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Hunter Biden: Which Came First, the Chick Selling Sex or the Extortion of Campaign Dirt?

November 27, 2023/31 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel, Hunter Biden, Impeachment /by emptywheel

Darren Samuelsohn had a hilarious passage in his version of a story contemplating the prospect of Trump using his second term to seek revenge.

To his credit, unlike the NYT and WaPo versions of this story, he acknowledges that Trump already did this. He even manages to address maybe a quarter of the times when Trump did so, though always missing key details. For example, he describes that Trump fired Jim Comey as revenge, which led to the Mueller investigation.

Consider the firing of James Comey, who the president ousted less than four months into his first term following the FBI director’s public testimony that confirmed an active bureau investigation on potential collusion between Russia and the 2016 Trump campaign. The president’s move there ignited a chain of events leading to Special Counsel Robert Mueller’s appointment, which kept Trump’s White House stuck playing defense for a giant chunk of their four-year term and resulted in a costly series of guilty pleas, legal trials and court convictions for Trump associates that gave way to a series of controversial presidential pardons.

Samuelsohn even mentions “controversial” pardons! — if only in passing. But he doesn’t mention Trump’s concerted demand to prosecute Comey as a result, or the IRS investigation of Comey and Andrew McCabe that the IRS claims was just a wild coincidence.

The funny part is where Samuelsohn describes Rudy Giuliani’s efforts to dig up dirt on Joe Biden as something that, like the Comey firing, led to backlash: impeachment.

Another Trump personal lawyer, Rudy Giuliani, sparked the first House impeachment of the president in the aftermath of his mission to conjure up an investigation of the Biden family in Ukraine.

But then two topics — the Durham investigation and Trump’s revenge against Tom Emmer for voting to certify the 2020 election — and two paragraphs later, Samuelsohn introduces Abbe Lowell’s attempt to subpoena Trump as “another front.”

Or on another front, Hunter Biden’s lawyers earlier this month asked for a federal court’s permission to subpoena Trump, Barr and other senior Trump-era DOJ officials as they argue against “a vindictive or selective prosecution arising from an unrelenting pressure campaign beginning in the last administration, in violation of Mr. Biden’s Fifth Amendment rights under the Constitution.”

This is not “another front”! This is confirmation that the effort attributed here to Rudy continues to this day, is a central factor in the 2024 election to return to the White House.

As I noted, the requested subpoenas specifically ask for communications with, “attorney for President Trump (personal or other),” and the request for communications, “discussing any formal or informal investigation or prosecution of Hunter Biden,” should cover any copy of the Perfect Phone Call to Volodymyr Zelensky that Trump might have in his personal possession.

The subpoena is a request for records showing the tie between Rudy’s efforts and the still ongoing investigation into Hunter Biden, which has since morphed into the rationale for Republicans’ own impeachment stunt.

The tie is not imagined. Among other things, Lowell points to records showing then-PADAG Richard Donoghue scheduling a briefing with David Weiss’s team on October 23, 2020. The briefing transferred the FD-1023 created as a result of Bill Barr’s effort to set up an intake process for the dirt Rudy obtained from Russian agents and others.

In fact, all the details of the investigation that Joseph Ziegler has shared raise questions whether there would ever have been a Hunter Biden grand jury investigation were it not for the dirt Ukrainians — possibly downstream of and ultimately directly tied to Rudy’s efforts to obtain dirt on Hunter Biden — shared with DOJ in 2019.

To be sure, Ziegler claims credit.

In his original testimony to House Ways and Means, Zeigler described that he decided to investigate the former Vice President’s son based off a Suspicious Activity Report tied to a social media site involving sex workers. From there, he read about Hunter’s contentious divorce. And from that he decided to launch a criminal investigation.

I started this investigation in November of 2018 after reviewing bank reports related to another case I was working on a social media company. Those bank reports identified Hunter Biden as paying prostitutes related to a potential prostitution ring.

Also included in those bank reports was evidence that Hunter Biden was living lavishly through his corporate bank account. This is a typical thing that we look for in tax cases — criminal tax cases, I should say.

In addition, there was media reporting related to Hunter Biden’s wife, ex-wife, divorce proceedings basically talking about his tax issues. And I wanted to quote some of the things that were said in her divorce filing which was public record.

“Throughout the parties’ separation, Mr. Biden” — referring to Hunter Biden — “has created financial concerns for the family by spending extravagantly on his own interests, including drugs, alcohol, prostitutes, strip clubs, gifts for women with whom he had sexual relationships with, while leaving the family with no funds to pay legitimate bills.

“The parties’ outstanding debts are shocking and overwhelming. The parties have maxed-out credit card debt, double mortgages on both real properties they own, and a tax debt of at least $300,000.”

This is all the information that I had in my hand in November when I wanted to open this investigation.

His supervisor, Matt Kutz, treated the investigation of the former Vice President’s son as a sensitive matter and demanded more evidence before letting Ziegler open the investigation.

After discussing the case with my previous supervisor at the time, Matt Kutz, he made a decision to look into the case further before sending it — sending the case up for referral.

[snip]

My manager at the time told me, “No, you cannot do that. That’s a tax disclosure issue.” I didn’t agree with him because there’s been multiple instances where we do that. That’s a normal part of our job. But he was my manager, and I wasn’t going to fight him on it, and he told me that I had to open this up the normal tax administrative way that we would do [for] these cases.

[snip]

[H]e said a political family like this, you have to have more than just an allegation and evidence related to that allegation. In order for this case to move forward, you basically have to show a significant amount of evidence and similar wrongdoing that would basically illustrate a prosecution report.

So he’s basically telling me that I have to show more than just non-[filed] tax returns and the information from the ex-wife in the divorce proceedings.

During Democrats’ questioning, Ziegler described how persistent were his efforts to find some basis to open an investigation into Hunter Biden.

Mr. [Ziegler]. My initiation packet, so sending the case forward to get — we call it subject case. It’s an SCI. It’s elevating the case to actually working the investigation.

My first one showed the unfiled returns and the taxes owed for 2015 and that was it on my first package. So that was the wrongdoing that we were alleging.

And my supervisor goes: You don’t have enough. You need to find more.

So I kept digging for more and more. And even after that point, he goes: You haven’t found enough.

So I ended up searching bank reports that [I] ran on the periphery of what we were looking at.

So I ran bank reports for Burisma, and in those bank reports I had found additional payments that Hunter had received. And then at that point I had found that Hunter did not report the income for 2014 related to Burisma.

So now I had a false return year. So that alone — it was basically so much evidence that I put in there — allowed us to elevate the case.

It took Ziegler three attempts before he was able to show enough evidence of wrong-doing that Kutz would agree to send the referral to DOJ Tax. That’s what led to the decision — at first, Ziegler attributed the decision to Bill Barr personally, though subsequently retracted that claim — to merge his IRS investigation with one Delaware had opened in January 2019.

So after three of these initiation packages, he finally allowed me to push this forward to DOJ Tax for their review.

So the way that our grand jury cases — or the way — I’m sorry. The way that our cases work is when the case is referred from IRS to DOJ Tax, the case has to go through our ASAC and SAC, and then it goes to DOJ Tax where they review and approve it and send it to the appropriate venue or jurisdiction.

So in [or] around March or April of 2019, the case went up to DOJ Tax.

And at that time we were told that William Barr made the decision to join two investigations together. So at that point in time I had found out that Delaware had opened up an investigation related to the bank reports and that that occurred in January of 2019, so 2 months after I started mine.

So when I found out about their case and was told that we had to merge the two, I did a venue analysis. I showed them that, “Hey, the venue’s in D.C. It’s not in Delaware. We need to work this in D.C.” But, ultimately, I was overruled, and it was determined to send the case, join the two case together, and work everything under Delaware. [my emphasis]

Here and elsewhere, Ziegler (working from memory) obscures details of this timeline: about when he came to learn of the Delaware investigation and when he submitted his finalized package for DOJ Tax.

In an email Ziegler sent in April 2019, though, he memorialized that, “Approx. February 2019 — My SSA advised me about the Delaware USAO looking into Robert Doe subsequent to the [Suspicious Activity Report]” on which Ziegler himself had predicated his investigation. That same email described submitting the package to DOJ Tax on April 12, 2019.

Two weeks later, his supervisor relayed the news that the case would end up in Delaware.

Jason Poole telephoned me and advised after inter‐department discussions well above his level, it is highly likely the Robert Doe case will go to the Delaware USAO for investigation.

So while Ziegler may have decided to pursue the former Vice President’s son based on payments to sex workers and divorce records before Delaware opened an investigation, DOJ Tax had not even considered whether this merited a criminal investigation until April 2019, at which point someone high up — possibly even the Attorney General himself — decided Delaware would oversee the case.

By that point, Delaware had been investigating for up to three months, and Ziegler had known that for two months.

That’s important because, if we can believe Johnathan Buma (I raised some cautions about his claims here), the FBI got a tip about Hunter Biden from two Ukrainians with ties to that country’s Prosecutor General’s Office in January 2019.

In January, 2019, DYNAMO, ROLLIE and THE ECONOMIST were taken to the US Attorney’s Office in downtown Los Angeles, where they presented severd of these schemes to an Assistant United States Attorney (AUSA), who was interested in pursuing money laundering cases in violation of the FCPA, which implicated US entities or persons. THE ECONOMIST’s presentation included detailed information concerning several multi-million and multi-billion dollar schemes. The information was based on an extrapolation of open-source information from Ukraine, as well as insight from THE ECONOMIST’s consulting work in the PGO and ROLLIE’s foundation. One of the described scenarios alleged Hunter Biden (Hunter) had been given a lucrative position on the board of directors of the energy company, Burisma Holdings Limited (Burisma), and was likely involved in unreported lobbying and/or tax evasion.

