In an interview yesterday with Jake Tapper (transcript), Rod Rosenstein exhibited more familiarity with the Robert Hur report, which had been public for just three days, than he was about the Mueller investigation that he oversaw for two years, during ten months of which, Hur played a key role.

Tapper: He was your deputy at the Justice Department. Do you agree with his decision that Biden should not be charged, it was not a prosecutable case?

Rosenstein: Yes, Jake.

And it’s — most people haven’t read the entire report. And I don’t blame them. It’s 345 pages, about 1,400 footnotes. It’s very dense and well-reasoned. And I think, if you read the whole report, you will conclude that Rob reached a reasonable decision that, given all the circumstances, that prosecution is not warranted.

After all, Rod Rosenstein was personally involved in drafting (though did not sign) the Barr Memo making a prosecution declination for Trump for his obstruction-related actions. Yet not even Rosenstein, who had been involved in the investigation from the start, thought to address the pardon dangles — a key focus of Volume II of the Mueller Report — that continued to undermine ongoing investigations.

Then, over a year later and under pressure from Lindsey Graham for having signed the worst of the Carter Page FISA applications, Rosenstein agreed with Graham’s false portrayal of the investigation as it existed on August 1, 2017, when Rosenstein expanded the scope of the investigation.

Lindsey Graham: (35:02) I am saying in January the 4th, 2017, the FBI had discounted Flynn, there was no evidence that Carter Page worked with the Russians, the dossier was a bunch of garbage and Papadopoulos is all over the place, not knowing he’s being recorded, denying working with the Russians, nobody’s ever been prosecuted for working with the Russians. The point is the whole concept that the campaign was colluding with the Russians, there was no there there in August, 2017. Do you agree with that general statement or not?

Rod Rosenstein: (35:39) I agree with that general statement.

Rosenstein’s endorsement of Lindsey’s statement about the evidence as it existed in August 2017 was egregiously wrong. Mueller had just acquired a great deal of evidence of conspiracy, including several details implicating Roger Stone and Paul Manafort that were never conclusively resolved. Crazier still, George Papadopoulos had just been arrested for lying to cover up when he learned that Russia planned to help Trump, an arrest of which Rosenstein would have personally had advance notice.

By comparison, days after its release, Rosenstein exhibited great confidence in his knowledge of the 1,400 footnotes his former deputy included in the report.

To be sure, Rosenstein’s defense of Hur did not honestly present the content of the Report. For example, the only other reason  he provides for why Hur didn’t charge Biden, besides Hur’s opinion that Biden is a forgetful old geezer, involved the tradition of Presidents taking things home.

ROSENSTEIN: I think so, Jake.

And you identified the controversial elements of the special counsel’s report. It’s a very long report, 345 pages, and has a lot of information in there, other reasons why prosecution would not be warranted. And one of them is the history and experience of prior presidents and potentially vice presidents as well taking home classified documents.

This is simply a misrepresentation of the evidence.

Even if you ignore Hur’s misstatement of DOJ’s application of 18 USC 793(e) in cases where there is no other exposure (in something like a leak) or the challenges in applying it to someone who, like both Biden and Trump, didn’t hold clearance, for the primary set of documents he examined — the two folders of Afghanistan documents found in Biden’s garage — Hur admitted he couldn’t prove his already inventive theory of the case. He couldn’t even prove that the documents in question had been in Biden’s Virginia home when Biden made a comment about something classified in his home.

Rosenstein is, as Hur already did, emphasizing the most unflattering part of the declination decision, not the fact that after blowing  over $3M and reading through Joe Biden’s most personal thoughts, Hur simply didn’t find evidence to support a charge.

Twice, Rosenstein disputed that Hur’s focus on Biden’s age was the kind of gratuitous attack for which he had made the case for firing Jim Comey, the second time in direct response to a question about the memo he wrote.

Tapper: I want to read from a memo you wrote in 2017 in which you criticized James Comey’s infamous press conference in which he criticized Hillary Clinton’s handling of classified e-mails, even as he declined to prosecute her, a similar circumstance, although he wasn’t a special counsel — quote — “Derogatory information” — this is you writing — “Derogatory information sometimes is disclosed in the course of criminal investigations and prosecutions, but we never release it gratuitously.

“The FBI director laid out his version of the facts for the news media as if it were a closing argument, but without a trial, it is a textbook example of what federal prosecutors and agents are taught not to do” — unquote. By going to the lengths he did to critique Biden’s age and memory, even as he was clearing him of a crime, how do you differentiate between what Robert Hur did that you say is OK from what James Comey did that you say is not?

ROSENSTEIN: Jake, there are several significant differences between those two examples.

One is, most fundamentally, that Jim Comey wasn’t the prosecutor. He was the head of the FBI. His job was to ensure the police collected the proper evidence, submitted it to the prosecutors. And, ultimately, it’s up to the prosecutors in the Justice Department and the attorney general to make a decision about what information is released.

Rob Hur was the prosecutor. It was his job to make that decision, to make that recommendation to the attorney general, who, as you acknowledged, has previously committed to make this report public. That’s one difference.

The second difference is the special counsel regulation. In the ordinary case, Hillary Clinton was not investigated by a special counsel. There was no procedure to make those reasons public. Here, it’s baked into this regulation.

Now we sit, Jake, 25 years down the road. That regulation was passed by Attorney General Reno in 1999. Now we have 25 years of experience. I think it’s worthwhile to sit back and ask whether or not this is the right procedure. Do we really think that we ought to have prosecutors writing reports for public release of everything they discover and all the reasons for not prosecuting?

Or is there a better way to do that without having all the embarrassing information come to public light?

The big tell in Rosenstein’s defense of his former deputy, though, is his suggestion there’s a comparison between Hur’s attacks on Biden’s age with what Mueller — under the direction of Rosenstein and Hur — included in his report, which spent far fewer pages laying out the prosecutorial analysis for far more potential criminal exposure by Trump.

The second issue is what you release in the public. And the problem here with — that’s really baked in the special counsel model is that it’s not really the function of a prosecutor to publicly announce the reasons why they’re not prosecuting.

And so when you layer that into the process, it can result in unfortunate consequences. The Donald Trump report, I think, got people upset in the same way that this one did.

Given his inclusion of Independent Prosecutor Lawrence Walsh here, Rosenstein’s comparison is insane, because he left out the Ken Starr Report (to which investigation, he reminded Tapper, he contributed), which included the most gratuitous descriptions of the subject of the investigation of any of these reports.

Rosenstein’s likening of the Mueller and Hur report is odd for a number of reasons. The part of the Mueller Report focused on Trump was 200 pages, far shorter than the Hur Report yet covering far more overt acts.

Mueller made absolutely no complaint that both Trump and his failson refused to appear before a grand jury whereas Hur’s attacks arose out of Biden’s willingness to sit for several days of a voluntary interview. Mueller let Trump’s decision to invoke the Fifth stand without ascribing criminal motive; Hur made Biden’s cooperation into cause for attack.

But even in smaller details, the reports don’t compare. One thing Hur made up, for example, is that Biden might have alerted his attorneys that there were classified records (in a ratty beat up old box) in his garage, but his team couldn’t find out because if they asked, the answer would be privileged.

We considered the possibility that Mr. Biden alerted his counsel that classified documents were in the garage, but our investigation revealed no evidence of such a discussion because, it if happened, it would be protected by the attorney-client privilege.

This claim only appears in the Executive Summary, where lazy journalists might find it. It appears nowhere in the body of the report (which has to deal with the fact that if Biden had really brought these documents home, he wouldn’t have so willingly let his attorneys search for them). It’s one of the things Biden’s attorneys asked to be corrected.

There are a number of inaccuracies and misleading statements that could be corrected with minor changes:

• ‘We considered the possibility that Mr. Biden alerted his counsel that classified documents were in the garage but our investigation revealed no evidence of such a discussion because if it happened, it would be protected by the attorney-client privilege.” Report at 22. In fact, your investigation revealed no evidence of such a discussion because it did not happen–not because of any privilege. The President testified he was unaware that there were any classified documents in his possession. Tr., Day II, at 2, 41-42. You did not ask him in his interview or in the additional written questions if he had “alerted his counsel” about classified documents; if you had, he would have forcefully told you that he did not.

