant U.S. Attorneys regarding prosecution of defendants arrested in connection with the January 6 demonstrations at the U.S. Capitol.

(5) Communication between the Department of Justice (“Main Justice”) and the U.S. Attorney’s Office for the District of Columbia regarding prosecution of the D.C. Fireworks Defendant.

(6) Communication between management at the U.S. Attorney’s Office for the District of Columbia and line Assistant U.S. Attorneys regarding prosecution of the D.C. Fireworks Defendant.

Mullin’s bid didn’t work. Judge Trevor McFadden ruled that January 6 was different than Portland — though he did use her argument to treat Jan6ers leniently at sentencing.

Compare that statement with this one, from page 50 of Abbe Lowell’s 60-page selective and vindictive MTD, where he asserts that this is the exceptional case where a defendant can prove vindictive prosecution without discovery.

Cases where a defendant can show actual vindictiveness without discovery may be few and far between, but this is surely one.

Lowell closes the entire brief with a similar statement, footnoted with the assertion that, “Were there to be any doubt at all, the basis for discovery and an evidentiary hearing has well been established.”

“[O]ur society is not bettered by law enforcement that. . . is not conducted in a spirit of fairness or good faith.” Banks, 383 F. Supp. at 397. This prosecution falls in that category, and the Court should dismiss the indictment. 109

109 As stated through this and the other motions to dismiss, the record available to the Court supporting dismissal is extraordinary. Were there to be any doubt at all, the basis for discovery and an evidentiary hearing has well been established.

This argument — that if Hunter Biden hasn’t met his burden for outright dismissal, then surely he should be granted discovery — is four other times relegated to a footnote.

One such footnote appears in a passage purporting to lay out the legal standards that govern this issue, in which Lowell cites a bunch of precedents from other circuits about dismissal in case of selective, vindictive, or separation of powers violations.

When a prosecution is selective, vindictive, or violates separation of powers, the tainted charges must be dismissed. See id. at 700 (“Preservation of this system of checks and balances requires the courts to invalidate actions that. . . undermine the authority and independence of one or another coordinate Branch.”) (citations omitted); In re Aiken Cnty., 725 F.3d 255, 264 n.7 (D.C. Cir. 2013) (“If the Executive selectively prosecutes someone based on impermissible considerations, the equal protection remedy is to dismiss the prosecution . . . .”).42

42 Where a defendant has not carried his burden, but has demonstrated a “colorable claim,” discovery and an evidentiary hearing should be permitted. United States v. Heidecke, 900 F.2d 1155, 1159 (7th Cir. 1990); United States v. Jones, 159 F.3d 969, 978, n.8 (6th Cir. 1998) (granting discovery to give the defendant “the opportunity to move to dismiss the indictment” for selective prosecution). See Mr. Biden’s Discovery Mot (filed concurrently). [my emphasis]

Armstrong, the precedent making it almost impossible for a defendant to get discovery, the one that Principal Senior Assistant Special Counsel Leo Wise cited 48 times in his bid to defeat subpoenas, does not appear in this section (though it does appear in several other places and in the discovery motion).

As this footnote does, two other such footnotes specifically cite a motion for discovery and evidentiary hearing filed the same day. In those other two instances, Lowell cites the line in this NYT article describing that David Weiss told an associate that he preferred not to bring any charges because the average American would not be charged for these crimes.

[T]he New York Times reported that “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.” 9

9 Michael Schmidt et al., Inside The Collapse Of Hunter Biden’s Plea Deal, N.Y. Times (Aug. 19, 2023), https://www.nytimes.com/2023/08/19/us/politics/inside-hunter-biden-plea-deal.html. The article does not disclose the source. The account is most likely true considering the charging statistics, DOJ enforcement policies described below, and Mr. Weiss’s initial reluctance in prosecuting Mr. Biden on this charge. If it is true, it is extremely damning evidence of discriminatory prosecution. Thus, to the extent there is any doubt, the Court should grant Mr. Biden’s request for discovery and an evidentiary hearing. See Mr. Biden’s Discovery Mot. (filed concurrently).

[snip]

DOJ confirmed its own improper motive when, under fire from Congress and the public, it resorted to a rarely used gun charge that reports indicate Special Counsel Weiss himself admitted would not have been brought against the average American.85

85 Michael S. Schmidt et al., Inside The Collapse Of Hunter Biden’s Plea Deal, N.Y. Times (Aug. 19, 2023), https://www.nytimes.com/2023/08/19/us/politics/inside-hunter-biden-plea-deal.html. As noted above, the article does not disclose the source, and to the extent there is any doubt about the veracity of the claim, the Court should grant Mr. Biden’s request for discovery and an evidentiary hearing. See Mr. Biden’s Motion for Discovery and an Evidentiary Hearing (filed concurrently). [my emphasis]

I have repeatedly predicted we’d see this language in Hunter’s selective prosecution motion, because it provides what virtually no defendant ever has: proof that the prosecutor himself recognized he was selectively prosecuting a defendant.

If Lowell can find these witnesses — experts on gun crimes who said Hunter was charged only because he was prominent and a Weiss associate whom Weiss purportedly told he knew that average Americans would not be prosecuted for such crimes –and get them to testify, then he would have what virtually no other defendant would: Proof that the prosecutor who brought the charge knew that similarly situated defendants would not be charged, but charged the defendant anyway.

But I assumed the proof that David Weiss had said that would require witness testimony.

Perhaps it doesn’t.

Consider that the last instance (in this filing) where Lowell relegates a request for discovery and an evidentiary hearing to a footnote, he makes an assertion — that DOJ has long believed that Hunter’s rights must take precedence over efforts by Trump to interfere in this prosecution — that he does not cite.

But as DOJ itself has long believed, Mr. Biden’s rights must come first and efforts by members of Congress and the former President to interfere have tainted this prosecution beyond purification. As a result, there is no constitutional option but to dismiss this case.40

40 If the Court has any doubt that the material set out in this motion is sufficient to warrant outright dismissal of these charges, it should permit discovery and conduct an evidentiary hearing. Mr. Biden has already sought discovery from DOJ and information from third-parties with knowledge of former President Trump’s influence, and DOJ has not responded to the requests and filed an opposition for this information to be disclosed. [my emphasis]

To be sure, we know that David Weiss’ investigative team, led by Lesley Wolf, made repeated efforts — not always successful — to shield the investigative team from Trump’s efforts to interfere.

For example, Tim Thibault told the House Judiciary Committee that one reason he shut down Peter Schweizer as a source was because then-Supervisory Special Agent Joe Gordon reached out, insinuating they already had laptop-based evidence, and said that if a case against Hunter Biden ever went to trial and Hunter’s attorneys found the FD-1023 from Schweizer that the Washington Field Office had shared with the Hunter team, it would give Hunter’s attorneys ammunition.

A And then fast-forward to sometime in October, I received an unsolicited call —

Q Uh-huh.

A — from the supervisor of the Hunter Biden case. I knew him because he had been assigned to Washington Field Office as the case agent.

[snip]

A And I said: Okay. What are your concerns? And basically said: Look, the information isn’t of any value to us, number one. My — I deduced from everything he said that they already had the information —

Q Uh-huh.

A — from some other source, some other channel, maybe not a human source but some other channel. He also said that that person was politically connected —

Q Uh-huh.

A — and partisan in his view and he was concerned about the source being on media platforms.

[snip]

A So I was getting a call from this supervisor. And my — my takeaway was we don’t need your source reporting and also: Why are you sending a file to our — to our case file that we didn’t know about? Right? So Washington Field Office wrote this 1023 and it went to headquarters and it went to Baltimore.

[snip]

A I understand you don’t need the reporting anymore. I understand that if this goes to trial, Hunter Biden’s attorney —

Q Uh-huh?

A — could have some ammunition.

Regarding that very same laptop, Gary Shapley complained to Congress that Weiss’ office had prevented Joseph Ziegler from seeing a report addressing the “quality and completeness of imaged/recovered information from the hard drive.”

Ziegler himself complained that he hadn’t been able to interview Tony Bobulinski — the guy whom Donald Trump personally hosted at an election debate and who subsequently had a clandestine meeting with Trump’s chief of staff — because, prosecutors told him, Bobulinski, “was not viewed as a credible witness.”

In investigative team meetings that occurred after this, I can recall that agents on the investigative team brought up on multiple occasions to the assigned prosecutors that they wanted to do an interview of Bobulinski with the assigned case agents. I can recall being told that they would think about it and then ultimately being told there was no need for the team to interview Bobulinski and that Bobulinski was not viewed as a credible witness.

And Scott Brady not only confirmed Gary Shapley’s claim that Lesley Wolf repeatedly refused to be briefed by Scott Brady’s team because she didn’t want dirt from Rudy Giuliani, but also that David Weiss had to — and did — intervene before Wolf would share information about her investigation with Brady.

Okay. So, looking at paragraph four on page 2, as it continues onto page 2, the second full sentence, it says: The prosecution team discussed the Hunter Biden related work of the Pittsburgh USAO on several occasions, as it was a line item on the recurring prosecution team’s call agenda for a long period of time. Assistant U.S. Attorney Lesley Wolf told us the Pittsburgh USAO and U.S. Attorney Scott Brady requested to brief the Delaware USAO’s Hunter Biden’s investigative team on multiple occasions, but they were turned down by AUSA Wolf and the Delaware USAO. Is it accurate that you had requested multiple times, you or your office, to brief the Delaware U.S. Attorney’s Office?

A Yes.

[snip]

Chairman Jordan. Got it. Got it. Now, also, based on what you said, throughout the process, you said that the Delaware U.S. Attorney’s Office wasn’t willing to cooperate, so much so that you had to send interrogatories?

Mr. Brady. Yes, we had conversations, asked for communication and a flow of information, mostly one way from us to them, but also, as I testified, we wanted to make sure we weren’t duplicating what they were doing. They would not engage. And so finally, after me calling Mr. Weiss and saying can you please talk to your team, this is important, this is why we want to interact with them, the response that we got back is you can submit your questions to our team in written form, which we did.

This is an important instance where, at least per Scott Brady, Lesley Wolf was attempting to prevent the politicization of the case, but David Weiss overruled her.

Finally, Shapley also provided documentation of his own complaint that, “This investigation has been hampered and artificially slowed by various claims of potential election meddling.”

There are abundant examples where Lesley Wolf attempted to shield the investigative team from Trump’s efforts to intervene. Lowell cites none of them, nor other public evidence, such as Ziegler’s testimony that there were emails (probably his original supervisor’s memorialization of Trump’s improper influence). Instead, he asserts without citation that DOJ has long believed that Hunter’s rights must come first.

I’m mindful that, in the exhibits accompanying his motion to dismiss because the diversion immunizes Hunter Biden from further charges, Lowell also didn’t include the bulk of documentation that NYT and Politico appear to have relied on for stories about how the plea deal collapsed.

That is, it’s possible that one of the documents that NYT received records someone — possibly Wolf — sharing with Chris Clark the explanation that Weiss really wanted to avoid any charges, even misdemeanors. If Abbe Lowell has that document, he’s playing coy.

Indeed, that’s an important dynamic in the motion for discovery and an evidentiary hearing. In a footnote (footnote six in this post), it purports to support both the selective and vindictive motion and the immunity one.

1 To the extent the Special Counsel disputes the facts laid out in Mr. Biden’s Motion to Dismiss the Indictment Based on Immunity Conferred By His Diversion Agreement and the Declaration of Christoper Clark (his former counsel), filed contemporaneously, as noted in that Motion at Note 1, an evidentiary hearing where all the participants to the negotiations (including U.S. Attorney David Weiss) should be held on that motion as well.

The footnote it cites in the immunity motion (footnote seven) asks Judge Maryanne Noreika, if she needs more proof regarding the immunity conferred by the diversion agreement, to include David Weiss (and “responsible members of his prosecution team,” which would include Wolf) among the witnesses.

If the Court believes that parol evidence should be considered, Mr. Biden requests an evidentiary hearing in which all participants in the negotiation of the Diversion Agreement, including Mr. Weiss and the responsible members of his prosecution team, can be called as witnesses to address the extensive recapitulation provided in Mr. Clark’s Declaration.

Even in the discovery motion, Lowell doesn’t provide a list of things like the one that David Judd’s attorney included in hers.

Instead, he simply points to the October 8 and November 15 discovery requests he already made and describes that Weiss’ team responded with silence.

