Posts

David Weiss’ Rush Job on Alexander Smirnov’s Sentencing

As I noted in an update to this post, Alexander Smirnov, the FBI informant who attempted to frame Joe Biden with bribery in 2020 as part of Bill Barr’s side channel for dirt on Hunter Biden, has pled guilty.

In his plea deal, Smirnov admitted,

The events Defendant first reported to the Handler in June 2020 were fabrications. In truth and fact. Defendant had contact with executives from Burisma in 2017, after the end of the Obama-Biden Administration and after the then-Ukrainian Prosecutor General had been fired in February 2016 — in other words, when Public Official 1 could not engage in any official act to influence U.S. policy and when the Prosecutor General was no longer in office. Defendant transformed his routine and unextraordinary business contacts with Burisma in 2017 and later into bribery allegations against Public Official 1, the presumptive nominee of one of the two major political parties for President, after expressing bias against Public Official 1 and his candidacy.

Yesterday, Judge Otis Wright accepted Smirnov’s plea.

I’ll have a more substantive post about how David Weiss, along with an absolutely supine media, appears to have buried the frame job to which he was a witness.

For now, I want to point to a notable feature of the plea: the timing of it. One of the terms of the deal was that Smirnov agree to be sentenced within 30 days of his plea colloquy, but not before January 8.

3. Defendant agrees to:

a. At the earliest opportunity requested by the SCO-W and provided by the Court, appear and plead guilty to:

i. Count Two of the indictment in United States v. Alexander Smirnov, 2:24-CR-00091-ODW, which charges defendant with causing the creation of a false and fictitious record in a federal investigation, in violation of 18 U.S.C. § 1519 (hereafter the “obstruction of justice indictment”).

ii. Counts One, Five and Eight, of the indictment in United States v Alexander Smirnov, 2:24-CR-00702-ODW, which charges the defendant with tax evasion for tax years 2020, 2021 and 2022, in violation of 26 U.S.C. § 7201 (hereafter the “tax evasion indictment”).

b. Request that the Court sentence the defendant within 30 days of entry of the entry of his guilty pleas, but not sooner than January 8,2025

In yesterday’s plea, Judge Wright set that schedule in motion.

The Court refers the defendant to the Probation Office for the preparation of an EXPEDITED presentence report and continues the matter to January 8, 2025 at 10:30 a.m., for sentencing. Position papers are due 2 weeks before the sentencing. If the papers are NOT submitted in time, they will not be considered.

All dates other than the sentencing hearing date are vacated as to this defendant.

Counsel are notified that Federal Rule of Criminal Procedure 32(b)(6)(B) requires the parties to notify the Probation Officer, and each other, of any objections to the Presentence Report within fourteen (14) days of receipt. Alternatively, the Court will permit counsel to file such objections no later than twenty-one (21) days before Sentencing. The Court construes “objections” to include departure arguments. Requests for continuances shall be filed or requested no later than twenty-one (21) days before Sentencing. Strict compliance with the above is mandatory because untimely filings impede the abilities of the Probation Office and of the Court to prepare for Sentencing. Failure to meet these deadlines is grounds for sanctions. [bold original]

It’s hard to convey how impossibly aggressive this timeline is. Three months to sentencing is more common than 23 days. After Hunter pled guilty on September, for example, his sentencing was set for December 16, more than three months in the future.

As the paragraph above notes, the only way the parties could even dispute anything in the presentence report (one was drafted for Smirnov’s detention fights, but a PSR would need to test the sentencing guidelines prosecutors adopted for the plea, which recommends 48 to 72 months in prison), would be to object tomorrow. And the two sides have just over a week to get their sentencing guidelines in.

This entire plea was an effort to get Smirnov to be sentenced on (but not before) January 8.

I’m not sure what leverage prosecutors used to get Smirnov to agree to this schedule; it’s not like the 4-year proposed sentence is that generous.

Perhaps Smirnov wants what prosecutors are likely pursuing: the opportunity for prosecutors to write a very damning closing Special Counsel report before Weiss gets fired, either by Joe Biden or Donald Trump. Perhaps this is a bid to harm Joe Biden while he remains President, for depriving prosecutors of the glee of sentencing his son.

We’ll know soon enough.

Update: There’s one more reason why this rush to, uh, judgment is so curious. As noted, the plea included a fairly stiff 48-72 month sentence.

18. Defendant and the SCO-W agree that the base offense level for Count Two in the obstruction indictment is 14, pursuant to U.S.S.G. § 2J1.2(a)(2) and the base offense level for Counts One, Five and Eight is 20, pursuant to U.S.S.G. § 2T4.1(H). Defendant and the SCO-W reserve the right to argue that additional specific offense characteristics, adjustments, and departures under the Sentencing Guidelines are appropriate.

19. Defendant and the SCO-W agree that, taking into account the factors listed in 18 U.S.C. § 3553(a)(l)-(7) and the relevant sentencing guideline factors, an appropriate disposition of this case is that the Court impose a sentence of: no less than 48 months and no greater than 72 months’ imprisonment; 1 year supervised release with conditions to be fixed by the Court; $400 special assessment; $675,502 restitution and no fine. The parties also agree that the defendant is entitled to credit in both Cr. Nos. 24- 91 and 24-702 for the period of his pretrial detention since the day of his arrest and that credits that the Bureau of Prisons may allow under 18 U.S.C. § 3585(b)) may be credited against this stipulated sentence, including credit under Sentencing Guideline § 5G1.3

But according to the sentencing table, the base assessment for Smirnov’s false statement of 14 would result in a range of 15-21 months (though those ranges are almost never actually applied for obstruction). And the 20 base assessment for Smirnov’s tax evasion (for three years, as compared to Hunter’s one) would be 33-41 months, assuming they were both applied with a no criminal history category.

Those add up to 48 to 62 months, not 48 to 72 months.

No defendant would agree to these terms before a tough judge (as Otis Wright is), unless he were certain that he’d soon be pardoned. There’s not even language stipulating how much credit Smirnov would get for pleading guilty (usually 2-3 points, which might bring the range down to 49 months).

This plea deal is designed to result in a wildly overinflated sentence (as it happens, for crimes equivalent to those that Hunter Biden was convicted of), all scheduled before Joe Biden leaves office.

Chuck Grassley Says the FBI Must Combat Sexual Misconduct But the Senate Can Whitewash It

In a piece billed as “analysis” describing why Kash Patel likely faces little Republican opposition, the NYT’s Catie Edmondson chose to quote one after another Republican making false claims about bias from the Bureau:

  • Thom Tillis falsely claiming Patel’s nomination fulfilled Trump’s promise to “enforce our laws equally and fairly”
  • Chuck Grassley lying that the “unprecedented raid of President Trump’s home in Florida” was “to serve a warrant for records” and not conduct a search necessitated by Trump’s earlier obstruction
  • Joni Ernst imagining that Kash’s nomination would “create much-needed transparency at the F.B.I”
  • John Cornyn asserting that “no one should have to go through what President Trump went through by a partisan Department of Justice and F.B.I.,” which he falsely portrayed as a retribution tour launched by Jim Comey
  • Markwayne Mullin imagining that Kash might “actually get them focused on mission, rather than politics”

What the NYT describes but does not factually label is that most of the Republican party either parrots or truly believes Donald Trump’s manufactured claims of victimhood. But unless you describe that those claims that poor Donald Trump has been targeted are false, then you simply participate in the propaganda, blindly performing the same ritual of obeisance the Republican Senators are.

NYT quotes, but does not link, the letter in which Grassley issued his rant. Fact checking the letter (sent the day before Chris Wray announced he would resign, as Grassley demanded) might have provided a way to demonstrate the pile of false claims on which this impression of the FBI was built.

Oh sure, this particular journalist might not have had time to point out that on December 10, Alexander Smirnov answered any questions about the bribery claim he made up against Joe Biden by signing a plea deal (which the NYT wrote up yesterday, but buried), which Grassley complained about this way:

Consistent with that FBI failure, yet another glaring example of FBI’s broken promises under your leadership is its inexcusable failure to investigate bribery allegations against former Vice President Joe Biden, while strictly scrutinizing former President Trump. You’ve repeatedly claimed you would ensure the FBI does justice, “free of fear, favor, or partisan influence.”25 The FBI under your watch, however, had possession of incriminating information against President Biden for three years until I exposed the existence of the record outlining those allegations, but did nothing to investigate it.26 This record, known as an FD-1023, documented allegations of bribery between and among then-Vice President Biden, Hunter Biden, and Ukrainian officials.27 The FBI confidential human source (CHS) behind this FD-1023 was on the FBI’s payroll during the Obama administration, paid hundreds of thousands of dollars, was given permission to violate the law, and the information he provided was used in prosecutions. The FBI called this CHS “highly credible,” and Deputy Director Abbate publicly testified in response to the FBI’s refusal to remove obstructive redactions from that document that “[w]e often redact documents to protect sources and methods…the document was redacted to protect the source as everyone knows, and this is a question of life and death, potentially.” 28 Then after the FD-1023 was made public – which didn’t include the source’s name – DOJ not only publicly named him, but indicted him, calling into question the truthfulness of Deputy Director Abbate’s testimony and his refusal to be transparent.29 Still, to-date, the DOJ and FBI have neither answered whether they investigated the substance of the FD-1023, nor have they provided an explanation for any effort undertaken to obtain the financial records and other pieces of evidence referenced within the document. This sounds a lot like Director Comey’s leadership of the FBI, which was nothing short of shameful.

As I noted on the Senate floor on February 27, 2024, if a highly regarded source had alleged President Trump accepted a bribe, the FBI would pursue this information without keeping it stored away in one of its dusty closets for three years.30

Even before Smirnov’s plea agreement, though, there was plenty in the indictment (like reference to all the travel records that disprove Smirnov’s claims) that not just debunk Grassley’s claims, but make clear that the scandal here was that Scott Brady falsely insinuated to Congress that Smirnov’s travel records corroborated his claims, when they did the opposite.

There’s a far, far bigger problem though: Grassley’s claims about how FBI would respond to a claim of bribery if one implicated Trump are ridiculous.

When FBI (in reality, the decisions here were repeatedly made by DOJ, not FBI, which returning SJC Chair Grassley should be expected to know) got credible claims Trump had been paid by Egyptian spooks, first Robert Mueller (probably Rod Rosenstein), then Bill Barr prevented investigators from obtaining the financial records to pursue the case, a version of which story NYT published in August.

There’s the tip that — the NYT described — the Italians gave Barr and John Durham in 2019 about “suspicious financial dealings related to Mr. Trump,” a detail Durham chose to exclude from his final report.

There’s the $2 billion investment that Saudis made with Jared Kushner after Trump’s son-in-law finished his nepotistic service in the White House; as the NYT laid out, even the Saudis had doubts that Kushner had the expertise to invest that money. A NYT follow-up showed that Kushner’s firm has pocketed $112 million in fees without showing any profit from investments. Democrats have called for a Special Counsel to investigate that, but the Special Counsel-happy Merrick Garland has not done so.

And since the election, a Chinese national whom the SEC has accused of fraud, Justin Sun, effectively just sent Donald Trump $18 million (here’s a less direct NYT story on the how cryptocurrency creates real opportunity for corruption). Where’s your call for fairness, Chuck?