This approach from people affiliated with Ukraine’s Prosecutor General’s Office (my earlier post provides descriptions of those ties) came months after Rudy Giuliani first tasked Lev Parnas with finding this dirt in November 2018 and after Trump had gotten personally involved.

Later that month [on December 6], I attended a Hanukkah celebration at the White House where Giuliani and Trump were both present. Trump approached me briefly to say, “Rudy told me good things. Keep up the good work.” Then he gave me a thumbs-up in approval.

By January 2019, Parnas was in communications with both Viktor Shokin and Yuri Lutsenko, both of whom might have had ties to Rollie and the Economist. On January 26, Lutsenko shared a package of information on Burisma that, again, has similarities to what Rollie shared that same month.

According to Buma, sometime after the January 2019 presentation Rollie and The Economist made to the Los Angeles US Attorney’s Office, Buma submitted an FD-1023 about their package and spoke to two FBI case agents located in Baltimore on the already ongoing investigation into Hunter Biden about it.

After receiving the presentation from ROLLIE and THE ECONOMIST, THE ECONOMIST provided me a thumb drive with some supporting documentation, much of which was in the Ukrainian language, which I do not speak. After I submitted my FD-1023 reports on this information, I was put in touch with two agents working out of the Baltimore office on a case based in Delaware involving Hunter. I spoke on the phone with these agents, who were very interested in the information due to its relation to their ongoing investigation that was mostly involving allegations of Hunter’s involvement with drugs and prostitution. Information derived from ROLLIE and THE ECONOMIST had previously been found to be credible, so this was handled carefully and quickly transferred over to the agents in Baltimore and was serialized in their case file.

As Buma described it, by the time this information showed up in the press, it had become clear that Rollie and the Economist shared the information for influence purposes tied to Joe Biden’s run for the presidency, not law enforcement.

[T]he derogatory information concerning the Bidens and Burisma quickly emerged in domestic US. media, suggesting that it was being provided for political influence rather than law-enforcement purposes.

But that didn’t prevent the Ukrainians from being invited, some time after June 26, 2019, to attend an event associated with the White House at which Rollie gave Mike Pompeo the same package of derogatory information on Hunter Biden. And somewhere along the line, Buma’s primary source who introduced them to the Los Angeles US Attorney’s Office had direct contact with Rudy Giuliani.

The precise relationship between Rollie and The Economist and Rudy’s efforts, started month earlier, remains obscure. But both had begun well before Ziegler’s pitch to DOJ Tax to investigate Hunter Biden criminally, and it’s likely that Delaware had the FD-1023 from the Ukrainians before DOJ Tax approved the investigation.

And by that point, in April 2019, Ziegler’s supervisor — the same guy who insisted he needed more than payments to sex workers to open an investigation into a politically sensitive figure — started documenting the demands for just such an investigation.

Around the same time in 2019, I had emails being sent to me and the Hunter — and the prosecutors on the case, the Hunter Biden prosecutors, from my IRS supervisor. So this was Matt Kutz still.

From what I was told by various people in my agency, my IRS supervisor, Matt Kutz, created memos which he put in the investigative files regarding the investigation potentially violating the subject’s Sixth Amendment rights. He also referred to Donald Trump’s tweets at the time.

[snip]

Q Okay. You’re talking about 2019. You were mentioning the fact that there was a George Murphy that was writing memos or emails and documenting some of his conclusions that were on the other side regarding this case.

Could you tell us more about him? What’s his title and who is he and how does he relate to you in terms of your chain of command?

A So it was actually Matthew Kutz. He was my supervisor at the time and from the articles that he was sending me, I would say he had more of a liberal view than I had and it was pretty obvious from the things he would send me and discuss. And that’s just me making an observation.

So I later found out about these memos that were put in the file regarding the issues that he saw with the investigation, the fact that we even had it opened. So I only learned about those after. And then it came to a point to where he’s sending us so many media articles about different issues that I had to tell him stop, please.

And I had to go around him. And that’s when I went to my ASAC at the time, George Murphy, who was above him.

MAJORITY COUNSEL 2. Off the record.

MAJORITY COUNSEL 1. Off the record. [Discussion off the record.]

MAJORITY COUNSEL 1. On the record.

Mr. [Ziegler]. So these articles were a lot about — were a lot of articles regarding Trump and getting a fair investigation and things related to that, Trump’s tweets and stuff like that. So, that’s what drew me to my conclusion.

BY MINORITY COUNSEL 1: Q What was the purpose behind him sending you the Trump tweets? What was he trying to get at, or was he trying to give you more information for your case? Why would he send those, or do you know?

A Yeah, I think he was bringing up concerns with potentially us prosecuting the case down the road, potential issues we’re going to incur. I don’t remember the exact email that he sent that caused me to be — that he had to stop sending me some of the news articles, because it wasn’t even the fact that he was sending me these news articles. It was the opinion he was providing in those emails that I did not agree or that I did not — not agree with but did not think was appropriate.

Gary Shapley replaced Kutz in 2020 — possibly because Kutz insisted on documenting the demands from the President for Ziegler’s thinly-predicated investigation — around the same time Bill Barr set up a means to ingest Rudy’s dirt.

But in 2019, Kutz was documenting in real time the problem with pursuing the son of Donald Trump’s opponent while Donald Trump demanded such investigations via Tweet.

It’s in the case file.

Trump’s demands for an investigation into Hunter Biden were deemed by the IRS SSA to be problematic influence on the case in 2019. Yet that investigation continues, now bolstered by Special Counsel status, and is the basis for the GOP impeachment pitch.

Samuelsohn’s rag has a reporter, Stephen Neukam, covering the GOP impeachment stunt almost half time (though Neukam apparently hasn’t bothered to cover the Scott Brady testimony that lays out even more details of how Barr set up a means to filter Rudy’s dirt into the Hunter Biden investigation, evidence that — contra Ziegler — Barr was “weigh[ing] in, or seek[ing] updates on the investigation after those cases were joined”). Barr has confirmed, on the record, knowledge of how information was shared from Brady to Weiss.

Yet Samuelsohn describes Rudy’s intervention as something past, something unrelated to the future prospect of Trump ordering up investigations into his rivals.

You cannot understand the GOP impeachment pitch — you cannot claim to be doing journalism on the Republican effort to impeach Hunter Biden’s father — unless you understand the ties between Rudy’s efforts and the Hunter Biden investigation.

You can write all you want about how institutional guardrails might stymie Trump’s efforts to politicize DOJ in the future. But if you gloss over evidence that those guardrails failed in Trump’s past Administration, if you ignore how Trump’s success at politicizing DOJ continues to have repercussions to this day — indeed, continues to be a central issue in the election — then you’re not really addressing the threat Trump poses, past and future.

Update: Fixed date of October 23 briefing.

In an Attempt to Claim Vindictive Prosecution, Trump Confesses Biden Hasn’t Interfered Like He Has

November 23, 2023/11 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

To substantiate a claim that Joe Biden ginned up the twin prosecutions against him (motion, reply), Donald Trump picked two clauses (in italics) in an article (live link) that repeatedly describes the various ways that Biden and Merrick Garland have restored the independence to the Department of Justice from what it had been under Trump.

The attorney general’s deliberative approach has come to frustrate Democratic allies of the White House and, at times, President Biden himself. As recently as late last year, Mr. Biden confided to his inner circle that he believed former President Donald J. Trump was a threat to democracy and should be prosecuted, according to two people familiar with his comments. And while the president has never communicated his frustrations directly to Mr. Garland, he has said privately that he wanted Mr. Garland to act less like a ponderous judge and more like a prosecutor who is willing to take decisive action over the events of Jan. 6.

[snip]

In a statement, Andrew Bates, a White House spokesman, said the president believed that Mr. Garland had “decisively restored” the independence of the Justice Department.

“President Biden is immensely proud of the attorney general’s service in this administration and has no role in investigative priorities or decisions,” Mr. Bates said.

A Justice Department spokesman declined to comment.

The Jan. 6 investigation is a test not just for Mr. Garland, but for Mr. Biden as well. Both men came into office promising to restore the independence and reputation of a Justice Department that Mr. Trump had tried to weaponize for political gain.

[snip]

Complicating matters for Mr. Biden is the fact that his two children are entangled in federal investigations, making it all the more important that he stay out of the Justice Department’s affairs or risk being seen as interfering for his own family’s gain.

The department is investigating whether Ashley Biden was the victim of pro-Trump political operatives who obtained her diary at a critical moment in the 2020 presidential campaign, and Hunter Biden is under federal investigation for tax avoidance and his international business dealings. Hunter Biden has not been charged with a crime and has said he handled
his affairs appropriately.

Justice Department officials do not keep Mr. Biden abreast of any investigation, including those involving his children, several people familiar with the situation said. The cases involving Hunter Biden and Ashley Biden are worked on by career officials, and people close to the president, including Dana Remus, the White House counsel, have no visibility into them, those people said.

[snip]

Officials inside the White House and the Justice Department acknowledge that the two men have less contact than some previous presidents and attorneys general, particularly Mr. Trump and his last attorney general, William P. Barr.

Some officials see their limited interactions as an overcorrection on the part of Mr. Garland and argue that he does not need to color so scrupulously within the lines. But it may be the only logical position for Mr. Garland to take, particularly given that both of Mr. Biden’s children are involved in active investigations by the Justice Department.

The distance between the two men is a sharp departure from the previous administration, when Mr. Trump would often call Mr. Barr to complain about decisions related to his political allies and enemies. Such calls were a clear violation of the longtime norms governing contact between the White House and the Justice Department.