Hur’s decision to fabricate the possibility of an attorney-client conversation that did not happen — and his obstinate refusal to correct it — is especially telling given Mueller’s hands-off treatment of attorney-client privilege.

For example, Mueller didn’t even try to ask Jay Sekulow about his role in drafting Michael Cohen’s false claims about the Moscow Trump Tower, even though Cohen said Sekulow was involved.

The President’s personal counsel declined to provide us with his account of his conversations with Cohen, and there is no evidence available to us that indicates that the President was aware of the information Cohen provided to the President’s personal counsel. The President’s conversations with his personal counsel were presumptively protected by attorney-client privilege, and we did not seek to obtain the contents of any such communications.

Nor did Mueller attempt to interview John Dowd about whether he left a threatening voicemail for Mike Flynn’s then-attorney Rob Kelner, to find out whether Trump directed Dowd to make the threat.

Because of attorney-client privilege issues, we did not seek to interview the President’s personal counsel about the extent to which he discussed his statements to Flynn’s attorneys with the President.

In both cases, Mueller let privilege close off investigation into more egregious evidence of obstruction.

So where Mueller let Trump hide behind attorney-client privilege as a shield, Hur flipped that, and used a fabricated attorney-client conversation as a shield to insinuate evidence of guilt where none existed.

In short, Rosenstein went on teevee and made a bunch of cynical claims, defending Hur’s attack on Biden even while claiming that the Mueller Report was just as damning.

As I and others contemplate how Merrick Garland made such a shitty choice for Special Counsel here, I keep thinking about the fact that there’s a little club of Rod Rosentein associates gunning for the Biden men. There’s Hur, and Rosenstein’s hypocritical and remarkably hasty defense of him.

There’s also the reference that Gary Shapley, who is based partly in Baltimore, made about a prosecutor who became Deputy Attorney General, a reference that can only describe Rosenstein.

Mr. Shapley. No. I think I’ve said it, that this is not the norm. This is — I’ve worked with some great guys, some great prosecutors that went on to be U.S. attorneys and went on to be the deputy attorney general and, I think I have experience enough to where it means something.

After having agreed with the IRS that the case against Hunter Biden couldn’t move forward if Shapley were on the team, David Weiss then decided to appoint two AUSAs who would have worked for Hur and Rosenstein as AUSAs in MD USAO, in the case of Leo Wise, for years.

That is, the cabal of men gunning for Joe Biden and his son — all of whom have already engaged in questionable games — have ties to Rod Rosenstein, who still seems to be trying to make it up to Trump for his role in appointing a Special Counsel.

And Rod Rosenstein, as he demonstrated in that interview, is giving Hur, at least, special license to engage in precisely the kind of conduct for which he endorsed firing Jim Comey.

While the judges in former President Trump’s federal prosecutions have been issuing reasonable (in Tanya Chutkan’s case) and unreasonable (in Aileen Cannon’s case) extensions in pretrial deadlines, the judge in Hunter Biden’s Los Angeles case seems intent on keeping a politically damaging trial scheduled for the middle of campaign season, June 20.

Last week, Abbe Lowell requested two accommodations in the pretrial schedule in Los Angeles: first, that he be permitted to hold off filing the four (actually, three) filings fully briefed before Judge Maryellen Noreika that he will also file in Los Angeles: a motion to dismiss based on immunity under the diversion agreement, a selective and vindictive prosecution claim, and a claim that David Weiss was improperly appointed. Lowell also mentioned the constitutional challenge to the gun charge, but that won’t be filed in Los Angeles. At the initial appearance, Lowell said instead there would be one based on “the actions of the IRS agents that were involved.”

Here’s an updated version of my Howard Johnsons-colored table showing how all these cases interrelate, including the filings we should expect in both federal cases; I’ve put an updated version of the eight cases Lowell is juggling below (and have started tracking them here).

Lowell did not mention the as-yet unfiled motion to suppress the laptop he said he’d file in Delaware on January 30. I’ll come back to that.

In addition, Lowell requested a 3-week extension on the initial filing deadline, from February 20 to March 12, for the motions that will be unique to Los Angeles; he did not mention a filing about the IRS agents, but did mention motions on the Statute of Limitations (presumably affecting just the 2016 tax year), venue (possibly affecting both the 2016 and 2017 year), and multiplicity. To justify that, he cited a death in the family of one of the lawyers working on these filings, as well as several other deadlines pending:

• Responses to motions to dismiss in the Garrett Ziegler and Rudy Giuliani lawsuits at the end of the month
• A February 22 hearing in the John Paul Mac Isaac suit and Hunter’s countersuit
• Hunter’s February 28 impeachment deposition in the House

Judge Scarsi denied the motion with no comment.

To be sure, I’m not remotely surprised Scarsi denied Lowell’s motion to hold off on the identical motions already filed in Delaware.

At the initial appearance on January 11, Scarsi raised those filings himself.

[T]he Court has gone through and actually read what’s been filed so far in Delaware. So the Court wanted to come up to speed on the issues [at] play here. And so, we’ve got — at least we’re up to speed in what’s been filed so far.

The parties have spent, it looks like, a lot of time, or will spend time briefing issues in Delaware. And I think that should help us expedite matters here, because it wouldn’t surprise me if some of the same issues raised in Delaware are raised in this Court. In fact, the Court anticipates that happening.

Scarsi even ordered the parties to cut the 70-page filings submitted before Judge Noreika down to something like 20, double his normal limit of 10 pages (the parties have yet to file a stipulation showing that’s what they’ve agreed on).

[T]he parties know from reading the Court’s standing order, the Court’s standing order in criminal contemplates that the page limitations on motions is 10 pages. Motions and oppositions, and replies not necessary.

Now the Court is willing to grant the parties a little leeway here, to exceed the page limits, you know, contemplating doubling them, at most.

Scarsi even recognized that the diversion filing might trigger an interlocutory appeal, because he warned Lowell that the precedent (which he named) governing interlocutory appeals in the Ninth Circuit is fairly limited and directed him to address that issue in his initial filing.

At the time, Lowell knew the briefing deadline before Judge Noreika, and so could have requested to hold those three identical motions at that point.

Plus, it’s not the case that the motions will be identical. The diversion filing in Los Angeles will and always would have been mostly a place-holder; if Noreika rules against Hunter regarding the diversion agreement, then there would be no basis to make the same claim in Los Angeles absent an interlocutory appeal in Delaware. It’s only if she rules for Hunter that Lowell’s claim that the immunity in the gun diversion extends to the tax case would come into play.

The selective and vindictive prosecution filing in Los Angeles will have to swap the comparators showing how no non-violent person in recovery from addiction has been charged with the same gun charges in Delaware with comparators showing that no one who has paid their taxes, much less someone who — Abbe Lowell claims but has not yet shown proof — overstated their income has been criminally charged, with a mention of Roger Stone’s more lenient treatment as well. Lowell mentioned the two tax laws criminally prohibiting the kind of pressure that Trump exercised in Hunter’s case only in passing; they would seem to be far more central here. And given the fact that the US Attorney for Los Angeles, Martin Estrada, was among those threatened as a result of the political pressure on this case, it would seem useful for Lowell to raise the threats elicited by those demanding this prosecution.

Even the Special Counsel challenge could be tweaked given Weiss’ admission to Congress that he has never been subject to the kind of oversight from political appointees that Morrison v. Olson requires. Weiss was already functioning as a Special Counsel before demanding appointment as such, presumably to get the opportunity to write another political hit piece targeting a Biden man (or men).

I’m not even that surprised that Scarsi refused to budge on the schedule. At the initial appearance he not only warned that he likes to move quickly,

Again, if we’re going to move this case either forward or expeditiously, and efficiently — and that’s what this Court likes to do. We like to move things along, because I think it’s better for all the parties and we don’t have things linger.

But Scarsi also suggested that because he set a schedule first, Judge Noreika should now have to accommodate his schedule.

So what I’m going to do is, I’ll go ahead and issue an order with those dates. That will hopefully prevent conflict with Delaware, because this order will be in place and the Court in Delaware will likely be aware of it.