On October 8, 2023 and November 15, 2023, as well as in follow-up correspondence on November 15, Mr. Biden wrote to the prosecution with tailored and enumerated discovery requests, many of which are routine in a criminal defense case such as this one. 2 The October 8 requests included customary Rule 16 discovery requests and 19 specific requests under Brady, Agurs, Giglio, and the Fifth Amendment, Rule 26/Jencks Act and similar requests. These requests have largely been met with silence and will be the subject of a motion to compel should this case proceed. However, the November 15, 2023 requests as well as the motion for Rule 17 subpoenas filed that same day seek information bearing directly on the issues addressed in the motions to dismiss filed concurrently herewith—selective and vindictive prosecution, political interference, and separation of powers concerns. The prosecution has not responded to or addressed these requests by Mr. Biden in any fashion. During a meet and confer phone call on December 1, 2023, Mr. Biden’s counsel even asked Messrs. Wise and Hines for a status update of the prosecution’s discovery, and specifically whether the government intended to make any additional productions in the near-term or respond to our various discovery request letters, to which Mr. Hines responded that the government would “let the discovery stand for itself.”3 [my emphasis]

The November 15 discovery request is similar to the subpoena request from the same day (which Lowell invokes in footnote 3), though it includes any communications discussing an investigation of Hunter that involve Geoffrey Berman as well.

1. All documents and records reflecting communications from January 20, 2017 to the present (the “Relevant Time Period”) to, from, between, or among Donald J. Trump, William P. Barr, Geoffrey Berman, Scott W. Brady, Richard Donoghue, or Jeffrey A. Rosen relating to or discussing any formal or informal investigation or prosecution of Hunter Biden, or a request thereof.

2. All documents and records reflecting communications from the Relevant Time Period to, from, between, or among Donald J. Trump, William P. Barr, Geoffrey Berman, Scott W. Brady, Richard Donoghue, or Jeffrey A. Rosen and any Executive Branch official, political appointee, Department of Justice official, government agency, government official or staff person, cabinet member, or attorney for President Trump (personal or other) discussing or concerning Hunter Biden.

SDNY investigated both Hunter and James Biden as part of their investigation into Patrick Ho and Gal Luft, so there may be communications between Berman and Weiss on that topic. Berman’s investigation of Lev Parnas would have covered the October 2019 meeting at which Parnas believed he’d receive laptop-based dirt from a Burisma associate. Plus, Berman would have been told to stand down on Rudy Giuliani’s December 5, 2019 meeting with Andrii Derkach, in deference to Richard Donoghue. His book describes that those discussions were quite heated.

The October 8 request is — as Lowell claims — more conventional (at least on its face). It asks for the evidence Weiss has about Hunter’s addiction. It asks for affidavits in support of warrants. And some of that — a request for communications on the drafting of the plea agreement and stats on prosecutions of these gun charges — definitely would support Lowell’s motions to dismiss.

There are unsurprising additions, such as any communications regarding leaks to the press, including through cut-outs (which is how I think the October 6, 2022 leak happened).

Any documents and/or information reflecting communications between anyone in your Office or any member of the investigative team or their supervisors (including FBI and IRS agents) with any member of the press or public concerning the investigation, and any documents and/or information reflecting leaks of information concerning the investigation or prosecution of Mr. Biden to the press, any private person, or any government official or employee who was not authorized to receive such disclosure.

Sure, this likely aims to discover whether Shapley and Ziegler had any role, including through cut-outs, in the leaks in this case. But as I noted in my post on that NYT story, there are several claims in it attributed to a “senior law enforcement official with knowledge of the situation” who claimed to have knowledge of things only David Weiss would know.

Then there are things that look innocuous, but might be particularly problematic for Weiss. Given my suggestion above that there may be documentation of a claim that Weiss told an associate he didn’t want to charge Hunter at all, a collection of all the communications anyone in his office had with lawyers for Hunter might pose hazards for this prosecution.

Any documents and/or information reflecting communications between anyone in your Office and any attorney representing Mr. Biden from the onset of the investigation to June 20, 2023.

Normally, when someone takes over a case from a prior defense attorney, they usually get the case file from their predecessor. Lowell would be expected to ask Clark for this. But there are at least two other sets of lawyers who would have been involved (including an investigative interview with George Mesires), which would justify this request. Complying with this request would involve Principal Senior Assistant Special Counsel Leo Wise seeing communications that David Weiss may have attempted to use him to sheep dip from this prosecution.

Then there’s a request for 302s.

A. Any draft FBI-302s, FD-1023s or interview memoranda describing such interviews.

B. Any requests by investigating agents or members of the Department of Justice to edit, revise, or otherwise change the content of any 302 or interview memorandum

This would include the FD-1023s from Peter Schweizer and the Zlochevsky informant, the 302 from Luft, as well as the draft 302 from Tony Bobulinski (and any record that DOJ intervened to prevent its completion), at least three of which Wolf attempted to keep from investigators.

Weiss may be imaging he can withhold these based on a claim that the gun charge doesn’t implicate these documents pertaining to politicized witnesses, and normally he’d be right. Except Judge Noreika already permitted Jason Smith to file an amicus, including protected grand jury materials, based in part on the argument that this has gotten so much publicity already. Plus, in both Jack Smith’s prosecutions of the former President and the serial treatment of Mike Flynn, there is arguably support for sharing such information (I asked Weiss’ spox if his team would adhere to the discovery approaches in those cases and got no response whatsoever to my question).

Finally, there are communications with Congress.

Any documents and/or information reflecting communications between any Member of Congress, Committee or Subcommittee of Congress, or congressional staff and any person at the U.S. Department of Justice, including your Office, concerning the investigation or prosecution of Mr. Biden, including the decision to bring any particular charges.

This would include the letter, cited in the selective MTD, that Chuck Grassley and Ron Johnson sent in 2021 regarding any gun charges against Hunter.

It would include the many letters sent to Merrick Garland.

It would also include the transcripts of the many interviews — including Brady, Thibault, from Lesley Wolf last week, and from Weiss himself — Jim Jordan did. At least some of those were shared with DOJ for an accuracy review. And in Weiss’ transcript, he made a claim that has already been rebutted in Chris Clark’s declaration, in which he described Weiss’ First AUSA saying there was no ongoing investigation into Hunter Biden.

This is an area where the Jack Smith precedent may be pertinent: in a response to Trump’s demand to subpoena Congress (which Lowell doesn’t do), Thomas Windom revealed that Smith shared 260 January 6 Committee transcripts with Trump. Jim Jordan has spent five months quizzing almost every member of the Hunter Biden investigative team about whether there was political interference on this case, which seems to make it relevant for any litigation about Congress’ usurpation of David Weiss’ role.

Normally, none of this would be discoverable and Principal Senior Assistant Special Counsel Leo Wise is likely to come back and say it is Jencks, which only will be relevant if these witnesses testify.

As I keep saying, normally none of this goes anywhere. I am assuredly not saying this will work.

What I am trying to lay out is that Lowell is going about via different tactics, in part by arguing this known proof of political interference is Brady (Brady about Brady!), not just evidence of selective prosecution hidden behind 48 invocations of Armstrong.

If Lowell prevails with his argument — his strongest argument, in my opinion — that Hunter is immune from prosecution on the gun charges, none of this may matter (until Lowell makes the same argument in Los Angeles, before a different Trump appointed judge). But once you get into the argument about improper influence on this case, David Weiss might begin to hear footsteps.

John Paul Mac Isaac’s Serial Inaccuracies and the Ablow Laptop

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Right wing purveyors of the Hunter Biden “laptop” story say that John Paul Mac Isaac, the legally blind computer repairman who made a copy of a laptop that he said Hunter Biden dropped off, then sent a copy of the data to Rudy Giuliani, was perfectly entitled to do so. They point to the intake form JPMI used, stating that,

Equipment left with the Mac Shop after 90 days of notification of completed service will be treated as abandoned and you agree to hold the Mac Shop harmless for any damage or loss of property.

In Hunter Biden’s countersuit against JPMI, he noted that Delaware law only deems tangible personal property to be abandoned after a year, and requires some bureaucracy before someone can assert to own the property.

8. Contrary to Mac Isaac’s Repair Authorization form, Delaware law provides that tangible personal property is deemed abandoned when “the rightful owner has left in the care or custody of another person and has failed to maintain, pay for the storage of, exercise dominion or control over, and has failed to otherwise assert or declare the ownership rights to the [] property for a period of 1 year.” (25 Del. C. § 4001) (emphasis added). The procedure to obtain lawful title to abandoned personal property requires the person in possession of the property to file a petition in a court of competent jurisdiction. (25 Del. C. § 4003). Other obligations must then also be satisfied before obtaining lawful title, such as the court sending notice to the owner and the petitioner posting notice in five or more public places, and advertising the petition in a newspaper. (25 Del. C. § 4003(b)). [emphasis original]

The requirements of Delaware law have attracted the most attention amid debates whether JPMI was entitled to share the laptop with Rudy Giuliani.

More important to questions of Computer Fraud and Abuse Act lawsuits like the one Hunter filed against Rudy Giuliani, however, Abbe Lowell notes that JPMI’s intake form promises to “secure [his customers’] data.”

12. Moreover, even if the Repair Authorization form were enforceable under Delaware law, by its own terms, it provides abandonment of only any “equipment” that is left behind at the Mac Shop, and not the data on or embedded within any such equipment. In fact, the Repair Authorization form states that the Mac Shop will make every effort to “secure your data.” (Compl. Ex. A). Customers who sign Mac Isaac’s Repair Authorization form do not, therefore, waive any rights under Delaware law for the data that any equipment might contain. Reputable computer companies and repair people routinely delete personal data contained on devices that are exchanged, left behind, or abandoned. They do not open, copy, and then provide that data to others, as Mac Isaac did here.

13. At no time did Mr. Biden grant Mac Isaac any permission to access, review, copy, or disseminate for his own purposes any electronically stored data that ever was created or received or maintained by Mr. Biden (regardless of how Mac Isaac came into possession of such material). [my emphasis]

Hunter Biden did not, if he indeed signed that intake form, authorize JPMI to grant other people access to his data. Yet JPMI gave it to Rudy who gave it to half the world, including the NY Post, as this illustration from Thomas Fine lays out.

There are multiple theories of CFAA that Abbe Lowell might have in mind as he sues those who’ve disseminated Hunter’s data: I discussed that cracking the password of the iPhone stored on the device or accessing data stored in the cloud might qualify. It’s also possible, however, that Lowell would argue that simply accessing the drive that JPMI shared amounts to unauthorized access, even under JPMI’s own intake form, because he said he would keep the data secure.

Those details will undoubtedly be a part of all the litigation going forward.

But there’s another detail about the intake form that deserves more attention. JPMI didn’t identify the laptops that were dropped off, beyond simply saying they were three MacBook Pros.

JPMI doesn’t claim to have paperwork tying a serial number to any of these three laptops until the FBI put one, for the laptop given to the FBI, on a subpoena in December 2019.

JPMI doens’t claim to have proof that the laptop he would go on to give to the FBI — some of the contents of which he shared with Rudy Giuliani who then shared it with half the world, including the NY Post  — was the laptop he claims someone dropped off on April 12, 2019.

Normally, that would not be a big deal. But, as described in his book, the laptop he gave the FBI does not match any of the three laptops he claims were dropped off on April 12, 2019.

One at a time, I performed a quick inspection of the machines. The fifteen-inch laptop was a complete write-off. It had extensive liquid damage, and because the drive was soldered to the logic board, data recovery was beyond my capability. (If a Mac can’t power on, you won’t be able to access the drive and get to the data.)

The thirteen-inch 2015 MacBook Pro was in slightly better shape. It could boot up, but the keyboard was unresponsive. I pulled out an external keyboard and asked for permission to log in.

[snip]

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.

JPMI described three machines:

  • A 15″ laptop, of unknown date, with soldered drive
  • A 13″ laptop from 2015
  • A 13″ laptop from 2016 with a soldered drive

By description, JPMI claims the last one is the one he gave to the FBI.

Based on the serial number, the laptop turned over to the FBI is a 13-inch 2017 PowerBook purchased in October 2018 (the October 2018 purchase date is consistent when it was added to Hunter’s Apple account).

It can’t be the first laptop described here, because it’s a 13″ PowerBook, but it’s a different year — 2017 rather than 2015 or 2016 — than both the 13″ PowerBooks JPMI described.

The difference in year might be no big deal.

The other description JPMI gives about the laptop he claims to be the one he recovered is: According to several people who’ve checked, the laptop shared with the FBI has a removable hard drive.

The entire reason why JPMI claims to have copied the files in the manner he did — by dragging-and-dropping files — is because he didn’t have ports to plug both a keyboard, power, and a cable to his own server. Instead, he plugged in the server and a keyboard, and did the drag-and-drop in three passes, recharging the battery between each pass.

That’s what, he claims, led him to look at Hunter’s files more closely, starting with dick pics and moving onto an “income” document conveniently marked with a purple dot.