Mr. Biden, a former chairman of the Senate Judiciary Committee, came to his job as president with a classical, postWatergate view of the department — that it was not there to be a political appendage. [my bold and italics]

Since the two clauses on which Trump relies conform with the evidence presented in the rest of the article — which is to say, they show that Biden has taken no steps to share his views with the Attorney General — Trump simply invents something that’s not in the article: a claim that Biden deliberately planted these quotes as a way to give Garland an order to prosecute Trump.

The Biden administration intentionally leaked these comments to the media in early 2022 so that President Biden could improperly provide instructions to and exert pressure on prosecutors and investigators without engaging in direct communications, as is clear from the fact that the article sourced the operative remark to “two people familiar with his comments.” Id.

Trump then dismisses prosecutors’ argument that such anonymous claims are not evidence by likening the misrepresentation of the article to three times Jack Smith prosecutors cited newspaper reports.

The reports at issue are not, as the prosecution claims, based on “rumor and innuendo.” Doc. 141 at 6. The Washington Post article is “based on internal documents, court files, congressional records, handwritten contemporaneous notes, and interviews with more than two dozen current and former prosecutors, investigators, and others with knowledge of the probe.” Doc. 116-1 at 3. The New York Times article is attributed to “interviews with more than a dozen people, including officials in the Biden administration and people with knowledge of the president’s thinking, all of whom asked for anonymity to discuss private conversations.” Doc. 116-2 at 2. For example, President Biden’s instruction that President Trump “should be prosecuted” is sourced to “two people familiar with his comments.” Id

7 See, e.g., Doc. 97 at 10; Doc. 109 at 30; Doc. 140 at 11.

Those three reports are:

A citation to a threat included in a WaPo report.

6 See Washington Post, FBI Joins Investigation of Threats to Grand Jurors in Trump Georgia Case, (Aug. 18, 2023), https://www.washingtonpost.com/nationalsecurity/2023/08/18/fbi-joins-investigation-threats-grand-jurors-trump-georgia-case/ (citing an online post stating, “These jurors have signed their death warrant by falsely indicting President Trump”)

A reference to the fact that Clinton entered into a deal to avoid indictment when he left office:

The same is true for President Clinton’s “forthright admission that he gave false testimony under oath” about matters occurring during his presidency in order to avoid indictment after his presidency. See John F. Harris & Bill Miller, In a Deal, Clinton Avoids Indictment, Washington Post (Jan. 20, 2001). 12

12 https://www.washingtonpost.com/archive/politics/2001/01/20/in-a-deal-clinton-avoids-indictment/bb80cc4c-e72c-40c1-bb72-55b2b81c3065/.

Factual details about the identities and now proven — all have now either been convicted or pled guilty — crimes of members of the J6 choir with whom Trump made a video.

The January 6 Choir includes defendants who assaulted law enforcement officers on January 6 and one who used chemical spray on a Capitol Police officer who died the next day. See Washington Post, Behind Trump’s Musical Tribute to Some of the Most Violent Jan. 6 Rioters (May 7, 2023), https://www.washingtonpost.com/investigations/interactive/2023/trump-j6-prison-choir/

This insane argument, which effectively insists on the truth value of the NYT article that states over and over that Biden has not done what Trump did to politicize investigation as part of a bid to claim that Biden has politicized this investigation comes after Hunter Biden made a bid to subpoena Trump for evidence of how he did interfere in the investigation of Joe Biden’s son.

Instead of anonymous quotes that actual confirm Biden hasn’t spoken with Garland about these investigations, Abbe Lowell relied on eight public tweets, including one blasting David Weiss and calling for a death sentence for Hunter.

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

Another of the tweets in the bid for subpoenas denied any involvement in the prosecution ten days before — notes from Richard Donoghue show — Trump interjected a complaint about Hunter Biden’s treatment amid complaints that DOJ wasn’t backing Trump’s false claims about election fraud, both of which led up to a threat to replace Jeffrey Rosen with Jeffrey Clark.

For example, on December 27, 2020, then Deputy Attorney General Donoghue took handwritten notes of a call with President Trump and Acting Attorney General Rosen, showing that Mr. Trump instructed Mr. Rosen and Mr. Donoghue to “figure out what to do with H[unter] Biden” and indicating Mr. Trump insisted that “people will criticize the DOJ if he’s not investigated for real.”

[snip]

D. Trump tweet on December 17, 2020: “I have NOTHING to do with the potential prosecution of Hunter Biden, or the Biden family. It is just more Fake News. . . .” [emphasis original]

Side note: Lowell very graciously didn’t point out that Donoghue, in his January 6 testimony, tried to spin these notes to make them less damning then they are, possibly up to including adding an “H” after the fact to pretend that Trump didn’t also consider the investigation of the son to be an effort to get to the father, as Trump’s earlier tweet made clear he did and does.

It wasn’t just Jeffrey Rosen with whom Trump raised the Biden investigation. Lowell also cited the passage from Barr’s book where Trump raised Hunter directly with the Attorney General.

Additionally, former Attorney General Barr’s latest book recalls an instance in mid-October 2020 in which President Trump called Mr. Barr and inquired about the investigation of Mr. Biden, which Mr. Barr says ended with Mr. Barr yelling at Mr. Trump, “Dammit, Mr. President, I am not going to talk to you about Hunter Biden. Period!”

And Lowell cited the reference to the briefing Scott Brady’s team did with David Weiss’ team to share an allegation Mikola Zlochevsky made sometime close to the time when, according to Chuck Grassley, Barr’s DOJ shut down an investigation into Zlochevsky.

Gary Shapley Aff. 3, attach. 6 (IRS CI Memorandum of Conversation, Oct. 22, 2020), (“Pittsburgh read out on their investigation was ordered to be received by this prosecution team by the PDAG.”), available at https://gopwaysandmeans.house.gov/wp-content/uploads/2023/09/T87-Shapley-3_Attachment-6_WMRedacted.pdf.

Lowell did not close the loop on this to show Barr confessing to personal knowledge of Brady’s project and the details of how the FD-1023 memorializing the Zlochevsky allegation got shared with Weiss, tantamount to a confession that he lied in his book. Nor did Lowell mention the Perfect Phone Call in which Trump asked the President of Ukraine to work with Barr to investigate the Bidens or the allegation that Trump’s handlers had removed a damning reference to Burisma.

You’re with me so far, right? In support of a claim that Joe Biden has interfered in the prosecutions of Trump, Trump demands that DOJ treat as reliable an article that says, in about seven different ways, that Biden doesn’t do that. And Trump did that a week after Hunter’s lawyer laid out eight tweets, two memorializations of conversations with Trump, two primary documents, and two congressional depositions, all of which show high level involvement and, at least on Trump’s part, attempted interference in the Hunter investigation, which ignores some of the most important public documents memorializing Trump’s interference.

But it gets crazier!

In response to AUSA Thomas Windom’s observation that, “the defendant does not provide the Court with even the roughest sketch of what this ‘fact finding’ would entail or uncover,” Trump says his discovery request already laid that out.

Finally, the Special Counsel’s Office professes confusion about what the fact finding “would entail” and claims that it requires a “rough[] sketch.” Doc. 141 at 14. The Supreme Court has provided one, in a case the Office cited: “the Government must assemble from its own files documents which might corroborate or refute the defendant’s claim.” Armstrong, 517 U.S. at 464. So too have our discovery requests. See Ex. 2 (10/23/23 Requests 10-12, 24, 39-40, 43, 55).

The requests he points to are:

Conduct alleged in the indictment, and responses by witnesses described in the indictment (as well as a letter he includes with this filing, showing two prosecutors in this case attempted to persuade Bill Barr to adhere to normal procedures after the election).

11. Please provide all documents related to views and opinions expressed by Department of Justice personnel, including from the Public Integrity Section and National Security Division, discouraging, disagreeing with, or resisting investigations of election fraud, interference (including foreign interference), anomalies, or irregularities related to the 2020 election.

12. Please provide all documents related to or reflecting decisions by the Department of Justice, federal law enforcement, state law enforcement, election officials, or other government officials declining or refusing a review or investigation of election fraud, interference (including foreign interference), anomalies, or irregularities related to the 2020 election.

Advice from Steve Engel (who would go on to join in an effort to thwart Trump’s efforts to replace Jeffrey Rosen with Jeffrey Clark), any of which Trump relied upon he could cite specifically.

24. Please provide all documents, including communications, memorandums, and opinions (whether formal written opinions, drafts thereto, or informal analyses), of the Department of Justice Office of Legal Counsel concerning the Electoral Count Act, election fraud, any litigation related to the 2020 election, or any advice provided directly or indirectly to any Executive Branch official concerning the outcome of the 2020 election.

Any discipline DOJ pursued for Michael Sherwin for violating rules that were routinely violated under Trump.

40. Please provide all documents relating to the March 2021 “60 Minutes” interview of Michael Sherwin, including all documents relating to investigations of potential violations of applicable rules, policies, or procedures resulting from Mr. Sherwin’s participation in the interview.

A known referral of fake electors from Dana Nessel.

39. Please provide all documents relating to the “referrals” referenced by Lisa Monaco during an interview on or about January 25, 2022.

A fishing expedition to get the kind of inflammatory texts that were selectively released during the Russian investigation, to obtain the texts everyone sent on their FBI cell phones).

55. Please provide all documents reflecting statements by any member of the prosecution team indicating an intent or effort to stop or hinder President Trump from becoming President of the United States.

Complaints that, broadly interpreted, could include those from Gary Shapley and Joseph Ziegler that instead show the high level involvement of Trump’s DOJ in the Hunter Biden investigation and the investigators own efforts to conduct the investigation in such a way that it might become public.

10. Please provide all documents relating to complaints or concerns by any prosecutor from DOJ, the Special Counsel’s Office, or any federal law enforcement agent relating to the conduct of the investigations of President Trump, the 2020 election, or President Biden.