So Lowell was on notice of all of that.

There’s one thing Lowell wasn’t on notice of on January 11, and his request for a delay may be about something other than the motions to dismiss.

Delaware Superior Court Judge Robert Robinson only set the February 22 hearing in the John Paul Mac Isaac lawsuit and Hunter’s counterclaim on February 1 at 8:52 AM. Per Lowell’s declaration and email record, 38 minutes after Robinson set that hearing, Lowell first reached out to prosecutors about this delay (in their dickish fashion, they blew him off for six days).

If Robinson were to rule in Hunter’s favor — if he were to rule that, under Delaware law, JPMI didn’t own Hunter’s laptop when he first offered it up to the FBI on either October 9 (JPMI’s version) or October 16, 2019 (FBI’s), less than a year after someone who may or may not be Hunter Biden dropped it off, if he were to rule that JPMI violated his own promise to protect Hunter Biden’s data, not least by snooping through Hunter’s data well before even he, JPMI, claimed his intake form gave him ownership of the laptop — then it might have fairly dramatic impact on any motion to suppress the laptop.

That’s true, not least, because (if you can believe JPMI and it’s not clear you can), after JPMI sent a hard drive with the data across state lines to his father, the FBI told his father that, “You may be in possession of something that you don’t own.” After which JPMI and his father sent that same data across even more state lines, including to Congress and Rudy Giuliani. And yet rather than opening a criminal investigation into JPMI for interstate trafficking of the potentially stolen data of the former Vice President’s son, David Weiss instead decided to build an entire case around that data.

Worse still, JPMI’s public claims about what he saw in the data are obviously false: of particular note, there are no known emails substantiating his claims that the laptop showed, “information about Ihor Kolomoyskyi and Mykola Zlochevsky, and their involvement in using Hunter and Devon to protect the billions they embezzled from the IMF.” The crime of which JPMI told the FBI they’d find evidence on the laptop was entirely made up — and made up to create a video that might serve Trump’s impeachment defense.

Lowell’s motion to compel — submitted in Delaware two days before that hearing was set — describes receiving “The Mac Shop files.” It doesn’t describe receiving the initial FBI legal review that concluded JPMI and his father likely didn’t own that laptop or data. It doesn’t describe receiving the 302s documenting the FBI’s interactions with JPMI (302s that were also not shown to case agents who might have to testify at trial). If warnings that JPMI didn’t own this data really exist, and if prosecutors are withholding it to cover up real problems with their reliance on the laptop, it would be fairly important evidence.

A favorable Delaware ruling would likely have more impact on the Los Angeles case than anything but a ruling in favor of Hunter’s diversion argument in Delaware, because it would show that David Weiss chose to use poison fruit to investigate Hunter Biden rather than pursue a case of interstate data theft. The SDNY case against those who stole Ashley Biden’s diary and a thumb drive with tax records and photographs on it and trafficked them across state lines shows that such things can be prosecuted.

At the initial hearing, Scarsi told Lowell that the, “February 20th date is for motions that you know now that you intend to bring.” When Lowell said he’d file a motion to suppress the laptop and everything else in Delaware, he pointed to several other things — such as reliance on witness testimony from a Los Angeles grand jury post-indictment and the filing for the warrant itself post-indictment — to get as a basis to suppress. Lowell still hasn’t mentioned a motion to suppress the laptop to Scarsi. He’s likely now trying to determine whether he can and should wait on a ruling from Robinson before he files such a suppression motion to Scarsi, who has promised to rule expeditiously.

It’s not surprising that Scarsi denied Lowell’s request (though it is a telling contrast to the treatment Trump is getting).

But it is also the case that these moving parts really may affect the case before him.

Update: Abbe Lowell has filed a status report in the Delaware case in case Judge Noreika decides she doesn’t want Scarsi to preempt her.

---

1) Delaware Gun Case (Maryellen Noreika)

[RECAP docket]

September 14: Indictment

October 3: Arraignment

October 12: First Discovery Production (350 pages focused on gun case), including iCloud data and “a copy of data from the defendant’s laptop”

October 13: Motion to Continue

October 19: Order resetting deadlines

November 1: Second Discovery Production (700,000 pages on tax charges — no mention of FARA investigations)

November 15: Hunter subpoena request

December 4: Weiss subpoena response

December 11: Motions due

• Selective and vindictive
• Immunity from Diversion
• Constitutional
• Special Counsel Appointment
• Discovery

December 12: Hunter subpoena reply

January 9: Third Discovery Production (500,000 pages focused on tax case)

January 16: Responses due

• Selective and Vindictive
• Immunity from Diversion
• Constitutional
• Special Counsel Appointment
• Discovery

January 30: Replies due

• Reply, Selective Prosecution
• Reply, Diversion Agreement
• Reply, 2A Constitional
• Reply, SCO Appointment
• Reply, Discovery

January 30: Motion to compel

2) Los Angeles Tax Case (Mark Scarsi)

[RECAP docket]

Hunter was indicted on December 7 and made a combined arraignment/first appearance on January 11. At that hearing, Judge Mark Scarsi set an aggressive (and, from the sounds of things, strict) schedule as follows:

February 20, 2024: Motions due

March 11: Response due

March 18: Replies due

March 27 at 1:00 p.m.: Pretrial motion hearing

April 17: Orders resolving pretrial motions.

June 3 at 1:00 p.m.: Status conference

June 20: Trial

3) House Dick Pic Sniffing (James Comer and Jim Jordan)

November 8: James Comer sends a pre-impeachment vote subpoena

November 28: Lowell accepts Comer’s offer for Hunter to testify publicly

December 6: Comer and Jordan threaten contempt

December 13: Pre-impeachment deposition scheduled; Hunter gives a press conference and states his data has been “stolen” from him

December 13: Impeachment vote authorizing subpoena

January 10: Oversight and Judiciary refer Hunter for contempt

January 12: Lowell invites Comer and Jordan to send another subpoena, now that they have the authority to enforce it

January 14: Jordan and Comer take Lowell up on his invitation

February 28: Deposition

4) IRS Lawsuit (Tim Kelly)

[RECAP docket]

September 18: Privacy Act lawsuit

November 13: DOJ asks for extension to January 16

January 16: DOJ files motion for partial dismissal

January 23: Joint motion to continue

January 30: Original deadline for Hunter response

February 5: Amended complaint

February 9: DOJ asks for delay for response from February 20 to February 27

5) John Paul Mac Isaac’s Suit and Hunter’s Countersuit (Robert Robinson)

Last summer, John Paul Mac Isaac and Hunter both sat for depositions, on May 31 and June 29, respectively.

Last fall, Hunter Biden subpoenaed people like Rudy Giuliani, Robert Costello, Steve Bannon, Yaacov Apelbaum (who made a copy of the contents of the laptop), Tore Maras (who has described adding things to the laptop). In November, Hunter also served a subpoena on Apple.

On January 4, the parties to John Paul Mac Isaac’s suit and countersuit filed to have their pending motions decided by a judge. The media defendants — CNN and Politico — are filing to dismiss. Hunter and JPMI filed competing motions for summary judgment.

And Hunter is filing to quash a bunch of subpoenas, initially 14, to Hunter’s parents, uncle, ex-wife, former business partners, and several people with his father, like Ron Klain and Mike Morell. Though after that, JPMI attempted to subpoena Hunter’s daughters.

Since then, Judge Robinson stayed John Paul Mac Isaac’s subpoenas and scheduled hearings in the Motions to Dismiss (from CNN and Politico) and Motions for Summary Judgement (from Hunter and JPMI) for February 22.