Finally, I went in the back to check on Hunter’s liquid-damaged MacBook Pro. It had powered off, dying overnight during the file transfer. I now realized that this was not going to be a simple drag-and-drop procedure. There was about three hundred gigabytes’ worth of data, but not enough charge in the battery to do it all in one go. I started to charge the unit again, planning to give it a couple of hours before making a second attempt. But I also decided to see what had been successfully transferred to the server, praying I didn’t have to start all over again.

[snip]

I changed the folder view to a columns view, to see the files and folders in an alphabetical list. Clicking on a folder in the list opens up a new column with the contents of the folder, and clicking on a file in that column brings up a preview of the file. Eventually, in two separate windows, I would be able bring up both the original desktop and what I had copied, compare them, and transfer the missing files to the recovery window. But first I had to wait until there was enough of a charge in the battery to power on the Mac and keep it on.

[snip]

Here’s where things started to get interesting.

The previous recovered window was open on the left, and I was waiting for the hundreds of files on the original to populate to the right. Scrolling down, I started to see files that didn’t align. I started to individually drag and drop the files to the recovery folder. It took only a few files before I noticed pornography appearing in the right column.

[snip]

I continued copying files until I got to one titled “income.pdf.” I likely wouldn’t even have noticed it if it hadn’t been tagged with a purple dot. On a Mac, you can apply tags, or color codes, to files as an organizational aid. It seemed odd that someone who clearly had zero organizational skills would bother tagging this one file purple. It was begging to be clicked open. So I did.

But once JPMI realized the battery was draining, he could have simply swapped the hard drive into a separate laptop, with functioning keyboard, to copy the files that way.

Indeed, that seems to be (per Gary Shapley’s notes) what the FBI did: just put the hard drive in a new laptop.

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]

c. Lesley said (while laughing) that because a lot of p[e]op[l]e are going to be asking for the laptop

d. Josh Wilson stated that (while laughing) so whoever they are they are going to have to buy a laptop to put the hard rive in so they can read it [fixed errors in people]

Once you understand the laptop had a removable drive, then JPMI’s excuse for snooping in Hunter’s private files disappears.

But here’s why I can’t stop thinking about the fact that JPMI has no proof of which laptops he received and the laptop described in his book doesn’t match the one he shared with the FBI. One explanation for this discrepancy is ineptitude: during the entire period he was writing the book, he never even consulted the subpoena (the data for which he had provided the FBI). Another is he needed to invent an excuse, after the fact, to explain why he was reading Hunter’s stuff.

But there’s one other potentially related issue.

There aren’t three laptops. There are at least four.

The fourth is the laptop found at Keith Ablow’s in 2020, the one reportedly discovered after Hunter Biden left in February 2019. That laptop is reportedly one that Hunter first signed onto on September 1, 2018, at 10:34AM PDT, also a 13″ MacBook Pro, but one with a touch bar. The next day, Apple emailed Hunter to tell him he had gotten a new laptop — something that didn’t happen for many of his other new devices (including the one that first accessed his iCloud account in October 2018, the one that would end up with the FBI).

If that’s correct, then Hunter initiated the laptop left at Ablow’s in February 2019 in September 1, 2018. And the laptop ultimately shared with the FBI was initiated on October 21, 2018. Though there were accesses to his iCloud and other accounts from new devices almost every week in this period, there’s no sign at all that the touch bar MacBook (as opposed to one after another iPhone and an iPad) had been lost or inactivated.

And if the activity that packaged up Hunter’s digital life happened on the same laptop that ended up in a computer repair shop in Wilmington, then both would be presumed to be at Ablow’s in the same period in late January to early February. That’s an odd occurrence in the first place, since Hunter was going to get treatment, not to work on his memoir. But it’s also odd that the laptop ultimately shared with the FBI stopped synching on the same day that a laptop — possibly the Ablow one? — was purportedly deleted.

There are two problems with this story. None of the three laptops that JPMI describes receiving is the one shared with the FBI. And there’s not a good explanation for why two Hunter Biden laptops would be at Ablow’s property and why the one presumably in Hunter’s presence would stop synching the same day some other laptop was deleted.

This is all background for another post. But one thing that’s clear is none of the laptops JPMI describes in his book can be the one shared with the FBI. And there’s another laptop out there, which would have been present in the same place and time as the laptop that ultimately was shared with the FBI.

Say Her Name: The Story of Ruby Freeman and Shaye Moss’ Vindication

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After a jury awarded Ruby Freeman and her daughter $148 million for the intentional lies the former president’s former lawyer told about them in an attempt to steal an election, this is some of what Freeman had to say:

Good evening everyone. I am Lady Ruby. Today’s a good day. A jury stood witness to what Rudy Giuliani did to me and my daughter and held him accountable. And for that I’m thankful. Today is not the end of the road. We still have work to do. Rudy Giuliani was not the only one who spread lies about us, and others must be held accountable too. But that is tomorrow’s work. For now, I want people to understand this. Money will never solve all of my problems. I can never move back to the house that I called home. I will always have to be careful about where I go and who I choose to share my name with. I miss my home, I miss my neighbors, and I miss my name.

Freeman’s daughter, Shaye Moss, said this:

As we move forward, and continue to seek justice, our greatest wish is that no one — no election worker, or voter, or school board member, or anyone else — ever experiences anything like what we went through. You all matter and you are all important. We hope no one ever has to fight so hard just to get your name back.

For the women — vindicated by a jury of their peers, Rudy Giuliani’s peers, doing their civic duty — winning this substantial recognition of the damage done to them was about getting their name back.

The comments from the women said so much about the damage that Trump and Rudy’s bullying have done to the nation’s civic fiber.

But that’s not what led the coverage of their victory.

Rudy did.

Here’s how WaPo covered it.

WaPo first named Freeman and Moss in ¶3 of the story. The entire story quotes just 23 of their collective words after the verdict (though quotes or describes their testimony at more length, starting 24¶¶ into the story, after repeating Rudy’s false accusations about the women and the debunking presented at trial.

The damages verdict came in a defamation lawsuit filed against Giuliani, 79, by Fulton County, Ga., election workers Ruby Freeman and Wandrea ArShaye “Shaye” Moss, whom Trump and others on the former president’s campaign and legal teams falsely accused of manipulating the absentee ballot count in Atlanta.

“Today is a good day,” Freeman said, standing outside the courthouse with Moss after a jury awarded the mother and daughter pair $75 million in punitive and $73 million in compensatory damages for defamation and emotional distress.

[snip]

Their attorneys in closing arguments had urged jurors to “send a message” to Giuliani and others in public life that the “facts matter.” On Friday Moss added, “Giuliani was not the only one who spread lies about us, and others must be held accountable, too.”

By comparison, WaPo cited 58 words from Rudy’s post-verdict comments, with pushback on his claims that he hadn’t had a chance to present a case, but not on his comment that if the 2020 election weren’t exposed we wouldn’t have a country anymore.

Though the story described the verdict as a “potentially worrying sign for him as he faces criminal charges in Georgia accusing him of related efforts to overturn Biden’s victory there,” it didn’t talk about how some of the evidence Rudy withheld in discovery might have made that plight worse.

Here’s how Politico covered it (placed on the front page behind a 1,250-word story purporting to describe how impeachment will work, without mentioning there’s no evidence of wrongdoing).

Politico got the names of Ruby Freeman and Shaye Moss in the subhead and the second paragraph.

Politico sandwiched some of Freeman’s comments, 47 quoted words in ¶19, in-between two paragraphs — starting at ¶9 and in ¶24– quoting 49 words of Rudy’s comments.

A few minutes later, Giuliani stood outside the courthouse and declared, “I don’t regret a damn thing.”

The former mayor and federal prosecutor called the monetary award “absurd” and said he would appeal. He denied responsibility for the threats and harassment that Freeman and Moss received — including a bevy of unambiguously racist, violent messages — and said that he receives “comments like that every day.”

[snip]

“Today’s a good day. A jury stood witness to what Rudy Giuliani did to me and my daughter — and held him accountable,” Freeman told reporters after the verdict was delivered. “We still have work to do. Rudy Giuliani was not the only one who spread lies about us, and others must be held accountable, too,” she said, without elaborating.

[snip]

But after the verdict on Friday, Giuliani offered a different reason for declining to take the stand: “I believe the judge was threatening me with the strong possibility that I’d be held in contempt or that I’d even be put in jail,” he said.

Giuliani didn’t repeat his false claims about Freeman and Moss Friday, but continued to air false claims that the 2020 election was stolen. “My country had a president imposed on it by fraud,” he declared.

Rather than mentioning Moss’ tribute to other civil servants, Politico focused closely on tensions between Rudy and his attorney, Joe Sibley.

Even though the reporters on this story, Kyle Cheney and Josh Gerstein, provide some of the best coverage of all things January 6, the story didn’t mention that by blowing off discovery in this case, Rudy may have tried to keep evidence hidden from Jack Smith.

Like the other outlets, NYT’s story led with an image of Rudy.

But it focused paragraphs two through four on the women.

Judge Beryl A. Howell of the Federal District Court in Washington had already ruled that Mr. Giuliani had defamed the two workers, Ruby Freeman and Shaye Moss. The jury had been asked to decide only on the amount of the damages.

The jury awarded Ms. Freeman and Ms. Moss a combined $75 million in punitive damages. It also ordered Mr. Giuliani to pay compensatory damages of $16.2 million to Ms. Freeman and $16.9 million to Ms. Moss, as well as $20 million to each of them for emotional suffering.

“Today’s a good day,” Ms. Freeman told reporters after the jury delivered its determination. But she added that no amount of money would give her and her daughter back what they lost in the abuse they suffered after Mr. Giuliani falsely accused them of manipulating the vote count.

Because of that early focus, the dead tree version of today’s paper got Freeman’s name — and her declaration that it was a good day — on page A1 three times.

It closed with Freeman’s promise of more.

“Our greatest wish is that no election worker or voter or school board member or anyone else ever experiences anything like what we went through,” she said.

And while this is a an artificial measure, this NYT story also managed to quote more of Freeman’s speech — 31 words — than Rudy’s — 28. While it quoted Rudy attacking the verdict and standing by his lies, it did not repeat his other lies.

As with all the others, this story didn’t consider whether Rudy was protecting himself criminally by withholding related information in discovery.

I get that these measures are totally artificial. I mean this as observation, not criticism.

I get that Rudy is the famous one, Rudy makes this a tale of downfall. Even bmaz made this about Rudy, not the women who faced him down, Ruby Freeman and Shaye Moss.

But I was really really struck by how, even in their vindication, the heroism of what these women did, the heroism of election workers refusing to be bullied, still wasn’t the focus.

Lol, Rudy Tudy Is Moldy Fruity

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Rudy had his lawyer promise to the jury that Rudy would testify and explain the truth.

Nope, he not only failed to personally testify, he put on no defense at all.

Mothers, don’t let your babies to ever grow up to be this stupid.

$148 million. Wow.

You all should get ready to learn about:

1) additur and remittitur.

2) Supersedeas bonds.

This was absolutely a damning verdict, and there is no way for Rudy to hide from it. Nor Trump, who will blithely act like he never knew Rudy.

Fun times, but there is a LOT ahead. Stay tuned.

Garanimals in a SCIF: David Weiss’ Attempt to Sheep Dip Bill Barr’s Hunter Biden Prosecution

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On July 11, 2023, David Weiss’ First AUSA Shannon Hanson responded to an inquiry from Judge Maryanne Noreika’s courtroom deputy, Mark Buckson. He wanted to know when “the final versions of the documents” pertaining to the Hunter Biden plea deal would be completed. Hanson responded within five minutes. Before she explained that she didn’t know when they’d have the final documents, but hoped to have them to Judge Noreika by Thursday (so July 13), she described that, “I will be speaking with the team later today (I understand they are in a secure location and cannot readily be contacted at the moment.”

Hanson was describing “the team” — she had cc’ed Delaware AUSA Benjamin Wallace and Baltimore AUSAs Leo Wise and Derek Hines — as something of which she was not a part. And she was describing that team as being in a SCIF.

Hunter Biden’s attorneys included the email with their motion to dismiss based on an argument that the diversion agreement Hunter signed prohibits the indictment charging him with three gun charges. The email shows that the final documents filed with the court on July 20, by Wallace, had just one change from the version submitted on June 8, by Hanson. Wallace explained:

The parties and Probation have agreed to revisions to the diversion agreement to more closely match the conditions of pretrial release that Probation recommended in the pretrial services report issued yesterday.

Hunter’s team submitted it to show that, following the Probation Office’s recommendation of Hunter for diversion on July 19, the parties submitted it as a finished agreement.

This motion makes a strong argument that the government entered into an agreement with Hunter for which he sacrificed his rights — including by allocuting to the facts regarding the gun purchase — and therefore must honor the contractual protections it offered to get Hunter to sacrifice those rights.