But there were alternative ways to debunk Grassley’s lies other than pointing to the six NYT stories that disproved his claims that FBI ignored a bribery allegation about Biden but chased them with Trump. Consider his most justified complaint, the one with which he begins his rant: The FBI has not explained whether it has pursued allegations of sexual misconduct within its own ranks fairly.

One of the most egregious examples is the FBI’s failure to provide basic information I requested more than two years ago related to the FBI’s ongoing mishandling of sexual harassment claims made by the FBI’s female employees. This request was not pulled out of a hat. It was based on credible whistleblower disclosures alleging hundreds of FBI employees had retired or resigned to avoid accountability for sexual misconduct. 5 Whistleblowers also alleged the FBI had disciplined senior officials less severely than their subordinates for this misconduct.6 In November 2022, I released internal FBI documents corroborating these disclosures.7 I and my staff ever since have asked repeatedly for information sufficient to determine how FBI handled these serious claims and how widespread the problem really is. The FBI, for its part, told the media it would provide the information to me.8 You personally told me at a December 5, 2023, Judiciary Committee hearing, when I confronted you with the FBI’s blatant inaction, that you would check with your team and then follow up with me.9 Your Deputy Director, Paul Abbate, also publicly stated the FBI is serious about removing officials for sexual misconduct. 10 After a year since you made that pledge, over three years since Deputy Director Abbate’s public comments, and after many more requests to FBI to provide this information, neither of you have followed up or followed through. This inexcusable delay and obstruction by you and Deputy Director Abbate has prevented Congress and the Judiciary Committee from addressing the shocking sexual misconduct at the FBI. This is a promise made and broken, on an issue of utmost importance.

Chuck Grassley says FBI’s failure to deal with credible claims of sexual misconduct is “an issue of utmost importance.”

Huh.

Grassley has not yet weighed in on the nominations of Pete Hegseth, Linda McMahon, or Kimberly Guilfoyle — all of whom have been implicated in sexual harassment or assault, but his comments about RFK Jr thus far have focused on, “educating him about agriculture,” rather than the assault of a nanny RFK admitted to. Other Senators, though, have suggested that Hegseth’s accusers should not enjoy the same protections that Grassley has fiercely defended for FBI whistleblowers, and have brushed off how Hegseth’s accuser could testify publicly given the nondisclosure agreement he paid her to sign.

More curiously, when he was asked about the sexual misconduct allegations against Matt Gaetz, Grassley falsely claimed his committee, “did a very thorough job following up on every accusation made against (Supreme Court) Justice Kavanaugh and nothing ever materialized.” Grassley said that after Sheldon Whitehouse issued a report showing that the FBI had forwarded all tips to the White House, rather than chasing them down.

On instructions from the White House, the FBI did not investigate thousands of tips that came in through the FBI’s tip line. Instead, all tips related to Kavanaugh were forwarded to the White House without investigation. If anything, the White House may have used the tip line to steer FBI investigators away from derogatory or damaging information.

Whitehouse’s report describing the whitewash FBI did quotes now-debunked claims Grassley made about the thoroughness of the investigation several times.

“These uncorroborated accusations have been unequivocally and repeatedly rejected by Judge Kavanaugh, and neither the Judiciary Committee nor the FBI could locate any third parties who can attest to any of the allegations.”

[snip]

Then-Chairman Grassley said that the FBI “decided” which individuals to contact,98 that the FBI’s investigation was being conducted “in accordance with the agency’s standard operating procedures,” that “the career public servants and professionals at the FBI know what they’re doing and how best to conduct a background investigation,” and that the FBI’s investigation “should be carried out independent of political or partisan considerations.”

If you want to talk about FBI’s inadequate response to sexual misconduct allegations, then surely its whitewash of allegations against Brett Kavanaugh should be included? Want to complain about the FBI? Complain about how they deprived you, Chuck Grassley, of treating misconduct claims against Brett Kavanaugh as “an issue of utmost importance.”

But doing so would expose Grassley’s crass double standard, refusing to exercise the same due diligence with sexual misconduct allegations that, he complains, the FBI has not done in his own job, exercising advice and consent with Donald Trump’s nominees.

David Weiss Dons His “Let’s Go Brandon” Frame

In a bid to defeat a motion in limine from Alexander Smirnov prohibiting mention of his nine lawfully owned guns, David Weiss’ prosecutors revealed that they only want to use the guns, if necessary, to prove ownership of other things found in a search of Smirnov’s home, including an anti-Biden hat.

On February 21, 2024, after securing a search warrant signed by United States Magistrate Judge Brenda Weksler, FBI agents executed a search of the defendant’s residence in Las Vegas. During the search, agents found nine firearms. Agents also found other items, including electronic devices, and other evidence, such as a hat emblazoned with an anti-Public Official 1 euphemism. These items are directly relevant to the charges in this case. For example, the government plans to introduce communications found on the defendant’s electronic devices that similarly evidence bias again Public Official 1. And the hat seized from his residence demonstrate the same bias, which bears on the defendant’s motive in providing the FBI with false derogatory information about Public Official 1, who was a candidate for President of the United States, in the months leading up to the 2020 election.

On one level, by all means, show us Alexander Smirnov’s Let’s Go Brandon hat! It’ll work wonders in Los Angeles!

On another level, I can’t help but think that David Weiss’ team has just given Smirnov (who might well get a pardon anyway after Trump is inaugurated) a case for selective prosecution.

Smirnov, recall, is accused of lying to the FBI and in so doing causing the filing of a false report.

But these very same prosecutors — Derek Hines and Leo Wise — were in the last year faced with witnesses with an anti-Biden bias, the guy who sold Hunter Biden a gun in 2018 and the Delaware cop who first spoke to the gun shop owners, the former of whom (according to a filing from Abbe Lowell) similarly caused a false document to be filed, the gun purchase form to which his staffer belatedly added a claim that Hunter had provided a second form of ID when he purchased the gun. Hines and Wise have not charged those people, even though they reportedly sent WhatsApp texts during the 2020 election in an effort to publicize the gun purchase, the same kind of biased messages that Hines and Wise intend to submit to prove their case against Smirnov.

It also reveals a now-exposed attempt by the gun store to fabricate a false narrative about the gun sale. Palimere said the addition of the seller transaction serial number (“5,653”) may have been added on October 26, 2018. (TAB 4, Palimere FD-302 at 4). He said the vehicle registration reference was added in 2021. Yet, the government provided WhatsApp communications from October 2020 and February 2021 between Palimere, friends of his, and then-Delaware state trooper Vincent Clemons3 (see TABs 6 – 6C), all of which refer to the form, a plan to send it to others, needing to get their stories straight about what occurred in 2020, and wanting the gun sale issue and the form exposed during the Presidential campaign.

3 Not to be lost is the fact that Clemons was the Delaware State Police officer who first arrived at Janssens’ grocery store on October 23, 2018 when Hallie Biden threw a bag containing the handgun into a trash can in front of the store. It was Clemons who took statements about the handgun from both Hallie and Hunter Biden and was part of filling out an official police report on the issue. Two years later, he is in the communications with Palimere about the Form 4473, one of which states: “Yep your side is simple – Hunter bought a gun from you, he filled out the proper forms and the Feds approved him for a purchase.” (emphasis added). Palimere later responded, “I’ll keep it short and sweet as well: Hunter bought a gun. The police visited me asking for verification of the purchase and that’s all I can recall from that day. It was over 2 years ago.” (TAB 6B, 10/26/20 Palimere-Clemons Texts at 4, 6.) The reference to filling out the “proper forms” is not lost on defense counsel given what transpired thereafter. And, despite the importance of Clemons (e.g., the person who actually took the statements), the Special Counsel is foregoing him as a witness to call two other Delaware officers instead.

I’m at a loss to imagine how Hines and Wise would distinguish the doctored gun form from the FD-1023 from Smirnov they claim is false. Both were an effort to criminalize the Biden family during the 2020 election. If anything, the retroactively doctored gun purchase form was more dangerous. And yet Hines and Wise charged Smirnov but didn’t charge the gun shop owner. Indeed, they successfully buried precisely the kind of texts showing bias they want to use against Smirnov.

This apparent double standard regarding doctored forms comes even as prosecutors are trying to prevent Smirnov from invoking Hunter’s failed plea hearing to claim (falsely) that Hunter got a sweetheart plea deal. In a filing signed by Wise, prosecutors claim that Smirnov was not mentioned at Hunter’s failed plea hearing, and so he would have no evidentiary reason to rely on the transcript.

[C]ontrary to the defendant’s representation, in the 110 pages of transcript attached to his motion, there is not a single reference to (1) the defendant or this prosecution, (2) “the sitting President,” (3) any accusations against the defendant, (4) the defendant’s “loyal service” to the FBI, or (5) that the defendant was a “Russian Spy.”

I asked Weiss’ spox whether Leo Wise was really claiming that Smirnov went unmentioned. “We will decline to comment beyond our statements and filings in court,” he replied.

But when Leo Wise responded to Judge Maryellen Noreika that, yes, even though Hunter Biden had been assured a month earlier there was no ongoing investigation, that there was in fact was an ongoing investigation,

THE COURT: All right. So you said there might be additional charges. Are you at liberty to tell us what you’re thinking those might be or is that just a hypothetical that there might be?

MR. WISE: It was a hypothetical response to your question.

THE COURT: Is there an ongoing investigation here?

MR. WISE: There is.

THE COURT: May I ask then why if there is we’re doing this piecemeal?

MR. WISE: Your Honor may ask, but I’m not in a position where I can say.

And then said he could still charge FARA violations,

MR. WISE: So I can tell you what I think we can’t charge. I can’t tell you what the ongoing investigation is. So, for instance, I think based on the terms of the agreement, we cannot bring tax evasion charges for the years described in the factual statement to the Plea Agreement. And I think we cannot bring for the firearms charges based on the firearm identified in the factual statement to the Diversion Agreement.

THE COURT: All right. So there are references to foreign companies, for example, in the facts section. Could the government bring a charge under the Foreign Agents Registration Act?

MR. WISE: Yes.

And then got Special Counsel status that would only be required if Weiss were pursuing something implicating Joe Biden — like Smirnov’s bribery claim — he almost certainly was invoking Alexander Smirnov.

Wise made that claim even while Smirnov was still fighting to obtain material on David Weiss’ decision to chase the Smirnov allegation (there was a hearing on this yesterday, but nothing is docketed on it yet).

The Defendant requested communication related to the request that U.S. Attorney David Weiss’s team “assist” with “an investigation of allegations” related to the FD-1023. The government refuses to produce this material and ignores that fact that the government chose to include the following language in the Indictment: “In July 2023, the FBI requested that the U.S. Attorney’s Office for the District of Delaware assist the FBI in an investigation of allegations related to the 2020 1023. At that time, the United States Attorney’s Office for the District of Delaware was handling an investigation and prosecution of Businessperson 1.” Accordingly, not only did the government, in its Indictment, place the communications at issue, it is clear that the communication are relevant and discoverable. This request has been outstanding since March 5, 2024.

And the apparent double standard comes as Smirnov is attempting to put the conduct of Smirnov’s FBI handler — the guy who didn’t take alarm when Smirnov sent him already debunked Fox News disinformation — at issue.

The dispute over the handler’s conduct is taking two forms. First, prosecutors are trying to exclude Smirnov’s expert witness Gregory Scott Rogers, a former FBI agent who would testify to errors that Smirnov’s handler made. They’re also trying to exclude the content of three reports on the handling of Smirnov.