6 AND 7) Hacking lawsuits against Garrett Ziegler and Rudy Giuliani (Hernan Vera)

[RECAP Ziegler docket; RECAP Rudy docket]

September 13: Complaint against Ziegler

September 26: Complaint against Rudy and Costello; noticing Ziegler suit as related case

November 15: Ziegler gets 30 day extension

December 1: Costello gets 30 day extension

December 7: After swapping attorneys, Ziegler gets extension to December 21

December 21: Ziegler motion to dismiss and request for judicial notice (heavily reliant on JPMI suit)

January 17: Costello motion to dismiss with Rudy declaration that makes no notice of his fruit and nuts payments relating to Hunter Biden

January 22: Lowell successfully requests to harmonize MTD hearing for both hacking lawsuits

February 8: Rescheduled date for hearing on motion to dismiss

February 22: Rescheduled date for hearing on motion to dismiss

End of February: Response to motions to dismiss due

March 21: Joined date for hearing on motion to dismiss

8) Defamation against Patrick Byrne (Stephen Wilson)

November 8: Complaint

January 16: After swapping attorneys, Byrne asks for 30 day extension

February 6: Rescheduled response date

In both a footnote of his reply motion for discovery …

1 The prosecution’s opposition briefs reveal some new evidentiary issues (e.g., seizing electronic evidence for the gun charges for the first time pursuant to a December 4, 2023 warrant; using a grand jury in California in connection with the tax case to elicit evidence for already-indicted gun charges in Delaware; seeking a search warrant in December 2023 to search for evidence in support of its charges three months after having charged; testing a leather pouch for cocaine residue in October 2023 that it had in its possession for five years; denying there was Probation’s approval for the diversion agreement) in addition to those raised in Mr. Biden’s motions to dismiss themselves (e.g., how a Delaware agreement for a diverted gun charge and two tax misdemeanors turned into multiple felonies in two jurisdictions following massive political pressure to do just that). Based on the prosecution’s admissions made only recently in its filings, Mr. Biden will expeditiously file a motion to suppress improperly gathered evidence. [my emphasis]

And two footnotes in his motion to compel …

3 The search warrant on December 4, 2023, which post-dates the firearm indictment by almost three months, is the first time in the course of this five-year investigation that DOJ obtained a warrant to search the alleged laptop (and iCloud account and backup data) for evidence of federal firearms violations. The prosecution then used that warrant to purportedly review and seize, for the first time, text messages, photos, and other evidence in support of its felony charges, several of which the prosecution cited in its pleadings on January 16, 2024. (See DE 68 at 8–9.) Moreover, that warrant contained testimony (in support of finding probable cause) about the firearm obtained from a witness in a grand jury empaneled in the Central District of California in November 2023 after this indictment had already been brought. Accordingly, the issue raised—as a result of the prosecution’s recent filings—is one to explore at the evidentiary hearing Mr. Biden requested (DE 64) and a motion to suppress which will be filed promptly.

[snip]

18 Citing District of Delaware Search Warrant No. 23-507M. Unlike the Office’s prior search warrants during the five-year investigation that were for tax, financial, or foreign-business related offenses, this warrant was specifically for offenses pertaining to 18 U.S.C. §§ 922, 924 (firearms offenses). See supra n.3, and a further motion to suppress concerning this December 4, 2023 search will be forthcoming. [my emphasis]

Hunter Biden attorney Abbe Lowell said he would soon be filing a motion to suppress “improperly gathered evidence.”

Part of this will likely be a challenge to the belated pretextual testing of the gun for cocaine residue without also testing for fingerprints and dating of the residue to the time period immediately after Hunter purchased a gun.

But in all three footnotes, he promises to challenge the December 4, 2023 warrant, which would implicate the original search warrant to Apple, the exploitation of the laptop, and follow-on searches for four devices backed up to his iCloud:

• iPhone X (Apple Backup 1)
• iPhone 6S (Apple Backup 3)
• iPad Pro (Apple Backup 4)
• iPhone XR (Apple Backup 11)

After over three years of controversy about the laptop attributed to Hunter Biden, this challenge may finally unpack the reliability of the device that has driven right wing frothers nuts ever since.

Game on!

There’s a variety of things that Lowell might rely on to challenge the use of the laptop — and possibly, the four backed up devices, as fruits of the laptop — some sound and some less so. They include:

• A complaint that David Weiss used testimony obtained from a Los Angeles grand jury focused on tax crimes to obtain the December 2023 warrant, which will almost certainly be dismissed as normal prosecutorial dickishness.
• If any of the devices entirely predate 2018, there should be no probable cause to search them for the 2018 charges. Based on emails available at BidenLaptopEmails dot com, Hunter Biden started using at least three different iPhone Xes in 2018 (but at least one of those was likely lost to hostile people). He had an iPhone 6S with the droidhunter account he used to access adult entertainment in early 2019, though the only known iPhone XR may have been tied to that account, rather than his Rosemont Seneca account (or there could be a later one). Otherwise, his iPhone 6S use appears to have significantly predated 2018. An iPad backed up to the laptop is an iPad Pro, which itself dates to 2016, and much of Hunter Biden’s known iPad Pro use was also in 2016 and earlier, which is the time frame investigators were most interested when they obtained those warrants.
• The fact that, per Gary Shapley’s notes, the FBI never validated when the files loaded onto the laptop were added to it in the first 10 months they used it (which also means they did not do so before obtaining four backup devices partly relying on it).
• John Paul Mac Isaac’s acknowledgment that when his father first went to the FBI, the FBI agent with whom he spoke advised, “you should get a lawyer [because] You may be in possession of something you don’t own.”
• JPMI’s description that the FBI was trying to boot up the laptop on December 9, 2019, before the FBI had the December 13, 2019 warrant.
• The fact that the Attorney General’s Chief of Staff texted the Attorney General that he was sending him a laptop the day after the FBI obtained the known December 13, 2019 warrant, suggesting the laptop may have been used for something else, like potential impeachment defense.
• Also per Shapley’s notes, that some of the means FBI used to determine the laptop was once associated with Hunter’s iCloud account — including call and email traffic with John Paul Mac Isaac and a cigar purchase made locally the day of the drop-off — could easily be spoofed by anyone in possession of the laptop.
• The fact that, for two and a half months by the time the FBI claimed to have validated that the laptop was Hunter Biden’s, they had had full access for Hunter’s iCloud (and almost certainly had access to Hunter Biden’s Rosemont Seneca Google account for at least that long), which would have given them full access to a bunch of metadata that very much should have raised concerns about who had control of Hunter’s devices at any given time.

Those are just some of the potential bases for a Fourth Amendment challenge to using the laptop as evidence. There may be more.

It’s the last bullet that I want to focus on here. Shapley’s notes show that on November 6, 2019 — over a month after obtaining Hunter’s full iCloud account on September 25, 2019 — Josh Wilson used the serial number provided by JPMI and “determined that device was registered to [Hunter Biden] via apple ID account/iCloud account.”

It is absolutely the case that at 8:50AM Delaware time on October 21, 2018 — nine days after Hunter bought a gun and two days before he no longer possessed it — the laptop that would eventually end up at the FBI logged into Hunter’s iCloud account, though unlike some devices before and after, there’s no public confirmation of a tie to Apple directly, such as Apple welcoming him to a new computer or a receipt.

But there’s something unusual about what came next.

Normally, when Hunter Biden started using one of the new devices that can be clearly tied to his account, he would log into iCloud, then shortly thereafter log into one or another of his two Google accounts, Rosemont Seneca and/or droidhunter. As a result, Google would send security alerts to both the Gmail account and a whichever of the iCloud emails were set as backup.

For example, after Hunter bought a new laptop (possibly the laptop found at Keith Ablow’s in March 2019) on August 31, 2018, he signed into his iCloud account the next day, then, also on September 1, signed into his droidhunter Gmail account, then into his Rosemont Seneca account on September 2.

Someone signed into one of his new replacement iPhones, ordered through Asurion, on October 14 and then, on October 17, signed into his Rosemont Seneca Gmail account.

Someone signed into a new iPhone 8 Plus on October 23, 2018 — possibly the other replacement phone from Asurion — and then signed into his Rosemont Seneca Gmail account that same day.

Things are a bit fuzzier with some phones replaced through Apple the next spring, after his life was packed up on a laptop for delivery to John Paul Mac Isaac.

On February 21, 2019, he got a new iPhone, associated with his droidhunter account, and signed in on his droidhunter Gmail right away.

On March 1, 2019, he got a new iPhone XR — possibly the one obtained with the 2020 warrant. Then bought an adult themed App on March 7, then signed into his droidhunter email on March 9.