Indeed, in a footnote it goes further than that: it argues that because the immunity agreement language was in the gun diversion, all the charges tied to the informations that were before Noreika are barred, including the tax charges filed in California.

7 Although the only charges now before the Court are the gun charges in the prosecution’s lone Indictment of Mr. Biden in this District, Mr. Biden notes that the sweeping immunity of the Diversion Agreement would seem to bar any plausible charge that could be brought against him (including the recently filed tax charges in California). The only charges that are not be barred by the immunity provision are those filed in the pre-existing Informations filed against him in this District. The Diversion Agreement called for the eventual dismissal of the gun charge Information upon the conclusion of the diversion period, but the prosecution already has dismissed it. Although the Plea Agreement was not accepted on the misdemeanor tax charge Information, the prosecution has dismissed that Information as well. Consequently, the Diversion Agreement’s immunity for gun and tax-related charges would bar any similar charge from now being filed. This sweeping immunity may make it difficult for the prosecutors to appease Mr. Trump and the Republican congressmen who have criticized them, but this is the deal that the prosecutors made and it reflects their choice to place the immunity provision in the Diversion Agreement.

I’m less certain that’ll fly, but it’s a hint of where things are headed in California.

That’s what the documents show with regards to the motion to dismiss, which I’ve always said is probably Hunter’s best argument to have the indictment dismissed.

But the documents are as interesting for what they show of David Weiss’ attempt to sheep dip this prosecution — to give it a virgin birth under the direction of now-Principal Senior Assistant Special Counsel Leo Wise or, as Joseph Ziegler’s attorney described it when he invited the disgruntled IRS agent to explain how irreplaceable he was, to replace one Garanimal with another.

Mr. Zerbe. I want to make sure — you made one point. I think you need to clarify it for him. He asked if the case is going forward. I think for everybody here, explain though that it’s not just kind of Garanimals where they can swap you in and out. Talk about, you not being on the case, you have to put somebody in new, but kind of how that impacts. I just want you to understand that.

Mr. [Ziegler]. So what’s frustrating — and I think it’s obvious is he removed two of the people who have been challenging and been kind of like this is the — we’re trying to do the right thing, we’re trying to do the right thing. And it was kind of like we got loud enough, and they found an avenue to remove us. I have been told by so many people on this case that we’re where we are today because of my work. It’s 5 years of an investigation. You can’t just pick up that and move it onto someone else. And if they removed all the prosecutors, DOJ Tax, and had a brand-new team, I would understand that completely if that’s the decision that they made. But they just removed us.

Ziegler made that comment on June 1. And he was right, at that point — as he sat in a room making claims about Lesley Wolf’s conduct that documents he himself released almost four months later would substantially debunk — that “they” had not yet “removed all the prosecutors.” But they would, within days.

As Chris Clark described in his declaration describing plea negotiations, that same day, June 1, Lesley Wolf invited Clark to come to the US Attorney’s Office the next day to work on the plea agreement, in part so they could share language with David Weiss in real time.

20. On June 1, 2023, AUSA Wolf sent me an email inviting me to meet at the U.S. Attorney’s Office in Wilmington on June 2 to work together on the agreements’ specific language and provisions. The idea was for the AUSAs and defense counsel to be in the same room with access to U.S. Attorney Weiss, so that the terms could be worked out. A true and correct copy of AUSA Wolf’s June 1, 2023, email to Chris Clark is attached hereto as Exhibit H.

21. On June 2, 2023, co-counsel Matthew Salerno and I went to the U.S. Attorney’s Office in Wilmington, where the USAO presented us with its draft of a new Diversion Agreement, along with a draft Plea Agreement. This was the first time that we had seen the USAO’s draft Agreements. Each draft Agreement was accompanied by a broad and lengthy Statement of Facts, each of which had been drafted solely by the USAO in advance of the June 2 meeting. At this meeting, AUSA Wolf expressed the view that it was in Mr. Biden’s interest to have broad Statements of Facts included because the scope of immunity (under Paragraph 15 of the Diversion Agreement) would be tied to the Statements of Facts. The Agreement included a more limited immunity provision than I had discussed with AUSA Wolf or that Mr. Biden would accept. Among the revisions, during or shortly after that June 2 meeting, references to tax liability for years 2016 and 2019 were specifically added to the Plea Agreement’s Statement of Facts.

22. The AUSAs and we took turns working on the specific language of each Agreement—with AUSA Wolf running the changes by Office leadership, including U.S. Attorney Weiss. No final agreement was reached that day, and the meeting concluded with the AUSAs agreeing that the USAO would work on composing acceptable language on an immunity provision.

23. That same evening (Friday June 2), at or around 9:43 PM EST, I emailed AUSA Wolf, copying my co-counsel, and proposed one revision to Paragraph 15 of the Diversion Agreement (the provision governing immunity): that Paragraph 15 provide that “The United States agrees not to criminally prosecute Biden, outside the terms of this Agreement, for any federal crimes arising from the conduct generally described in the attached Statement of Facts (attachment A) and the Statement of Facts attached as Exhibit 1 to the Memorandum of Plea Agreement filed this same day.” (Emphasis added.) In the email, I advised AUSA Wolf that it was “very critical for us” that the Diversion Agreement include “[t]his language or its functional equivalent.” A true and correct copy of Chris Clark’s June 2, 2023, email to AUSA Wolf, copying co-counsel, is attached hereto as Exhibit I. [emphasis original]

Wolf was still on the team when — after Clark spoke with Weiss directly on June 6 about the importance of protecting Hunter from any further legal exposure — she sent Clark new language seemingly addressing Clark’s concerns about the immunity language.

28. After extensive discussion with AUSA Wolf in which she repeatedly stated that U.S. Attorney Weiss was unwilling to revise the language of the Agreement’s immunity provision, I conveyed that if this language could not be revised, we would not have a deal and that it was the most important term in the Agreement that Mr. Biden get finality. Accordingly, I requested to speak directly with U.S. Attorney Weiss, whom I was told was the person deciding the issues of the Agreement. Later that afternoon, on June 6, 2023, I spoke directly with U.S. Attorney Weiss. During that call, I conveyed to U.S. Attorney Weiss that the Agreement’s immunity provision must ensure Mr. Biden that there would be finality and closure of this investigation, as I had conveyed repeatedly to AUSA Wolf during our negotiations. I further conveyed to U.S. Attorney Weiss that this provision was a deal-breaker. I noted that U.S. Attorney Weiss had changed the deal several times heretofore, and that I simply could not have this issue be yet another one which Mr. Biden had to compromise. The U.S. Attorney asked me what the problem was with the proposed language, and I explained that the immunity provision must protect Mr. Biden from any future prosecution by a new U.S. Attorney in a different administration. The U.S. Attorney considered the proposal and stated that he would get back to me promptly.

29. Later that same evening on June 6, 2023, at or around 5:47 PM EST, AUSA Wolf emailed me proposed language for the immunity provision that read: “How about this- The United States agrees not to criminally prosecute Biden, outside of the terms of this Agreement, for any federal crimes encompassed by the attached Statement of Facts (Attachment A) and the Statement of Facts attached as Exhibit 1 to the Memorandum of Plea Agreement filed this same day.” (Emphasis in original.) After speaking with Mr. Biden, I responded to AUSA Wolf that the language she sent me “works” and is suitable for Mr. Biden as well, at which point the Parties had a deal. A true and correct and correct copy of AUSA Wolf’s June 6, 2023, email to Chris Clark is attached hereto as Exhibit K. [all emphasis in Clark’s declaration]

And Wolf was still on the team on June 8, the day when the documents were first filed with the court.

That is, Wolf was still on the team when Jim Jordan and Bill Barr had already intervened in the case.

Wolf was still on the prosecutorial team — and negotiating a plea deal that would have ruled out FARA charges — on June 7.

That’s the same day Weiss sent the first response, to a May 25 letter Jim Jordan sent Merrick Garland about the IRS agents’ complaints of being removed from the investigation. In it, he cited Rod Rosenstein’s explanation to Chuck Grassley in 2018 how congressional interference might politicize an investigation (in that case, the Mueller investigation).

The information sought by the Committee concerns an open matter about which the Department is not at liberty to respond. As then-Deputy Attorney General Rod Rosenstein wrote in 2018 in response to a request for information from the Honorable Charles Grassley, Chairman of the Senate Committee on the Judiciary:

Congressional inquiries during the pendency of a matter pose an inherent threat to the integrity of the Department’s law enforcement and litigation functions. Such inquiries inescapably create the risk that the public and the courts will perceive undue political and Congressional influence over law enforcement and litigation decision.

[snip]

Weiss might claim that he replaced Wolf with Wise and in the process had Wise reassess the prior prosecutorial decisions. But, given the date of that letter, there was never a moment he had done so before the political pressure started. David Weiss cannot claim he did so before being pressured by Jim Jordan.

And Jordan’s letter wasn’t the only political pressure. On the same day that Weiss said he couldn’t share information — the likes of which Shapley had already started sharing — because it might politicize an ongoing investigation, Bill Barr (one of the people Lowell wants to subpoena) publicly intervened in the case, insisting the FD-1023 recording Mykola Zlochevsky making a new allegation of bribery had been a live investigative lead when it was shared with Weiss in October 2020, the FD-1023 Weiss specifically said he could not address because it was part of an ongoing investigation.

On a day when Lesley Wolf remained on the case, both Jordan and Barr had already intervened. And because there was never a time that Weiss had replaced Wolf with Wise before the political pressure started, there was little time he had done so before the physical threats followed the political pressure.

But June 8 — the day the plea deal first got shared with the court — was the last day that Lesley Wolf shows up in Clark’s timeline.

She wasn’t removed for misconduct. In his testimony to the House Judiciary Committee, Weiss agreed that Wolf, “did her work on the Hunter Biden matter in a professional and unbiased manner without partisan or political considerations.” He said,

I believe she did. As I said, she served the Department for more than 16 years, and I believe her to be a prosecutor with integrity.

But per Michael Batdorf, she was, nevertheless, replaced.

On June 19, Principal Senior Assistant Special Counsel Leo Wise made his first appearance. Joseph Ziegler, a disgruntled IRS agent spreading false hearsay claims, succeeded in getting Wolf replaced.

That same day, June 19, Hanson requested that Clark modify the statement he was going to release. But, in a phone call, she told him that there was no pending investigation against Hunter Biden.

35. On June 19, 2023, at 2:53 PM EST, after I had a phone call with AUSA Hanson indicating I would do so, I emailed AUSA Hanson a proposed press statement to accompany the public release of both Informations that read, in part, “I can confirm that the five-year long, extensive federal investigation into my client, Hunter Biden, has been concluded through agreements with the United States Attorney’s Office for the District of Delaware.” (Emphases added.) A true and correct copy of Chris Clark’s June 19, 2023, email to AUSA Hanson is attached hereto as Exhibit P.

36. Shortly after that email, I had another phone call with AUSA Hanson, during which AUSA Hanson requested that the language of Mr. Biden’s press statement be slightly revised. She proposed saying that the investigation would be “resolved” rather than “concluded.” I then asked her directly whether there was any other open or pending investigation of Mr. Biden overseen by the Delaware U.S. Attorney’s Office, and she responded there was not another open or pending investigation. Thereafter, at 4:18 PM EST that day, I sent AUSA Hanson a revised statement that read: “With the announcement of two agreements between my client, Hunter Biden, and the United States Attorney’s Office for the District of Delaware, it is my understanding that the five-year investigation into Hunter is resolved.” (Emphases added.) The new statement revised the language from “concluded” to “resolved,” a stylistic change that meant the same thing. A true and correct copy of Chris Clark’s June 19, 2023, email to AUSA Hanson is attached hereto as Exhibit Q [Clark’s italics, my bold]

I hope to hell Clark has notes of that conversation, because the assertion that there was no pending investigation of Hunter Biden on June 19 directly conflicts with a claim that David Weiss made to the House Judiciary Committee.

On November 7, David Weiss repeated a claim his office made when they first announced the deal: that it was ongoing. “I can say that at no time was it coming to a close,” Weiss told the House Judiciary Committee. “I think, as I stated in the one statement I made at the time … the investigation was continuing. So it wasn’t ending there in any event.”

That is, Weiss’ First AUSA, Shannon Hanson, allegedly told Clark something that directly conflicts with something Weiss said to Congress.

That may be why Abbe Lowell, while arguing that no hearing is necessary to dismiss the indictment based on the contract that existed between the government and Hunter Biden, said that if Judge Noreika thinks she does need a hearing, then to please have David Weiss prepared to testify as a witness.

