Special Counsel Weiss Demanding that Hunter Biden Show Up for Initial Appearance

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David Weiss and Abbe Lowell are already having fights that suggest Weiss wants to give the GOP a bread and circus proxy fight with Trump’s perceived enemies.

Weiss is demanding that Hunter Biden appear in person for his initial appearance; Hunter believes that’s unnecessary, in significant part because he already did the things — like getting a mug shot and getting processed through probation — in this docket, before Judge Marylin Noreika, that he would otherwise do at an initial appearance for the gun charge.

Republicans will complain that one reason he cited — the Secret Service expenses — weren’t a consideration for Trump’s two federal arraignments.

Mr. Biden also seeks this procedure to minimize an unnecessary burden on government resources and the disruption to the courthouse and downtown areas when a person protected by the Secret Service flies across the country and then must be transported to and from a downtown location. Without getting into specifics, numerous agents and vehicles are required for what would have to be a two-day event (for a proceeding that may be very short in duration). This includes agents and vehicles in California and in Delaware, as well as agents who must travel with him on the plane. In addition, as the Court is aware of from the last appearance, security also requires shutting down local roadways in downtown Wilmington, advance coordination with local law enforcement and the U.S. Marshals Service, and several other logistical challenges.

As Hunter’s filing notes, though, the DE Court has already waived personal appearances this year.

arraignments by video when it is more efficient to do so.2 In this regard, the request by Mr. Biden is not out of the ordinary arraignments by video when it is more efficient to do so.2 In this regard, the request by Mr. Biden is not out of the ordinary.

[snip]

The government’s opposition to this common-sense request is puzzling because Mr. Biden is not asking for special treatment with this request, as individuals without the additional considerations described herein regularly make such appearances by video.

Note, these appearances would have taken place before Hunter’s father ended the federal COVID emergency — but it is true that people are still permitted to make initial appearances remotely.

It sounds like Weiss (and Leo Wise, who has insisted on public humiliation as part of this procedure), wants to argue for a change in release conditions, and do so while Hunter is there in public.

Since that proceeding, Mr. Biden has scrupulously complied with his conditions since returning home to California (D.E. 15), and it is his expectation that those conditions will remain in place until the Court orders otherwise. Moreover, should there be any discussion of revising Mr. Biden’s existing conditions of release, there is no reason why these discussions cannot take place with the Court and the government present by video conference.

That will be an interesting discussion, given that these charges were charged 59 months after the alleged crime, for something that Weiss already agreed merited a diversion. Perhaps Weiss will use his larded on charges and the felony punishment to make an argument that Hunter would be more likely to flee — but again, Weiss already agreed this merited diversion.

This may also be a tactical fight, in advance of the challenge Lowell has already promised about whether Weiss can indict Hunter for charges he already agreed to divert. As Hunter noted, it got put in the same docket, with the prior initial appearance noted, affirming that it is the same proceeding.

Things are going to get testy. They’re going to get testy in a way that will provide yet more evidence that Republicans are demanding — and Weiss is acceding — to treat this as a proxy prosecution for Trump’s opponent, even though it is, instead, the prosecution of a private citizen. They’re going to get testy in a way that will justify a stunt that was premature when Hunter’s attorneys threatened it last year — to put the President on the stand to lay out how this is a proxy fight designed to get to him.

Judge Noreika ordered Weiss to respond by tomorrow.

“My life’s on the line here:” Gary Shapley’s Direct Supervisor Believed His Claims Were Unsubstantiated

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Ever since I read the email Gary Shapley sent to his IRS supervisors, Darrell Waldon and Mike Batdorf, on October 7, 2022 purportedly documenting David Weiss saying he was not the deciding authority on charing Hunter Biden, I have wondered whether Waldon was largely brushing off Shapley’s claims about the meeting when he said, “you have covered it all.”

In any case, unlike Shapley, Waldon’s focus was on the leak, not what Weiss said. As I’ve noted, Waldon’s primary response was to tell Shapley that he would take care of the leak referral, but in congressional testimony Shapley claimed to have been the one who did.

And testimony Waldon gave to House Ways and Means Committee might be consistent with such a brush-off: Waldon described that around this time, he recommended Shapley be removed from the case, apparently because Waldon believed the claims of bias Shapley was making — in things like this email — were unsubstantiated.

Waldon told the panel that he recommended to Batdorf that Shapley be removed from the case. Waldon said that Weiss told him after the October 2022 meeting that he would “not be talking with Mr. Shapley henceforth, as they were going through their deliberative process.”

“Before I left the special agent in charge position, in February, I recommended to Mr. Batdorf that Gary Shapley be removed as the [supervisory special agent] from the Hunter Biden investigation, primarily due to what I perceived to be unsubstantiated allegations about motive, intent, bias” Waldon said.

Waldon is also the person who, in December 2022, reviewed the emails that Shapley had turned over after eight months of stalling. Indeed, on December 13, 2022, as Waldon was reviewing the emails, Shapley emailed Waldon plaintitively asking for something he adamantly refused to give Hunter Biden: Advance notice of investigative concerns.

If you have questions about any emails I would ask you share it in advance so I can look at them and be prepared to put them into context. The USAO was so eager to got my emails (which they already had 95% of) … then surprise … they “might” have a problem with a few of them that memorialized their conduct. If the content of what I documented, in report or email is the cause of their consternation I would direct them to consider their actions instead of who documented them.

I have done nothing wrong. Instead of constant battles with the USAO/DOJ Tax, I chose to be politically savvy. I documented issues, that I would have normally addressed as they occurred, because of the USAO and DOJ Tax’s continued visceral reactions to any dissenting opinions or ideas. Every single day was a battle to do our job. I continually reported these issues up to IRS-CI leadership beginning in the summer of 2020. Now, because they realized I documented their conduct they separate me out, cease all communication and are not attempting to salvage their own conduct by attacking mind. This is an attempt by the USAO to tarnish my good standing and position within IRS-CI … and I expect IRS-CI leadership to understand that. As recent as the October 7 meeting, the Delaware USAO had nothing but good things to say about me/us. Then they finally read “discovery” items (provided 6 months previous — that are not discoverable) and they are beginning to defend their own unethical actions.

Consider the below:

  1. I am not a witness — therefor Jencks/impeachment is not an issue.
  2. I am not the receiver of original evidence nor engaged i any negative exculpatory language against the subject … My documentation only shows the USAO/DOJ Tax’s preferential treatment of this subject. [bold underline original, italics mine]

Waldon’s impression that Shapley was making unsubstantiated claims of bias, which Shapley presumably knew, makes these two documents even sketchier, because they were written at a time when his claims of bias were already suspect.