There are an astounding number of other devices used to log into one or another account associated with Hunter Biden’s digital life. But for recognizable device replacements, the pattern generally holds: Sign into Apple, then sign into Google.

But based on what is available on the public emails, after someone logged into Hunter’s iCloud account with a new laptop on October 21, 2018, it was weeks before a new Mac device logged into his Gmail accounts, starting with a November 16 attempt to log into Rosemont Seneca that was rejected by Google, followed by a reset of the droidhunter account and a login into that on November 20, followed by a login into Rosemont Seneca on November 24. Not only did those attempts come in the midst of a bunch of attempts to get into Hunter Biden’s Twitter account from a Mac. But on November 27, someone appears to have gotten into his iCloud account from Troutdale, OR.

New Mac devices also accessed Hunter’s Rosemont Seneca account on February 9 and February 20, 2019.

As I’ve already described, a great deal of Hunter Biden’s “normal” activity on his devices in this period looked like he was hacking himself. For example, on at least 36 occasions in 2017 and 2018, Wells Fargo shut down Hunter’s online access because of activity that looked, to it, like a hack. Many if not most of that was probably, instead, just Hunter Biden doing erratic things. In other cases, it’s impossible without more data to show whether a particular access or expenditure was Hunter himself, someone who had acquired one of his devices, or someone more malicious.

But there is a pattern, and the laptop ultimately shared with the FBI, he deviated from that pattern.

Certainly, David Weiss might argue that the FBI just hadn’t looked at Hunter Biden’s digital fingerprints that closely when they got a warrant on December 13, 2019.

But they’ve had five years to look at it in the interim period, and might have a harder time arguing that this pattern was normal.

Update: Just catching up to the Delaware docket (JPMI’s suit and Hunter’s countersuit). Judge Robert Robinson will hold hearings in everyone’s motions on February 22.

Update: Abbe Lowell has amended his lawsuit against the IRS, tweaking it to make statements that lawyers for Joseph Ziegler and Gary Shapley made. He told Mark Scarsi had had some motion regarding the disgruntled agents, so I expect this filing will be cited in that motion.

There was something subtle but potentially important in Abbe Lowell’s motion to compel discovery in Hunter Biden’s gun case.

First, after discussing the discovery requests he sent in October and November, he described reminding prosecutors (this is actually in the October letter) that Leo Wise had assured Judge Maryellen Noreika on July 26 that prosecutors had provided all Brady materials.

Mr. Biden reminded the prosecution that this Court ordered the production of Brady materials on July 26 and October 3 and asked the prosecution to confirm whether further productions were forthcoming, or Mr. Biden would need to move to compel. Id. As the Court may recall, the prosecution told the Court at the July 26 hearing that it had already produced all Brady material. (7/26/23 Tr. at 7 (“THE COURT: Has all Brady material been produced? MR. WISE: Yes, Your Honor”.).) Yet, the prosecution did not send the first production for almost three months, until October 12, 2023, with a cover letter noting its production was “in response” to Mr. Biden’s October 8 letter requesting discovery. [emphasis original]

Then, later in the motion, Lowell described that the Delaware case file prosecutors didn’t provide until October 12 — in response to the October 8 letter — included a declination decision.

Despite assuring the Court all Brady material had been produced on July 26, 2023, since then, the prosecution has produced an October 2018 state police case file of the firearm incident that includes interview memoranda and deliberations among Delaware state prosecutors regarding whether to file charges—per the file, on October 30, 2018, after reviewing the facts, New Castle County prosecutors decided not to prosecute and closed the case. [emphasis original]

A decision not to charge for state crimes would be helpful but not definitive at a trial on federal charges. But it pretty clearly is helpful to Hunter Biden’s defense.

And yet, prosecutors hadn’t provided it to Chris Clark before, on July 26, Leo Wise assured Judge Noreika that prosecutors had provided all Brady.

I suspect the motion to compel is designed as much as a challenge — “is this your final answer?” — before Lowell makes further allegations that prosecutors withheld material helpful to Hunter’s defense. That is, I suspect Lowell knows of certain things, perhaps the memos that Joseph Ziegler’s original supervisor, Matthew Kutz, included in the case file documenting improper political influence, that also clearly count as Brady that he hasn’t received yet.

That said, I suspect there was a pretty good reason prosecutors didn’t bother to give Clark that Delaware case file before the hearing on July 26: because there was never any consideration of actually charging Hunter on the gun crimes. That is, whatever Brady they provided was likely focused on the tax case, not the gun one, because the gun charge was never going to be charged.

Until Leo Wise, who assured Judge Noreika that prosecutors had complied with Brady, decided that he was going to charge those gun crimes.

Particularly given DOJ’s increased focus on such things in recent years after some really big Brady violations, a serious Brady violation is one of the few things that would actually give Merrick Garland cause to shut down David Weiss as Special Counsel.

The declination decision, turned over a month after the indictment, isn’t that, yet. For Leo Wise, who assured the judge in this case that all Brady had been turned over, however, it’s a detail that might be more convenient if treated as proof they weren’t going to charge gun crimes before they did.

Over a week ago, NBC’s Gary Grumbach emailed me to figure out how he could access the then still-sealed warrant dockets I liberated.

To the best of my knowledge, neither he nor anyone else at NBC reported that the dockets revealed that David Weiss first obtained a warrant to search Hunter Biden’s iCloud content and a laptop attributed to him for evidence relating to the gun charges on December 4, 81 days after indicting him. Indeed, besides me, only right wing outlets (Fox, NYPost, Washington Examiner) reported on the warrant.

The existence of the warrant was first disclosed as part of a legal fight (MTD; response; reply) over whether David Weiss charged Hunter Biden only because pressure from Donald Trump and Jim Jordan generated threats that led Weiss to fear for the safety of his family.

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

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

Q Do you have concerns that the threats and harassment employees have received are intended to intimidate them into not doing their jobs?

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.

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

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

The fact that, in five years of investigating Hunter Biden, in the over two years after Hunter Biden’s book came out, David Weiss never obtained a warrant to search the iCloud content that he already had in possession for evidence to support gun charges (and also never sent the gun to the FBI lab for testing) is pretty compelling evidence that he never intended to charge Hunter for gun crimes until Donald Trump elicited threats that led Weiss to fear for the safety of his family. In his response, Weiss claims it is a Hollywood plot that such threats might lead him to renege on his decision to deal with the gun crime as part of a diversion agreement, making light of the same threats that, he told Congress, led him to be “concerned, as any parent or spouse would be for — yeah, for family, yep.”

This is unbelievably scandalous — that in the middle of a presidential campaign, Donald Trump ginned up threats against a prosecutor and then, for the first time, after the statute of limitations expired, that prosecutor sought new evidence to prosecute Joe Biden’s son.

Yet Gary Grumbach doesn’t think that’s newsworthy.

Instead, Grumbach is focused on important things: like whether Joe Biden will visit his son on his birthday.

According to the property receipt that has been posted publicly (but not, as far as I know, been made available as separate PDF), FBI Special Agent Josh Wilson signed the receipt for a hard drive and laptop obtained from John Paul Mac Isaac. The date is obscure, but consistent with receipt on December 9, 2019.

The admittedly inconsistently dark case file on that form, as right wing frothers never tire of pointing out, is a money laundering case file, 272D-BA-3065729.

According to the warrant return I liberated this week, on December 13, 2019, Josh Wilson received the hard drive and laptop again. He received the laptop not from an evidence locker, where it might normally go while an agent gets Office of Enforcement Operations approval and then gets a warrant from a magistrate judge, but from a Computer Analysis Response Team (CART) Computer Analyst named Mike Waski.

The warrant I liberated is not for money laundering. The only crimes listed on Attachment B are tax crimes: 26 USC 7201, 26 USC 7203, and 26 USC 7206(1).

According to the notes Gary Shapley took after it became clear that, after sharing the laptop with the FBI, John Paul Mac Isaac shared a copy with Rudy Giuliani, after Josh Wilson took possession of the hard drive and laptop (a second time), the hard drive, at least, went back to CART — this time, a CART Agent named Eric Overly.

In spite of the fact that Shapley made these notes in order to explain precisely what happened with the laptop, Shapley doesn’t mention where the laptop was between December 9, 2019, when Josh Wilson took possession from JPMI and December 13, 2019, when Josh Wilson took possession again.