It has, predictably, declined into a display of prosecutorial dickishness.

In their motion to exclude Rogers, for example, the same prosecutorial team who claimed sawdust was cocaine made much of the that Smirnov’s expert witness said “upmost” instead of “utmost.”

Next, the disclosure states, “A CHS providing the type and amount of information provided by Smirnov should be handled with the upmost [sic.] diligence.” Disclosure at 5. According to Merriam-Webster, “upmost is frequently used as a mistaken spelling of utmost in its adjective and noun forms.” https://www.merriamwebster.com/grammar/utmost-vs-upmostdifference#:~:text=In%20its%20dictionary%20sense%2C%20upmost,its%20adjective% 20and%20noun%20forms (last viewed by author on November 1, 2024). The government assumes that Rogers meant to say “utmost,” but the fact that he can’t even produce an error free disclosure speaks to the quality of his proposed testimony. In any event, like his opinion that the defendant was “poorly handled,” his opinion that the defendant should have been handled with the “upmost diligence” is also undefined. So what does “upmost diligence” mean? The disclosure doesn’t tell us.

Of course, these prosecutors aren’t above making their own typos, as when a filing signed by Leo Wise uses “again” instead of “against.”

For example, the government plans to introduce communications found on the defendant’s electronic devices that similarly evidence bias again Public Official 1.

Yet they want to treat far more significant errors made by Smirnov’s handler as “essentially ministerial errors.”

Among the errors documented in the Source Reports include getting Smirnov’s name and birth country wrong.

The reports are also critical to the defense, including based on the anticipated testimony of the Defendant’s noticed expert. For example, in the February 13,2013, Field Office Annual Source Report, FOASR, the following deficiencies were noted:

1. The Handler failed to give the CHS extraterritorial travel admonishments;

2. The Handler allowed the CHS to conduct otherwise illegal activity, OIA, outside of approved time periods;

3. The Handler documented the CHS’s true name in the wrong CHS subfile;

4. The Handler placed an unrelated CHS’s NCIC record in this CHS’s file;

5. The Handler identified the wrong country of birth for this CHS in his file;

6. The Handler failed to document appropriate receipts for payments to the CHS;

7. CHS was allowed to conduct personal international travel without appropriate approval and documentation in his file.

In a later Standard Validation Report covering 2013-2021 it was noted:

1. HA continued to fail to appropriately obtain approval and document CHS’s international travel;

2. Derogatory information reported about the CHS and more unreported/undocumented otherwise illegal activity, OIA.

In the Source Validation Report for the period March, 2021-November, 2023 FBIHQ recommended that FBI Seattle, the office where the HA had transferred to from FBI San Francisco in 2019 and brought Smirnov’s file with him, stop operating the CHS noting that they believed that the CHS was no longer fully under the HA’s control, may be committing unauthorized illegal activity, UIA, and concern that the media’s reporting of the CHS’s information concerning the Biden family’s influence peddling in Ukraine would vitiate his ability to continue to function as a CHS. In that same document, it was recommended that CHS be polygraphed. Based upon the records provided by the government, it does not appear that a polygraph of Mr. Smirnov was ever scheduled or conducted.

Smirnov claims he can prove that he said and did things with his handler that did not get documented. If he can prove that, then it’s going to be hard for prosecutors to prove that Smirnov’s claims are lies rather than that the FBI agent fucked up.

That said, there’s something more interesting about the validation reports on Smirnov: They go through November 2023 and still treat him as a viable informant. November is when, on November 7, David Weiss said the Brady side channel would only appear in his final report. November is when, on November 15, Abbe Lowell asked for discovery on the side channel. And November is when, on November 16, CNN reported that the FBI had dropped its pursuit of FARA and bribery allegations.

Smirnov’s lawyers are right there’s a tie between how Hunter Biden was treated and why he was charged. But they’ve got the emphasis wrong.

All the evidence suggests that prosecutors had to charge him or risk their Hunter Biden case too.

Filings

September 26: Smirnov motion to continue

September 27: Weiss response on motion to continue

October 14: Smirnov warns of motion to compel

October 15: Judge Otis Wright denies continuance

October 28: Government response to discovery

October 31: Smirnov reply on discovery

October 31: Smirnov motions in limine

November 1: Government motions in limine

November 4: Renewed bid to continue trial based on delayed discovery

November 5: Motion to dismiss for discovery violations

November 5: Opposition to renewed bid to continue

November 8: Judge Wright denies motion to compel

November 12: Response to motion to dismiss on discovery violations

November 15: Defense response to motions in limine

October 31: Government response to motions in limine

David Weiss Chose Not to Record the Alexander Smirnov Interview He Attended

Alexander Smirnov has started filing motions in limine. I’ll return to them after Tuesday.

But for the moment I want to flag a detail he included in a motion to exclude the interview he had on September 27, 2023.

The interview takes up four pages of the indictment. In addition to providing varying statements about the charged false statement — that is, that in a call in 2019, Mykola Zlochevsky accused Joe Biden of accepting a bribe — Smirnov allegedly told a new false story, one that is not charged. he claimed that Hunter Biden had been recorded at the Premier Palace in Kyiv. As the indictment pointed out, that was obviously false, as Hunter Biden had never been to Kyiv.

I’ve always argued that that was an attempt to string on investigators, to give them more dirt on Hunter Biden, precisely what (I speculated) Smirnov perceived that they wanted.

But it was not charged for any of the claims he made in that interview, in which he substantially restated the initial false claim.

This may be why: His motion in limine describes that Special Counsel — that is, David Weiss — attended the interview, and it was not recorded.

Despite seeking an Indictment based solely on statements made in June 2020, Mr. Smirnov understands that the Government intends to introduce statements Mr. Smirnov allegedly made more than three years later, during his interview the FBI on September 27, 2023. Special Counsel was present at this interview, which was never recorded.

This is not — not remotely!! — how you approach an interview with a guy you suspect of lying.

On the contrary, it’s how you approach an interview with someone you’re still treating as a witness against someone else.

This strongly suggests that as late as September 27, 2023 David Weiss was still chasing the effort, launched by Bill Barr’s DOJ, to frame Joe Biden.

As I’ll explain more next week, there are other elements that suggest Weiss and his prosecutors are trying to hang all this exclusively on Smirnov.

How to Fact Check Trump’s Lies about His Document Case

I just won the case in Florida. Everyone said that was the biggest case, that was the most difficult case. And I just won it.

Biden has a similar case, except much worse. I was protected under the Presidential Records Act. Biden wasn’t, because he wasn’t President at the time. And he had 50 years worth of documents, and they ruled that he was incompetent, and therefore he shouldn’t stand trial.

And I said, isn’t that something? He’s incompetent and he can’t stand trial — and yet, he can be President. Isn’t that nice? But they released him on the basis that–

[Goba attempts to interrupt]

— that he was incompetent. They said he had no memory, nice old guy, but he had no memory. Therefore we’re not gonna prosecute him.

I won the case. It got very little publicity. I didn’t notice ABC doing any publicity on it, George Slopodopoulos. I didn’t notice you do any publicity on it at all.

[Scott tries to interrupt]

I won the case, the biggest case. This is an attack on a political opponent. I have another one where I have a hostile judge

Scott: Sir, if you don’t mine, we have you for a limited time. I’d love to move onto a different topic.

Trump: No excuse me, you’re the one that held me up for 35 minutes.

The three women who attempted to interview Trump yesterday had an uneven performance. At times, their questioning flummoxed Trump. But in several cases, when he took over the interview, they just sat there silently as he lied at length.

A particularly egregious moment came in his false claims about the parallel investigations into his and President Biden’s retention of classified information. Trump told several lies without (successful) interruption. It was an unfortunate missed opportunity for correction, because Trump repeats these lies in his stump speech all the time, and it may be some time before someone competent has the ability to correct them in real time again.

Since Trump is going to keep telling the lie, I’d like to talk about how to fact check it.

Elements of the Offense

It starts with the elements of the offense — the things that prosecutors would have to prove if presenting this case to a jury. While Aileen Cannon has entertained doing fairly novel things with jury instructions, a model jury instruction for 18 USC 793(e), the statute considered with both men, includes the following five elements:

Did the defendant have possession of documents without authorization? The investigations into both Trump and Biden started when the Archives became aware that they had classified documents at their home. Contrary to what Trump said, the Presidential Records Act applies to both him and Biden, insofar as both were required to turn over any document that was a Presidential record when the Administration in which they served ended. That’s the basis of the proof that they had unauthorized possession of the documents that happened to be classified. That said, the PRA has an exception, however, for, “diaries, journals, or other personal notes serving as the functional equivalent of a diary,” which is relevant to why Biden wasn’t charged in two of four items Robert Hur considered charging seriously.

Trump has claimed that he had the ability to convert Presidential Records — even highly classified ones — into personal records, and thereby to take them home. But if this ever goes to trial, prosecutors would show that Trump first espoused that theory, which he got from non-lawyer Tom Fitton, in February 2022, long after the time he would have had to convert the documents to personal records.

Did the document in question relate to the national defense? The question of whether a document is National Defense Information or not is left to the jury to decide. That’s likely one reason why Jack Smith’s team included a bunch of highly classified documents among those charged. Generally, juries are asked to decide whether the government continues to take measures to keep a charged document secret, and whether it has to do with protecting the United States. A number of the documents charged against Trump pertain to either the US or other countries (like Iran’s) nuclear weapons programs.

Did the defendant have reason to believe the information could be used to the injury of the United States or to the advantage of any foreign nation? Generally, prosecutors prove this by pointing to training materials cleared personnel get on classified information, and that’s one reason Jack Smith obtained the letters Trump’s White House sent out about classified information. With both Trump and Biden, however, prosecutors would also rely on their public comments talking about how important it is to protect classified information. In Trump’s case, prosecutors would or will use both the things he said to Mark Meadows’ ghost writer and Susie Wiles when he shared classified information, but also the things he said during the 2016 campaign — targeted at Hillary — about the import of protecting classified information.

Did he keep this document willfully? For both men, prosecutors would need to show that they realized they had classified documents, and then retained them. Given the extended effort to recover documents from Trump, it would be far easier to do for Trump than for Biden.

Did the defendant retain the above material and fail to deliver it to the officer or employee of the United States entitled to receive it? This is an element of the offense that Robert Hur misstated in his report (as I wrote here). It’s not enough to prove that someone willfully retained classified documents he wasn’t authorized to have, you also have to prove he failed to give them back. Normally, this is done (in part) by pointing to someone’s exit interview, when they are read out of their compartments and asked to give everything back. Because Presidents and Vice Presidents don’t have clearance and so aren’t read out of them, it is normally harder to prove that someone affirmatively refused to give documents back. But not in Trump’s case, which is what really distinguishes him from Biden, because the Archives and DOJ kept asking for the documents, including via subpoena, and Trump kept playing games to withhold them.

Theories of Biden Crime

There were four main documents or sets of documents for which Robert Hur considered charging Biden. They don’t include the 50 years of documents Trump described. Those were included in boxes of documents sent to universities; most were barely classified still if at all, and since Biden had given them away, it would be hard to prove he intentionally kept them.