For example, in May, Shapley turned over his email making claims of bias, but not the presumably more accurate handwritten notes he wrote in the October 7 meeting itself. Those notes show that Shapley misrepresented what Weiss said about charging in CA; those notes that show Shapley recorded a detail — what outlet published the October 7 leak — about which he claimed to be ignorant in his Ways and Means deposition.

In other words, those notes show Shapely making unsupported claims of bias. And they show that when his own emails were reviewed, he panicked.

Thus far, the evidence support Waldon’s conclusion, not Shapley. Shapley was literally inventing conspiracy theories about the process required before David Weiss could seek Special Attorney status to charge in CA.

Which may explain why, in his original testimony to the House Ways and Means Committee, he dramatically claimed, “My life’s on the line here.”

Meanwhile, the documents and testimony elicited as a result of Shapley’s effort to ruin Hunter Biden’s life to save his own (job or reputation, I guess), only give Abbe Lowell more ammunition to show that his charges are selective prosecution pushed by someone identified as a problem a year ago.

Update: This post has been edited for clarity.

Hunter Biden Sues the IRS

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I can’t help but wonder whether the lawsuits Abbe Lowell is filing on behalf of Hunter Biden are preparation for an assault on the criminal charges against the President’s son.

Last week, for example, Lowell alleged that Garrett Ziegler had criminally hacked an iPhone encrypted on “the laptop” and had altered information on it. Whatever else the lawsuit will do, it will establish that DOJ chose to charge a non-violent recovering addict for owning a gun for 11 days in 2018, but has yet to do anything about the people who’ve serially compromised the digital life of the President’s son.

Lowell already has a bunch of other information to substantiate a selective prosecution case. But if he can demonstrate that DOJ ignored more serious felonies while still pursuing Hunter, it would only add to the evidence.

Today, Lowell sued the IRS for the media tour that Gary Shapley and Joseph Ziegler have conducted since April, enumerated as follows (note, this only includes live appearances; Tristan Leavitt has made obviously problematic claims to print journalists as well):

Attorney A’s public statements in a letter to the Committee on Ways and Means on April 19, 2023.

Attorney A’s public statements to Mr. Solomon of John Solomon Reports on April 19, 2023.

Attorney A’s public statements to Mr. Axelrod of CBS News on April 19, 2023.

Attorney A’s public statements to Mr. Baier of Fox News on April 20, 2023.

Mr. Shapley’s public statements to Mr. Axelrod of CBS News on May 24, 2023.

Mr. Shapley’s public statements to Mr. Baier of Fox News on June 28, 2023.

Mr. Shapley’s public statements to Mr. Axelrod of CBS News on June 28, 2023.

Mr. Shapley’s public statements to Mr. Solomon of John Solomon Reports on June 29, 2023.

Mr. Ziegler’s public statements to Jake Tapper of CNN on July 20, 2023.

Mr. Shapley and Mr. Ziegler’s public statements to Megyn Kelly of the Megyn Kelly Show on July 20, 2023.

Attorney B’s public statements to Mr. Solomon of John Solomon Reports on July 21, 2023.

Mr. Ziegler’s public statements to John Solomon of John Solomon Reports on July 24, 2023.

Attorney A’s public statements to Martha MacCallum of Fox News on July 26, 2023.

Attorney A’s public statements on Fox News on July 31, 2023.

Mr. Shapley’s public statements to Kaitlan Collins of CNN on August 11, 2023.

While statute permits and Hunter Biden did ask for punitive damages, ultimately he only asked for attorneys fees and $1,000 per disclosure — just $15,000 for this listed disclosures, as well as a program to ensure that IRS uphold the Privacy Act.

He’s not going to get rich with this lawsuit.

But Lowell also asked for all information in the IRS’ possession relating to these disclosures.

Ordering Defendant to produce to Mr. Biden all documents in its possession, custody, or control regarding the inspection, transmittal, and/or disclosure of Mr. Biden’s confidential tax return information;

If successful, this request would generate a good deal of information about the IRS tracking of these leaks (and any earlier ones). It might provide proof, in the form of metadata, showing when the IRS agents accessed this information and under what circumstances, including Ziegler’s overt promise to go back and find more data in response to demands from members of Congress. It might obtain information on the IRS’ own investigation of this leaking.

If DOJ is going to charge Hunter with tax charges, they’re going to need to present the investigation as conducted by Shapley and Ziegler — a point Abbe Lowell made in a letter to David Weiss last month.

Among other ways, these agents, sill employed by the Government, would likely be witnesses should any tax charge you file ever be tried. It is unprecedented for Government officials who are the investigators or prosecutors in the case and would be witnesses and rial counsel to conduct themselves in this manner which seks to try the issues in the court of public opinion rather than properly in a court of law. That conduct itself (in addition to the various other infirmities with the Government attempting to bring charges against Mr. Biden26) would support dismissal of any charges you have fled or would try to so file in the future.27

26 To be clear, we do not believe the Government could validly bring charges against our client concerning these issues given the express language of he agreed-upon Diversion Agreement.

27 Courts recognize that the crime of leaking or disclosing such information by Government agents sworn to uphold the law is often more egregious than the crimes those agents are charged with investigating. See, e.g., United States v. Walters, No. 17. 2373 (2d Cir. Dec. 4, 2018) Jacobs, J. concurring) ([Tlhe leak of grand jury tesimony in some respects more egregious than anything [Defendant] did (insider wading) — the FB supervisor took an oath to uphold the law and was acting in a supervisory capacity to discharge an important public function.” (emphasis ddd).

Again, on top of all the other things Lowell could point to to substantiate a claim that Hunter was being selectively prosecuted, Lowell might ask why Hunter is being prosecuted but not Shapley and Ziegler.

For five years, the government has (apparently) chosen to relentlessly pursue pickayune charges against Hunter Biden while ignoring the crimes committed to try to set up those charges.

And Abbe Lowell may be preparing to make that case in the case of any trial.

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

It’s credible threats of violence.

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

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

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

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

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

Not Breaking News and Stop Lying to Your Followers It is: David Weiss Indicts Hunter Biden

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As promised, David Weiss has indicted the President’s son. As I suspected, he added a False Statements charge, on top of the weapons charge, so even if SCOTUS rules 18 USC 922 to be unconstitutional, Weiss will still have a felony against Hunter.

He charged a total of three charges.

This is where things start to get interesting.