Joseph Ziegler returned the warrant on January 30, 2020. But it wasn’t until March before the FBI got an image of the laptop (though this may have been after a filter team review). Josh Wilson got that personally, too.

Putting two carts before the horse is not normal, here. When the FBI accepts a laptop, even if it is being used in multiple investigations, they image it once and then — as ultimately happened here, probably multiple times — they obtain new warrants for the same device, first for the tax investigation, then for a FARA investigation, and finally, 81 days after indicting the President’s son for gun crimes, for a gun investigation.

But this laptop, Hunter Biden’s laptop, went from the blind computer repairman to Josh Wilson to CART to Josh Wilson and then back to CART.

I currently have theories why that happened. But no answers.

I’ve asked David Weiss’ spox for clarification about zscoreUSA’s observation: why the caption for the warrant obtained last month lists a different device serial number for the laptop:

Then the laptop for the actual laptop obtained from JPMI, which is what appears in the Attachments that were only released pursuant to Judge Maryellen Noreika’s orders after I made some follow-up calls.

The serial numbers are just off by two characters:

• FVFVC2MMHV2G
• FVFXC2MMHV29

David Weiss’ spox hasn’t acknowledged that inquiry. This could be a typo or, as was suggested, FBI Agent Boyd Pritchard may have used the serial number for a laptop into which (as Shapley described) FBI dropped the removable hard drive from the laptop obtained from JPMI. In that case, it would normally note that the laptop contained the hard drive liberated from a prior laptop.

Perhaps all this will get sorted if and when Abbe Lowell makes good on his promised suppression motion. But until then, I only have theories, not answers.

Let’s go back to the Devlin Barrett story that kicked off the manufactured scandal about DOJ slow-walking the Hunter Biden investigation.

That story wasn’t just about tax charges, though those have gotten the bulk of attention. That story claimed that Federal agents had enough evidence to charge Hunter Biden with a false statement tied to purchasing a gun in 2018.

Federal agents investigating President Biden’s son Hunter have gathered what they believe is sufficient evidence to charge him with tax crimes and a false statement related to a gun purchase, according to people familiar with the case.

[snip]

The gun paperwork part of the investigation stems from 2018, a time period in which Hunter Biden, by his own account, was smoking crack cocaine.

In October of that year, Biden purchased a handgun, filling out a federal form in which he allegedly answered “no” to the question whether he was “an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”

According to a book Hunter Biden later wrote about his struggles with substance abuse, he was using drugs heavily that year.

While it is definitely true that prosecutors ham sandwiched their way through a grand jury on September 14, 2023, charging the President’s son with three felonies (potentially even by relying on the plea colloquy prosecutors obtained before reneging on the deal they made to get it), revelations from that last week have made it clear that while they had enough evidence to charge Hunter Biden, they didn’t have enough evidence to prosecute him.

At the time they indicted, David Weiss had the case file from local authorities showing state prosecutors declining to charge the case days after discovering the gun. Importantly, that case file included evidence photos of the gun itself.

[A]n October 2018 state police case file of the firearm incident that includes interview memoranda and deliberations among Delaware state prosecutors regarding whether to file charges—per the file, on October 30, 2018, after reviewing the facts, New Castle County prosecutors decided not to prosecute and closed the case.

[snip]

The prosecution produced a Delaware state police case file, which includes a summary of an interview Mr. Biden gave police in October 2018 and other information about the purchase, discard, and recovery of the firearm, as well as evidence photos from its case file. [my emphasis]

They also had the ATF case file, describing more about the gun purchase.

The prosecution also produced an ATF case file that has additional information about the firearm and statements about its purchase.

They had excerpts from Hunter Biden’s book. There’s no indication whether those excerpts include the multiple passages that explain why any digital evidence from 2018 would pose some evidentiary challenges. Indeed, when I asked about one of those challenges in December, Weiss’ spox had no explanation for it.

But there are three things David Weiss only sought after indicting the case — and so over a year after Devlin’s sources got him to publish that there was sufficient evidence to charge Hunter Biden.

Sometime in October, the month after the indictment, they sent the firearm for the first time to an FBI lab to test the residue on the pouch in which the gun was found; the residue tested positive for cocaine. The photos in the local case file are important, because the purported reason an FBI agent accessed the gun in October 2023, the month after the indictment, was to take photos of it.

In 2023, FBI investigators pulled sealed evidence from the state police vault to take photographs of the defendant’s firearm. After opening the evidence, FBI investigators observed a white powdery substance on the defendant’s brown leather pouch that had held the defendant’s firearm in October 2018. Based on their training and experience, investigators believed that this substance was likely cocaine and that this evidence would corroborate the messages that investigators had obtained which showed the defendant buying and using drugs in October 2018. An FBI chemist subsequently analyzed the residue and determined that it was cocaine. [my emphasis]

But the effort to obtain forensic evidence after the indictment was half-hearted; investigators did not test to see how long the residue had been in the pouch, nor did they test for other fingerprints.

(a) a brown pouch (obtained by a scavenger from a public trash can) with cocaine residue was in law enforcement’s possession for over five years, but was not tested until after the charges were brought; (b) even then no test was done for fingerprints or to date how long the residue had been there;

Then, sometime after convening a grand jury for tax crimes in November 2023, the second month after the indictment, Weiss obtained,

testimony (in support of finding probable cause) about the firearm obtained from a witness in a grand jury empaneled in the Central District of California in November 2023 after this indictment had already been brought.

Finally, in December 2023, days after Abbe Lowell asked prosecutors for their evidence of Hunter Biden’s mindset in October 2018, David Weiss obtained — Weiss claims, for the very first time — a warrant to search Hunter’s digital records for such evidence. (Side note: Lowell explains that prosecutors sent him that warrant the day they obtained it, December 4, something Derek Hines didn’t think was important to tell Judge Maryellen Noreika.)

According to the warrant return, Special Agent Boyd Pritchard was still searching for that evidence when Judge Noreika granted my request to unseal it.

That makes David Weiss’ failure, thus far, to actually provide Bates stamps of or describe where they found the messages that prosecutors intend to rely on at trial all the more notable. Even assuming Abbe Lowell’s promised motion to suppress that late warrant fails — and that’s likely — there are aspects of the forensics involved that may make it hard to introduce the messages themselves at trial. Plus, it raises questions about whether they actually found these texts or simply think they know they exist because they read them in some public news report? And if they saw it in a public news report, were those agents tainted by one of the many hard drive sets that have been tampered with?

You can definitely argue, and I’m sure prosecutors will, that some of this late obtained evidence was opportunistic. For example, they may argue that they really did need new photos of Hunter’s gun — photos they did not need to present their case to the grand jury — in advance of trial. They may argue that whatever witness whose November testimony they included in the December warrant was a key tax witness, and they simply locked the person into gun testimony while they had them under oath. That kind of stuff flies under precedents of prosecutorial dickishness all the time.

But, assuming David Weiss’ claim to have only obtained a warrant to search Hunter’s digital evidence for gun crimes on December 4, 2023, you cannot say they had the evidence to prosecute the crime.

They hadn’t looked — not in the over three years they had been combing through Hunter’s digital life. Or, if they had looked, they had done so unlawfully.

That’s not evidence, as Gary Shapley claims, of slow-walking the investigation. That’s evidence that in October 2022, when someone kicked off a scandal that has led to an impeachment inquiry by telling Devlin Barrett what to write down as if it were true, no one planned to take this to trial.

Republicans have spent the 15 months since Devlin’s October Surprise screaming about the investigation, based in significant part on the claims made in Devlin’s story.

But one key claim in Devlin’s story — about how much evidence they had to support the gun charges — has been debunked by David Weiss’ three months of scrambling to get more.

This makes Devlin’s gun claims the second scandal manufactured by the WaPo that has been at least partially debunked in recent weeks.

And Devlin, with his reporting partner Perry Stein, chased Derek Hines’ coke-in-gun stunt; that’s precisely the kind of stunt WaPo Dick Pic Sniffers will jump on every time. But they have not reported that that lab report and the warrant to search Hunter’s digital evidence for gun evidence came after the indictment.