Iran documents: The most sensitive documents found in the Biden investigation were some documents pertaining to Iran found in a box in a closet in Penn Center. Hur determined they had been sent to the Naval Observatory for a meeting Biden had with a bunch of Senators to suss out where they were on Obama’s Iran deal. They may never have gotten moved back to the White House, and were likely stuck in a box and moved to Penn Center by staffers when Biden moved out of the Naval Observatory. These documents were unquestionably Presidential records and National Defense information, but Hur had no evidence Biden knew they were there.

Afghan documents: Hur spent a lot of time trying to prove that, when Biden told his ghost writer during a meeting in his Virginia house on February 16, 2017 that, “I just found all this classified stuff downstairs,” he was referring to several dated folders pertaining to Afghanistan that were found in a ratty box in Biden’s garage in a consensual search. There were many problems with this theory: Hur couldn’t prove that the documents had ever been in the Virginia house (and so could have been downstairs when Biden made the comment); he couldn’t prove that Biden had personally put them in the box where they were found; he couldn’t come up with a compelling argument for why he would have retained them. When Hur included his language about what a forgetful old fogey Biden was, he did so to cover the possibility that Biden forgot he had the documents he hypothetically discovered in 2017 and so didn’t return them at that point, in 2017. But Hur would never have gotten close to where Biden would be relying on faulty memory, because Hur didn’t have very compelling evidence to prove his hypothesis about how the documents got into the garage in the first place, much less that Biden was involved in that process.

Afghan memo: Hur’s extended effort to make a case out of the Afghan documents was particularly difficult given that the best explanation for what Biden was referring to when mentioning classified documents was a 40-page handwritten memo Biden sent Obama in Thanksgiving 2009 to try to dissuade him from surging troops in Afghanistan. (The second best explanation for what Biden was referring to was a set of documents he had recently returned in 2017 when he made the comment.) That memo was found in a drawer in Biden’s office. Biden ultimately admitted to keeping it for posterity, meaning it might fall under the PRA exception for diaries. Because it was handwritten, it had no classification marks and couldn’t be proven to have obviously classified information, much less information still classified in 2023, when it was found.

Diaries: The FBI also found a bunch of notebooks that Biden called diaries and Hur called notebooks. When reading them to his ghost writer, Biden exhibited awareness they included sensitive information, which Hur argued was proof he knew they had classified information. Biden had a very good case to make that these fell under the PRA exception for diaries, as well as decades of precedent, including Ronald Reagan, that DOJ would not charge someone for classified information in his diaries. It would have been impossible to prove that Biden willfully retained something he knew he couldn’t retain, because Biden knew other Presidents and Vice Presidents hadn’t been prosecuted for doing the same exact thing.

There simply was no document or set of documents for which Hur could prove all the elements of offense.

Why You Can Charge Trump

As noted above, the thing that distinguishes Trump from Biden is that Biden found classified documents and invited the FBI to come look for more, making it virtually impossible to prove the final element of offense (the one Hur botched), that Biden refused to give them back.

Trump, by contrast, spent a full year refusing to give documents back, including after DOJ specifically subpoenaed him for documents with classification marks.

There were 32 documents charged against Trump. They include:

  • The document that Trump showed to Meadows’ ghost writers in 2021 and acknowledged was classified; that was returned to NARA in January 2022. You can charge this because prosecutors have a recording of Trump acknowledging it was classified months before he ultimately returned it.
  • Ten documents among those returned in response to a subpoena in June 2022. It’s unclear how Smith intends to prove that Trump knew he had these after he returned the first set of documents in 2021. But most if not all of them date to fall 2019, so he may know why Trump would have retained them. Matt Tait has argued at least some of them pertain to the US withdrawal from Turkey.
  • Ten documents found, in the August 2022 search, in the same box also containing bubble wrap and a Christmas pillow. Among the ten documents was one classified Formerly Restricted, meaning that, under the Atomic Energy Act, Trump could not have declassified it by himself.
  • Five more documents, also found in August 2022, that had been stored in boxes in the storage closet, including the one captured in a picture Walt Nauta took of documents that had spilled out of the boxes.
  • Three documents found during the Mar-a-Lago search in the blue leather bound box found in the closet in Trump’s office. At least a few of these likely pertain to Trump’s withdrawal from the Iran deal. These are likely documents that Trump referred to.

For every charged document besides the Iran one, then, prosecutors can show that Trump withheld the documents after he first returned documents in January 2021. Trump will certainly argue that he may not have known he had those specific documents. But Trump’s decision to end his sorting process in January 2021 and his efforts to thwart Evan Corcoran’s June 2022 search will go a long way to prove intent.

How Trump’s Case Got Dismissed

Trump falsely claimed he “won” his classified documents case. That’s false: Aileen Cannon dismissed it, just in time for the RNC. Her argument that Jack Smith was unconstitutionally appointed isn’t even the primary one that Trump’s attorneys were making: that Smith required Senate approval and that his funding was improper. Rather, she argued that Merrick Garland simply didn’t have the authority to appoint Smith in the way he did.

There are several reasons the distinction is important.

First, if SCOTUS upholds Cannon’s theory, then it will hold for all similar appointments. That extends unquestionably to Hur’s appointment, because like Smith he was a non-DOJ employee when appointed. It likely also extends to Alexander Smirnov, into whom most investigative steps occurred after David Weiss was appointed as a Special Counsel under the same terms as Smith and Hur, and whose alleged crimes happened somewhere besides Delaware. Whether it applies to Hunter Biden is a closer question: Judge Mark Scarsi seems poised to argue that since Weiss had already charged Hunter, his appointment is different (and given the way Scarsi has worked so far, I don’t rule out him trying to find a way to make this unappealable).

In other words, if the steps Jack Smith took after November 2022 were unconstitutional, then it means everything Hur did after January 2023 was also unconstitutional. If Trump “won,” then he needs to stop making any claims about Hur’s interview with Biden, because it was unconstitutional.

More importantly, not even Aileen Cannon has ruled that Trump didn’t knowingly and intentionally retain classified documents. All she has ruled is that if DOJ wants to charge him for it, they need to recreate the investigative steps completed since November 2022, under the review of US Attorney for Southern Florida Markenzy Lapointe.

Imagine if Dana Bash Knew Trump Had Been President Before?

After letting Donald Trump lie non-stop in the debate, Dana Bash invited his aspiring running-mate, Marco Rubio, onto her show to  tell the same lies.

Ostensibly, she was asking Rubio about whether the Supreme Court immunity decision violated Rubio’s own stated dodge on accountability for January 6: “let history, and if necessary, the courts judge the events of the past.”

But Rubio quickly took over the segment, spending 37 seconds, and then another 22 seconds, falsely claiming that Joe Biden’s Administration was using DOJ as a legal weapon against Donald Trump. Rubio claimed, “The evidence is in the headlines every day. Every you day you open up it’s another Republican going to jail somewhere.” Bash let Rubio drone on at length, before interrupting to state there’s no evidence that Biden is doing this.

Worse still was Bash’s failure to rebut Rubio’s lies about Donald Trump’s first term. Rubio claimed, “I can’t think of a single prominent Democrat who was chased around, persecuted, prosecuted.” He followed up, “He was President for four years, he didn’t go after Hillary Clinton, he didn’t go after Joe Biden, he didn’t go after Barack Obama, he didn’t go after any other consultants. We didn’t see under him what we’re seeing now.” In one uncomfortable moment, Rubio cited the debate at which Bash had let Trump lie over and over about his future plans to criminalize his opponents, as if it represented the truth. Rubio then stated again that Trump, “was President before and he didn’t do it then.”

Those are all lies.

Those are all lies that Bash has a responsibility to debunk.

After Trump demanded it, Hillary Clinton remained under investigation — based off Peter Schweizer’s political hit job, Clinton Cash — for the entirety of Trump’s term, with a declination memo issuing only in August 2021.

Career prosecutors in Little Rock then closed the case, notifying the F.B.I.’s office there in two letters in January 2021. But in a toxic atmosphere in which Mr. Trump had long accused the F.B.I. of bias, the top agent in Little Rock wanted it known that career prosecutors, not F.B.I. officials, were behind the decision.

In August 2021, the F.B.I. received what is known as a declination memo from prosecutors and as a result considered the matter closed.

“All of the evidence obtained during the course of this investigation has been returned or otherwise destroyed,” according to the F.B.I.

Rubio mentioned, “consultants.” After Trump demanded prosecutions from John Durham, Durham indicted DNC cybersecurity lawyer Michael Sussmann on flimsy charges. When Durham wildly misrepresented a report Sussmann made — showing the use of Yota phones inside Executive Office of the Presidency during the Obama Administration — Trump even issued suggested Sussmann should be put to death.

Yes, Sussmann was acquitted, but not before leaving his firm and spending untold legal fees to defend against a manufactured indictment and death threats from the former President.

Bash even seems ignorant of the first impeachment, in which Trump withheld funds appropriated to Ukraine in an attempt to extort the announcement of an investigation into Joe Biden and his kid.

On at least two more occasions, Donald Trump personally intervened into the criminal investigation of Joe Biden’s son. One was shortly after the NYPost unveiled material from a hard drive copy of a laptop attributed to Hunter Biden (as described in Bill Barr’s memoir), days before the 2020 election.

In mid-October I received a call from the President, which was the last time I spoke to him prior to the election. It was a very short con-versation. The call came soon after Rudy Giuliani succeeded in making public information about Hunter Biden’s laptop. I had walked over to my desk to take the call. These calls had become rare, so Will Levi stood nearby waiting expectantly to see what it was about. After brief pleasantry about his being out on the campaign trail, the President said, “You know this stuff from Hunter Biden’s laptop?”

I cut the President off sharply. “Mr. President, I can’t talk about that, and I am not going to.”

President Trump hesitated, then continued in a plaintive tone, “You know, if that was one of my kids—”

I cut him off again, raising my voice, “Dammit, Mr. President, I am not going to talk to you about Hunter Biden. Period!”

He was silent for a moment, then quickly got off the line.

I looked up at Will, whose eyes were as big as saucers. “You yelled at the President?” he asked, confirming the obvious. I nodded. He shook his head in disbelief.

Trump intervened again on December 27, 2020, when — during the conversation where Trump first threatened to replace Jeffrey Rosen if he didn’t back Trump’s false claims of election fraud — Trump also said, “people will criticize the DOJ if [Biden, to which Richard Donoghue added an “H” after the fact] not investigated for real.”

These non-public demands regarding the investigation into Hunter Biden accompanied public demands to “Lock him up!” Trump even raised Hunter Biden in between calls to march to the Capitol on January 6.

But Bash’s worst failures involve doing an interview with the Ranking Member of the Senate Intelligence Committee and not asking him about two investigations conducted under Bill Barr that implicate confirmed and suspected disinformation with Russian ties.

As part of Barr’s effort to investigate Hillary Clinton for calling out Donald Trump’s embrace of Vladimir Putin, for example, starting in 2020 (as Trump demanded results), the Attorney General and John Durham relied on materials obtained from Russia that the Intelligence Community considered likely disinformation, a claim that Hillary had made a decision to “to vilify Donald Trump by stirring up a scandal claiming interference by Russian security services.” As it is, there’s a dispute about the use of those materials, with John Brennan, claiming in his House deposition last May that this claim involved a misrepresentation of what happened.

Mr. Brennan. Not out of hand, but I think it was — a week or two prior to that, there was a selective release of information that included my briefing notes to President Obama in the White House Situation Room that was misrepresenting, in fact, the facts, where it was pushed out in redacted version. And I did think that was a very, very unfortunate, unprofessional, unethical engagement on the part of the Director of National Intelligence in a Presidential election.