Remember: Abbe Lowell insists that Weiss can’t charge Hunter, because he Weiss signed a diversion agreement that — per AUSA Leo Wise — was a binding contract between DE USAO and Hunter. Over the weekend, I wrote about how even with this indictment, Weiss may have far less leverage over Hunter than he thinks.

Gary Shapley’s Notes Recorded Something He Claimed Not to Know before House Ways and Means

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In his House Ways and Means Committee testimony, when Gary Shapley was first asked about the discussion of leaks in the October 7, 2022 meeting at which — he claims he understood (though his notes make it quite clear he didn’t understand what he was hearing) — David Weiss said he was not the final decision-maker for charging Hunter Biden, Shapley professed not to know what outlet published the leaked information.

Q In No. 1 on this email you prepared, says: “Discussion about the agent leak — requested the sphere stay as small as possible…DOJ IG will be notified. FBI — HQ is notified.”

What was the specific leak?

A So there was a leak, I’m not sure what outlet, on October 6th of 2022 — it appeared to come from the agent’s level, who was critical of the prosecutors for not charging the case.

Q Okay. Talking about the Hunter Biden case?

A Yes, not charging the Hunter Biden case.

So, obviously that was part of the discussion at the beginning. And there have been multiple leaks in this case going back, and this one was handled a lot differently because I guess it was purportedly from the agent’s level.

So this drastic — you know, they used that as an excuse to kind of — to do what they were doing. [my emphasis]

It was an interesting claim — not to know what outlet published the leaked information — then.

It’s a more interesting claim now that his attorneys have released hand-written notes that are, in key respects, inconsistent with the notes he emailed to his colleague later that day (which I’ll lay out in more depth shortly). Those notes make it quite clear the leak was to the WaPo.

He didn’t include that detail — that the WaPo had identified the source as Agents — in his email to his supervisor later that day.

His handwritten notes don’t describe that there will be a criminal referral of the leak, either.

It’s unclear what the last line of his notes on the leak said (“WBers,” suggesting whistleblowers?).

But the important discrepancy is that Shapley told House Ways and Means he didn’t know something he clearly had recorded in hand-written notes he chose not to share with the Committee.

And that’s not the only oddity about Shapley’s testimony about the leak.

I have already noted that while the email he wrote suggests Darrell Waldon would make a referral to TIGTA, in his Oversight testimony, Shapley claimed he had done so. That’s weird, but it’s certainly possible both referred the leak or that Shapley rushed to do it before Waldon did.

And — also at that Oversight hearing — Shapley spun wildly about whether the leak was from Agents or not, with his attorneys saying something to him both times it came up.

Goldman: So it’s pretty clear, you would agree, that this was a leak to the Washington Post by law enforcement agents since it describes what Federal agents believe, right?

Shapley: So it wasn’t actually clear to me that it was because usually they’ll say that it’s a law enforcement source that provided it, and if you see at the bottom it says they corroborated independently and they did not mention law enforcement. [Shapley’s attorney leans over to whisper to him]

Goldman: You don’t think it’s a Federal agent, agents, who leaked this when the headline says, Federal agents see chargeable tax gun purchase case against Hunter Biden? [my emphasis]

Shapley remained squirrely about whether this was a leak from an agent or not later in the same hearing.

Goldman: Gentlemen, I want to return to the Washington Post October 6 article and I’d ask unanimous consent to enter it into the record. In your testimony, Mr. Shapley, before the Ways and Means Committee, you stated, quote, there was a leak, it appeared to come from the agents level, who was critical of the prosecutors for not charging the case. What you testified earlier was a little different. Which one do you stand by today?

[pause]

Shapley: I’m sorry, could you repeat that?

Goldman, quoting: “There was a leak, it appeared to come from the agents level, who was critical of the prosecutors for not charging the case.”

Shapley: Yeah, I said it appeared, because I said it came from the agents’ level, but the source was a source familiar with the topic and it didn’t say it was a law enforcement source.

Goldman: Okay, that seems to be a distinction without a difference. And then, you understand that, obviously leaks of grand jury information is a felony, right?

Shapley: Leaking investigative information including 6103 would be a felony, yes.

Goldman: Well that’s true as well. So would you agree that there would be some skepticism from prosecutors about which of the agents may be the source of a leak?

Comer: Gentleman’s time is expired but feel free to answer the question.

Shapley: Since there have been multiple leaks in this investigation, and the one on December 8 or December 9, 2020, it appears to come from someone, as Lesley Wolf stated —

Goldman: I was just asking about October 6, 2022.

Shapley: So I

Goldman: It would cause anyone suspicion, right?

Shapley: If it says it comes from an agent level. [His attorney leans over, whispers something.]

Goldman: That’s what you said.

Comer: Gentleman’s time has expired. [my emphasis]

Shapley is really really determined to prove that his impression — that David Weiss said he didn’t have final charging authority — was accurate, but read in conjunction it’s actually clear he simply didn’t know what the fuck he was hearing and made up the most damning explanation.

But along the way, his testimony about the leak itself has acquired more and more inconsistencies.

Most importantly, before House Ways and Means he played dumb about something that he recorded in his own notes: the outlet for the leak.

Hunter Biden Sues Garrett Ziegler for Hacking His iPhone

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Back in July, as part of an effort to understand whence the IRS obtained WhatsApp texts that weren’t on the “Hunter Biden” “laptop” made available by Rudy Giuliani, I noted that those WhatsApp texts appear to have come from an iPhone backed up to a different iCloud account than the one the laptop was synched to.

On the laptop itself, the iPhone content was encrypted.

That meant anyone without a warrant accessing that content was likely violating the Computer Fraud and Abuse Act.

In part four of Dimitrelos’ report, he describes that there were, indeed, WhatsApp messages on the iPhone, registered to that entirely different iCloud account, seemingly backed up to iTunes on the [email protected] account.

I can’t be sure about this, because I’m not a forensics expert, both Shapley and Dimitrelos are deliberately unreliable narrators, and even they don’t have all the data to understand what went on here. But it appears that the reason why there were no WhatsApp texts on the laptop itself, which had all the content in the [email protected] iCloud account, is that they weren’t used by a device registered to the [email protected] iCloud account. They were used by a device registered to the [email protected] account, which was (as Shapley’s notes reflect) stored in encrypted fashion on the laptop.

There’s one more very important point about this.

The government had a warrant. If they really did find a business card (one not described anywhere I’ve seen in Dimitrelos’ report) with a password, they were able to get the encrypted content (though oftentimes prosecutors will recommend you go back and get a second warrant for that). From there, it seems, the IRS got another warrant for the other iCloud account, the [email protected] one. That’s how they got a legally sound copy of the WhatsApp texts in August 2020.