In other words, this is, like Matt Viser’s story about the George Bergès testimony, yet another example of WaPo failing to admit that the scandals they manufactured years ago haven’t held up to the evidence found since.

I’m going to write two posts on Hunter Biden’s reply motions in his gun case. Here are all the relevant filings:

Motions to dismiss

• Reply, Selective Prosecution; Weiss Selective Response; Selective motion
• Reply, Diversion Agreement; Weiss Diversion Response; Diversion motion
• Reply, 2A Constitional; Weiss 2A Response; 2A motion
• Reply, SCO Appointment; Weiss SCO Response; SCO motion

Information collection motions

• Reply, Subpoena; Weiss Subpoena Response; Subpoena motion
• Reply, Discovery; Weiss Discovery Response; Discovery motion
• Motion to compel
• Motions to suppress TBD

This post will address the point I made here: Abbe Lowell is managing eight different legal challenges for Hunter Biden that, with the exception of the Patrick Byrne defamation suit, all interrelate. He seems to be managing them to optimize timing and information collection.

This totally ugly illustration captures how I’ve begun to think of these (anyone remember Howard Johnson motels?).

The most immediate threat against Hunter Biden is the stuff in the middle: the threat of imprisonment in the (so far) twin prosecutions of him; I’ve included a column to allow for the possibility that David Weiss is still considering more. But that threat exists within — indeed, Lowell argues in his selective prosecution motion, was demanded — as part of the larger GOP impeachment and election effort. Lowell has responded to those threats with lawsuits — a countersuit against John Paul Mac Isaac, hacking lawsuits against Garrett Ziegler and Rudy Giuliani (all three are marked in blue), and a gross negligence lawsuit against the IRS (in green) — that will or may provide a second way of collecting information, outside the prosecutions.

For example, countersuing JPMI provided a way to get the data the blind computer repairman had shared with the FBI and the rest of the world, as well as to subpoena Apple (data obtained in discovery may parallel that subpoena). The judge in that case has stayed some nuisance subpoenas from JPMI targeting Hunter’s family, and dueling motions for summary judgement are all briefed for a hearing. If Lowell succeeds with his argument that JPMI violated Delaware law by snooping through a laptop the computer repairman claims was dropped off by Hunter Biden before sharing it with the FBI and the GOP, it would destabilize Weiss’ prosecutions (both of which, given the December warrant, build off it) and impeachment (in which the GOP has been relying on a hard drive they were withholding from Democrats). Not only did that countersuit make lawsuits against Rudy Giuliani and Garrett Ziegler possible, but if Lowell prevails, then those lawsuits will become a lot more precarious for the men who destroyed Hunter’s life if those suits survive a joint motion to dismiss hearing — largely based on venue and the applicability of Lowell’s hacking theory — in March.

That’s important background to the new motion to compel filed yesterday, which follows on two other efforts to gather information — a motion to subpoena Trump and others, and a motion for discovery. Among other things, that motion asks David Weiss to describe specifically where in the Apple data his team obtained the texts cited in his response to Hunter’s selective prosecution claim. As I alluded to yesterday, not only do the July 2020 warrants almost certainly build off the laptop in a way that Weiss seems to be trying to obscure, but the way in which and timing that devices were embedded within the laptop may pose some interesting legal problems for the government, particularly given that the warrants aspire to obtain attribution information that (thus far at least) Weiss’ team seems blissfully unconcerned with. While that same motion suggests it is seeking expert reports about the gun, if Weiss plans to rely on evidence obtained directly or indirectly from the laptop, he’s going to have to call the guy who, JPMI claims, was trying to boot it up before obtaining a warrant on December 9, 2019, as well as the “computer guy” who didn’t bother to check when files were added to the laptop for 10 months after receiving it, precisely the kind of attribution information that would be critical to actually admitting any of it as evidence.

Relatedly, Lowell has also promised a motion to suppress the laptop evidence.

The search warrant on December 4, 2023, which post-dates the firearm indictment by almost three months, is the first time in the course of this five-year investigation that DOJ obtained a warrant to search the alleged laptop (and iCloud account and backup data) for evidence of federal firearms violations. The prosecution then used that warrant to purportedly review and seize, for the first time, text messages, photos, and other evidence in support of its felony charges, several of which the prosecution cited in its pleadings on January 16, 2024. (See DE 68 at 8–9.) Moreover, that warrant contained testimony (in support of finding probable cause) about the firearm obtained from a witness in a grand jury empaneled in the Central District of California in November 2023 after this indictment had already been brought. Accordingly, the issue raised—as a result of the prosecution’s recent filings—is one to explore at the evidentiary hearing Mr. Biden requested (DE 64) and a motion to suppress which will be filed promptly.

Partly, this motion to suppress will be a complaint about Weiss’ post-indictment use of a California grand jury in this case (a complaint that, by itself, likely wouldn’t work). But there are other parts of even what I can see in the warrant that make it ripe for challenge. At the very least, defending a motion to suppress will force the government to commit to certain technical claims that, thus far at least, they appear to be dodging.

The motion to compel also asks Judge Noreika to get a commitment from Special Counsel that they have provided all Brady evidence. As it is, Weiss’ team is adhering to a far stingier discovery standard than Jack Smith is and Robert Mueller and the post-Mueller Mike Flynn challenge did. But there are things out there — the most notable of which is the Perfect Phone call between Donald Trump and Volodymyr Zelenskyy, the most important of which are the threats that David Weiss and his team received before he reneged on a plea deal — that Lowell likely can argue are solidly Brady which, from the sounds of things, Weiss has not provided. Lowell has, thus far, not called out Derek Hines for claiming it would take a Hollywood plot to explain how the political pressure ginned up by a guy who has elicited dangerous threats against every prosecutor and judge deemed to be adversarial to him might have led David Weiss to renege on a deal. Hines’ silence about those threats basically amounts to license, given by an AUSA, for stochastic terrorists to target all his AUSA colleagues. I’ve been puzzled that Lowell has never mentioned these threats — except in passing in the selective prosecution reply — but wonder whether Lowell is simply leaving it there for Weiss to fail to mention with the repercussions that will have on the case.

Litigating a motion to suppress and a motion to compel will also delay any trial in this case, assuming none of these motions to dismiss work. Those are not Lowell’s only bid for delay. In the reply challenging that the gun charges against him are unconstitutional, Lowell responded to Weiss’ optimism that SCOTUS will review other gun cases by bidding to stay the entire gun trial: “this Court should await that guidance from the Supreme Court before allowing this case to proceed to trial.” That’s probably not going to work, but Lowell’s Bruen-related challenge will ensure that Weiss can’t close up shop until the constitutional question is decided. More interestingly, given the tight schedule Judge Mark Scarsi has set in the Los Angeles case, with a trial scheduled for June, delays in Delaware (assuming the case is not dismissed) could have the effect of putting the tax case before the gun case.

As I’ll show in a post on the selective prosecution claim, such a claim may work better in the tax case than the gun one.

Potential delay may be one point of Lowell’s challenge to both the manner of David Weiss’ appointment as Special Counsel and his funding for it. In his reply, Lowell claims that Weiss has responded to the challenge by arguing that Weiss would have been able to prosecute Hunter as US Attorney for Delaware, so there’s no legal problem with doing so as Special Counsel.

In response to both the lack of authorization and lack of appropriation issues, the Special Counsel claims the Court should let him go ahead and prosecute this case in the wrong way because he believes he could find a right way to prosecute the case if he wanted to. Opp. at 20. With respect to his lack of authorization to bring the case as Special Counsel, Mr. Weiss claims that he could have brought the case in his capacity as U.S. Attorney even though he did not. Opp. at 22– 23 (conceding that he signed the indictment as “Special Counsel,” rather than bringing it in his capacity as U.S. Attorney). Perhaps Mr. Weiss could resign as U.S. Attorney and seek to be reappointed as Special Counsel, consistent with DOJ regulations, and then seek to indict Mr. Biden again. Perhaps he could find a way to prosecute this case with the costs and expenses of gathering new evidence that was not obtained in violation of the Appropriations Clause as well (see supra at 15). But such issues are premature as he has done none of those things. It is telling that Mr. Weiss’s last argument is that, if all else fails, he can put back on his U.S. Attorney hat, change the nameplate on his door, and start again

But that’s the point of the appropriations clause aspect of the challenge; Lowell argues that Weiss would have to go back and collect new evidence (testing the pouch the gun was found in for cocaine residue, getting new grand jury testimony, and getting a warrant to use laptop content for the gun crimes) without violating the appropriations clause. I don’t like this motion nor do I think it will work. But by making an appropriations clause challenge, Lowell may be able to enjoin certain things — like issuing a final report, replete as John Durham’s was with fabrications — until any appeals are exhausted.