Marco Rubio is one person who could weigh in this dispute.

But Durham didn’t stop there. He then fabricated a claim that wasn’t included in the suspected Russian disinformation: That Hillary planned to make false claims about Trump’s fondness for Russia.

First, the Clinton Plan intelligence itself and on its face arguably suggested that private actors affiliated with the Clinton campaign were seeking in 2016 to promote a false or exaggerated narrative to the public and to U.S. government agencies about Trump’s possible ties to Russia.

At a time when Trump was publicly demanding results from Durham, then, the Special Counsel made shit up, politicizing intelligence, in an attempt to find charges against Hillary Clinton.

Bash let Rubio claim it didn’t exist.

Then there’s the blockbuster of which political journalists like Bash (and her colleague, Kaitlan Collins) appear aggressively ignorant.

In January 2020 (this was in the same time period he and Durham were fabricating claims about Hillary Clinton), Bill Barr set up a side channel to ingest dirt from Rudy Giuliani, including some from known Russian spy Andrii Derkach. Via still unexplained means, that side channel discovered false claims made by FBI informant Alexander Smirnov, who has subsequently claimed to have extensive ties to Russian spies. Even though the claim was easily debunked, that dedicated side channel nevertheless failed to discover real problems with the fabricated claim that Joe Biden had been bribed by Mykola Zlockevsky. Indeed, days after Trump pressured Bill Barr about investigating Hunter Biden,  on October 23, 2020, Richard Donoghue ensured the fabricated claim would be assigned to David Weiss for further investigation.

Worse still, through the efforts of Republican congressmen and Bill Barr, that fabricated claim of a Joe Biden bribe appears to have played a key role in the collapse of Hunter Biden’s plea deal and subsequent felony conviction.

For the entirety of the time that these twin efforts to use suspected Russian disinformation to frame Hillary Clinton and Joe Biden, Marco Rubio has been either Chair or Ranking Member of the Senate Intelligence Committee — one of the few people who can demand answers when the nation’s intelligence and counterintelligence system is so badly abused that Donald Trump’s political enemies can be framed, potentially in cahoots with Russian spies.

And Dana Bash had Marco Rubio sitting right there, in a position where she, in turn, could demand answers.

Instead, she let him lie and lie and lie about Trump’s past efforts to criminalize his political rivals.

Hunter Biden is on his way to prison in significant part because of Trump’s success at criminally targeting his political enemies. And Dana Bash never told viewers that Trump already has a documented record of doing just that.

Denial and Forgetting at the Hunter Biden Trial

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On Eve of Opening Arguments, WSJ Launders David Weiss’ Russian Disinformation Problem

WSJ has a weird story that purports to describe Merrick Garland’s oversight of Special Counsels.

It twice suggests only the left has complained about a perception that Garland slow-walked the January 6 investigation.

Garland has also become the subject of ridicule on late-night talk shows, including by comedian Bill Maher, who in May echoed the grievances of many on the left when he referred to Garland as “a purse dog” rather than a pit bull.

[snip]

But many on the left wanted more. Some wanted prosecutors to also pursue an aggressive case against Trump himself, specifically for inciting the mob.

That will come as a surprise to Liz Cheney, who was among those claiming that Garland was working too slowly.

It reveals that Robert Hur was considered for the job given to Jack Smith and confirms my suspicions that the decision to hire him came from Lisa Monaco’s office, not Garland’s.

An aide drafted a secret contingency plan, to assign the Jan. 6 investigation related to Trump to a special counsel. At the top of the list of candidates was Smith, a former U.S. prosecutor who was then the chief prosecutor at The Hague investigating war crimes in Kosovo. The deputy attorney general’s office also considered Hur, who at the time was a defense lawyer in private practice, for the post.

But it makes no mention of how DOJ came to consider Hur for the job after settling Andrew McCabe’s lawsuit because he had been denied due process rights in his firing. Hur was a key player in that process of denying McCabe his due process, and yet Garland hired him to investigate Joe Biden.

It even gets the timeline of Hur’s hiring incorrect, ignoring the months of investigative steps taken by John Lausch before Hur was hired.

It mentions Brad Weinsheimer’s role in allowing Rob Hur to emphasize Biden’s age in his report, rather than the fact that Hur couldn’t even prove the documents that might have been intentionally withheld took the path he imagined they might have.

Biden’s lawyers read it and were aghast, objecting to “certain aspects of his draft report that violate Department of Justice policy and practice by pejoratively characterizing uncharged conduct,” they wrote to Garland. They wanted him to take a firmer hand with the special counsel he appointed and whose report they and some former Justice Department officials saw as gratuitous.

Garland didn’t respond, taking the same approach he had with other special counsels. He wasn’t going to step in to protect his boss. Instead, adhering to the Watergate-era policy he helped enshrine, he left it to the agency’s senior career official, Bradley Weinsheimer, who said the language in the report “fell well within the Department’s standards for public release.” Garland, as promised, released it the following day, Feb. 8.

But it doesn’t talk about how having Weinsheimer serve as supervisor for Special Counsels effectively eliminates any DOJ review of ethical violations, which role Weinsheimer would otherwise play.

Most bizarrely, it makes absolute no mention of John Durham, whose investigation Garland oversaw for over two years. It doesn’t explain, for example, why Durham was permitted to fabricate a conspiracy theory against Hillary Clinton in his report. It doesn’t explain why Durham’s lead prosecutor, Andrew DeFilippis, left with little advance notice, between Durham’s twin failed trials, at a time when many witnesses were making claims of abuse.

In short, whatever else this story is, it is not a story that is remotely useful for understanding Merrick Garland’s oversight of Special Counsels.

And in this story that doesn’t do what it says, on the eve of opening arguments in the Hunter Biden gun case, it launders David Weiss’ Russian disinformation problem.

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

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

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

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

To be sure, this might be one of the only truly interesting pieces of news in the piece.

What WSJ is describing (including a journalist, Sadie Gurman, who has had good access to Bill Barr in the past) is that the FBI, including people senior enough to be able to complain to Garland personally, was demanding that David Weiss follow up on Alexander Smirnov’s attempt to frame Joe Biden.

Indeed, this passage wildly conflicts with what David Weiss claimed in the Smirnov indictment — that the FBI just came along in July 2023 and requested that Weiss help investigate (but we knew that was false in any case).

And it does seem to confirm what has been clear for a while: the reason David Weiss asked to be made Special Counsel is so he could chase Smirnov’s allegations.

But somehow WSJ neglects to mention the issue — the several issues — that go to the core of Garland’s inadequate oversight of Special Counsels. First, how was this allowed to get this far? How were senior FBI people bugging Garland about this allegation when the most basic vetting of travel records debunked it? How was the FBI chasing an allegation from a guy who had recycled debunked Fox News propaganda? How was David Weiss permitted to demand Special Counsel status, and renege on the plea deal he made with Hunter Biden, based on a tip he had been given back in 2020?

How is that not election interference?

Just as importantly for the issue of Special Counsel oversight, how can Garland leave Weiss in charge of the Smirnov allegation, when he is a witness to the process — implicating Bill Barr and Scott Brady — that ended up mainstreaming it?

And more importantly, WSJ never mentions that the tip turned out to be a hoax from a guy with close ties to Russian intelligence.

How do you write a piece describing that the FBI was pushing Garland to chase what may be Russian disinformation (and in any case is a hoax from someone with Russian ties), and fail to mention that it was a fabrication?

How, on the eve of opening arguments in the Hunter Biden case, do you launder the fact that David Weiss reneged on Hunter Biden’s plea deal because he was chasing false claims from a guy with close ties to Russian intelligence?

Hunter Biden Prosecutor Leo Wise Aspires to Be the James Comer of John Durhams

In a filing submitted last week opposing Hunter Biden’s [surely doomed] bid for a continuance of his California trial until September, Leo Wise argued that this is just a garden variety tax case that doesn’t merit any more time to prepare than the week between the Delaware case and the California case.

The defendant claims that he requires only “a small amount of additional time to adequately prepare” ECF 97, p. 5 (emphasis added). However, he asks for this “limited reprieve,” ECF 97, p. 4, of 77 days without providing any details about how those two and half months would be utilized. His filing is simply unclear about what the defendant would actually do with any additional time. His perception of this case as “uniquely challenging and high-profile,” ECF 97, p. 5, is unlikely to change if a continuance is granted. The fact that there may be more press coverage of this trial than others does not affect the preparation required by counsel in any way. This is a straightforward tax case, and the defendant has not alleged otherwise. He is not above the rule of law and should be treated like any other defendant. Every case has pretrial deadlines; the fact that they exist here cannot support a continuance request. Given the complete lack of specificity as to what needs to happen between now and trial (other than compliance with the usual pretrial deadlines which the defendant has known about since January), the factor of usefulness does not support a continuance. [my emphasis]

But a motion in limine filed by Hunter Biden reveals that claim is false.

Wise has no intention of treating this as a straightforward tax case.

After Hunter Biden agreed, in response to Weiss’ own motion in limine, not to mention how Leo Wise had been badly duped by Alexander Smirnov and instead of dropping the case, continued to give Russia what it intended all along, a political hit job on Joe Biden during the 2024 election, Hunter asked David Weiss’ team if they would likewise agree not to make this a trial about influence-peddling.

Weiss refused.

Defendant Robert Hunter Biden, by and through his counsel of record, hereby files this Motion in Limine to exclude from trial reference to any allegation that Mr. Biden (1) acted on behalf of a foreign principal to influence U.S. policy and public opinion, (2) violated FARA, (3) improperly coordinated with the Obama Administration, (4) received direct compensation from any foreign state, (5) received compensation for actions taken by his father that impacted national or international politics, or (6) funneled money to his father or any related alleged corruption (together, allegations of “improper political influence and/or corruption”). This evidence should clearly be excluded under the Federal Rules of Evidence 403 balancing test, as the risk of unfair prejudice is significantly outweighed by any marginal probative value. On May 17, 2024, Mr. Biden’s counsel asked for the Special Counsel’s position on this proposed motion in limine. On May 20, 2024, the Special Counsel indicated that he opposes this motion.

[snip]

Although the Special Counsel’s filed exhibit list (DE 88) contains upwards of forty descriptions that are totally insufficient to identify what document is being referred to (see, e.g., “Text Messages” (#073), “Notes” (#318)), it is clear that many exhibits the Special Counsel intends to introduce relate to allegations of improper political influence and/or corruption that are wholly outside of the scope of the Indictment. See, e.g., “Email from Eric Schwerin to Antony Blinken re: My Remarks In Latvia” (GX-267), “Email from Eric Schwerin to Sally Painter re: Amos Hochstein” (GX-262). Allowing in evidence or testimony related to the unsubstantiated claims of improper political influence and/or corruption run a real risk of the jury convicting Mr. Biden based on facts and allegations outside of the Indictment.

Defense counsel notes that it is ironic that the Special Counsel has filed a motion in limine to exclude evidence “alleging the prosecution of the defendant is somehow due to or part of a Russian malign election influence campaign,” which Mr. Biden did not object to. (DE 92 at 4.) Yet, the Special Counsel opposes the instant motion, which would preclude him from putting forward similar politically charged information to the jury. To prevent this trial from becoming a trial on politics rather than a trial on the charges in the Indictment, this Court should grant both the Special Counsel’s motion as it relates to a “Russian malign election influence campaign” and this Motion.