A request for communications that, the NYT article he relies on, says don’t exist: “coordination” between Biden and DOJ or the Special Counsel’s office. But also a request for communications that might, broadly interpreted, cover the entirety of Hunter Biden’s defense counsel communications with DOJ. (It would also include any victim interviews with Ashley Biden regarding her diary and other personal belongings stolen by Trump supporters.)

43. Please provide all documents relating to communications or coordination by the Special Counsel’s Office and DOJ with any of the Biden Administration, the Biden Campaign, Hunter Biden, the Biden family, the Biden White House, or any person representing Joe Biden. [my emphasis]

DOJ’s criminal prosecutors are not communicating with Joe Biden. They are, however, communicating with Hunter Biden (via his counsel) because Trump’s own US Attorney, now bolstered with Special Counsel status, is prosecuting Hunter Biden. And after having attacked Weiss publicly, Trump is now claiming that he needs Hunter Biden’s communications to prove Donald Trump is being treated unfairly.

The primary thing on which Trump relies to make a claim he’s being treated unfairly instead supports the opposite claim: That Merrick Garland is treating him better than he and his DOJ treated Joe Biden’s son. But in his effort to claim he wasn’t simply inventing all this, Trump revealed that even in this prosecution, he’s attempting to interfere in Hunter Biden’s prosecution.

Perfect Phone Calls: Redefining Vindictive Prosecution in the Trump Era

November 21, 2023/41 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

On July 26, AUSA Leo Wise had this exchange with Maryellen Noreika, the judge presiding over the Hunter Biden case.

THE COURT: I have had one or two cases involving a person struggling with addiction who bought a gun, we usually see a felony charge for false statement.

The Defendant has admitted that his statement was false, but he wasn’t charged. Again, I’m not trying to get into the purview of the prosecutor, and I understand the separation of powers, it’s in your discretion, but I just want to ask, does the government have any concern about not bringing the false statement charge in light of our discussion of 922(g)(3) and the constitutionality of that charge.

MR. WISE: No, Your Honor.

Less than three hours later, after Wise revealed that prosecutors had a different understanding of the immunity provision in the plea deal than Hunter’s lawyers did, Hunter Biden pled not guilty to two misdemeanor tax charges.

Hunter Biden faces stiffer penalties after exercizing a constitutional right

Hunter Biden exercised his constitutional right to plead not guilty to a plea deal that wasn’t what he had understood it to be.

Exactly 50 days later, Leo Wise and Derek Hines obtained an indictment charging Hunter Biden with three crimes under 18 USC 922: the original charge for possessing a gun as an addict — 922(g)(3) — along with two false statement charges 922(a)(6) and 924(a)(1)(A) that Wise had said less than two months earlier prosecutors didn’t intend to charge. Then, the government dismissed the previous diversion agreement that charged Hunter solely with 922(g)(3).

Whereas on July 26, Hunter faced the possibility of avoiding any jail time for the gun crime and, even if he failed to fulfill the terms of his diversion, he faced a maximum of 10 years, as of September 14, on paper he faces 25 years. (In reality he would face a fraction of this and the total exposure is similar.) Hunter Biden faces those formally stiffer penalties even though AUSA Wise told Judge Noreika that the gun diversion was, “a contract between the parties so it’s in effect until it’s either breached or a determination, period.”

The sharply increased penalty that Hunter Biden faces after agreeing to a diversion agreement but then pleading not guilty to tax charges may be a key dynamic in motions we’ll see in weeks ahead.

What Abbe Lowell said we could expect

Between the arraignment and his bid for a Trump subpoena, Hunter Biden’s lawyer Abbe Lowell has set expectations about what will occur between now and submission of pretrial motions on December 11.

He has asked for “Brady and other discovery,” but as of last week, “the defense has not received such material [about the targets of his subpoena request] in discovery from the prosecution or elsewhere, notwithstanding specific discovery requests and that some of this information likely resides with the DOJ.”

He said he expected to request an evidentiary hearing, which will presumably be tied to one or more motions to dismiss the indictment.

He described that those motions to dismiss would argue:

The gun charges are unconstitutional
The diversion agreement prohibits these charges
A selective and/or
Vindictive prosecution claim

The motion to dismiss the gun charges on constitutional grounds will associate this case with other similar challenges already wending their way towards SCOTUS. Whatever Noreika decides to do about it, it will mostly delay resolution of this case as those appeals proceed.

Lowell, and before him Chris Clark, have repeatedly said that Weiss could not indict Hunter on the gun charges because the diversion agreement remains in effect. I’m not sure how Lowell will make the argument that DOJ has effectively breached a “bilateral contract,” though it may also play a part in a vindictive prosecution claim, as I describe below.

Selective prosecution arguments almost never work. It would have to lay out evidence that there were similarly situated people — who purchased a gun without disclosing their addiction but, absent some other crime tied to the gun, were not charged. It is not enough to point to abundant data showing that this charge is rarely charged (as a number of journalists have laid out), which, if he files such a motion, Lowell would surely have. You also have to argue that you were charged only because you’re a protected class, which historically has meant racial discrimination. While (as Carissa Byrne Hessick recently laid out when Trump tried a selective prosecution claim) people have tried to say they were selectively prosecuted because of their political views, that hasn’t worked yet. And you could as easily argue that Hunter was being charged because he is the son of the guy who championed these drug and gun laws in the first place as you could that he was being charged because he is the President’s son — goodness knows the 2A crowd would make that argument.

One of the only reasons such a motion might work here where it would otherwise not is because there are people — thus far speaking anonymously to the press — who have stated that Hunter was charged only because he is who he is. For example, Glenn Thrush described that,

When officials with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives reviewed Hunter Biden’s gun application several years ago, they believed the case most likely would have been dropped if the target were a lesser-known person.

And NYT described, in a story including Thrush, that,

Mr. Weiss told an associate that he preferred not to bring any charges, even misdemeanors, against Mr. Biden because the average American would not be prosecuted for similar offenses.

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

Vindictive prosecution bids almost never work pre-trial

It’s Lowell’s mention of a possible vindictive prosecution claim that I revisited after reading his subpoena request and writing this post.

Normally, vindictive prosecution claims argue that a prosecutor retaliated against a defendant because they exercised a constitutional or statutory right. As mapped out above, Lowell might argue that David Weiss ratcheted up the gun charges against Hunter — 25 years of exposure instead of a diversion agreement — because he exercised his right to plead not guilty on the tax charges.

But that argument would be thwarted by several precedents that limit the ability of a defendant to plead vindictive prosecution, especially pre-trial. Bordenkirscher basically held that making dickish threats as part of plea negotiations is not vindictive prosecution. Goodwin made it much harder to argue that a prosecutor’s decision to ratchet up charges in response to a defendant’s decision to go to trial was presumptively vindictive, basically holding that the prosecutor may have, instead, added charges out of some societal interest in the prosecution.

You can see how this works in the case of Hatchet Speed, based on facts — involving felony gun charges in one district and the addition of a felony charge to a misdemeanor in another — not dissimilar from Hunter’s case. On January 6, Speed was an NRO contractor with TS/SCI clearance and a Naval reservist still training at Andrews Air Force Base. He had ties to the Proud Boys and expressed a fondness for Hitler. He went on a $50,000 weapon buying spree after January 6, including devices that — prosecutors successfully argued in a second trial — qualified as silencers under federal law. He was charged for unregistered silencers in EDVA and, at first, misdemeanor trespassing charges for his actions on January 6. Between the time his first EDVA trial ended in mistrial and a guilty verdict in his retrial, DOJ added a felony obstruction charge in DC, which his excellent FPD attorneys argued was retaliation for the mistrial. But DOJ responded with an explanation of the process leading to the addition of the felony obstruction charge: they added a second prosecutor, got better at prosecuting obstruction for January 6, found some more damning video of Speed at the Capitol, and came to recognize how Speed’s comments about the attack would prove the corrupt intent required for obstruction charges. They were pretty honest that they regarded Speed as a dangerous dude that they wanted to put away, too.

The same process might well happen if Lowell files a vindictive prosecution claim. Under Goodwin, Weiss might have to do little more than say there was a societal interest in jailing Hunter Biden to affirm the import of the gun laws his father continues to champion.

As with the selective prosecution claim, some facts exist with the Hunter Biden prosecution that might distinguish this from all the other impossible claims of vindictive prosecution. Most important is the contested status of that diversion agreement, about which both sides made conflicting claims during the failed plea hearing. If Noreika credits it as a bilateral contract between the two sides, as both Wise and Clark claimed it was at points during the hearing, then she might treat a vindictive prosecution claim as an abrogation of a contract followed by the ratcheting up of charges. If Noreika links it to the tax plea, as both sides described it as at different points in that hearing, then the question of whether Weiss reneged on the larger plea becomes an issue, but which might make this just a case of dickish threats covered by Bordenkirscher.

There’s also the fact that Weiss will have to come up with an explanation of why he and Leo Wise thought pretrial diversion was in the societal interest on June 20, why Leo Wise thought false statement charges were unnecessary on July 26, but then decided felony prosecution, including on two false statements charges, was in the societal interest on September 14. This is why Abbe Lowell keeps repeating,

no new evidence related to these charges emerged between June 20 (when the plea deal was first presented to the Court) and July 26 (when the prosecution reneged on its deal), and in fact only more favorable case law on this issue has developed since then.

While there was more evidence in Speed’s case (newly discovered video from the Capitol), mostly prosecutors just argued the evidence looked different as other obstruction cases unfolded.

Lowell is arguing that the only thing that explains why the five year old evidence against Hunter Biden might look different in September than it did in June is because of the political pressure brought to bear on Weiss, and maybe the threats that both Weiss and Thomas Sobocinski have described to the House Judiciary Committee that was significantly responsible for the threats.