But for people like Rudy Giuliani or Garrett Ziegler or John Paul Mac Isaac, taking a laptop they purport to have been abandoned, and then using a password found on that laptop to access an encrypted container — especially one of a different iCloud account — is legally another level of conduct.

Hunter Biden’s newly aggressive legal team appears to agree. They’ve just sued Garrett Ziegler. One of the key claims is that he hacked the “laptop” to access encrypted data.

28. Plaintiff further is informed and believes and thereon alleges that at least some of the data that Defendants have accessed, tampered with, manipulated, damaged and copied without Plaintiff’s authorization or consent originally was stored on Plaintiff’s iPhone and backed-up to Plaintiff’s iCloud storage. On information and belief, Defendants gained their unlawful access to Plaintiff’s iPhone data by circumventing technical or code-based barriers that were specifically designed and intended to prevent such access.

29. In an interview that occurred in or around December 2022, Defendant Ziegler bragged that Defendants had hacked their way into data purportedly stored on or originating from Plaintiff’s iPhone: “And we actually got into [Plaintiff’s] iPhone backup, we were the first group to do it in June of 2022, we cracked the encrypted code that was stored on his laptop.” After “cracking the encrypted code that was stored on [Plaintiff’s] laptop,” Defendants illegally accessed the data from the iPhone backup, and then uploaded Plaintiff’s encrypted iPhone data to their website, where it remains accessible to this day. It appears that data that Defendants have uploaded to their website from Plaintiff’s encrypted “iPhone backup,” like data that Defendants have uploaded from their copy of the hard drive of the “Biden laptop,” has been manipulated, tampered with, altered and/or damaged by Defendants. The precise nature and extent of Defendants’ manipulation, tampering, alteration, damage and copying of Plaintiff’s data, either from their copy of the hard drive of the claimed “Biden laptop” or from Plaintiff’s encrypted “iPhone backup” (or from some other source), is unknown to Plaintiff due to Defendants’ continuing refusal to return the data to Plaintiff so that it can be analyzed or inspected.

Of course, this means that DOJ should have been investigating Ziegler for hacking the President’s son rather than spending five years pursuing misdemeanor tax charges.

Perhaps that will become more clear going forward.

Update: These kinds of videos will be of interest to Hunter’s team.

David Weiss May Have More Bluster than Tactical Leverage

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

All that’s before you consider the rampant leaking.

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

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

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

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

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

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

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

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

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

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

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

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

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

Right Wing Operatives Say Hunter Biden Shouldn’t Get Same Treatment as Dmitry Firtash

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In the wake of the Politico and NYT reports on the collapse of the Hunter Biden plea deal (which I wrote up here), right wing operatives have a remarkable complaint: That the President’s son got worse treatment from DOJ than mobbed up Ukrainian oligarch Dmitry Firtash.

The complaint started with Federalist Faceplant Margot Cleveland (who called the good Politico piece and the problematic NYT piece “virtually identical”).

Margot complains that Hunter Biden’s lawyer Chris Clark attempted to reach out to high level DOJ personnel to raise concerns about the degree to which the investigation into his client had been politicized from the start.

Clark’s efforts to meet with Attorney General Merrick Garland and Deputy Attorney General Lisa Monaco failed.

Ultimately, though, he did get a meeting with Associate Deputy Attorney General Bradley Weinsheimer, who oversees ethical violations at DOJ. As Faceplant Margot helpfully lays out, the meeting happened in the wake of yet another attempt by agents involved in the case — after repeated leaks to the press — to  force Weiss’ hand.

According to Politico, from the fall of 2022 through the spring of 2023, Clark, on behalf of Hunter, sought meetings with high-level Justice Department officials, including the head of the Criminal Division, the head of the Tax Division, the Office of Legal Counsel, the Office of the Solicitor General, Deputy Attorney General Lisa Monaco, and the attorney general himself. Clark finally succeeded in his efforts to meet with a higher-up at Main Justice, when on April 26, 2023, Clark met with Associate Deputy Attorney General Bradley Weinsheimer and Delaware U.S. Attorney Weiss.

Just one week earlier, Mark Lytle, a partner at the law firm Nixon Peabody, had penned a letter to key House and Senate committees informing them that his client, a career IRS criminal supervisory special agent, sought to make “protected whistleblower disclosures to Congress,” concerning an investigation into a politically connected individual. Those whistleblower disclosures, the letter explained, would “contradict sworn testimony to Congress by a senior political appointee,” would show the “failure to mitigate clear conflicts of interests,” and would provide “examples of preferential treatment” and improper political influence. While the whistleblowers did not identify the politically connected taxpayer, Just The News confirmed the allegations concerned Hunter Biden.

So that means that after Hunter’s lawyer spent some six months trying to swing a meeting with top DOJ officials, a meeting materialized a week after news broke of the whistleblowers’ claims that political favoritism prevented them from properly investigating Hunter Biden.

Soon after Weiss, Hunter’s attorney Clark, and Associate Deputy Attorney General Bradley Weinsheimer met in late April 2023 to discuss the Hunter Biden investigation, the House Ways and Means Committee met on May 5, 2023, and received a “proffer” from the whistleblowers’ attorney concerning the testimony their client would provide Congress about the political interference into the Hunter Biden investigation.

Less than a week later, on May 11, 2023, Weinsheimer “thanked Clark for the meeting and told him Weiss would handle the next steps.” Then, on May 15, 2023, “at the request of the Department of Justice,” the two whistleblowers and their entire elite team of IRS investigators were removed from the Hunter Biden investigation. It was the same day, according to the Times’ weekend reporting, that Wolf proposed resolving the investigation into Hunter Biden with only a deferred prosecution agreement.

Margot leaves out a few details about what led up to the removal of the IRS investigators from the case. According to his own testimony, Gary Shapley had been sidelined months earlier, as he continued to resist requests from DOJ that he provide his emails pertaining to the case. According to Ziegler’s testimony, his related cases had already been put on hold.

Margot seeks to blame a meeting in April for things that IRS agents’ own behavior had triggered months (and in Shapley’s case, over a year) earlier.

After Faceplant Margot’s piece, one of Gary Shapley’s attorneys, Tristan Leavitt, got into it.

The thing is, Main DOJ grants audiences to the lawyers of high profile suspects fairly routinely. It’s one of the things you get when you hire a a lawyer of a certain stature.

On behalf of “Hunter Biden” “laptop” disseminator Steve Bannon, for example, “Hunter Biden” “laptop” disseminator Robert Costello met with JP Cooney and two other AUSAs twice in November 2022.