Having investigated for six years, David Weiss never substantiated a FARA case. But (as the exhibit list makes clear) he wants to drag that into what he claims is a straightforward tax case anyway.

The scope of Leo Wise’s aspirations to use the tax case as a vehicle to air James Comer’s fevered fantasies is made clear by something else Wise revealed in that same filing: The reason giving Hunter Biden more than a week between trials would harm the government is because they plan to make more than thirty people from around the country fly to California to testify against Joe Biden’s kid.

The defendant is not seeking a modest delay of a few days to obtain a piece of evidence or to procure a witness. He seeks a 77-day delay in a case the government has extensively prepared for following a detailed and lengthy investigation. This will inconvenience the United States. For instance, the government anticipates calling more than thirty witnesses, most of them out-of-state. See Declaration of Leo J. Wise, at ¶4 . Trial subpoenas began being sent to these witnesses over a month ago. Id. Many of these individuals are represented; the witnesses and their counsel have planned their summer schedules to account for this trial commencing in June and concluding in July.

You don’t need to call 30 witnesses to present your tax case against Hunter Biden!!

The key witnesses will be Hunter’s ex-wife, Katie Dodge, no more than eight people Hunter paid out of Owasco funds and then wrote off (including, it seems, Hallie Biden, whose testimony Weiss is compelling), maybe a sex worker or two to titillate Matt Gaetz (Weiss has similarly refused to exclude the sex workers), the accountant who filed Hunter Biden’s taxes in 2020, former Hunter business partners Rob Walker and Eric Schwerin, and some law enforcement witnesses to present all the paperwork. That’s around 16 witnesses.

If Weiss really does call over 30 witnesses, it will make this “straightforward tax case” into the largest Special Counsel trial in recent years (as laid out by the list below).

The sheer overkill of Leo Wise’s aspirations is clear when you compare Hunter’s case — for a failure to pay taxes from income that all came through the US — to Paul Manafort’s EDVA trial. Like the Hunter Biden case, that was a tax case, one for which tax evasion was charged for five years, not one, and one for which the scope of income was at least an order of magnitude larger. Because Manafort’s tax evasion involved keeping his Ukraine income offshore in Cyprus, that case also included charges of FBAR violations. It also included nine counts of bank fraud. So tax evasion, plus hiding his funds overseas, plus trying to cheat some banks in the US. Prosecutors called a bunch of local Alexandria vendors, because one way Manafort shielded his income was by wiring money directly to US vendors to pay for things like Ostrich-skin vests.

And for all that, at this stage of the proceedings, prosecutors estimated they would call 20 to 25 witnesses; they ultimately called 27.

Leo Wise wants to do something more spectacular than the Paul Manafort case — and given his close ties to Rod Rosenstein, I wouldn’t rule out the grandiosity of his aspirations as some kind of payback. Of course, there’s a straight through-line between the Manafort case and the Russian-backed effort to fuck over Joe Biden, so Leo Wise is giving Russia precisely what they wanted.

Leo Wise was sure he was smarter than Lesley Wolf and so chased the Alexander Smirnov allegation only to discover he was participating in an attempt to frame Joe Biden. Having been duped there, Leo Wise now refuses to back down. He will stage the most spectacular Special Counsel trial yet!

Update: My apologies to Judge Scarsi. He has apparently granted the continuance to September 5.

Other Special Counsel prosecutions

Scooter Libby: 10 Government Witnesses (plus three CIA briefers not called)

Roger Stone: 5 Government Witnesses (plus Andrew Miller, Michael Caputo, and Jerome Corsi, not called)

Michael Sussmann: 25 Government Witnesses (about 5 not called)

Igor Danchenko: 6 Government Witnesses

Barr Time 1: “Conjuring up criminal conspiracies about political opponents”

June 6 of last year was the official publication date for Bill Barr’s book. In it, he claimed — at least three different times — that under him, DOJ did not investigate Joe Biden’s role in pushing Petro Poroshenko to fire Viktor Shokin. “[T]he facts about this episode were out in the open and didn’t warrant a criminal investigation,” Barr said in one instance.

The day after release of a book making that assertion, on June 7, 2023, Bill Barr went on the record with Margot Cleveland insisting that investigation into an allegation that we now know came from Alexander Smirnov, claiming that Mykola Zlochevsky had bribed Joe Biden, not only hadn’t been shut down in August 2020, but had been sent to Delaware “for further investigation.”

“It’s not true. It wasn’t closed down,” William Barr told The Federalist on Tuesday in response to Democrat Rep. Jamie Raskin’s claim that the former attorney general and his “handpicked prosecutor” had ended an investigation into a confidential human source’s allegation that Joe Biden had agreed to a $5 million bribe. “On the contrary,” Barr stressed, “it was sent to Delaware for further investigation.”

On June 6, Bill Barr claimed his DOJ didn’t investigate Biden’s ties to Burisma because all the facts were out in the open. On June 7, he insisted DOJ had sustained a secret investigation into an allegation that Burisma bribed Joe Biden.

Barr’s book mentions Ukraine almost 70 times. He mentions the Bidens, in an investigative context, over 56 times. Virtually everything he says on the topic conflicts as dramatically with known events as that claim on June 7 did.

It was always clear these claims were an attempt to spin the events, Barr’s CYA about fairly damning events in which he was involved. Given the subsequent disclosures of the the SDNY warrants, claims Lev Parnas’ has made since this book came out, Brady’s testimony about the side channel, and Smirnov’s indictment, I want to look at how Barr describes his involvement in efforts to investigate Joe Biden and his son.

At best, they show that Bill Barr was an easy mark for Russian disinformation.

Barr needed a bribery allegation and an informant fabricated it for him

Here’s how Barr describes the Brady side channel, which we now know resulted in an FBI informant with ties to Russian spies fabricating a claim about Joe Biden that right wingers successfully demanded be used to renege on a plea deal for Hunter Biden during the 2024 election season, a claim that — had Brady done the vetting he and Barr claimed he did — would have been identified as a fabrication in 2020.

With impeachment still pending, Giuliani embarked on yet another round of grandstanding. He went about claiming he had compiled significant evidence relating to the Bidens that he wanted to present to the Justice Department. While anyone is free to present evidence to the DOJ, the fact Giuliani was making such a public display obviously made his motives suspect. It looked to me that Rudy was trying to run the same play against Biden that I thought the Clinton campaign had tried to run against Trump in 2016: giving just enough evidence to law enforcement to have some allegation investigated, then claiming one’s adversary was “being investigated.” This presented a quandary. On the one hand, I wasn’t going to let the department be drawn into Giuliani’s game, and I wasn’t about to allow the work of other prosecutors on other, potentially related matters be tainted by commingling their evidence with whatever Giuliani had pulled together. On the other hand, the department has an obligation to be open to all comers who believe they possess relevant evidence; we could not merely dismiss his information out of hand without looking at it. Yet merely receiving information does not imply the department believes opening an investigation is warranted. My solution to Giuliani’s posturing was to create an intake system for evidence originating in Ukraine—including but not limited to Giuliani’s—that dispelled any suggestion that, by accepting the information, the department was signaling it considered the allegations credible.

I set up a screening process whereby an office outside of Washington—in this case, the US Attorney’s Office in Pittsburgh— would vet the information provided by Giuliani, working with the FBI and intelligence experts on Ukraine. That office, which was run by a trusted US attorney, Scott Brady, who was well known to me and my staff, would not be responsible for deciding whether to open any investigation, just for assessing the credibility of the information. This would be an intermediary step before any information was forwarded to an office responsible for making any investigative determinations. Employing such a “taint team” is a well-established procedure within the department for screening potentially suspect evidence. These precautions were especially apt in the case of Giuliani, whose political passions and previous associations in Ukraine possibly affected his own critical faculties.

At an unrelated press conference in early February 2020, I made clear I was skeptical of information coming out of Ukraine. “We have to be very careful with respect to any information coming from the Ukraine,” I said. “There are a lot of agendas in the Ukraine, a lot of crosscurrents. And we can’t take anything we received from Ukraine at face value.” My usual critics on the Hill and in the media, as always getting the point exactly backward, screamed that I was giving Giuliani special access to the department. Wrong. It was an exercise in caution and an effort to protect other investigations that the DOJ had going on at the time.

While the effort to push the Ukrainians to investigate Biden was foolish, I do not believe it was criminal. Not all censurable conduct is criminal. The current tendency to conflate the foolish with the legally culpable causes more harm than good. Trying to apply the criminal law to diplomatic give-and-take is especially dangerous. A quid pro quo is inherent in almost all diplomacy, and Presidents frequently ask foreign countries to do things that are politically beneficial to the Presidents. A President might, for example, make a large, secret concession to a foreign country in order to expedite release of a hostage or win some other timely agreement the President expects will yield substantial political benefits prior to an election. The fact that the action sought from the foreign government will yield political benefit should not make the request criminal. It may have been in the national interest. Nor should it be criminal because the concession made by a President seems disproportionate or even reckless. Nor should it make a difference that the President was subjectively motivated by the expectation of political benefit.

The fact is that diplomatic transactions frequently involve “mixed motives.” The quo being sought will provide a political benefit and will likely satisfy a legitimate policy purpose of the government. In any particular case, the political motive may loom much larger than the governmental purpose, but as long as the latter is present, it would be hazardous to criminalize diplomacy by attempting to assess the balance of subjective motivations. Of course, if the quo being sought objectively has no governmental purpose at all and is purely a private benefit—say, a payment of cash for private use—then we are in the realm of bribery. But so long as the quo arguably advances a public policy objective, then policing the propriety of diplomatic transactions should be left to the political, not the criminal, realm.

To this extent, I viewed Vice President Biden’s pushing for Shokin’s termination as similar to President Trump’s pushing for an investigation of Biden’s role. The quo sought by Biden—the firing of Shokin—held a potential political benefit for Biden: avoiding the embarrassment of having his son’s company investigated for corruption. It also, ostensibly, had a legitimate public policy purpose: advancing the US anticorruption agenda. Similarly, Trump would benefit politically from an investigation into Shokin’s termination, but bringing transparency to that episode would also arguably advance America’s anticorruption agenda.

Biden supporters would say that, in his case, his policy purpose was overarching and supervened any possible political agenda. Trump supporters would say the same about his aims. My point is that the criminal justice process cannot legitimately be used to investigate politicians’ motivations when those politicians are asking for some rational and lawful policy concession. What Biden was demanding in Ukraine, quite apart from whether it would benefit his son, technically had a legitimate governmental purpose. And what Trump was demanding, quite apart from whether it would benefit his reelection, had the same. (309-312)

Regarding the side channel itself, Barr claims it was simply a taint team for information offered up by the public — by anyone — from Ukraine. That’s inconsistent with Brady’s still unexplained effort to go look for information on Hunter Biden and Burisma in the Burisma investigation that had just been shut down. It’s inconsistent with Brady’s concessions of all the things he didn’t consult — such as materials released as part of impeachment and contemporaneous reporting — before passing on tips.

And consider the euphemism Barr uses to describe Rudy’s motives. In addition to a specific concern about the “crosscurrents” in Ukraine, Barr cited Rudy’s “political passions and previous associations in Ukraine” to explain the need for such vetting.