That would make this a political influence and violent threats case, not a vindictive prosecution case — possibly a different kind of motion to dismiss on Due Process grounds, but not a vindictive prosecution case. Normally, though, prosecutors have lots of tools to exclude that kind of thing.

Vindictiveness on a much grander scale

Which brings me to Lowell’s request to serve subpoenas on Donald Trump, Bill Barr, Jeffrey Rosen, and Richard Donoghue, which first sent me down this rabbit hole.

Consider the timing. The November 15 filing makes an impossible request; it asks for subpoena returns by December 1.

Defendant Robert Hunter Biden, through his counsel, respectfully moves this Court to enter an order directing that subpoenas duces tecum be issued to the following individuals—Donald John Trump (“Mr. Trump”); William P. Barr (“Mr. Barr”); Richard Donoghue (“Mr. Donoghue”); and Jeffrey A. Rosen (“Mr. Rosen”)—pursuant to Rule 17(c) of the Federal Rules of Criminal Procedure, and that each subpoena recipient be required to provide any responsive documents and materials by December 1, 2023, to allow Mr. Biden sufficient time to review the material in advance of any necessary pre-trial motion, evidentiary hearing, and/or trial.

Thus far, Judge Noreika has not ordered Weiss to respond, but if they do in normal order and Lowell replies, this thing wouldn’t be fully briefed until December 6. Lowell couldn’t possibly expect subpoena returns, even assuming any of those served would respond without legal challenge, until after the new year.

The motion reviews the standard for subpoenas and admissibility at length, but as Popehat noted in a piece that otherwise got many of the facts of this case (such as the role of Biden officials in it) wrong, it doesn’t brief how Lowell would be able to use these records. Lowell mentions vindictive or selective prosecution but doesn’t, yet, make a case for it. Lowell cites just one precedent for obtaining subpoenas for use in pretrial filings, as opposed to at trial.

Lowell doesn’t mention Armstrong, the precedent that usually makes it impossible for defendants to get discovery in selective prosecution challenges. But that may be instructive. Before Lowell is making a request for discovery based on a selective and/or vindictive prosecution claim, he is first asking for subpoenas, without fully laying out whether this would be a selective or vindictive or political influence prosecution claim.

Instead of arguing Armstrong, Lowell instead notes that he knows these records actually exist. “Before the government intones its stock phrase, this is no fishing expedition.”

On that point, he’s right. There are records responsive to these subpoenas. But it’s worth looking at what they are, what else would be included if he got full response to these subpoenas.

The subpoenas ask for any communications provided to the January 6 Committee mentioning Hunter Biden (request 4). The request cites Richard Donoghue’s notes of Trump referencing the Hunter Biden prosecution. I’m fairly certain those notes came from the Archives; they were the subject of a special waiver of Executive Privilege back in July 2021. For a variety of reasons, finding similar such notes at the Archives would be virtually impossible without another Executive Privilege waiver, a waiver that because of the conflict, would have to come from Trump, not Biden.

The subpoenas ask for any personal records, such as diaries, that, “reference to any formal or informal decision, discussion, or request to investigate or prosecute Hunter Biden” (request 3). If Donoghue’s notes were not treated as official documents, those would be included. Any drafts of Bill Barr’s book or notes that formed the basis for it, also cited in this motion, would also be included. In the subpoena request, Lowell cites to this WaPo story for Barr’s quote about Trump’s harassment, in which DOJ beat journalist Matt Zapotosky attributes Trump’s comments to Barr based on the fact that Hunter’s, “name was in the news because of the discovery of a laptop belonging to him.”

The full reference in the book describes Will Levi witnessing the call, which raises questions about whether he was on the call taking notes (as Richard Donoghue was during the December 27, 2020 call) rather than standing by, listening to just one side of the conversation as described in the book.

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 conversation. 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.

A month after the election, the Washington Post reported that there was already an investigation of Hunter Biden under way when I started as Attorney General and that this fact was never leaked. The President never confronted me about that report directly, but I had heard he was angry that I didn’t say anything after the presidential debate in which Biden falsely suggested the relevant e-mails on his son Hunter’s laptop may have been placed there by the Russians. Biden’s bogus statement relied on a letter published a few days before by a coterie of retired intelligence officials who had lost their professional bearings and lent their names to partisan hackery. Their claim was exposed a few days later when the FBI, together with John Ratcliffe, the director of national intelligence, made clear there were no grounds to think the laptop’s damning content reflected foreign disinformation. But, of course, the media, having heralded the letter’s fictitious claims, stayed mostly quiet about its debunking. The damage was done. Biden got away with deception. And Trump thought I was to blame.

This, as well as other Hunter Biden references in the book, are fundamentally incompatible with Barr being personally involved in the Scott Brady project, including having personal knowledge of the circumstances by which Donoghue ordered the FD-1023 to be shared with the Hunter Biden team within ten days of this conversation.

But the degree to which Barr conducted Ukraine-related issues — not to mention a reference to sending Barr a laptop the day after FBI received a laptop believed to have been owned by Hunter Biden — on his personal cell phone would suggest he may have far more, and far more forthright, records about his knowledge of the Hunter Biden investigation in his personal possession. Those would be covered by the subpoena request for communications with, “any Executive Branch official, political appointee, Department of Justice official, government agency, government official or staff person, cabinet member” (request 2).

Trump too would have, “communications…discussing any formal or informal investigation or prosecution of Hunter Biden, including, but not limited to, any decision, referral, or request to investigate or not investigate or charge or not charge Hunter Biden” (request 1). Lowell includes eight examples in his motion: social media posts, four from during Trump’s term and four during the period between the posting of the plea and the failed plea deal.

Those are easy. The records exist, including records over which Trump could invoke no conceivable privilege.

Abbe Lowell is not making up his claim that the top officials at DOJ and Donald Trump communicated about this investigation. He’s not even making up the insinuation that some were intimately involved in efforts to filter dirt, potentially including from Russian agents, into the investigation of Hunter Biden. Scott Brady has already confessed to that.

But one detail of the subpoenas hints at where this could go: In addition to requests for communications with government officials about prosecuting Hunter Biden, it also requests for communications with any, “attorney for President Trump (personal or other) discussing or concerning Hunter Biden” (request 2).

These subpoenas ask for communications with Rudy Giuliani about Hunter Biden.

While the DOJ people may have insulated themselves from direct contact with Rudy (for example, Barr spoke with Victoria Toensing about Dmitry Firtash and the Brady project was set up through Robert Costello), Trump would have a gold mine of contacts with Rudy, including about the “Hunter Biden” “laptop.” He might claim privilege over those.

You know what other communication Trump had, “discussing any formal or informal investigation or prosecution of Hunter Biden” (request 1)? The perfect phone call with Volodymyr Zelenskyy, including — to the extent it still exists — the version in which Zelenskyy named Burisma explicitly, the version in which Trump referenced recordings of Biden discussing corruption, the kind of thing, Lev Parnas claims, that had already been offered up by Mykola Zlochevsky, the guy who went on to make a new bribery claim about Joe Biden after that call.

What these subpoenas ask for pertains to political influence and threats. But they also ask for evidence of a different kind of vindictive prosecution: Trump’s explicit effort to exact his revenge for the Russian investigation on Democrats, on his Democratic opponent, by investigating Hunter Biden.

That’s a due process violation. But not of the kind covered by all the precedents that make it virtually impossible to prove vindictive prosecution.

Serving notice

These subpoenas seek evidence showing that Trump’s demand for an investigation of Hunter Biden for vindictive reasons reached the team investigating Hunter Biden. These are impossible subpoenas, insofar as they ask for compliance according to an impossible timeline and ask for compliance that may not legally be available (indeed, to the extent Trump has items in his possession, for various reason they may be covered by the Mar-a-Lago protective order). To the extent subpoenas ask for things covered by various privileges, they would pose impossible challenges to overcome. To the extent the subpoenas ask for the perfect phone call in which Trump demanded Zelenskyy’s help with an investigation of Hunter Biden, they are impossible subpoenas because the White House altered that record in real time.

But they are, also, subpoenas for records that undeniably exist, records that incorporate an effort Bill Barr set up to cater to Donald Trump’s personal lawyer that did result in at least one piece of evidence being introduced into the Hunter Biden investigation — Bill Barr’s communications with (!!!) Margot Cleveland would be responsive to his subpoena and would prove that point — records that further show that on at least two occasions, the President of the United States personally berated the Attorney General (or Acting Attorney General) making demands about this investigation.

The subpoena request does one more thing, as well. It notes that under 26 USC 7217, if any of Trump’s demands about this investigation covered a demand for tax prosecution — the kind of tax prosecution still being pursued in California — it would constitute a felony, one that explicitly names the President among those covered by the crime.

For his part, Mr. Trump has made a plethora of concerning public statements calling for an investigation or possible prosecution of Mr. Biden, both while in office and since leaving, that further suggest improper partisan, political demands were at play, either expressly or implicitly. See also 26 U.S.C. § 7217 (making it a felony for the President to request an IRS investigation of an individual).

These may be impossible subpoenas, but they do serve notice.

My guess is that, when and if Weiss responds, he simply says that those big efforts to politicize this investigation are totally separate from this little tiny isolated gun indictment. He may claim he doesn’t follow the Twitter feed of the guy who appointed him anyway — the same excuses Bill Barr made about other demands Trump served on DOJ via Twitter. Weiss may say, with reason, that some of Richard Donoghue’s involvement in this case actually served to ensure the investigation did not influence the 2020 election. But to even broach that subject, he’d have to admit that some of Richard Donoghue’s efforts, such as ordering Weiss’ attorneys to accept a bribery allegation from the head of Burisma made during impeachment, made after Rudy Giuliani solicited dirt from him, possibly in exchange for favors from DOJ that just happened to coincide with the closure of an investigation into him, can in no way be considered such a thing. Weiss may even say that to the extent that he sheep-dipped his prosecution team, swapping Lesley Wolf for Leo Wise, he has further isolated the team from such improper influences, influences that (Joseph Ziegler helpfully revealed) have been documented going back to 2019.