Which brings me to the claim that the diversion agreement must be honored and the related discovery motion. Those are the arguments I’ve always thought stood the best chance (though the briefing on it has devolved into a squabble about language). In the body of the latter argument, Lowell notes that Weiss’ claims he was always considering charging Hunter doesn’t defeat Hunter’s claims, because he ultimately decided not to, before he changed his mind for no apparent reason.

The prosecution’s response to Mr. Biden’s motion to dismiss for selective and vindictive prosecution further confirms the need for discovery should the Court not dismiss the indictment outright. The prosecution claims that its reasons for charging this case were based on “overwhelming evidence” (DE 68 at 2, 24) it obtained in 2019 and 2021, and on the unexplained “deterrent effect” (DE 68 at 33, 40–41) that it claims this prosecution of Mr. Biden serves. And the prosecution suggests “it had been considering” charging Mr. Biden “long before plea negotiations began.” (DE 68 at 17, 40, 48.) But this explanation is entirely pretextual because— even with all these factors in play—the prosecution still determined that the appropriate resolution was a diversion on the gun charge and a probationary sentence on two tax misdemeanors. The prosecution even signed a Diversion Agreement and Plea Agreement to that effect, and openly advocated for the Court to adopt the Plea Agreement at the July 26, 2023 hearing. What the prosecution has not explained is why it deemed this agreed upon resolution of its issues with Mr. Biden appropriate on July 26, 2023, but chose to abandon that approach and charge Mr. Biden with multiple gun and tax felonies afterward. It is undisputed that extremist Republicans criticized the prosecution’s deal heavily, and since then, House Republicans have declared that pressure is what caused the prosecution to reverse course. The fact that the prosecution’s explanation for its charging decision does not explain why it chose to change its proposed resolution of the dispute does nothing to show those House Republicans are wrong to claim causing the prosecution to reverse course.

Then a completely predictable footnote notes that the efforts to collect new evidence after indicting raise more questions about Weiss’ claims than they answer.

1 The prosecution’s opposition briefs reveal some new evidentiary issues (e.g., seizing electronic evidence for the gun charges for the first time pursuant to a December 4, 2023 warrant; using a grand jury in California in connection with the tax case to elicit evidence for already-indicted gun charges in Delaware; seeking a search warrant in December 2023 to search for evidence in support of its charges three months after having charged; testing a leather pouch for cocaine residue in October 2023 that it had in its possession for five years; denying there was Probation’s approval for the diversion agreement) in addition to those raised in Mr. Biden’s motions to dismiss themselves (e.g., how a Delaware agreement for a diverted gun charge and two tax misdemeanors turned into multiple felonies in two jurisdictions following massive political pressure to do just that). Based on the prosecution’s admissions made only recently in its filings, Mr. Biden will expeditiously file a motion to suppress improperly gathered evidence.

This is what I pointed out: Admitting that you never sent the gun to the lab until weeks after indicting the case is a confession that you were never really going to prosecute it until Jim Jordan demanded you do so.

And the excuse offered in the filing — that an FBI agent first saw cocaine residue when taking a picture of the weapon — is debunked by the fact that Weiss received photos of the weapon in the case file he has had for years.

The prosecution produced a Delaware state police case file, which includes a summary of an interview Mr. Biden gave police in October 2018 and other information about the purchase, discard, and recovery of the firearm, as well as evidence photos from its case file. [my emphasis]

They didn’t need a new photo. They have photos! They needed evidence they didn’t bother to seek in the over five years since the gun was seized.

But all that comes against the background of three arguments about how and why the plea deal fell apart, something that Weiss has very assiduously avoided. In the diversion reply, Lowell argues that judicial estoppel prohibits Weiss from claiming the diversion agreement is not valid because Leo Wise stood before Judge Noreika and made assurances about the degree to which the diversion would protect Hunter’s rights. In the selective prosecution reply, Lowell reminds Judge Noreika that her concerns with the plea deal were not that it was not draconian enough, but rather, whether Hunter would be protected to the extent he understood he would be.

The Court did not accept the Plea Agreement that day, but the Court was clear: “I’m not saying I’m not going to reject the plea, I’m not saying I’m going to accept the Plea Agreement. I need more information.” (7/26/23 Tr. at 109.) The Court expressed no concern with whether the parties had struck a fair bargain, rather the concern the Court expressed to Mr. Biden was with “making sure that your plea gets you what you think it gets.” (Id. at 108.) The Court wanted assurances that the immunity provision in the Diversion Agreement that would have the Court decide whether Mr. Biden had breached his obligations under the Diversion and Plea Agreements before the prosecution could charge Mr. Biden with conduct that would otherwise be immunized was constitutional. (Id. at 105–06.) In other words, the Court’s concern was with making sure that Mr. Biden received the benefit of the bargain that he struck, not with changing that bargain to be more punitive against Mr. Biden.

At the end of that filing, Lowell describes how David Weiss sat in the back of Judge Noreika’s courtroom, watching Leo Wise advocate for measures (negotiated by Lesley Wolf before Wise was brought in) to protect Hunter.

On July 26, 2023, Mr. Weiss sat right behind his prosecution team when they urged this Court to accept those agreements.

As of today, the motion for a subpoena for Trump has been fully briefed for 50 days, but Judge Noreika has not addressed it.

Indeed, the only thing we’ve heard from Judge Noreika since she granted Lowell’s request for a delay to do all this briefing on October 19 was her order granting my request to unseal the Apple warrants in this case (And thanks to Judge Noreika and her courtroom deputy and the clerks who scrambled to make it possible for doing so). That is, it’s not clear yet what she makes of these competing arguments.

But it is absolutely the case that Leo Wise stood before her and made certain representations about the plea deal. And my impression at least accords with Lowell’s: that her concerns arose from protecting Hunter Biden’s rights, not granting Jim Jordan the head of the President’s son.

Judge Noreika could just rule that the diversion agreement is binding (which as noted in my ugly table, will have interesting repercussions for the LA case). She could order an evidentiary hearing, granting the long-briefed motion for subpoenas.

Based on reports, in the initial appearance in the LA case, Judge Scarsi implied he’d be cautious against granting discovery about deliberations (presumably including the recommendation Los Angeles US Attorney Martin Estrada’s top prosecutors made about problems with the case). But he sounded more amenable to discovery about other topics — possibly the threats that Derek Hines treats as a Hollywood plot, including threats targeting Estrada.

In three weeks, Abbe Lowell will file most of these same motions before Scarsi, and if any work — especially the selective prosecution one — it might make the Delaware one unsustaintable as well.

Again, I’m not saying these will work. Selective prosecution has been made all but impossible to argue, for example.

But I am saying that Lowell is increasing his chances for success.

As a few of you have noted, Hunter Biden has filed his replies on his motions to dismiss.

As I noted on Xitter, the Reply on Discovery confirms I was right when I pointed out that the Coke-in-Gun ploy actually undermined David Weiss’ argument.

They never bothered to send the gun out for testing until October 2023 — five years after local authorities decided not to charge this.

I’m finishing up my initial review and will comment at more length, but here are all these filings:

• Reply, Selective Prosecution; Weiss Selective Response; Hunter’s motion
• Reply, Diversion Agreement; Weiss Diversion Response; Hunter’s motion
• Reply, 2A Constitional; Weiss 2A Response; Hunter’s motion
• Reply, SCO Appointment; Weiss SCO Response; Hunter’s motion
• Reply, Discovery; Weiss Discovery Response; Hunter’s motion

In addition, Abbe Lowell filed a motion to compel.