There’s no mention of Russian spies.

There’s no mention of the fact that both the White House and DOJ recognized that Andrii Derkach was a Russian agent before Rudy boarded a plane to go solicit dirt from him.

There’s no mention of the fact that Barr set up a way for Rudy to share tips from known Russian agents.

And that’s one of several reasons why Barr’s complaint about the criticism he got — his claim that he was merely exercising caution — is bullshit. The side channel was one part of a larger scheme that had the effect of protecting Rudy (and therefore Trump) and framing Joe Biden. The scheme included:

  • Constraining the ongoing investigation into Lev Parnas and Igor Fruman in SDNY so it could not include Dmitry Firtash, much less Derkach
  • Moving the Derkach investigation to EDNY
  • Prohibiting anyone from opening an investigation into a Presidential candidate without his approval
  • Allowing Rudy to share information with Scott Brady
  • Permitting Brady to intervene in SDNY investigation (as well as that of Hunter Biden, Dmitry Firtash, and Ihor Kolomoyskyi)

These steps did more than vet Rudy’s tips. Taken together, they used the entire weight of DOJ to protect Rudy (and Trump) from any consequences for soliciting dirt from known Russian spies — a separate possible crime than merely sharing false information with the FBI.

Perhaps that’s why, having misrepresented the nature of the side channel, Barr opined that “I do not believe it was criminal” to solicit dirt on the Bidens from known Russian spies. Perhaps that’s why Barr followed that opinion with two paragraphs equating Joe Biden’s effort to rein in corruption in Ukraine with Rudy’s effort to solicit dirt from known Russian spies for Trump.

Barr’s explanation never made sense. The expectation was always that by firing Shokin, Burisma would get more scrutiny, not less. Barr’s explanation makes far less sense given that he launched this side channel just days after his DOJ shut down a four year investigation into Zlochevsky started while Biden was Vice President.

But his explanation does clarify something. The side channel assessment — based off material from Rudy, Chuck Grassley says — was a bribery assessment. It was started as a bribery assessment months before (if we can believe the indictment, which given the way it obfuscates other known details, we cannot) Smirnov first started pitching his false claims of bribery. It was started as a bribery assessment because that, in Barr’s mind, distinguished an inappropriate use of DOJ to investigate a politician’s motive and a fair use of DOJ’s authorities in an election year.

And in the year before an election last year, Barr doubled down on the bribery allegation allegedly fabricated by an informant with ties to Russian spies. In the process, Barr helped ensure that Joe Biden’s kid will face two trials and six felony charges as opposed to a settlement David Weiss had already offered.

An Attorney General dedicated to killing an investigation into Russian interference

That’s where Barr’s tenure as AG ended: setting up a side channel via which Joe Biden was framed by an informant with ties to Russian spies, which in turn led directly to felony charges against Biden’s kid.

That makes Barr’s single-minded focus on killing the Mueller investigation look quite different. Everything stemmed from that effort, according to Barr.

Russiagate dominated the first two years of President Trump’s term, looming over every aspect of the administration. I was on the outside as a private citizen during this time, and so my early reaction to the collusion claims was based on public reporting and my own informed speculation. Only in early 2019, when I joined the administration as Attorney General, did I begin to get a fuller picture of this manufactured scandal. From that time forward, it became increasingly clear to me that there were never any legitimate grounds for accusing Trump or his campaign of colluding with the Russians. This was not only my conclusion. Every investigation into the matter—including those of Special Counsel Robert Mueller and the Senate and House Intelligence Committees—also found no evidence of collusion.

I would soon make the difficult decision to go back into government in large part because I saw the way the President’s adversaries had enmeshed the Department of Justice in this phony scandal and were using it to hobble his administration. Once in office, it occupied much of my time for the first six months of my tenure. It was at the heart of my most controversial decisions. Even after dealing with the Mueller report, I still had to launch US Attorney John Durham’s investigation into the genesis of this bogus scandal. At the end of my first year in office, the President was impeached over a harebrained effort, involving Rudy Giuliani, to push back on the Russia collusion canard by digging up an alleged counter-scandal in Ukraine implicating the Clinton campaign or Vice President Biden and his son Hunter.

The fallout from Russiagate continued during my last year in office. My relationship with the President frayed as he became frustrated by my failure to bring charges against those who had ginned up Russiagate and the failure of Durham’s investigation to produce more rapid results. (180-181)

Of course Barr’s “Russiagate” claims are riddled with lies. We’re used to that.

The HPSCI investigation did ask every Trump-friendly witness if they had evidence of “collusion,” and they all said no (though it’s clear that Devin Nunes worked directly with the White House to craft at least one of these scripts). Senators split on partisan lines regarding whether the SSCI investigation showed “collusion.” The Mueller investigation did not make a conclusion about “collusion.” And not only did the report itself imply there was evidence of conspiracy — just not enough to charge — but a footnote Barr hid until right before the 2020 election revealed that an investigation into whether Trump’s rat-fucker joined a CFAA conspiracy with Russia continued after Mueller finished. Perhaps because of that, the declinations section on conspiracy actually didn’t make a conclusion, one way or another, about whether Trump’s people conspired with Russia on the hack-and-leak itself; that section addresses Section II and IV of the first volume, but not Section III, where the hack-and-leak was described.

Like I said, we’re used to those lies. I’m interested in this passage, which repeats Barr’s tired old lies about the Russian investigation, because of the relationship Barr sets up between those lies and what came before and after. Barr admits that he made a conclusion about the merit of “Russiagate” based on “public reporting” (presumably of the kind a right winger would see) and what Barr describes as his “own informed speculation.” Based on that conclusion, he decided to return to government to kill the investigation.

Barr built his justification to investigate Democrats from there.

Barr’s description of the Durham investigation — something he “had” to launch and something that he expected, in 2020 and presumably even in 2023 (his book came out just weeks after Durham gave up the ghost), would have “results” in the form of prosecutions — ties directly to his false claims (which may or may not be beliefs) about the Russian investigation. The Durham investigation had to produce results because Barr needed it to be true that the Russian investigation had no merit.

That imperative may explain Barr’s inconsistent claims. On page 180, describing that he had to open the Durham investigation, Barr made clear he believed an imagined Hillary effort to set up an investigation against Trump was criminal. On page 310, Barr explained that he didn’t believe an effort to push Ukraine [including known Russian assets, but Barr doesn’t mention that part] to investigate the Bidens was criminal. Rudy’s effort to solicit dirt from known Russian spies was not criminal, but Russian injection of disinformation into Hillary’s oppo research was.

It’s in that framework where Barr describes his personal involvement in Ukraine dirt — which the available record shows started no later than August 2019 and continued through at least October 2020, which an unreliable Parnas claims started far earlier, and which in paragraphs following Barr’s description of the side channel he improbably claims he first learned from a warning John Bolton gave him in early August. Rather than an impeachment focused on Trump, it focused on Rudy, and rather than an attempt to cheat in an election, it was an attempt to create a “counter-scandal.” In this passage, it is all portrayed as a ham-handed but, in Barr’s mind, justified effort to respond to the Russian investigation. In this passage, there’s no mention of Barr’s involvement in it at all. Only later would Barr refashion it (in the side channel passage above) as an effort to get transparency about Biden’s role in firing Shokin, transparency that multiple direct witnesses had already provided as part of the impeachment.

But in this passage, everything — the Durham investigation, the Ukraine response, and a bunch of things Barr conflates with the two, including the Brady side channel — arise out of Barr’s imperative to kill the investigation into Trump’s ties to Russia. That’s what justifies it all. Barr’s attempt to sustain false claims about the Russian investigation. Barr turned those false claims into license to retaliate.

That’s the before (the need to investigate Hillary as part of the imperative to kill the Russian investigation) and after (the side channel that protected Rudy from consequences for soliciting dirt from Russian spies and had the result of framing Joe Biden).

The AG doth protest too much, methinks

With those in mind, consider how Barr denials about the Durham investigation serve as a way to disclaim any involvement with Ukraine, where [3], “Conjuring up criminal conspiracies about political opponents had been honed into a fine art form.” This long passage, full of prevarications and word games, denies Trump asked him to open the kind of Biden investigation Barr opened up with the side channel.

As I was launching John Durham’s investigation in the spring of 2019, I was aware of the claims that the Ukrainians had interfered in the 2016 election on behalf of Clinton. Because these allegations were relevant to the origins of the Russia collusion narrative, they legitimately fell within the ambit of Durham’s inquiry. I put little stock in them and suggested to Durham that he defer any Ukraine-related work, and so these claims weren’t being pursued actively at that point. I was dubious of the idea that the Ukrainians, not the Russians, had been responsible for hacking into the DNC. [1] It had the hallmarks of Russian disinformation and seemed contrary to the evidence developed by the intelligence community and by Mueller’s investigation. Moreover, contrary to the President’s claims, CrowdStrike did not appear to be controlled by Ukrainians and seemed to be a reputable company. I doubted the firm had any reason to fabricate its analysis of the hack. In any event, I wanted Durham to hold back from engaging with Ukraine because I considered it [2] a land of smoke and mirrors, where disinformation was everywhere and reliable evidence extremely difficult to find. There were so many different actors with varying agendas—pro-Western politicians, pro-Russian politicians, countless oligarchs, each with his own aim—that it was hard to determine the provenance and motivations behind any information collected there. [3] Conjuring up criminal conspiracies about political opponents had been honed into a fine art form. I was especially concerned that Ukrainian actors could act as channels for Russian disinformation. I didn’t want Durham to get bogged down in that morass.

Consequently, in the spring and early summer of 2019, when John [Durham] and I discussed the international dimensions of his work, [4] we agreed to engage with the three countries we felt would be most helpful to the investigation: the United Kingdom, Australia, and Italy. I started by making contact with the ambassadors of these countries, and later had discussions with senior officials in each. I traveled to both Italy and the UK to explain Durham’s investigation and ask for any assistance or information they could provide. I alerted the President that we would be making these contacts and asked him to mention Durham’s investigation to the prime ministers of the three countries, stressing the importance of their help. In contrast, [5] I never talked with the Ukrainians or asked President Trump to talk to the Ukrainians. The President never asked me to talk to the Ukrainians. Nor had I talked with Rudy Giuliani about Ukraine. I was also not aware of anyone at the department requesting the Ukrainians to open up an investigation. As far as I was concerned, if Durham ever found a reason to look into Ukrainian activities, he would do the investigation, not leave it to the Ukrainians.

What really fueled the impeachment drive was the attempt to sic the Ukrainians on allegations about Vice President Biden. It was one thing to argue, as the President’s private defense attorneys did, that Ukrainians had interfered with the 2016 election. That would have had a bearing on collusion allegations against the President. It was something else to argue, as the President’s defense also did, that Joe Biden’s son Hunter had traded on his surname and engaged in un- ethical deal making in Ukraine. That looked less like defensive work and more like an offensive thrust against President Trump’s likely opponent in the 2020 election. Moreover, although the Department of Justice was investigating election interference, [6] DOJ was not investigating Joe Biden, and I didn’t think there was a legitimate basis to do so. The conflict-of-interest laws do not apply to the President or Vice President.