However Weiss responds, that response will precede whatever motions to dismiss — whether it’s selective or vindictive or really vindictive prosecution — that Abbe Lowell ultimately does file.

None of that will change the precedents — Armstrong and Bordenkirscher and Goodwin and others — that make it nearly impossible for defendants to make these arguments.

But there are aspects of this case, both the known evidence (much of it offered up by law enforcement officers whose actions led to threats against the prosecution team) and the legal posture leftover from that failed plea deal, that make the motions to dismiss genuinely different.

This case is, on one hand, a very simple prosecution involving claims Hunter Biden made in his book, the application of a law that his father championed. It is also, however, a test of whether defendants can fight a different kind of vindictive prosecution, the kind Trump demanded and continues to demand.

Thanks to Carissa Byrne Hessick, who generously served as a sounding board for my thoughts leading up to this post. The errors in the post are all mine.

The Two Impeachment Treason Trip: Ukraine Charges Rudy Giuliani’s Sources

November 14, 2023/74 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel, Hunter Biden, Impeachment /by emptywheel

Yesterday, Ukraine’s SBU charged with treason three of the people from whom Rudy Giuliani sought dirt on the Bidens to help Donald Trump get reelected. The announcement names Andrii Derkach and Kostyantyn Kulyk and describes someone that Politico reports to be Oleksandr Dubinsky.

The allegations say the threesome took $10 million from Russia’s GRU to discredit Ukraine.

“The main task of this organization was to take advantage of the tense political situation in Ukraine and discredit our state in the international arena. For this, the group was getting money from Russian military intelligence. Financing amounted to more than $10 million,” SBU said.

According to SBU, Dubinsky, guided by GRU, spread fake news about Ukraine’s military and political leadership, including claims that high-ranking Ukrainian officials were interfering in U.S. presidential elections. SBU said the Ukraine group was run by GRU deputy head Vladimir Alekseyev and his deputy Oleksiy Savin.

The propaganda described in the announcement preceded but is closely linked to Rudy’s December 5, 2019 trip to Kyiv to obtain dirt from Derkach. This Just Security timeline provides a good summary of how the trip to Kyiv — right in the middle of House impeachment proceedings — fit into Rudy’s year-long effort to find campaign dirt.

Why wasn’t Rudy ever charged?

The US Treasury Department sanctioned Derkach for election interference on September 10, 2020. Treasury added Kulyk, Dubinsky, and several other Derkach associates on January 11, 2021.

On September 26, 2022, EDNY charged Derkach with sanctions violations and money laundering. On January 23, 2023, EDNY superseded that indictment to add Derkach’s wife. On December 7, 2022, EDNY moved to seize a condo it claims the couple owns in Beverly Hills.

The Intelligence Community knew of Rudy’s trip to meet Derkach before he went to Kyiv and warned Trump, but Trump did not care.

The warnings to the White House, which have not previously been reported, led national security adviser Robert O’Brien to caution Trump in a private conversation that any information Giuliani brought back from Ukraine should be considered contaminated by Russia, one of the former officials said.

The message was, “Do what you want to do, but your friend Rudy has been worked by Russian assets in Ukraine,” this person said. Officials wanted “to protect the president from coming out and saying something stupid,” particularly since he was facing impeachment over his own efforts to strong-arm Ukraine’s president into investigating the Bidens.

But O’Brien emerged from the meeting uncertain whether he had gotten through to the president. Trump had “shrugged his shoulders” at O’Brien’s warning, the former official said, and dismissed concern about his lawyer’s activities by saying, “That’s Rudy.”

[snip]

Several senior administration officials “all had a common understanding” that Giuliani was being targeted by the Russians, said the former official who recounted O’Brien’s intervention. That group included Attorney General William P. Barr, FBI Director Christopher A. Wray and White House Counsel Pat Cipollone.

Later reporting made, then retracted a claim, that the FBI had warned Rudy before he made the trip to Kyiv.

At the time Rudy made the trip to Kyiv, he was already under investigation, by SDNY, for serving as an unregistered agent of a different Ukrainian dealing dirt, Yuri Lutsenko, an investigation that grew out of the campaign finance prosecution of Lev Parnas and Igor Fruman. SDNY obtained warrants for Rudy’s iCloud account on November 4, 2019 and, in April 2021, seized 18 devices from the former President’s attorney. That investigation concluded with no charges in August 2022. Rudy’s lawyer, Robert Costello, subsequently revealed that a number of the devices FBI seized in April 2021 were corrupted and therefore useless to the investigation, which likely is a big part of the reason Rudy was not charged by SDNY.

But Rudy was never charged for his ties to known Russian agent Derkach, either. Indeed, the Derkach indictment was written to focus on his NABULeaks site, attacking Ukrainian efforts to combat corruption; it does not mention Rudy (though it does mention that his sanctions pertained to the 2020 election).

Not only wasn’t Rudy charged, but he was permitted to share the information he obtained while in Ukraine directly with DOJ.

How that happened remains among Bill Barr’s most corrupt and complex machinations, one that deserves far more attention given the ongoing efforts to gin up a Ukraine-related impeachment against Joe Biden.

On January 3, 2020 — less than a month after Rudy met Derkach and while Trump’s first impeachment remained pending — Barr tasked Pittsburgh US Attorney Scott Brady with the “discreet” assignment of ingesting dirt from the public, primarily meaning Rudy, to “vet.”

Brady’s recent deposition before the House Judiciary Committee revealed he did little real vetting. What he did do, though, was to query prosecutors in SDNY about the ongoing investigation into Rudy and obtain “interrogatories” from prosecutors in Delaware about the ongoing investigation into Hunter Biden. He also spoke with prosecutors investigating Dmitry Firtash and Ihor Kolomoyskyi, two of three Ukrainian oligarchs from whom Rudy had also solicited dirt.

Brady also spoke with DC investigators who — according to Chuck Grassley — had just one month earlier, right in the middle of the impeachment effort directly tied to Burisma, shut down an investigation into Burisma owner Mykola Zlochevsky, the third Ukrainian oligarch from whom Rudy solicited dirt. From the DC investigators, Brady learned of a passing reference to Hunter Biden in a 2017 informant report, which led Brady to reinterview the same informant. The informant revealed that in a late 2019 phone conversation, one that almost certainly took place during impeachment, Zlochevsky claimed to have bribed Joe Biden in such a way that it would take ten years of searching to find the payoff.

In his HJC deposition, Brady admitted that Rudy did not tell him — and his team did not seek out any information — about the President’s lawyer’s efforts to solicit dirt from Zlochevsky.

Q Okay. But you never asked, for example, the House Permanent Select Committee investigators or anyone associated with that investigation to do a similar inquiry for evidence relating to Zlochevsky?

A No, I don’t believe we did.

Q Okay. And, like you said, you were not aware that this interview had taken place in 2019. Is that fair to say?

A I don’t believe I was, no.

Q Okay. And anyone on your team, as far as you know, was not aware that Mr. Zlochevsky had been interviewed at the direction of Giuliani before your assessment began?

A I don’t believe so.

In September 2020, Brady provided Richard Donoghue with a report on the results of his “vetting.” On October 23, 2020, Brady’s investigators briefed David Weiss’ investigators on the FD-1023 describing the late 2019 Zlochevsky claim of bribery. Weiss claims that aspect of his investigation remains ongoing, and Republicans have made the FD-1023 part of their impeachment inquiry into Joe Biden.

But Barr did more than provide a way for Rudy to share information obtained from a known Russian agent such that it might be used in the investigation into Joe Biden’s son and, now, an impeachment stunt targeting Joe Biden himself. He also ensured that SDNY would not be able to expand their investigation to cover Rudy’s dalliances with Derkach.

On January 17, 2020, Jeffrey Rosen issued a memo making the US Attorney in EDNY — then Richard Donoghue, but Donoghue would swap places in July 2020 with Seth DuCharme, who was at the time overseeing the Brady tasking — a gatekeeper over all Ukraine-related investigations.

Any and all new matters relating to Ukraine shall be directed exclusivelyl to EDNY for investigation and appropriate handling. Unless otherwise directed, existing matters covered by this memorandum shall remain in the Offices and components where they currently are being handled, subject to ongoing consultation with EDNY. Any widening or expansion of existing matters shall require prior consultation with and approval by my office and EDNY.

This memo had the known effect of prohibiting SDNY from following the evidence where their existing investigation into Rudy Giuliani would naturally lead — to Rudy’s relationship with known Russian agent Andrii Derkach.

Geoffrey Berman’s book revealed that Barr also prohibited the New York FBI Field Office — which supports investigations in both SDNY and EDNY — from obtaining the 302s from Brady’s January interviews with Rudy.

There were FBI reports of those meetings, called 302s, which we wanted to review. So did Sweeney. Sweeney’s team asked the agents in Pittsburgh for a copy and was refused. Sweeney called me up, livid.

“Geoff, in all my years with the FBI I have never been refused a 302,” he said. “This is a total violation of protocol.”

This would have prevented SDNY from holding Rudy accountable for any lies he told Brady and prevented EDNY from obtaining Rudy’s first-hand account about where he obtained his dirt and what he had to trade to get it. That may explain why Rudy doesn’t show up in Derkach’s indictment.