If the Court believes that parol evidence should be considered, Mr. Biden requests an evidentiary hearing in which all participants in the negotiation of the Diversion Agreement, including Mr. Weiss and the responsible members of his prosecution team, can be called as witnesses to address the extensive recapitulation provided in Mr. Clark’s Declaration.

It’s going to be a lot harder for Weiss to claim that US Attorneys-turned-Special Counsels can’t testify when he was willing to testify to Congress.

This is undoubtedly why Lowell asked to be able to subpoena Bill Barr’s communications, through the present, about the Hunter Biden investigation — a version of which he made in formal discovery as well (Lowell also noted Barr’s recent comments on the investigation in the selective and vindictive prosecution MTD). Because Bill Barr intervened in this case before such time as Wolf was apparently removed and replaced by Principal Senior Assistant Special Counsel Leo Wise. Barr intervened publicly, and given Wise’s concerns about DOJ materials in the possession of former DOJ employees in his response to that subpoena request, it seems acutely likely that Weiss recognizes that Barr intervened in a way that shared privileged information.

Likewise, specific regulations govern the disclosure of DOJ materials in the possession of former DOJ employees, and the government is unable to assess the applicability or propriety of disclosure without identification of the specific documents. See 28 C.F.R. § 16.26 (outlining considerations governing appropriateness of disclosure); see generally 28 C.F.R. pt. 16, subpt. B (proscribing Touhy regulations for disclosure of official materials, including those held by former DOJ employees); United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). Only once those materials are specifically identified can the government assess the appropriateness of disclosure, including whether such materials are privileged

Worse still, per Weiss’ testimony in November, this effort to mine the investigation into Mykola Zlochevsky that Barr personally orchestrated remains ongoing — or remained ongoing until such time, CNN recently reported, as it closed the investigation into Zlochevsky’s changed statements about the Bidens around the same time DOJ’s criminal investigation into him was closed down by Bill Barr’s DOJ.

When Steve Castor asked about the FD-1023 that, per Chuck Grassley, was the result of Scott Brady’s effort to mine the recently closed Zlochevsky investigation, David Weiss responded that it was part of an ongoing investigation.

Q Are you familiar — let’s mark this as the next exhibit — with an FD-1023 dated June 30, 2020, summarizing a confidential human sources meeting with Burisma executives during which they discussed bribes allegedly paid to Joe Biden and Hunter Biden?

A I’m sorry. What was your question about this document?

Q Are you familiar with this?

A I’m not going to comment on that. I appreciate your question, but it concerns a matter that is subject to an outstanding investigation. It’s something that I absolutely cannot comment on either way. [my emphasis]

This is why I’m interested in Hanson’s description that “the team” was in the SCIF on July 11. Wise and Hynes are — or were, until getting their big promotion to Senior Assistant Special Counsels — Baltimore AUSAs. There’s no reason for them to be in SCIF together with Wallace except on the Hunter Biden case. There is no conceivable classified information in the two Hunter Biden indictments (one, two).

But on July 10 — the day before Hanson said “the team” was in a SCIF — Weiss told Lindsey Graham that the FD-1023 was part of an ongoing investigation. And on November 7, Weiss told Steve Castor that it was part of an ongoing investigation.

And the possibility of a FARA charge is what Leo Wise used on July 26 to blow up an investigation that — as of June 19 — was done.

There is a good deal of reason to believe that David Weiss used the effort Bill Barr set up four years ago to launder dirt from Russian spies into the Hunter Biden investigation as an excuse, after private citizen Barr had intervened in this investigation, to reopen the investigation after Republicans demanded it.

Documents

Motion to dismiss because the diversion agreement prohibits the gun charges

Former WikiLeaks Task Force Member Charles McGonigal Didn’t Take Credit for the Josh Schulte Investigation

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There’s something about the second Josh Schulte trial I’ve always meant to go back and lay out. It pertains to what I think of as Schulte’s “Guccifer Gotcha.”

Throughout the trial, Schulte, who was representing himself, often got caught up in proving — right there in the courtroom — that he was the smartest guy in the room. That often (particularly with prosecutors’ technical expert and a former supervisor) led Schulte to get entirely distracted from proving his innocence. He focused on proving he was smart, rather than not guilty.

A particularly revealing instance came with Richard Evanchec who, as a member of New York Field Office’s Counterintelligence Squad 6 that focused on insider threats, was one of the lead FBI agents on the Schulte investigation.

On direct, Evanchec had described how before, August 2016, Schulte had only done three searches — ever — on WikiLeaks, but he did 39 searches between August 2016 and January 2017, when WikiLeaks announced Vault 7. (This exhibit is from Schulte’s first, 2020 trial; because the exchange below describes the August 16 search as the first one, I believe the one from his 2020 trial may not have included the Snowden search.)

Schulte started his cross on this topic by asserting that Evanchec had “made [a] grave mistake” in calculating Schulte’s Google searches.

[Reminder: these transcripts were paid for by Wau Holland foundation, which has close ties to WikiLeaks.]

Q. Additionally, sir, did you realize that you made the grave mistake in calculating the Google searches during this time period?

A. I don’t.

Q. You don’t recall that.

A. No.

[snip]

Q. Did you not realize, sir, that 80 percent of the searches you claim that I conducted for WikiLeaks were not actually searches at all?

A. I don’t know that, sir, again.

Q. Sir, are you familiar with the service Google offers called Google News?

A. I am not. I don’t use Google regularly or gmail regularly so I don’t know what that is.

Schulte then walked Evanchec through how a Google News search and a related page visit search show up differently in the logs, demonstrating the concept with some activity from early morning UTC time on August 17, 2016 on Schulte’s Google account.

Q. Did you know that Google makes a special log in its search history when you are using Google News?

A. I don’t. I am not aware of that.

[snip]

Q. OK. Entry no. 12954.

A. Your question, sir?

Q. Can you read just the date that this search is conducted?

A. Appears to be August 17 of 2016 at 2:45:07 UTC.

Q. Can you read what the search is?

A. Searched for pgoapi.exceptions.notloggedinexception. Then there is: (https://www.Google.com/?Q=pgoapi.exceptions.notloggedinexception).

Q. OK. And then the search after it, Google has it, produces it in the opposite direction so the one after that. Can you read that?

A. You are referring to line 12953?

Q. Yes. I’m sorry. Thank you.

A. Tease [sic] OK. Again August 17, 2016, 2:35:27 https://www.google.com/search?Q=WikiLeaks&TBM=NWS).

Schulte then got Evanchec to admit that the FBI agent didn’t consult with any FBI experts on Google before he did his chart of Google searches.

Q. So you basically, just as a novice, opened up this document and just based on no experience, you just picked out lines; correct?

A. No.

Q. No. You did more?

A. Yes. I queried for every time this history set searched for and then included the search terms. That’s what I culminated in my summary.

Q. OK, but you didn’t run that by any of the technical experts at the FBI, did you?

A. Not that I recall.

Q. And you said you didn’t reach out to Google or anyone with expertise, correct?

In his close, Schulte claimed that the exchange showed that all the Google searches he did between August 2016 and January 2017 were based off a Google news alert, and what drove the number of searches was the degree to which WikiLeaks was in the news because of the DNC hack-and-leak.

Mr. Lockard then brings up the Google searches for WikiLeaks, but of course, as Agent Evanchec testified, there were multiple news events that occurred in the summer of 2016. WikiLeaks dumped the Clinton emails. Really? Come on. Everyone was reading that news — Guccifer 2.0. The Shadow brokers released data, and even WikiLeaks claimed to have that code.

No doubt Schulte did demonstrate clearly to Evanchec that he didn’t did look closely at the logs of these searches and that he — Schulte — knew more about Google searches than one of the agents who had led the investigation into him did.

He was the smartest guy in the room.

But in the particular search in question — one that would have been before midnight on August 16, 2016 on the East Coast — what Schulte appears to have shown is that among all the Google news alerts reporting on a flood of news about WikiLeaks, one of the only alerts that he clicked through was one reporting WikiLeaks’ claim to have a tie to ShadowBrokers.

WikiLeaks on Monday announced plans to release a collection of “cyber weapons” purportedly used by the National Security Agency following claims that hackers have breached a division of the NSA said to deal in electronic espionage.

“We had already obtained the archive of NSA cyber weapons released earlier today and will release our own pristine copy in due course,” WikiLeaks said through its official Twitter account Monday.

Individuals calling themselves the “Shadow Broker” claimed earlier in the week to have successfully compromised Equation Group — allegedly a hacking arm of the NSA — and offered to publicly release the pilfered contents in exchange for millions of dollars in bitcoins.

At a threshold level, Schulte’s gotcha doesn’t show what he claimed it did. It showed that among the flood of news about WikiLeaks — almost all focused on the DNC hack-and-leak — he clicked through on stories about an upcoming code release. “Everyone was reading that news — Guccifer 2.0,” Schulte said. But he wasn’t. He clicked on one Guccifer story. He was sifting past the Guccifer news and reading other stuff. Schulte caught Evanchec misreading the Google logs, but then went on to misrepresent the significance of what they showed, which is that amid a flood of news about the DNC hack-and-leak, he was mostly interested in other stuff.

More importantly, once you realize that Evanchec hadn’t looked closely at the logs of these Google searches, something about his first demonstrative — showing just these three searches before August 2016 — becomes evident.

July 29, 2010: Searched for “WikiLeaks”

  • Visited Wikileaks.org webiste [sic]

July 30, 2010: Searched for “WikiLeaks ‘Bastards’”

  • Visited website titled “WikiLeaks Plans to Post CIA Chiefs Hacked Emails” on The Hill

July 6, 2016: Searched for “WikiLeaks Clinton Emails”

  • Visited website titled “WikiLeaks Dismantling of DNC Is Clear Attack By Putin on Clinton” on The Observer

For at least two of these searches, the date in Evanchec’s demonstrative cannot reflect the actual date of the search.

The story, “WikiLeaks Dismantling of DNC Is Clear Attack By Putin on Clinton” — one of the first ones concluding from the DNC hack that Putin was involved — was not posted until July 25, 2016, yet Evanchec’s demonstrative says the search happened weeks earlier.

The story, “WikiLeaks Plans to Post CIA Chiefs Hacked Emails,” describing the Crackas With Attitude hacks of top intelligence community figures in advance of the 2016 operation, dates to October 21, 2015. Evanchec described Google records that say the search happened five years before the article was posted.

Neither of those searches could possibly have been done on the date in Evanchec’s demonstrative, which Schulte — in spite of his obsession with being the smartest guy in the room — undoubtedly knew but didn’t point out at trial.

Schulte got his gotcha. It didn’t help him secure acquittal (or even another hung jury). And it got me, at least, to look more closely at what it proves, which is that at least two of the manual searches Schulte did, searches that sought out very select stories, seemed to obscure the date of the search.

As I said, I’ve been meaning to post this ever since it happened at trial.

I’m revisiting it, though, because of something remarkable about Charles McGonigal’s sentencing memo. Unsurprisingly,  his attorney, former Bill Barr flunkie Seth DuCharme, lays out a bunch of the important FBI investigations that McGonigal was a part of over his 22-year FBI career to describe what service he has done for US security: TWA Flight 800, the 1997 investigation into attempted subway bombers Gazi Ibrahim Abu Mezer and Lafi Khalil, the investigation into the 1998 bombings of US embassies in Africa, the 9/11 attack, the 2002 abduction of a Wooster County, OH girl, the Sandy Berger investigation, the RICO investigation of Huawei Technologies Co.

The government, in their own sentencing memo, includes a footnote suggesting that McGonigal is fluffing his role in at least one of these investigations.

The law enforcement and counterintelligence agents who reviewed McGonigal’s cited exploits noted that he often claims credit for operations in which his personal involvement was less significant than the operation itself. For example, in both his classified and unclassified submissions, McGonigal may describe a significant investigation where he—along with many other officials—was simply somewhere in a lengthy chain of command. (See PSR ¶ 82). Thus, to the extent this Court is inclined to parse McGonigal’s career achievements, the Government respectfully submits that it should limit its analysis to the specific actions that McGonigal personally took. See United States v. Canova, 412 F.3d 331, 358-59 (2d Cir. 2005) (Guidelines departure for exceptional public service warranted where defendant served as volunteer firefighter “sustaining injuries in the line of duty three times,” “entering a burning building to rescue a threeyear old,” “participated in the successful delivery of three babies,” and administered CPR to persons in distress both while volunteering as a firefighter and as a civilian).

One example where McGonigal claimed credit for being in a lengthy chain of commend must be the Huawei investigation, one that Seth DuCharme would also have worked on in the period when he and McGonigal overlapped in NY, from 2016 until 2018. The 2020 press release that DuCharme links to about that investigation, from over a year after McGonigal retired, includes two paragraphs of recognition, including units far afield from counterintelligence.

But one investigation included in McGonigal’s sentencing memo where he did have more involvement is the original WikiLeaks Task Force.