The key facts regarding Biden’s role in the ouster of the Ukrainian anticorruption prosecutor were largely a matter of public record. In 2014 the Vice President’s son Hunter, with virtually no relevant experience, had received a lucrative position on the board of Burisma at a time when the Vice President had the “lead” in the Obama administration’s push to get Ukraine to step up anticorruption efforts. In late 2015 Vice President Biden, by his own account, used the threat of withholding loan guarantees to pressure the Ukrainian government to fire Viktor Shokin, the lead Ukrainian anticorruption prosecutor. The public record is fairly clear that there was frustration in US and European policy circles with Shokin’s failure to pursue corruption cases aggressively, and his removal was widely favored by key US figures. It also appears he was not actively pursuing Burisma at the time of his dismissal, although he claimed later that he was planning to investigate the company. In my view, while the whole situation was [7] shameful and unethical, the facts did not provide a basis for criminally investigating Vice President Biden.

[8] By the spring of 2019, I had noticed news stories stating that Giuliani was pushing the Ukrainians to investigate Biden’s role in Shokin’s dismissal. But other than what I glimpsed in the media, I had no knowledge of the former mayor’s activities. During the spring, I expressed my concern about Giuliani with the President. As I was leaving an Oval Office meeting on another topic, I paused briefly to raise the matter.

“Mr. President,” I said, “I don’t think you are being well served by Giuliani at this point. Mueller is over, and Russiagate is dying. Why is Giuliani thrashing about in Ukraine? It is going to blow up—”
“Yeah,” the President said, cutting me off. “I told him not to go over there. It was a trap.” President Trump gave the impression Giuliani had a degree of independence and was going to pull back. I did not press the point.

Unfortunately, the President’s careless statement to Zelensky erroneously implied some connection between me and Giuliani. Early in the conversation, the President asked Zelensky to “get to the bottom” of CrowdStrike and the server allegations, and said he was going to have the Attorney General talk to him about this. If the President had stopped there, I wouldn’t have been especially upset, because at least these particular allegations were within Durham’s purview, albeit on the back burner. However, later in the conversation, the President asked Zelensky to investigate Biden’s role in Shokin’s removal and said he should work with the Attorney General and Giuliani. When I read this, I hit the ceiling. When the transcript was released, I had the department put out a categorical statement:

[9] The President has not spoken with the Attorney General about having Ukraine investigate anything relating to former Vice President Biden or his son. The President has not asked the Attorney General to contact Ukraine—on this or any other matter. The Attorney General has not communicated with Ukraine—on this or any other subject. Nor has the Attorney General discussed this matter, or anything relating to Ukraine, with Rudy Giuliani.

Although this seemed to be largely accepted by journalists covering the department, some commentators still speculated that the President might have been pressing me to have the DOJ investigate Biden’s role.

This didn’t happen. The President had not asked that the Justice Department investigate the former Vice President, and it would not have made a difference if he had. [10] As far as I was concerned, the facts about this episode were out in the open and didn’t warrant a criminal investigation. Although Hunter Biden’s position was obviously a sordid instance of monetizing his father’s office, the Vice President did not violate the law because federal conflict-of-interest laws do not apply to Vice Presidents. Moreover, given the evidence that Biden was acting in line with US policy, and the absence of good evidence that Shokin was actively pursuing Burisma and that his removal would inhibit future action against the company, it would be impossible to prove that the Vice President acted with corrupt intent in pressing the Ukrainians to dismiss Shokin. And if there ever were a reason to pursue the matter, we would do it ourselves and certainly not pressure the Ukrainians to do it. (annotated numbering my own) (300 -304)

Three times, here, Barr claims he didn’t think the facts behind the Burisma allegations merited the kind of criminal investigation he would later set up.

[6] DOJ was not investigating Joe Biden, and I didn’t think there was a legitimate basis to do so.

the whole situation was [7] shameful and unethical, the facts did not provide a basis for criminally investigating Vice President Biden.

[10] As far as I was concerned, the facts about this episode were out in the open and didn’t warrant a criminal investigation.

He does so in a passage that claims to have avoided Ukrainian dirt because of the very same “smoke and mirrors” [2] Barr used to justify the side channel in January 2020. Those smoke and mirrors and Ukraine’s fine art form of conjuring up criminal conspiracies were the reason (Barr claims) he kept Durham out of Ukraine; but those very same smoke and mirrors are what Barr used to rationalize a side channel assessing dirt from known Russian spies that conjured up a criminal conspiracy against Joe Biden!

In other words, this disavowal of Ukranian involvement as part of the Durham investigation — which is transparently misleading in any case — serves as a proxy denial of the Ukrainian involvement we know Barr undertook elsewhere.

Barr’s discussion of the Durham investigation attempts to disclaim chasing Ukrainian dirt in three different ways.

First, he claims he didn’t know about any of Rudy’s efforts until … he doesn’t say precisely when. Barr claims at [8] that, “other than what I glimpsed in the media, I had no knowledge of the former mayor’s activities.” He situates the claim, vaguely, in “the spring of 2019,” far earlier than the warning he describes that Bolton gave him in early August pages later.

Parnas claims that Barr knew of their scheme from the start, from February, which would also be Barr first started getting briefings on the SDNY investigation, though Parnas didn’t say whether Barr learned of the scheme via SDNY briefings or separately, from Rudy’s effort to broker meetings with Barr. It might be true that the briefings Barr was getting on the Parnas investigation didn’t emphasize the tie to Rudy by whenever in spring Barr means. The first warrant against Rudy’s grifters had just a passing mention of Rudy; Kevin McCarthy, Rick Scott, Ron DeSantis, and Trump himself were all a more central focus of that warrant. The second, dated May 16, which focused directly on Marie Yovanovitch (and Pete Sessions’ role in her ouster), took out a reference to Rudy. SDNY obtained that warrant days after one possible date for Barr’s expressed concern to Trump that Rudy was “thrashing about in Ukraine.” Ken Vogel reported on May 9 that Rudy would head to Ukraine for election year dirt, only to report two days later that Rudy was canceling the trip after Adam Schiff and others made a stink; both reports postdated Trump’s comments to Hannity that Barr would investigate all this. That probably would be around the time when, according to Barr, he knew and warned Trump about “Giuliani thrashing about in Ukraine,” but claimed only to know that from press coverage.

By making the timing of this so vague, Barr makes it impossible to tell whether this conversation happened before or after the decision — made as part of, “inter‐department discussions well above” Joseph Ziegler’s second-order supervisor and originally attributed by Ziegler to Barr himself — to put the Hunter Biden investigation in Delaware, which made no sense if Hunter were the target but made perfect sense if Joe were. (Elsewhere in the book, Barr boasts that the investigation preceded his tenure, which it did, but the grand jury investigation did not, and — as noted — Ziegler originally said Barr personally made choices about the grand jury investigation.)

In any case, it would have happened long before the Perfect Phone call in July and meetings with Victoria Toensing — allegedly witnessed by Lev Parnas — regarding Dmitry Firtash. Barr is not denying getting involved in all this. He’s saying that he didn’t know what he was in for until sometime in later spring or summer 2019. By August, in any case, briefings on the Parnas investigation would have made SDNY’s increased focus on Rudy’s search for dirt on Hunter Biden clear. Barr knew what Rudy was up to well before DOJ chose to review only the transcript of Trump’s call for possible crimes, rather than the full whistleblower complaint that invoked Parnas and Fruman. Barr knew that if DOJ reviewed the entire whistleblower complaint, it would tie Trump’s call to an ongoing criminal investigation into unlawful influence peddling.

In short, even if Barr is telling the truth, even if he and Trump hadn’t spoken about Rudy’s efforts by the time Trump told Hannity they had, Barr had internal knowledge of both the SDNY investigation and Trump’s enthusiasm for Rudy’s efforts well before DOJ ensured the full whistleblower complaint would not be reviewed.

Having fiddled with the timing but not denied he was involved in Rudy’s efforts before the Perfect Phone Call, Barr then made much of what he claims was an affirmative choice not to pursue Ukrainian leads. He claims  [1] that he didn’t send Durham to chase (what were, but which he didn’t identify as) Konstantin Kilimnik’s claims of Ukrainian tampering in the 2016 investigation because it felt like disinformation.

Remember: the foundational theory of the Durham investigation — what Durham imagined was a fully-blown “Clinton Plan” — was based on possible Russian disinformation, and from there Durham (and Barr) fabricated more. Durham’s pursuit of a conspiracy theory that Hillary made a plan to fabricate information implicating Trump in Russia’s attack was not only based on files that the intelligence community always warned might be Russian disinformation, but Durham — almost certainly with Barr’s help — fabricated an additional element to it: that Hillary would invent false evidence, rather than simply point to true evidence of Trump’s affinity for Russia.

That’s not the only disinformation Barr chased. He and Durham went on junkets around Europe chasing the ginned up conspiracy theories of George Papadopoulos, including at least one fostered by Joseph Mifsud’s attorney.

Which brings us to Barr’s claim at [4] that he and Durham, “agreed to engage with the three countries we felt would be most helpful to the investigation: the United Kingdom, Australia, and Italy,” Barr is referring, in the last case, to chasing the Coffee Boy’s Mifsud conspiracies, every bit as obvious disinformation as Kilimnik’s Ukraine conspiracies. And when Barr explains at [5] that “I never talked with the Ukrainians or asked President Trump to talk to the Ukrainians,” he’s limiting his comments to official contacts.

Barr is attempting to distinguish, “ask[ing Trump] to mention Durham’s investigation to the prime ministers of [the UK, Australia, and Italy], stressing the importance of their help,” from Trump’s mention of Barr’s efforts to Zelenskyy, in which he stressed the import of Ukraine’s help.

That’s why it’s so interesting what a big deal Barr makes of the statement at [9], what he describes as a categorical denial of Trump’s mention to Volodymyr Zelenskyy that he’d have Barr reach out.

Barr doesn’t include another part of the statement that DOJ put out (or a follow-up sent out the same day), which described, “certain Ukrainians … volunteer[ing] information to Mr. Durham.”

A Department of Justice team led by U.S. Attorney John Durham is separately exploring the extent to which a number of countries, including Ukraine, played a role in the counterintelligence investigation directed at the Trump campaign during the 2016 election,” DOJ spokeswoman Kerri Kupec said Wednesday. “While the Attorney General has yet to contact Ukraine in connection with this investigation, certain Ukrainians who are not members of the government have volunteered information to Mr. Durham, which he is evaluating.

Nor does he mention a statement he referred to over and over in the weeks that followed, one he sent on his personal cell phone.

Barr did have contacts with Ukrainians; he even discussed how Durham could get information confidentially from him.

They just were not members of government, Barr claimed.

To this day, we don’t know who those Ukrainians are (and all this would be in addition to discussions with Victoria Toensing about Dmitry Firtash, discussions that Parnas claims involved a quid pro quo for a Hunter Biden laptop).

But as I laid out here (and as I’ll return to), there’s good reason to suspect they include one or more of the Derkach associates Treasury sanctioned in January 2021.

Bill Barr told on himself the day after his book came out: He did investigate Joe Biden. Worse, he set up a system via which an informant responded to Andrii Derkach’s election interference by framing Biden.

Bill Barr walked into the AG job determined to kill an investigation into Russian interference. Before he walked out, he set up a system that protected election interference from Russian agents in Ukraine, election interference that resulted in Joe Biden being framed.

As I said above, a comparison of Barr’s claims with everything we’ve learned in the year since then shows that, at a minimum, Bill Barr was an easy mark for Russian disinformation.