But Barr wasn’t done with his efforts to protect Rudy from any consequences for his dalliance with a known Russian agent. In June 2020, Barr fired Geoffrey Berman in an attempt to shut down the ongoing “tentacles” of the investigation into Rudy.

The reason Rudy Giuliani was not charged for soliciting election disinformation from a known Russian agent is that the Attorney General of the United States set up a system that separated the investigation of that Russian agent from the investigation of Rudy, all while channeling whatever disinformation Rudy obtained from Derkach (or Zlochevsky) into the investigation of Joe Biden’s son.

It’s that simple. Bill Barr set up a system that protected Russian disinformation and made sure it could be laundered into the Hunter Biden investigation and also protected the President’s personal lawyer from any consequences for soliciting that Russian disinformation from a known Russian agent.

That’s why Rudy Giuliani wasn’t charged.

How does this relate to the “Hunter Biden” laptop?

The system that Barr set up absolutely has to do with the FD-1023 that remains part of both the Biden impeachment effort and the Hunter Biden criminal investigation.

There’s far less evidence that Rudy’s effort has anything to do with the “Hunter Biden” laptop.

To be sure, Lev Parnas has described that in May 2019 — the month after the laptop ultimately shared with the FBI was dropped off in Wilmington — he first learned that people were shopping a laptop with dirt on Hunter Biden, though he understood it to be one stolen in 2014, not 2019.

At the same time, the BLT Team was exploring many different angles to get information on the Bidens. In June, Giuliani asked me to accompany him to a lunch in New York with Vitaly Pruss, a Russian businessman who claimed to have deep connections to Burisma, including with Hunter Biden’s business partner Devon Archer, and had recommended powerful people to Zlochevsky that he should put on the company’s board. During this meeting, Pruss shared a story with us: He said earlier that year, while doing business related to Burisma, he had taken Hunter Biden to meet Kazakhstan’s minister of foreign affairs, and that Biden had gotten substantially intoxicated with drugs and alcohol on this trip. While he was incapacitated, his laptop was compromised and copied by a representative of FSB (Russia’s secret police) and members of Zlochevsky’s team.

It’s important to note that certain aspects of Pruss’s story are verifiably true. This trip with Hunter Biden did happen, and his computer hard drives were taken and duplicated. But Pruss specified that while the contents of the laptop were personally embarrassing to Hunter Biden – pictures of him doing drugs and surrounded by girls — there was no evidence of financial crimes or any data on his laptop that suggested illegal activities of any other kind, which is the sort of proof that Giuliani desperately needed. Pruss never mentioned anything about the hard drives containing criminal information, only the embarrassing images. It was not until Giuliani began disseminating the story of Hunter Biden’s laptop that the idea of proof of financial and political crimes was introduced.

Parnas also described that he expected to obtain a hard drive from Hunter’s laptop on the trip to Vienna that got preempted by his arrest.

In the early part of October 2019, I got a call telling me to go to Vienna with Giuliani, where the former Chief Financial Officer of Burisma, Alexander Gorbunenko, would meet Giuliani and give us Hunter Biden’s hard drive and answer any questions we had.

The timing of the known laptop parallels Rudy’s efforts in chilling fashion.

The laptop ultimately shared with the FBI was first linked to Hunter Biden’s Apple account in October 2018, at the beginning of Rudy’s efforts to solicit dirt on Biden.

On a November 14, 2018 check, Hunter linked his Fox News pundit shrink to a Russian or Ukrainian-linked escort service he was frequenting at the time — likely the same escort service on which the investigation, now entering its sixth year, was first predicated. But that reference on a check memo line could as easily be explained by addiction or his efforts to cover up or write off such expenses.

Most of the materials on the laptop got packaged up in January and February 2019 while Hunter was again receiving treatment from his Fox News pundit shrink. At the time, Hunter may have had limited access to the Internet, much less the ability to package all that up. The laptop ultimately shared with the FBI was packaged up at a time when Hunter also had a different, older laptop in his possession that was ultimately left at the guest house of the Fox News pundit shrink.

The laptop ultimately shared with the FBI was delivered to the Delaware repair shop — by someone who had access to Hunter Biden’s phone and credit card — in April 2019.

Depending on whether you believe John Paul Mac Isaac or the FBI, JPMI’s father first reached out to the FBI about the laptop hours before or seven days after Parnas was arrested, either October 9 or October 16, 2019. The FBI ultimately obtained the laptop on December 9, 2019, days before the House voted to impeach Donald Trump, and the same month when (per Chuck Grassley) Barr’s DOJ shut down an investigation into Zlochevsky, the guy whose former CFO had been offering Rudy such a hard drive two months earlier. If you can believe JPMI (and you probably can’t), the FBI tried to boot up the laptop before obtaining any known warrant for it.

The day after the IRS obtained a warrant for the laptop on December 13, 2019, one of Barr’s aides texted him on his private phone to let him know they were sending him a laptop.

And then months after Barr jerry-rigged a system to ingest dirt from Russian spies into the investigation of Hunter Biden while protecting Rudy, in August 2020, JPMI shared a hard drive of the materials from that very same laptop with Rudy Giuliani, the same guy who had solicited dirt from Burisma in October 2019 and from a Russian agent back in December 2019.

After the NYPost first revealed the laptop, Rudy dismissed concerns that it may have come from Russian spies and even called obtaining it an “extension” of his earlier efforts to obtain such dirt, including (if you can believe Parnas) a laptop from Zlochevsky’s former CFO.

But that’s some Deep State talk, he added. “The chance that Derkach is a Russian spy is no better than 50/50.”

[snip]

Asked, for instance, whether he was concerned if the materials he obtained might in some way be linked to the hacking of Burisma late last year—an act attributed to Russian intelligence—Giuliani said: “Wouldn’t matter. What’s the difference?”

[snip]

Giuliani said he viewed his latest leak to the New York Post as an extension of his years-long efforts to work with Ukrainians to dig up dirt on the Bidens.

According to Scott Brady, Rudy never told him he had obtained the laptop, even though Rudy got it before Brady submitted his report to Donoghue in September 2020.

There are a great deal of remarkable coincidences in the parallel timelines of Barr’s complex system to obtain dirt on Hunter Biden while protecting Rudy and the timeline of the laptop first shared with the FBI and then shared with Rudy. But thus far that’s all they are: coincidences.

There’s not even proof — at least not publicly — that anyone besides Hunter Biden packaged up the laptop that ultimately got shared with the FBI. To the extent someone did, there’s more evidence implicating American rat-fuckers than Russian ones.

There are a great deal of questions about how the laptop got packaged up and the legality of JPMI’s sharing of it with anyone but the FBI. But for now, those are different questions than the questions about Rudy’s efforts to solicit dirt from a Russian agent.

Did John Durham meet these same Russian agents on behalf of Barr?

There’s one more question these charges in Ukraine raise, however: Whether John Durham met with one or several of these men Ukraine now accuses of working for Russian spies.

On the day that Treasury sanctioned Kulyk and Dubinsky, January 11, 2021, Durham sent an aide some group chats he had participated in with Barr’s top aides in September 2019, just as the impeachment panic started.

Those group chats, which Durham referred back to on the day Derkach’s associates were sanctioned, seem to have arisen out of a panic Barr had on the morning of September 24, 2019, the day the White House would release the Volodymyr Zelenskyy transcript showing that Trump asked the Ukrainian President to deal dirt on the Bidens to both his Attorney General and personal lawyer.

“Call me ASAP,” the Attorney General texted Durham that morning, followed almost twelve hours later by Durham asking to speak, possibly for a second time.

The next day, September 25, DOJ issued a statement revealing that Durham had received information from several Ukrainians who weren’t part of government.

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.”

That’s what led up to the group chats Durham would share months later.

At 3:44 PM on September 26, the day the White House released the whistleblower complaint, someone from Durham’s team — probably Durham himself — participated in a chat with 8 people.

Less than an hour later, a bunch of people — including Will Levi, Seth DuCharme (who would be in charge of Scott Brady’s “vetting” project and then take over any investigation in EDNY), and “John” — convened in a lobby bar together, waiting for Barr to arrive.

The following day, when Kurt Volker resigned, there was another group chat, the second one Durham would share months later.

Barr was still focused on CYA regarding his own involvement. In advance of Lindsey Graham going on the Sunday shows that weekend, Barr made sure to get Lindsey his statement claiming not to have spoken to the Ukrainians personally.

Later on October 2, Kerri Kupec apologized to Barr that “Sadie” hadn’t gotten editors to change a particular story, probably a reference to this WSJ story, which discusses Barr’s request that Trump give introductions to some foreign leaders.

On October 30, the day after the Democrats released the impeachment resolution, Kupec sent Barr the statement he had made about Ukraine back in September.

A minute later Barr sent that statement to Will Levi, with no further comment.

There’s far more about Barr’s panic as impeachment unrolled in 2019, as I laid out here.

The panic likely includes Eric Herschmann, who was then in private practice but who would join Trump’s impeachment defense and then ultimately serve as a babysitter for Trump in the White House. While at the White House, Hershmann pitched the “laptop” to the WSJ before Rudy discredited it.

But one thing is clear: In the wake of the disclosure that Trump asked Zelenskyy to work with Barr in addition to Rudy, Barr attempted to pawn off any contacts with Ukraine onto Durham — an effort that appears to have been discussed in both group chats and a face-to-face meeting in a hotel bar.

And then, over three months later, on the day that Rudy’s sources were sanctioned, two of whom were just charged with treason along with Derkach, Durham revisited those group chats.

That may explain why Barr worked so hard to ensure that Rudy never faced consequences for soliciting disinformation from a known Russian agent.

Update: Fixed timing of Parnas arrest per zscore.