Mr. McGonigal later led the FBI’s WikiLeaks Task Force investigating the release of over 200,000 classified documents to the WikiLeaks website—the largest in U.S. history—ultimately resulting in the 20-count conviction of Chelsea Manning for espionage and related charges.

Charles McGonigal did have a significant role in the first criminal investigation of WikiLeaks, one conducted five years before his retirement.

And that’s why it’s weird that McGonigal doesn’t describe that, in the 18 months before he retired, including in the period between May 2017, when he received a report describing Oleg Deripaska’s ties to GRU, and the period, starting in March 2018, when McGonigal first started interacting with Deripaska’s deputy, Yevgeny Fokin, whom McGonigal allegedly identified as a Russian intelligence officer and claimed to want to recruit, a unit McGonigal supervised solved a WikiLeaks compromise even more damaging and complex than Chelsea Manning’s had been four years before.

Charles McGonigal doesn’t claim credit for the arrest of Josh Schulte and charges filed, over two years after the compromise, for the Vault 7 attack, something in which his team had a more central role than in the Huawei case, something that was every bit as important to national security.

By that point, WikiLeaks had ties to Russia not just through Israel Shamir but also — at least through a shared lawyer — with Oleg Deripaska. That shared lawyer almost negotiated immunity for Assange in exchange for holding off on the Vault 7 leaks.

Now, I’m not at all suggesting that McGonigal was responsible for that fucked up Google analysis, which Schulte would mock five years later. There would have been several levels of management between McGonigal and that analysis. Evanchec simply didn’t look closely enough at the Google metadata, and so didn’t see that those searches were even more interesting than he understood.

But what McGonigal would have known, when he was meeting Deripaska personally in 2019, was that the FBI hadn’t discovered that Schulte had somehow obscured when he did his search on WikiLeaks’ role in embarrassing CIA Director John Brennan and National Security Director James Clapper in 2015, in advance of the 2016 election attack, that he had likewise obscured the date when he searched on Putin’s role in the DNC hack-and-leak. The FBI didn’t even know that in 2022, by the second trial.

McGonigal may also have known what someone associated with WikiLeaks told me, in 2019, that the FBI had learned about Schulte: that he had somehow attempted to reach out to Russia.

To be clear: None of this is charged. There’s no evidence that McGonigal shared details he learned as NYFO’s counterintelligence head, about the WikiLeaks investigation, to say nothing about NYFO’s investigation of oligarchs like Deripaska. McGonigal’s case has been treated as a public corruption case, not an espionage case. So it may be that SDNY has confidence that McGonigal didn’t do anything like that.

But this risk — the possibility that McGonigal could have shared investigative information with Deripaska — doesn’t show up in SDNY’s sentencing memo. SDNY makes no mention of how obscene it is that DuCharme wants his client to get probation when any witnesses implicated in the investigations McGonigal oversaw would never know whether he had shared that information with Deripaska.

That includes me: As I have written, in August 2018, the month before McGonigal retired, someone using one of the ProtonMail accounts Schulte and his cellmate used reached out to me. I have no idea why they did that. But I’d love to know. I’d also love to know whether McGonigal learned of it and shared it.

It makes sense that McGonigal doesn’t emphasize what SDNY did on their own sentencing memo: That McGonigal went from supervising investigations into Deripaska to working for him, allegedly knowing full well he had ties to Russian intelligence. But the tie between WikiLeaks and Deripaska is more obscure, and so he could have bragged that twice in his career he led substantial investigations into WikiLeaks. Schulte’s third trial, for Child Sexual Abuse Material, even happened after Judge Jennifer Rearden became a judge in October 2022.

McGonigal could have bragged that twice in his career, in 2014 and in 2018, teams he oversaw solved critical WikiLeaks compromises. He only claimed credit for the first of those.

Update: Corrected Fokin’s first name.

How David Weiss May Plan to Prove His Case against Hunter Biden

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To understand the new indictment against Hunter Biden, consider that the maximum penalty for all nine charges in Los Angeles, covering four years, is eight years less (17 total) than the maximum penalty for the three charges tied to 11 days of conduct in Delaware (25 years).

The charges, and penalties, look like this:

  1. Failure to pay 2016 (1)
  2. Failure to pay 2017 (1)
  3. Failure to file 2017 (1)
  4. Failure to pay 2018 (1)
  5. Failure to file 2018 (1)
  6. Tax evasion 2018 (5)
  7. False return 2018 (3)
  8. False return 2018 (3)
  9. Failure to pay 2019 (1)

The LA indictment isn’t really about four years of conduct. It’s about the tax forms filed — ultimately in 2020 — for one year: 2018, the year of Hunter’s most desperate addiction (and also, as it happens, the year when this investigation began and a year when a bunch of people, including the then-President, his personal attorney, and some Russian spies — started targeting Hunter as a political ploy).

All the other charges are misdemeanor charges that would never be filed — especially not with someone who ultimately did pay the taxes — absent the felony charges tied to 2018.

But I suspect Weiss chose to include those charges — including for 2016, a year that not even the disgruntled IRS agents were always sure should be charged — to make the package as a whole sustainable.

The 2018 allegations

The 2018 allegations aren’t controversial (indeed, they are the ones that Joseph Ziegler has been detailing over and over).

Basically, Weiss is charging Hunter Biden for lying in 2020 to limit the taxes he had to pay on his still-substantial 2018 income that he blew on sex workers and cocaine.

Weiss alleges that when Hunter went over his finances with what happened to be a new tax accountant in 2019 and 2020, he told the accountant that payments to four women — one of whom is the mother of his fourth child, Lunden Roberts — and a bunch of travel expenses and payments to his kids were instead business expenses.

Here are some of the expenses that Weiss’ prosecutors will show — in the middle of a Presidential campaign — that Hunter wrote off as business expenses:

a. Claiming false “Travel, Transportation and Other” deductions including, but not limited to, luxury vehicle rentals, house rentals for his then-girlfriend, hotel expenses, and New York City apartment rent for his daughter;

b. Claiming false “Office and Miscellaneous” deductions, including, but not limited to, the purchase of luxury clothing, payments to escorts and dancers, and payments for his daughter’s college advising services;

c. Claiming false “Legal Professional and Consulting” deductions, including, but not limited to, payment of his daughter’s law school tuition and his personal life insurance policy;

d. Claiming false deductions for payments from Owasco, PC’s account to pay off the business line of credit, specifically by allocating 80 percent to “Travel Transportation and Other” and 20 percent to “Meals,” when in truth and in fact most of the business line of credit expenses were personal, including to a website providing pornographic content, payments at a strip club, and additional rent payments for his daughter; and

e. Claiming false deductions for payments from Owasco, PC’s account to JP Morgan Chase, specifically that these were for “consulting,” when in truth and in fact, these transfers included payments to various women who were either romantically involved with or otherwise performing personal services for the Defendant, including a $10,000 payment for his membership in a sex club.

To prove that Hunter deliberately lied on his 2018 tax returns, Weiss will have to prove that in a series of meetings with his accountant in 2020, Hunter affirmatively chose not to highlight certain expenses as personal expenses — including that $10,000 payment for membership in a sex club.

117. On January 28, 2020, the Defendant met with the CA Accountants in person at their office for more than three hours. During this meeting the Defendant reviewed the General Ledger and various schedules for Owasco, PC including a purported “Office Expense” schedule and a purported “Professional and Outside Service” schedule to confirm their accuracy.

[snip]

120. While he reviewed the schedules for “Office Expenses” and “Professional and Outside Services,” the Defendant affirmatively identified, with a yellow highlighter, personal expenses that should not be deducted as business expenses.

121. While the Defendant identified personal expenses on the “Office Expense” Schedule, including ones as small as a $15 payment to a tattoo parlor and a $35.56 payment to a bookstore, he did not identify the following personal expenses:

a. A $1,500 Venmo payment on August 14, 2018. That payment was to an exotic dancer, at a strip club. The Defendant described the payment in the Venmo transaction as for “artwork.” The exotic dancer had not sold him any artwork.

Weiss will have to prove that Hunter reviewed those expenses, remembered what they were, and nevertheless did not highlight them as personal expenses.

Weiss will be helped (as he will in the Delaware case), enormously, by Hunter’s decision to write all this up.

And the Defendant specifically described his stays in various luxury hotels in California and private rentals, and expenses related to them, in this way:

I stayed in one place until I tired of it, or until it tired of me, and then moved on, my merry band of crooks, creeps, and outcasts soon to follow. Availability drove some of the moves; impulsiveness drove others. A sample itinerary: I left the Chateau [Marmont] the first time for an Airbnb in Malibu. When I couldn’t reserve it for longer than a week, I returned to West Hollywood and the Jeremy hotel. There were then stays at the Sunset Tower, Sixty Beverly Hills, and the Hollywood Roosevelt. Then another Airbnb in Malibu and an Airbnb in the Hollywood Hills. Then back to the Chateau. Then the NoMad downtown, the Standard on Sunset. A return to the Sixty, a return to Malibu . . . An ant trail of dealers and their sidekicks rolled in and out, day and night. They pulled up in late-series Mercedes-Benzes, decked out in oversized Raiders or Lakers jerseys and flashing fake Rolexes. Their stripper girlfriends invited their girlfriends, who invited their boyfriends. They’d drink up the entire minibar, call room service for filet mignon and a bottle of Dom Pérignon. One of the women even ordered an additional filet for her purse-sized dog.

Notably, the Defendant did not write that he conducted any business in any of these luxury hotels nor did he describe any of the individuals who visited him there as doing so for any business purpose.

But Weiss will also have to prosecute this case in a way that is consistent with his prior decision to offer Hunter a plea agreement, which doesn’t also substantiate the disgruntled IRS agents’ claims of bias. Weiss has to be prepared to a tell a story that is consistent with his prior decision to offer a plea agreement here.

The challenges

To understand that tension, it helps to think about why Weiss may not have charged Hunter with felonies in the first place.

There’s no reason to believe it was bias. Indeed, the media and dick pic sniffing tour created by Ziegler and Jim Jordan have revealed that DOJ Tax attorneys weren’t entirely thrilled with the charges. And there’s good reason to believe that career prosecutors in Los Angeles advised US Attorney Martin Estrada it was a weak case; since Jordan insisted on Estrada providing testimony to HJC, Hunter might even succeed at obtaining the three memos that prosecutors provided to Estrada in advance of his decision not to join the case.

Career attorneys didn’t think it would be a sure thing to prosecute this case.

There are at least five things that make it hard.

First, as noted, Hunter was working with a new accountant starting in 2019. His prior accountant died in June 2019, within weeks of Hunter getting sober, and he didn’t get a new accountant for five months.

The Defendant used the services of D.C. Accountant from January 1, 2017, until D.C. Accountant’s death in or about June 2019. In November 2019, the Defendant engaged the services of an accounting firm in Los Angeles, California (hereafter the “CA Accountants”).

To make that process more difficult, Hunter didn’t have solid records for 2018, and so his accountants had to reconstruct things from bank and credit card receipts.

While D.C. Accountant had already created financial and accounting records in connection with the 2017 tax returns, no similar records existed for 2018. Therefore, the CA Accountants used available bank and credit card statements to create various schedules, including schedules for different categories of expenses, and a general ledger for Owasco, PC.

The indictment makes much of the fact that Hunter didn’t share the book with the accountants, but that’s not a crime (or that unusual).

Then, most obviously, there’s the addiction. Weiss will have to prove that when Hunter did not exclude personal expenses as personal expenses, he had an affirmative knowledge of what particular expenses were. In some ways, Hunter’s book helps him here — in it, he describes that everything was a blur.

Plus, everyone involved believed that a jury would be sympathetic to a recovering junkie who fucked up his taxes in the first full year he was sober. While prosecutors are likely to be able to exclude some of the evidence that this entire investigation was a political hit job, Hunter’s attorneys will surely be able to play to the sympathies of Democratic jurors for Hunter’s father.

And whereas in some venues, the sheer extravagance of Hunter’s expenses — the decision to blow $1,727 in April 2018 on a Lamborghini until his Porsche was shipped out — might turn off jurors, this is LA. At least some jurors might not find such extravagances offensive in the way that they would in other areas.

You only need one.