And in fact, as I pointed out in the beginning of an amusing exchange with Leavitt, someone directly tied to the politicized allegations against Hunter Biden availed himself of just that kind of access: Dmitry Firtash.

Unlike Hunter Biden, when Dmitry Firtash leveraged that kind of access, his attorneys — Victoria Toensing and Joe DiGenova  — were granted a meeting with the Attorney General, with Bill Barr, who may or may not have had a role in putting the investigation into Hunter Biden in Delaware in the first place.

In July, the tycoon changed legal teams, replacing longtime Democratic lawyer Lanny Davis with the husband-and-wife team of Victoria Toensing and Joseph diGenova, who appear frequently on Fox News to defend Trump and have served as informal advisers to Trump’s legal team, including Giuliani.

After taking on Firtash’s case, Toensing and diGenova secured a rare face-to-face meeting with Attorney General William P. Barr and other Justice Department officials to argue against the charges, three people familiar with the meeting said.

Barr declined to intercede, the people said.

A Justice Department spokeswoman said that the case “has the support of the department leadership,” adding: “We continue to work closely with the Austrian Ministry of Justice to extradite Mr. Firtash.”

Mind you, Toensing and DiGenova did not succeed in getting DOJ to drop the case against the mobbed up Ukrainian oligarch — though neither did Chris Clark’s meeting with Associate Deputy Attorney General Bradley Weinsheimer succeed in getting David Weiss to drop the case against Hunter Biden.

After Firtash’s success at getting an audience with the Attorney General was disclosed, only Mitt Romney, of all the Republicans in Congress, voiced any problem with the larger corruption aired during Trump’s first impeachment, which included the means and purpose for which Toensing got that meeting. But Republicans now feign outrage that the American citizen targeted in that earlier access campaign might seek a similar meeting.

At least according to Lev Parnas, the Firtash meeting had a direct role in a campaign against Hunter Biden, a campaign that developed in parallel to the criminal investigation and which — at least since Leavitt’s client has gone public — has provably merged.

Rudy first reached out to Parnas in November 2018. Joseph Ziegler first attempted to open the investigation, based on payments to a sex worker network, in November 2018.

In January 2019, per Ziegler’s testimony, Delaware’s US Attorney’s Office first started looking into Hunter Biden. That same month, Rudy and Parnas met with Yuri Lutsenko in New York, where Rudy — who connected Trump in on the phone in the way Republicans falsely alleged Hunter connected his father in to weigh in on the substance of business deals — tried to trade access to Bill Barr in exchange for dirt on Hunter and $200K.

Giuliani continued to receive conspiracy theories from different sources, and remained insistent that there must be some data on the Bidens’ corruption. In late January 2019, my business partner Igor Fruman got word that Yuri Lutsenko, Shokin’s replacement as Ukraine’s Prosecutor General, was in New York and wanted to meet with Giuliani to discuss some legal matters. We set up the meeting in Giuliani’s office on Park Avenue. There, Lutsenko explained he’d requested the meeting because he wanted to sit down with Bill Barr and, Attorney General to Attorney General, discuss the overall problem of Ukrainian and American corruption, including the funneling of Ukrainian money into American institutions. Giuliani stopped Lutsenko and said he wasn’t interested in that, only in information concerning Joe and Hunter Biden. He then added statements to the effect that if Lutsenko wanted a conversation with Barr, he would need to offer a give and take, and Giuliani was interested in details about the Bidens.

[snip]

During the meeting, Giuliani stopped to call President Trump for about 3-5 minutes to update him on how the meeting was going with Lutsenko, and told Lutsenko that Trump was very happy with the help he was giving. He gave Lutsenko the thumbs-up. Lutsenko then promised that if we went to Ukraine, he would help us meet President Poroshenko and other officials who were dealing directly with the Burisma investigation. After the first meeting, Lutsenko kept pressuring Giuliani that he needed to meet Bill Barr. However, Giuliani eventually told Lutsenko he hadn’t provided enough information, and that the only way he could meet Bill Barr was if he retained Giuliani for $200,000. He then gave Lutsenko a “contract”. (It should be noted that Lutsenko refused to pay and to this day has never met Bill Barr.)

A few days later, Giuliani told me that he had decided that it might not be a good look for him to represent Ukrainian officials while representing Donald Trump, and introduced me to attorneys Victoria Toensing and Joseph DiGenova, who he said would represent Lutsenko instead. Later on, Giuliani told me that Toensing and DiGenova had agreed to split the $200,000 retainer fee in some part with him.

In April 2019, Ziegler’s investigation and DE USAO’s investigations were consolidated.

The next month, Rudy’s efforts started to incorporate Firtash, with Toensing and DiGenova again serving as the public face of the effort, but with Rudy allegedly sharing in the spoils.

Near the end of our trip to Paris, we were introduced to one of Igor Fruman’s associates, a friend who happened to be an employee of a Ukrainian oligarch named Dmitry Firtash, who had many political and business connections, including with the head of Burisma, Zlochevsky. When we returned to the U.S., we met with the BLT Team and John Solomon said Firtash’s help would be key because of his relationship with Zlochevsky.

The problem was that Firtash would prove nearly impossible to contact. He was also facing a serious extradition case to the U.S. for a number of bribery, racketeering and other charges since 2014. Solomon and Giuliani put together a package of documents regarding confidential information in Firtash’s case, and had me travel to Vienna in June 2019 to meet with Firtash, letting him know that Giuliani and our whole team were serious and that we could help him if he helped us. From June until the time of my arrest in October 2019, we had ongoing communications with Firtash.

In October 2019 — per notes taken by Leavitt’s client — FBI received the first official outreach from John Paul Mac Isaac about a laptop that appears to have been packaged up, during a period when Hunter Biden’s digital life shows signs of being compromised, after Ziegler had opened the investigation. That happened just days after Rudy, Parnas, and John Solomon had planned to go to Vienna to obtain a different instance of the “Hunter Biden” “laptop,” a trip that was forestalled by Parnas’ arrest and Barr’s warnings to (at least) Fox News.

In the early part of October 2019, I got a call telling me to go to Vienna with Giuliani, where the former Chief Financial Officer of Burisma, Alexander Gorbunenko, would meet Giuliani and give us Hunter Biden’s hard drive and answer any questions we had. My Ukrainian contacts also told me they would have Viktor Shokin in Vienna to give an interview to Sean Hannity of FOX News, because Shokin was supposed to appear in a Viennese court on behalf of Dmitry Firtash, giving sworn testimony in court that would basically be saying what Giuliani wanted him to say – that he was fired because of Joe Biden. (As mentioned earlier, Biden did make statements that he had helped to get Shokin fired, but Ukrainian investigations into the matter some years later concluded that Shokin had been terminated because of multiple cases of corruption while in office.)