And all that’s before you consider the general difficulties of this case. Ziegler testified that when he opened this case, he had nothing but payments to sex workers and public divorce complaints. What he used to get beyond that was a claim that Hunter deliberately hid his Burisma income in 2014 — a claim not backed by this indictment (which says that the money instead went into the joint business Hunter had with Devon Archer). Ziegler’s supervisor documented improper political influence at least from the then-President, and likely others. As I have described, it’s not clear whether Delaware ratcheted up this investigation before Ukrainians pitched what was a likely influence operation. And for the entirety of 2019, Trump partisans — including one who accepted something that might be an envelope from the then-President — kept attempting to tamper in this investigation. One thing Abbe Lowell has been assiduously doing is documenting the people who may have committed crimes in an effort to ensure his client would be prosecuted — people like Tony Bobulinski and Rudy Giuliani. Even ignoring the October 2022 leak to the WaPo (which I don’t think can directly be attributed to Shapley or Ziegler), Lowell does have a real claim that Zielger and Gary Shapley shared grand jury information in an effort to force Weiss to charge this. As Lowell described in his subpoena request, if he can prove that Trump spoke to anyone in the IRS about this case, Trump, too, would be among those who committed a crime, 26 USC 7217, in an effort to see his client charged.

Lowell has a real case that DOJ chose to ignore the crimes of up to seven people, including Donald Trump, to pursue this prosecution against his client.

Some of the witnesses against Hunter will be his old business partners — though those same people will attest to how debilitating his addiction was. A critical witness will be James Biden, the President’s brother. Others, however, will be people who can easily be impeached as political partisans or disgruntled ex-wives. At this point, Lowell might even be able to call Ziegler to discredit the case Ziegler built.

All those difficulties explain why David Weiss might have decided in May 2023 that it would be a just resolution to get Hunter to plead guilty to misdemeanor charges covering just 2017 and 2018, along with a diversion agreement for the gun charge.

The reneged plea deal

David Weiss reportedly decided in May 2023 that it would be a just resolution to plead this out. By June 20, though, when he surprised Chris Clark by stating the investigation was ongoing, he may have changed his mind.

Particularly given the six misdemeanor charges for which no one else would be charged and the like comparators of Roger Stone, this indictment will face the same challenges that the Delaware one will: selective prosecution at least for those misdemeanor charges and vindictive prosecution for the decision to charge an indictment holding a 17-year criminal exposure months after claiming to offer a misdemeanor plea. As I’ve described, selective and vindictive prosecution claims are virtually impossible to show, but this case also includes unprecedented aspects that might make this case different.

While malicious prosecution claims are normally just as impossible as selective and vindictive ones, Shapley and Ziegler have given Lowell abundant basis to at least try to make that claim, particularly given that Weiss didn’t allege the criminal wrong doing in 2014 that Shapley and Ziegler have made their white whale.

Finally, there is the claim (possibly to be made as part of a vindictive prosecution claim) that Weiss reneged on a plea deal, by offering a resolution to all charges but then claiming the investigation was ongoing.

Jordan’s efforts help again, here — not just because his efforts do provide a plausible claim of political pressure, but because of the testimony he has demanded.

When describing the threats that he and members of his team started experiencing around the time that — Lowell has claimed — he reneged on a plea deal, David Weiss used the word “intimidate.”

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

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

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

A I really can’t speak to the intention of any actor in this realm. I just know that these — that certain actions have been taken by individuals, doxing, and, you know, threats that have been made, and that gives rise to concern. We’ve got to be able to do our jobs. And, sure, people shouldn’t be intimidated, threatened, or in any way influenced by others who — again, I don’t know what their motives are, but we’re just trying to do a public service here, so —

Q Have you yourself been the subject of any threats or harassment?

A I’ve certainly received messages, calls, emails from folks who have not been completely enamored of my — with my role in this case. [my emphasis]

As Lowell noted in his subpoena request, the former President — who Judge Engoron and Jack Smith’s prosecutors have both shown deliberately incites his followers to generate threats against his adversaries — has made at least four such posts in the period when Weiss was deliberating over what to do.

D. Trump Truth Social posts on June 20, 2023:

  • “Wow! The corrupt Biden DOJ just cleared up hundreds of years of criminal liability by giving Hunter Biden a mere ‘traffic ticket.’ Our system is BROKEN!”
  • “A ‘SWEETHEART’ DEAL FOR HUNTER (AND JOE), AS THEY CONTINUE THEIR QUEST TO ‘GET’ TRUMP, JOE’S POLITICAL OPPONENT. WE ARE NOW A THIRD WORLD COUNTRY!”
  • “The Hunter/Joe Biden settlement is a massive COVERUP & FULL SCALE ELECTION INTERFERENCE ‘SCAM’ THE LIKES OF WHICH HAS NEVER BEEN SEEN IN OUR COUNTRY BEFORE. A ‘TRAFFIC TICKET,’ & JOE IS ALL CLEANED UP & READY TO GO INTO THE 2024 PRESIDENTIAL ELECTION. . . .”

D. Trump Truth Social post on July 11, 2023: “Weiss is a COWARD, a smaller version of Bill Barr, who never had the courage to do what everyone knows should have been done. He gave out a traffic ticket instead of a death sentence. Because of the two Democrat Senators in Delaware, they got to choose and/or approve him. Maybe the judge presiding will have the courage and intellect to break up this cesspool of crime. The collusion and corruption is beyond description. TWO TIERS OF JUSTICE!”

David Weiss wasn’t going to charge Hunter with a felony on the tax charges. Then Donald Trump got involved, and Weiss and his team started getting intimidating messages, and he decided he would.

That’s a pretty compelling — and unprecedented — due process claim.

Hunter’s former attorneys

One way Weiss tries to prove his case otherwise is his inclusion of 2019 — one of the misdemeanor charges — in the indictment.

After he got sober, the indictment alleges, Hunter still didn’t pay his taxes.

As the charge tied to 2019 describes, Hunter filed taxes in October 2020, but didn’t pay them off, presumably until 2021, when Kevin Morris paid off his remaining tax debt.

D. The Defendant owed taxes for 2019, which he chose not to pay.

156. The Defendant filed a 2019 From 1040 on October 15, 2020, and self-reported that he earned total gross income of $1,045,850 and taxable income of $843,577 and self-assessed that he owed $197,372 for the 2019 tax year.

157. The Defendant did not pay any of his outstanding tax debt when he filed his return.

E. The Defendant had the funds available to pay his taxes.

158. In 2020, prior to when the Defendant filed the 2019 Form 1040, the Defendant’s agent received multiple payments from the publisher of his memoir and then transferred the following amounts to the Defendant’s wife’s account in the amounts and on the dates that follow:

a. $93,750 on January 21, 2020; and

b. $46,875 on May 26, 2020.

F. Rather than pay his taxes, the Defendant spent millions of dollars on an extravagant lifestyle.

159. From January through October 15, 2020, the Defendant spent more than $600,000 on personal expenses rather than pay any of the $197,372 he owed for tax year 2019.

This is, in my opinion, a necessary but also the weakest part of the indictment. The table Weiss includes showing where Hunter blew his money shows his expenses dropped already in 2019 (during just half of which year he was sober), and it doesn’t include 2020 at all.

Instead, Weiss includes this paragraph, showing that Kevin Morris paid for Hunter’s rent and his car, which happened to be a Porsche.

17. From January through October 15, 2020, an entertainment lawyer (hereafter “Personal Friend”) provided the Defendant with substantial financial support including approximately $200,000 to rent a lavish house on a canal in Venice, California; $11,000 in payments for his Porsche; and other individual items. In total, the Defendant had Personal Friend pay over $1.2 million to third parties for the Defendant’s benefit from January through October 15, 2020.

[snip]

Notably, in 2020, well after he had regained his sobriety, and when he finally filed his outstanding 2016, 2017, and 2018 Forms 1040, the Defendant did not direct any payments toward his tax liabilities for each of those years. At the same time, the Defendant spent large sums to maintain his lifestyle from January through October 15, 2020. In that period, he received financial support from Personal Friend totaling approximately $1.2 million. The financial support included hundreds of thousands of dollars in payments for, among other things, housing, media relations, accountants, lawyers, and his Porsche. For example, the Defendant spent $17,500 each month, totaling approximately $200,000 from January through October 15, 2020, on a lavish house on a canal in Venice Beach, California.

Much of those third party expenditures, I imagine, went to Hunter’s ex wife and to child support for his fourth child. Particularly given that Morris did pay off the taxes, this is a complaint that that happened in 2021 and not 2020.

So a great deal of Weiss’ case depends on convincing jurors that that $17,500 lavish house on the canal is corrupt. Why didn’t the President’s son sell the Porsche and buy a Honda, prosecutors will ask, so he could at least start paying off his taxes due?

Undoubtedly, Weiss is banking on such claims being politically impossible during a Presidential election. To take this to trial, Hunter Biden has to be willing to let a paparazzi press spend valuable campaign reporting time on how a person can spend $383,548 on sex workers and $100,330 on adult entertainment in one year, 2018. It risks making the 2024 campaign precisely what Rudy Giuliani intended the 2020 one to be.

But there’s one other thing that, I think, Weiss plans to use to ensure he can bring this case.

Thus far, the indictment only alleges that Hunter lied to the accountant who did his 2018 taxes. But depending on what Lowell does over the weekend, it may make it easier for Weiss to claim that Hunter lied, in 2022, to his attorneys.

In June 2022, one of Hunter’s attorneys wrote Mark Daly — a DOJ tax prosecutor — and described that if he were to testify, Hunter would claim to have engaged in five different kinds of business in 2018. Two of those paragraphs are redacted in the version Joseph Ziegler released. Ziegler has suggested that one includes a woman with whom he was sleeping (who is undoubtedly one of the four women described as have been on Owasco’s payroll in 2018). Another includes a guy who may have been his dealer.

The third unredacted paragraph describes residual meetings involving Hudson West — meetings in which his uncle James Biden was involved.

Throughout the beginning of 2018, Mr. Biden recalls working extensively on ventures related to Hudson West III, including on a potential investment in a project at Monkey Island.  Meetings and interactions related to Hudson West III took place with, among others, James Biden, Jiaqi Bao, Mervyn Yan, and Gongwen (Kevin) Dong, including (via teleconference) in March 2018.  Mr. Biden also evaluated several business ventures with Mr. Schwerin and James Biden throughout 2018.  These efforts involved several in‐person meetings with James Biden, including we understand in Washington, D.C., Philadelphia, and New York.  We understand that ventures that were evaluated by Mr. Biden in the context of these meetings included one venture to expand an insurance business into Los Angeles, and another related to development of treatment centers on the west coast for substance abuse programs.

In his September 2022 interview — and, I have no doubt, in the President’s brother’s recent grand jury appearance — James Biden said he wasn’t involved in any business deals with Hunter in 2018.

James B stated that he recalled not being involved with anything beyond 2017. James B stated that he wanted a “soft landing” for RHB.

I think it exceedingly likely that Weiss will threaten to argue (if he hasn’t already gotten crime-fraud excepted testimony), that Hunter lied to his attorneys in 2022 about his ongoing business efforts in 2018. Obtaining a crime-fraud exception (from the Chief Judge in Los Angeles, probably) would have required fewer, if any, approvals as Special Counsel.

Abbe Lowell has been promising for months that he plans to argue that David Weiss reneged on a diversion agreement and plea in the summer — at a time, Weiss has since testified, he and his team were getting “intimidat[ing]” messages. But central to that plan has always been getting Chris Clark to testify about what Weiss and Lesley Wolf promised in May 2023.

Weiss may have already gotten testimony from Hunter’s former lawyers. Or, Weiss may imagine that the attorney-client waiver required to get Clark’s testimony about how he reneged on the plea deal will make it easier — if not provide a venue — to ask Clark about what Hunter said that led Clark to offer that proffer last summer.

But Lowell’s vindictive prosecution claim is due on Monday. Weiss indicted this case on the last grand jury day possible before that vindictive prosecution claim (not to mention any legal action in advance of Hunter’s compelled testimony before Congress on Wednesday).

To rebut a vindictive prosecution claim, David Weiss will need proof about what changed. And one thing that may have changed, with the grant of Special Counsel status, is to make it easier to obtain a crime-fraud exception for Hunter’s former attorneys.

John Paul Mac Isaac’s Undisclosed Home Movie

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If John Paul Mac Isaac, the legally blind computer repairman who claims Hunter Biden abandoned a laptop at his repair shop, had had his way — at least as he tells the story in his book — he would have obtained video of a single FBI agent sitting on the white couch in his living room, accepting printed copies of certain documents that, JPMI would have narrated for the camera, showed Mykola Zlochevsky in direct contact with senior people in the Obama Administration and implicated Ihor Kolomoyskyi in some vague way.

I printed out a few emails mentioning Ihor Kolomoyskyi. He was on the run with the lion’s share of the billions embezzled from the IMF and Ukraine. He would be the most dangerous person involved if he had an axe to grind. I also included emails from Mykola Zlochevsky and Vadym Pozharskyi showing their access to high levels of the Obama administration.

According to the timeline in JPMI’s book, that exchange would have taken place on November 19, 2019, just as Democrats prepared impeachment.