I have text messages confirming all these plans, and all are among the materials I submitted to Congress during the first impeachment inquiry. These include messages from Hannity setting up the interview, and messages coordinating that Giuliani, Toensing, and I would go to Vienna to meet Burisma’s ex-CFO Gorbunenko. Just before we were to fly to Austria, there was a meeting at FOX News in Washington, because Solomon was appearing that night on Hannity’s show and Giuliani was appearing on Laura Ingraham’s. The BLT Team got together in a FOX conference room and discussed how we would blow up the story once we got Hunter Biden’s hard drive in Vienna.

Right in the middle of these seeming lockstep parallel investigations of Hunter Biden — by Bill Barr’s DOJ and by the then President’s lawyer all over Europe, and before offers of two laptops — both with ties to Rudy Giuliani — were made, two things happened.

On July 25, 2019, then President Donald Trump got on the phone with Volodymyr Zelenskyy and — after making a quid pro quo tying aid to the announcement of an investigation into Burisma — told Ukraine’s president that both Rudy and Barr would reach out.

I will have Mr. Giuliani give you a call and I am also going to have Attorney General Barr call and we will get to the bottom of it.

[snip]

I will tell Rudy and Attorney General Barr to call.

The next month, in August, Victoria Toensing and Joe DiGenova succeeded in scoring the meeting Firtash wanted with the Attorney General. The Rudy investigation and the Barr investigation met first at Trump’s hotel and then at DOJ. And the day after IRS got a warrant to access the Hunter Biden laptop seemingly packaged up after Joseph Ziegler was already investigating, DOJ told Barr they were sending him a laptop.

Whether or not that Dmitry Firtash meeting was an explicit meeting of the Rudy and the DOJ investigations, whether or not that laptop Barr obtained was the same one Rudy had a role in packaging up, we do know the investigations have since merged.

After the first press blitz about Gary Shapley — arranged in significant part by Tristan Leavitt — Bill Barr raised attention to an FD-1023 obtained via a channel he set up to ensure that Rudy could share information obtained from known Russian spies without being prosecuted for soliciting known Russian spies. In response, Shapley and Ziegler both complained that they hadn’t had access to an informant report the sole operative detail of which involved a 2019 call set up with Mykola Zlochevsky during impeachment, in which he used those politicized discussions to reverse his earlier admissions in order to claim to have made a bribe to Joe Biden. Remarkably, Shapley — lawyered by people with close ties to Chuck Grassley, who released the FD-1023 — claims to have known about the tainted Pittsburgh evidence in real time.

That is, even three years later (or perhaps, especially three years later) the IRS agents who should have seen Hunter Biden’s digital life get attacked if not packaged up for their own consumption are complaining they’re not able to pursue leads obtained via a channel catering to Russian spies.

It’s not surprising that you could look at this timeline and still have right wingers claim that Hunter Biden is the one who got favorable treatment. Those people don’t care if they reveal their cynical hypocrisy in pursuit of attacks on democracy.

What is surprising is that people claiming to be journalists wouldn’t immediately lay out how absurd that is. The “democracy dies in darkness” guys sitting on their own evidence about this stuff have assigned upwards six journalists to cover this story, but few have shown any curiosity about how the known political hit job on Hunter Biden ties to the wails of the sources whose own stories they don’t bother to test.

It is the collective stance of the entire Republican party, save Mitt Romney, that it’s fine for Dmitry Firtash to score a meeting with the Attorney General as part of an alleged quid pro quo to get an investigation into Hunter Biden, but it’s a sign of corruption for Hunter’s lawyers to point out that happened to DOJ.

The Republican party claims it is a sign of corruption to call out their own corruption.

And virtually every Hill journalist is playing along.

“Ebb and Flow:” How David Weiss Volunteered for a Subpoena, or Worse

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Politico and NYT have stories — relying on what Politico describes as, “more than 300 pages of previously unreported emails and documents exchanged between Hunter Biden’s legal team and prosecutors,” — chronicling the legal negotiations leading up to the failed Hunter Biden plea deal.

Politico’s, written by Betsy Woodruff Swan, is good.

NYT’s is not, in part because it dedicates a long passage to repeating Gary Shapley’s claims without noting the many things in his own testimony that discredit those claims, even while relying on props from Shapley’s testimony that have since been challenged. Luke Broadwater knows where his beat gets sweetened, and it is in treating James Comer like a credible person, not in exhibiting the critical thinking of a journalist.

When first published, the NYT couldn’t even get the date of the failed plea hearing, July 26, correct.

But hey — at least that error is less catastrophic than the one in a WaPo story on the same topic the other day, in which three reporters (at least two of whom never bother to hide their right wing allegiances, particularly when it pertains to chasing Hunter Biden dick pics) claimed that Joe Biden was now a “former” President.

For its errors and other problems, however, the NYT story is useful for the way in which it puts David Weiss at risk for his own subpoena.

Hunter Biden lays the groundwork for holding the government to their signed agreements

To understand why, a review of the current state of the (known) legal case is in order.

On August 11, as Merrick Garland was announcing that he had given David Weiss Special Counsel status, Weiss’ prosecutors filed a motion to dismiss the charges against Hunter Biden. After describing that, “When the parties were proceeding to a negotiated resolution in this matter, a plea in this District was agreed upon,” the filing said that because Hunter did not plead guilty, it may have to file charges in the district where venue lies. At the same time, Weiss also moved to vacate the briefing schedule in the gun diversion.

Judge Maryellen Noreika gave Hunter a day to respond to the motion to vacate. That response, signed by Chris Clark but including Abbe Lowell on the signature line, explained that Hunter planned to fulfill the terms of the gun diversion agreement, which the government had stated was a contract between the two parties.

[T]he Defendant intends to abide by the terms of the Diversion Agreement that was executed at the July 26 hearing by the Defendant, his counsel, and the United States, and concurs with the statements the Government made during the July 26 hearing,1

The Government stated in open court that the Diversion Agreement was a “bilateral agreement between the parties” that “stand[s] alone” from the Plea Agreement, and that it was “in effect” and “binding.”

But, “in light of the United States’ decision on Friday to renege on the previously agreed-upon Plea Agreement, we agree that those issues are moot at this point.” Effectively, Hunter’s team was saying they considered the gun diversion as still valid, recognized everything else was moot, and described that it was moot because the government had reneged on the terms of the deal.

Then Abbe Lowell entered his appearance in the case. And Clark moved to withdraw from the case because — given that the plea and diversion would be contested — he might have to serve as a witness.

Mr. Clark’s withdrawal is necessitated by recent developments in the matter. Pursuant to Delaware Rule of Professional Conduct 3.7(a), “a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless… disqualification of the lawyer would work substantial hardship on the client.” Based on recent developments, it appears that the negotiation and drafting of the plea agreement and diversion agreement will be contested, and Mr. Clark is a percipient witness to those issues. Under the “witness-advocate” rule, it is inadvisable for Mr. Clark to continue as counsel in this case.

Noreika never actually approved Clark’s withdrawal, but the defense team filed notice that Hunter consented to the withdrawal while the docket remained active.

Meanwhile, Noreika ordered the government to reply to Hunter’s response on the briefing, and ordered Hunter to respond to the thing she failed to ask about in the first place, whether he objected to the dismissal of the charges.

Hunter’s team agreed that the charges must be dismissed, but reiterated that the court had no oversight over the diversion agreement (which had been Noreika’s complaint from the start).

Without adopting the Government’s reasoning, as venue for the existing information does not lie in this District, the information must be dismissed.

Further, the Defendant’s position is that the enforceability of the Diversion Agreement (D.I. 24-1 in No. 23-cr-00061-MN) has no bearing on the United States’ Motion to Dismiss for Lack of Venue (D.I. 31 in No. 23-mj-00274-MN), and any disputes regarding the effect of the Diversion Agreement are therefore not before the Court at this time.

The government, meanwhile, filed a seven page reply attempting to claim that the government did not renege on the plea that had been negotiated in advance of its filing in June, by describing how after Hunter refused to plead guilty because Leo Wise, an AUSA who had not been involved in the original deal, claimed its scope was far narrower than Hunter understood, the parties did not subsequently agree on one to replace the signed deal Hunter entered into.

First, the Government did not “renege” on the “previously agreed-upon Plea Agreement,” as the Defendant inaccurately asserts in the first substantive sentence of his response. ECF 33, Def. Resp. at 1. The Defendant chose to plead not guilty at the hearing on July 26, 2023, and U.S. Probation declined to approve the proposed diversion agreement at that hearing.

Then Noreika dismissed the charges.

David Weiss may have plenty of time to argue with Lowell, relying on Chris Clark’s testimony, that he should not be held to the terms of signed agreements he entered into in June.

But the two important takeaways from all this are, first, that Hunter Biden is stating that before the plea hearing, Weiss attempted to change the terms of the signed plea deal, and second, that Chris Clark is no longer bound by any terms of confidentiality that will allow him to prove that’s true.

A senior law enforcement official speaks, illegally

These twin stories are a warning shot to Weiss — before Hunter even gets more discovery on all the other problems with this investigation — what that is going to look like.

Which brings me to the things for which the NYT is really useful: giving David Weiss or someone in his immediate vicinity an opportunity to cause David Weiss more problems.

Three times in the story, NYT provides anonymity to a “senior law enforcement official” to push back on the representation of the deal, including as laid out by documentary evidence. In one such instance, NYT helpfully notes that if Weiss commented, he would be violating DOJ policies and possibly the law (though the leaks in this story don’t appear to violate grand jury secrecy).

A spokesman for Mr. Weiss had no comment. He is legally barred from discussing an open investigation, and a senior law enforcement official with knowledge of the situation pushed back on the idea that Mr. Weiss had been influenced by outside pressures, and ascribed any shifts to the typical ebb and flow of negotiations.

In a second instance, this anonymous “senior law enforcement official” denies something — that David Weiss told an associate that “the average American would not be prosecuted for similar offenses,” the kind of assertion that might provide basis for an exceedingly rare successful claim of selective prosecution — that only David Weiss would know.

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

This chatty senior law enforcement official similarly denies something else that could bollox any further charges against Hunter Biden — that the only reason he “reneged” on the original terms of the plea deal are because IRS agents got journalists like the NYT’s to report claims of bias that their own testimony did not substantiate.

Now, the I.R.S. agents and their Republican allies say they believe the evidence they brought forward, at the precise time they did, played a role in influencing the outcome, a claim senior law enforcement officials dispute.

Now, normally, misconduct by a prosecutor like Weiss would be reviewed by the feckless Office of Professional Responsibility. But that’s less likely with a Special Counsel, because of the reporting structure for an SCO. And that’s particularly true here given the involvement of Associate Deputy Attorney General Bradley Weinsheimer in earlier discussions about the plea. Weinsheimer oversees OPR, and so any review by OPR presents a conflict. Indeed, Weiss may have asked to be made SCO precisely so he could escape the purview of OPR.

But to some degree that may not matter.

That’s because there are already parallel investigations — at TIGTA and at DOJ IG — into the leaking that occurred during this investigation. David Weiss was already going to be a witness in them, because Gary Shapley made claims about what Weiss said personally at a meeting on October 7, 2022, a meeting that was called first and foremost to discuss leaks.

So if Michael Horowitz wanted to subpoena Weiss to find out whether he was the senior law enforcement official denying things only he could deny, to find out whether days after being made a Special Counsel, Weiss decided to violate DOJ guidelines to which he still must adhere, the only way Weiss could dodge that subpoena might be to resign from both his US Attorney and his Special Counsel appointment.

And if Weiss and DOJ IG didn’t already have enough to talk about, there’s this passage from the NYT, with its truly epic use of the passive voice: “Mr. Weiss was quietly assigned,” by whom, NYT didn’t choose to explain.

NYT corrected their earlier error on the date of the failed plea hearing, but the date here is probably another: Both IRS agents and the FBI agent have testified that this occurred in 2019, not 2018. Indeed, Joseph Ziegler testified, then thought the better of it, in a period when Bill Barr was making public comments about all this, that Barr himself was involved, which would date it to February 2019 or later, in a period when Barr was engaged in wholesale politiciziation of the department. Who assigned Weiss to investigate Joe Biden’s son as Trump demanded it would already be a question for any inquiry into improper influence, but it’s nice for NYT to make it more of one, in a story otherwise repeatedly sourced to “a senior law enforcement official” who might know.

I don’t know whether Hunter Biden’s lawyers deliberately intended to bait Weiss into responding in the NYT. But under DOJ guidelines, he is only permitted to respond to these claims in legal filings, after Abbe Lowell makes it an issue after Weiss files an indictment somewhere, thereby confirming precisely the concerns raised in these stories and creating another avenue of recourse to address these issues.