According to the timeline memorialized by Gary Shapley, however, that first in-person meeting between FBI agents and JPMI happened on November 7, 2019, before the first public impeachment hearing. The timing matters, somewhat, given that JPMI’s book claims his decision to share the “Hunter Biden” laptop with the FBI was a response to impeachment. Using the FBI timeline, it would have anticipated much of it.

More importantly, the discrepancy raises questions about why JPMI would focus on the emails he claims to have.

For example, there are only a few email threads mentioning Kolomoyskyi in the public set of emails from the drive. One is a thread from former Bush official Frank Mermoud passing on a piece about parliamentary maneuverings in Ukraine that mentioned Kolomoyskyi alongside Paul Manafort’s backer, Rinat Akhmetov. Another includes a discussion about how to respond to questions from reporter James Risen, to which Vadym Pozharskyi was adamant that, “The role of Igor Kolomoyskyi is often misunderstood. He has never been involved with Burisma and certainly is not today.” Risen wrote about the resulting story the day the whistleblower transcript was released in September 2019. Hunter Biden was included on both threads, but did not comment. Hunter received a third email via BCC: a link to a New Yorker story about efforts to reform Ukraine after Maidan.

Those are the kind of emails that JPMI would have handed to the FBI on camera, as if they were a smoking gun.

I’m not aware there are any threads from Zlochevsky. There are, of course, a ton about him involving Pozharskyi. And Pozharskyi’s the one who came closest to having any contacts directly with Obama officials, including Hunter’s father. But three years after NYPost published what has been deemed one of the most damning emails, in which Pozharskyi thanked Hunter for, “inviting me to DC and giving an opportunity to meet your father,” the best explanation for the “meeting” is that the Burisma executive attended a World Food Program dinner to which then-Vice President Biden stopped in, ostensibly to visit another attendee. The discussion, per Devon Archer, was about food security, not gas deals.

Nevertheless, JPMI describes that he told the FBI that the emails he had printed out showed Kolomoyskyi, along with Zlochevsky, using Hunter and his business partner to protect their stolen billions.

“This is information about Ihor Kolomoyskyi and Mykola Zlochevsky, and their involvement in using Hunter and Devon to protect the billions they embezzled from the IMF. I am afraid they would silence me for what I know,” I explained, sliding the paperwork across the table toward the two agents.

In other words, had JPMI’s set-up worked, the video showing the handoff would have been far more scandalous than the emails themselves have proven to be, particularly if it had come out just as Democrats moved to impeach Trump for demanding dirt on Hunter Biden. And it would have focused far more closely on Kolomoyskyi than the laptop contents justified.

It would have done what Republicans, to this day, demand should have happened: public notice that the “laptop was real.” It still doesn’t matter what is on that damn thing: it’s a shiny object, just like John Podesta’s risotto recipe, and Republicans know that’s all their followers need.

This was JPMI’s self-described plan for sharing the laptop with the FBI: It wasn’t so much that he wanted to hand off the laptop. He wanted to create a video of the FBI accepting paper copies that he claimed were something they weren’t.

As JPMI describes it, his plans to create such a video failed because, first of all, FBI agents always travel in twos, in part to ensure there are always two witnesses to conversations like this. One of the two agents coming to interview JPMI noticed and pointed to the camera the computer repairman had just installed in advance of the interview, so both agents chose to sit in a smaller loveseat, leaving JPMI facing his own camera.

I shut the door behind them and then closed the second, interior door. I saw Agent DeMeo point to the camera on the shelf, and the two sat down on the loveseat.

“Not a great start,” I thought, sitting on the couch facing the camera.

To my knowledge, such video has never been publicly released, perhaps because the agents also declined to take the documents with them when they left. But JPMI’s claim to have taken video, while it may explain the clarity with which he remembers telling the FBI he had documents implicating Hunter Biden in helping Kolomoyskyi, “protect the billions [he] embezzled from the IMF,” raises still more questions about the discrepancy between his timeline and FBI’s.

I reviewed JPMI’s description of his attempt to film the FBI agents as they picked up emails that don’t say what JPMI claimed they did, along with the discrepancies between JPMI’s claimed timeline and FBI’s, after I revisited how Rudy’s alleged efforts to extort legal relief for dirt transpired. That piece showed that Rudy’s efforts to find dirt — in 2019, ostensibly a year before JPMI first contacted him — parallel the JPMI timeline in interesting ways.

Rudy’s public, failed attempt to obtain dirt from Kolomoyskyi makes JPMI’s inexplicable treatment of the one-time Volodymyr Zelenskyy funder, to whose corruption JPMI dedicates a 3-page description elsewhere in his book, more interesting. Kolomoyskyi’s role in events leading up to impeachment is real. Lev Parnas has receipts from his trip to Israel in a failed bid to extort dirt from Kolomoyskyi, after which Rudy called out Kolomoyskyi publicly.

But there’s no reason for Kolomoyskyi to be in JPMI’s book, especially given JPMI’s admission, when trying to disclaim responsibility for the money laundering case number that appeared on the subpoena, that Hunter had no role in Kolomoyskyi’s corruption.

Agent DeMeo was based in Baltimore, but he’d never said anything about money laundering. The only discussion about anything remotely close to money laundering revolved around Ihor Kolomoyskyi and his Delaware assets. I remember discussing that, but it hadn’t involved Hunter Biden.

Whatever emails he printed out would have done little to substantiate the specific corruption claims he, by his own telling, made to the FBI. But JPMI claims that he tried to put them in his video as a prop anyway.

The first time I examined discrepancies between JPMI’s story and the one memorialized by Shapley, I had noted how a shift in JPMI’s timeline served to support his explanation that he shared the laptop with the FBI in response to impeachment. He described packaging up specific emails from the laptop to excuse Trump’s call with Volodymyr Zelenskyy (JPMI dates his own trolling of the laptop to this WaPo article, just days before the perfect phone call).

And of course I included the smoking gun, the one that could put an immediate end to this bogus impeachment: the initial email outlining Devon and Hunter’s plan to use Vice President Biden as the centerpiece of their plan to tap into the billions Burisma had to offer. The shady business dealings I had witnessed on the laptop, in my opinion, justified President Trump’s phone call with Zelenskyy.

But as I’ve focused more closely since, a more interesting discrepancy is that JPMI claims his father first reached out to the FBI on October 9 — around seven hours before Lev Parnas was arrested on his way to get a laptop in Vienna — whereas the FBI claims it happened on October 16, a week later. Normally, you’d trust the FBI’s timeline over JPMI’s.

But the blind computer repairman claims to have written Rudy a letter, the night before his father planned to go to the FBI. In the letter, JPMI explained his plan, in case anything bad happened. JPMI describes packaging this up on October 8 and giving it to a friend, Kristin, for safekeeping.

My father called the next morning. His plan was to visit the FBI field office in Albuquerque around 10 a.m. the next day.

From there on out, I would have to be extra careful. After his visit, people beyond those we trusted would know of the laptop’s existence, introducing a whole new element of potential danger. For my safety net, I had to make sure to write Rudy Giuliani an attention-getting letter. I definitely didn’t want to come off as a nutjob or conspiracy junkie. The letter would have to be clear and to the point, explaining my actions leading up to my father’s FBI interaction without revealing his identity. I wanted to focus on my reasons for not trusting the FBI as well as my expectations for what could happen. More important, I wanted to let Giuliani know why, if he were reading the letter, I would need his help. Here’s what I came up with.

Rudolph Giuliani

Giuliani Security and Safety

Sir,

If you have received this letter, I am in need of your help. Last April 12, Hunter Biden came into my Mac repair shop in Wilmington, Delaware, requesting data recovery from 3 of his laptops. I was able to check in the one working Mac and accomplished a data recovery. He has failed to return to pay or collect the recovered data or his laptop. As the events of the summer unfolded, and after the shop’s 90 day abandonment policy expired, I decided to poke around and look to see if there was anything topical on his drive. I discovered enough information that I no longer felt comfortable being in possession of his data and laptop. I decided that I wanted to turn over everything I have to the FBI or local police, but a major concern was what if compromised FBI or local police intercepted the data and destroyed it, preventing it from ending up in the hands of someone who can use it. I could not risk contacting anyone local so I mailed a copy of the drive out of state to a trusted person who would contact the FBI on Wednesday, October 9, and if trustworthy FBI were contacted, they were instructed to collect the laptop and data from my shop discreetly. If you are reading this letter, it means the compromised FBI has collected the laptop, data and possibly me. I have included a flash drive with some emails and files recovered from his laptop that could be useful in your investigation. If I am in the compromised FBI’s custody, it means that there are still members of the FBI who are working to protect a former Vice-President and silence those who provide proof to his corruption. I need your help, not just to get out of custody, but also to bring to light what has happened. I have included a full copy of the laptop on an external drive. You will need a Mac to access it.

Thank you for your time and help.

John Paul Mac Isaac [my emphasis]

According to this timeline, JPMI asked Kristin if she was willing to hold a copy of the drive sometime between September 24 and October 8. Then he wrote and printed out the letter on October 8, the day before his father would go to the FBI. After 7PM that day, he packaged up the drive, the letter, and “a flash drive consisting of documents summarizing the Bidens’ criminal activity” in a 5″X7″ padded envelope, and walked the package out to Kristin’s house in a residential area of Wilmington.

In August 2020, after JPMI reached out to Rudy and then spoke with Robert Costello, there were (per his book anyway), three versions of the hard drive, on top of what he had given the FBI: A copy he had kept and made a bunch of notes on, a copy in his uncle’s possession, and the copy he had given to Kristen for safe keeping — a copy that should have been in an envelope with a thumb drive with documents saved almost a year before.

That last drive is the one he sent to Robert Costello.

“Let me tell you about the Department of Justice,” Bob said. “When Rudy and I returned from Ukraine last year, we submitted over two hundred subpoena requests to the district attorney, and not a single one has been filed. Do you know what the term ‘slow walking’ means?” I said no.

“It’s when they deliberately drag their asses to delay or even prevent a case from moving forward,” he supplied. “That’s what the DOJ is doing to us, and that is what the FBI is doing to you. How quickly can you get me a copy of the drive?”

“I can drop something in the mail for you tomorrow.”

“Let me call you back in a few minutes,” Bob said. “Will you be around?” I said yes, and we hung up.

That wasn’t so bad! I had their attention, and it felt like I was talking to the right person. At this point I realized I needed a copy of the drive. My copy had all my notes, and because of this I felt it would be considered tampered with. My uncle Ron had the copy that originally had been in my father’s possession. That was too far away.

Then I smiled, remembering that the other copy I’d made back then had ended up with Kristen, and she was to hand-deliver it to Rudy Giuliani if all else failed. It was kind of funny that I could have saved myself nearly a year if I had just gone to him in the first place.

Bob called me back, and we agreed I would FedEx the drive to him the next day.

[snip]

When we hung up, I dialed Kristen.

She answered quickly. “Is everything OK?” she asked. “What’s wrong?”

“Everything is OK,” I said, then amended that: “I think everything is going to be OK. I hope it’s not too late. I need to come over and grab something.”

August 28, 2020

I dropped the drive off at FedEx the next morning on my walk to work. It was done. The drive was on its way to the lawyer of the president. My work was done; I’d seen it through to the end.

Unless he repackaged it, the flash drive would have been sent along with the hard drive.

That flash drive with a few documents on it is one of the best explanations for the metadata on the documents shared with NYPost a year later. One, of a detailed email Hunter wrote about how Burisma should navigate the likely election of Poroshenko which noted Vice President Biden’s upcoming trip but which also recorded Hunter stating, “they need to know in no uncertain terms that we will not and cannot intervene directly with domestic policy makers, and that we need to abide by FARA and any other US laws in the strictest sense across the board,” has metadata reflecting a creation data on September 28, 2019, right in the period where, JPMI describes, he and his father were developing their plan.

Another document published by NYPost on October 14, 2020, an email in which Vadym Pozharskyi emailed Devon Archer and Hunter asking them to “use your influence to convey a message / signal, etc to stop using what we consider politically motivated actions” to prosecute Burisma (which led to a real effort to intervene on their part, albeit one carried out through paid lobbyists), has metadata showing a creation date of October 10, 2019 — after JPMI says he had already dropped off an envelope that would remain untouched for almost a year.

There are a bunch of other possible explanations for this metadata. But according to JPMI’s book, there would be documents saved to flash drive on or before October 8, then packaged up for a year.

But not after October 10.

True, JPMI accessed a similar set of emails again in the subsequent weeks, in preparation for his staged meeting with the FBI. But he describes those exclusively as printouts.

Ultimately, these are just weeds, inconsistent metadata that could either reflect sloppiness or could be intentional manipulation.

But they provide an interesting background to inconsistencies in the rest of JPMI’s story.