But whether that was the intention or not, that appears to be what happened.

And that’s on top of the things that Gary Shapley and Ziegler have made issues by blabbing to Congress: describing documentation in the case file of 6th Amendment problems and political influence, the documentation showing that no one had validated the laptop ten months after starting to use it in the investigation, Lowell’s claims that after the IRS got a warrant for an iCloud account that probably relied on the tainted laptop, they did shoddy summaries of WhatsApp texts obtained as a result and mislabeled the interlocutors, and Shapley’s own testimony showing that he was hiding something in his own emails.

That’s on top of anything that Denver Riggleman’s work with the “Hunter Biden” “laptop,” the one Weiss’ office never bothered to validate before using, has produced.

Don’t get me wrong: if and when Weiss decides to charge Hunter Biden with felonies — and I assume he will (indeed, given that the Bidens are all together in Tahoe this weekend, he may have already alerted Biden to that fact) — it’s going to be hell for everyone, for the entire country. But the IRS agents demanding this happen will have made things far harder for Weiss going forward with their disclosures of details of misconduct conducted under Weiss’ watch.

Hunter’s lawyers have already documented the political influence behind this case

Swan’s story, but not the Shapley-parroting NYT one likely based on the same documents, describes that Hunter’s lawyers repeatedly raised the improper political influence on this case, starting with an April 2022 Powerpoint presentation on why DOJ would be stupid to charge Hunter.

In light of Trump’s ceaseless demands for an investigation of the first son, charging the younger Biden with tax crimes would be “devastating to the reputation” of the Justice Department, his lawyers asserted. It would look like the department had acquiesced to Trump’s political pressure campaign.

They noted that Trump had laid into Biden in his speech to the rowdy crowd right before the Jan. 6, 2021, attack on the Capitol. “What happened to Hunter?” the president said. “Where’s Hunter? Where’s Hunter?”

Biden’s lawyers argued that the political pressure was itself a compelling reason not to bring any charges. A move seen as caving to the pressure, they contended, would discredit the department in the public eye, especially if the Justice Department was only going to charge him with paying his taxes late.

Clark wrote Weiss directly in October 2022, in the wake of the October 6 leak, noting that the only reason an unusual (and potentially unconstitutional) gun charge had been added in the interim was pressure from Republicans.

On Oct. 31, 2022, he wrote directly to David Weiss, the U.S. attorney for Delaware who was overseeing the probe. Weiss had been appointed by Trump and had been allowed to stay on during Joe Biden’s administration to continue the investigation — and Attorney General Merrick Garland had pledged to give Weiss full independence.

But Clark argued in his letter to Weiss that charging Hunter Biden with a gun crime would torpedo public trust in the Justice Department.

Biden, Clark continued, didn’t use the allegedly purchased gun to commit a crime, didn’t buy another one and didn’t have any prior criminal record. No drug user had ever been charged with a felony in Delaware for buying a gun under those same circumstances, he wrote. Prosecutors, he alleged, were weighing gun charges for one reason: “the relentless political pressure from the opponents of the current President of the United States.”

After all, Clark noted, federal law enforcement officials had known about Biden’s gun episode since 2018. Only politics explained why years later they were considering charges, he argued.

In January, Clark did another presentation — the first one threatening to put Joe Biden on the stand to talk about how this case was targeted at him, not Hunter.

He said Joe Biden would undoubtedly be a witness at trial because of leaks about the probe. He wrote that just a few weeks before sending his letter, there had been two back-to-back leaks related to Hunter Biden and the gun issue. First, someone told The Washington Post that investigators thought Biden deserved tax and gun charges. Then a few days later, The Daily Mail reported on a voicemail Joe Biden left for his son in the window of time when he allegedly owned the gun. Surely the back-to-back leaks were part of a coordinated campaign to push the Justice Department to charge his client with crimes. And, Clark said, the leaks prompted the president to address his son’s legal woes the next day on CNN.

“There can be no doubt that these leaks have inserted President Biden into this case,” he said.

On April 26, Associate Deputy Attorney General Bradley Weinsheimer met with Hunter’s lawyers, which immediately preceded the efforts to reach a plea deal.

On May 11, Weinsheimer thanked Clark for the meeting and told him Weiss would handle the next steps. The prosecutors appeared to be nearing the end of their investigation, and they were ready to make a deal. This type of process is not unusual in high-profile white collar investigations where the targets of the probes have engaged with the government and signaled openness to pretrial resolution.

On May 18, another lawyer for Biden sent two Delaware prosecutors — including Lesley Wolf, a senior prosecutor in the Delaware U.S. Attorney’s Office — the first draft of a proposed deal, structured so it wouldn’t need a judge’s sign-off and wouldn’t require a guilty plea from Biden.

As noted, Weiss may have used Weinsheimer’s intervention to justify his request to be appointed Special Counsel, but if he did it may backfire.

At each stage, after another wave of pressure from Republicans, the ask from prosecutors got bigger and bigger, first to include the gun, then to include a guilty plea with diversion.

That’s what the anonymous senior law enforcement official claims was just “ebb and flow.”

On June 7, the immunity agreement was written as follows.

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. This Agreement does not provide any protection against prosecution for any future conduct by Biden or by any of his affiliated businesses.

In the wake of the failed plea, prosecutors demanded that all immunity language be stripped, a truly insane ask.

No wonder Hunter’s lawyers are furious.

No wonder Clark dropped off the case, to be replaced by a far more confrontational Abbe Lowell, so he could lay all this out.

NYT describes that David Weiss thought that being provided Special Counsel status, “could provide him with added leverage in a revamped deal with Mr. Biden,” which is not something included in the Special Counsel regulations. Those regulations especially don’t envision getting that status for the purpose of reneging on already signed deals.

Abbe Lowell (who is not named in either of these stories) has something else entirely in mind.

Gary Shapley used notes that utterly contradict his public claims to dupe credulous reporters like Broadwater to build pressure on Weiss. Hunter’s team laid out that long before that, they had made the case that this prosecution was designed to target Joe Biden. Since then, they’ve identified at least one witness who could testify that Weiss is pursuing charges he knows other Americans wouldn’t face and learned of another — Ziegler’s first supervisor — who documented improper political influence from the start.

That’s before getting discovery that may show how Ziegler sat and watched as Hunter Biden’s digital identity got stolen and rather than doing anything to halt that attack in process, instead responded by deciding to charge Biden, not those tampering with his identity.

Sure. Weiss can charge the President’s son now — and he may well have already refiled tax charges in California.

But like his bid to renege on the original terms of the plea deal, that may not work out the way he thinks.