Donald Trump’s DOJ Shut Down a Burisma Corruption Investigation Opened while Joe Biden Was VP

November 9, 2023/40 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

Right in the middle of an impeachment for extorting Volodymyr Zelenskyy to dig up dirt on the Bidens and Burisma, Bill Barr’s DOJ shut down a corruption investigation into Burisma’s Mykola Zlochevsky.

Then, days later, Barr set up a process that would insert an allegation that Zlochevsky bribed Joe Biden into the ongoing investigation of Hunter Biden.

That is — by far — the most scandalous allegation that has come out of the Jamie Comer and Jim Jordan-led effort to gin up an impeachment of Joe Biden. Bill Barr’s DOJ shut down an investigation into Zlochevsky’s corruption, and then mainlined an allegation of corruption involving Zlochevsky into the investigation of Joe Biden’s son.

To be fair, the claim that Bill Barr’s DOJ shut down a corruption investigation of Zlochevsky didn’t come from Comer or Jordan. It came from Chuck Grassley.

In a letter Grassley sent Merrick Garland on October 23, he described what he knew about the genesis of an FD-1023 he and Comer released during the summer. He described that the 2017 informant report that included a mention of Hunter Biden and led Scott Brady to reinterview that informant in June 2020 came from a Kleptocracy investigation — a bribery investigation — into Mykola Zlochevsky which “was opened in January 2016 by a Foreign Corrupt Practices Act FBI squad based out of the FBI’s Washington Field Office.”

While Joe Biden was Vice President and his son was on the board of Burisma, according to Chuck Grassley, DOJ opened a corruption investigation into Burisma’s owner.

That corruption investigation into Mykola Zlochevsky was shut down — again, per Chuck Grassley — around five months after Donald Trump tried to extort the President of Ukraine for dirt on the Bidens and Burisma and just two months after Rudy Giuliani planned to fly to Vienna to get dirt on Hunter Biden from Dmitry Firtash and a Burisma executive. Grassley described that it was shut down in the very same month, December 2019, the House voted to impeach Donald Trump for soliciting dirt on the Bidens and Burisma, the same month that IRS and FBI obtained a laptop purported to be owned by Hunter Biden — followed, a day later, by Barr’s aides telling him they were sending him a laptop.

“[I]n December 2019, the FBI Washington Field Office closed a “205B” Kleptocracy case, 205B[redacted] Serial 7, into Mykola Zlochevsky, owner of Burisma,” Chuck Grassley revealed.

Weeks or days after that investigation was (again, per Grassley) shut down, on January 3, 2020, Bill Barr set up a process by which dirt on Hunter Biden — in part, dirt that Rudy Giuliani obtained from a known Russian agent, Andrii Derkach, and possibly even dirt that Rudy obtained directly from Burisma, dirt that was once pitched to include a laptop from Hunter Biden — could be shared with the ongoing investigation of Hunter Biden.

On January 3, 2020, Seth DuCharme “discreetly” tasked the US Attorney for Pittsburgh, Scott Brady, to accept the information from Rudy. But Brady did more than that. He did a search on Hunter Biden and Burisma — or maybe it was Zlochevsky and Burisma, he claimed not to remember in his testimony before the House Judiciary Committee — which led his team to discover the 2017 informant report. That’s the process that led to the re-interview of an informant used in 2017 in that Zlochevsky investigation, which led to the report that in 2019 that Zlochevsky claimed to have made payments to Joe Biden that were so well hidden it would take ten years to find. Unbelievably, FBI failed to write down the date when Zlochevsky made that claim, even though Scott Brady testified his team learned the precise details surrounding the informant’s travel to London where he had the conversation; it had to have happened relatively late in 2019, probably during the impeachment investigation.

As Lev Parnas and anyone else who knows these details remotely well will tell you, that claim from Zlochevsky was a new claim. When Rudy sent questions to Zlochevsky during the spring of that year, Zlochevsky said that Hunter Biden had never lobbied for Burisma.

At a meeting of the BLT Team, Giuliani and Solomon came up with a series of 12-14 questions about the Bidens that we would propose to Zlochevsky. Eventually, we managed to get Zlochevsky’s answers back. But his answers gave us nothing – because there was nothing. On reading Zlochevsky’s reply, Giuliani turned red and yelled, “What is this shit? This is bullshit. Make sure nobody sees this. Bury this.”

I will remind you that Zlochevsky’s answers are in the report that the House Oversight Committee published. In this document, he stated that Hunter Biden was never asked or assigned to speak with anybody in the U.S. on behalf of Burisma, that there were no political or lobbying efforts on behalf of Burisma, that nobody from the company had ever spoken to Joe Biden, and that Hunter Biden was essentially innocent of what people had been implying. His letter debunked all the conspiracy theories.

The truth is Burisma tried to compromise Joe Biden, with Vadym Pozharskyi making much, for example, of a 2015 World Food Program dinner to which Biden dropped in to meet someone else. And a lobbying campaign by Blue Star Strategies set up through Devon Archer and run by Eric Schwerin did push Ukraine to halt its investigation into Zlochevsky. It did set up two meetings for Zlochevsky’s attorney in the United States. Here’s how BSS described that effort in a filing submitted retroactively in 2022.

Registrant was asked in 2016 to help schedule meetings with U.S. Government officials so counsel for Mr. Zlochevsky could present an explanation of certain adverse proceedings in the U.K. and Ukraine involving Mr. Zlochevsky. Registrant scheduled 2 meetings, and a representative of registrant accompanied counsel for Mr. Zlochevsky to the meetings. Registrant did not have a written agreement or letter creating any engagement on behalf of Mr. Zlochevsky, and no compensation for Blue Star Strategies’ assistance was provided by Mr. Zlochevsky.

In an October 2016 email not involving Hunter Biden (who had a role in setting up the relationship with BSS, but not once they were brought in), BSS noted — and took credit for — Ukraine halting the investigation into Zlochevsky.

According to Chuck Grassley, by that point, DOJ under Obama had opened its own investigation into Zlochevsky.

In spring 2019, Zlochevsky said he had no dirt on Joe Biden but — again according to Lev Parnas — he said he could get dirt, possibly in the form of a laptop, if Rudy could do something to “curry favor” at DOJ. And then, in the same month that DOJ obtained a Hunter Biden laptop, DOJ shut down the investigation into Zlochevsky. And around the same time, Zlochevsky randomly offered up to an FBI informant, for the first time, that he had bribed Joe Biden.

Here’s the thing that Chuck Grassley doesn’t understand. It makes no sense to shut down a corruption investigation into the head of Burisma, then interview an informant about what he knows of corruption allegations involving the head of Burisma. (Remember, at the time, the US Attorney for EDNY served as a gatekeeper for any investigations pertaining to Ukrainian corruption, so to reopen that investigation, DC would have had to get EDNY’s approval.) If you care about corruption allegations, you pursue both sides of that, the guy alleged to be making the bribe along with the guy whose bank accounts and public actions show no sign of accepting one.

Unless the guy alleged to be making the bribe only made the allegation after being bribed to do so.

This claim is not coming from Hunter Biden’s attorney Abbe Lowell. It’s not Jamie Raskin claiming that Barr shut down a bribery investigation into Burisma. It’s Chuck Grassley making the claim.

Bill Barr’s DOJ shut down a bribery investigation into Mykola Zlochevsky in December 2019. And then days later, on January 3, 2020, he set up a way to get a claim that Mykola Zlochevsky had bribed Joe Biden injected into the investigation of Hunter Biden.

Trump’s Retribution Promises and Media Complicity

November 7, 2023/84 Comments/in 2024 Presidential Election, January 6 Insurrection /by emptywheel

I have been critical of NYT’s serial effort — now joined by WaPo — to predict retribution in a second Trump term, without doing any recent reporting on how that represents a continuation of Trump’s first term, not anything new. Rather than assign three reporters (including reporters who played key roles enabling past retribution efforts) to treat this as a hypothetical future endeavor, why not assign one to report on newly disclosed details of how Bill Barr ordered Scott Brady to dig up more evidence against Joe Biden’s son?

The attention on the WaPo, especially, has sucked up attention that might otherwise be focused on an excerpt from Jonathan Karl’s new book. It’s about the same thing — retribution. But not about past retribution, nor future retribution, but the way that Trump is leveraging cultural cues about retribution, starting with the launch of his campaign from Waco, TX on the thirty year anniversary of the raid (connotations that were evident in advance).

Given the excerpt, I’m not entirely sure whether Karl thinks Trump is doing this out of a sense of weakness, or because he knows the cultural connotations retribution invokes will elicit a certain kind of response from his followers.

Karl describes how Trump turned to this theme after being rattled by his first indictment (and elsewhere describes Trump’s fury at Todd Blanche to agreeing to a trial data in the Alvin Bragg case prior to the end of the primaries).

The problem was that the indictment had rattled him. For all his bluster, Trump desperately wanted to stave off an arrest, and he was embarrassed he hadn’t been able to. When it came time to turn himself in, he slipped out of Trump Tower and got into a black SUV.

[snip]

D.A. Bragg and Juan Merchan, the presiding judge, were met by a version of Donald Trump that was much quieter, more somber—more timid—than the man he appeared to be on television and social media. The night before, he had said that Bragg should “INDICT HIMSELF.” But finally given a chance to confront them face‐to‐face, Trump was mostly silent. During the 57‐minute proceeding, Trump said just 10 words—“not guilty,” “yes,” “okay, thank you,” “yes,” “I do,” “yes”—and spoke so quietly that reporters had to strain to hear him.

For the first time in years, Donald Trump was not the most powerful person in the room.

Karl also describes Steve Bannon revelling in the explicit Neo-Confederate iconography of the speech Trump gave at CPAC.

“The sinister forces trying to kill America have done everything they can to stop me, to silence you, and to turn this nation into a socialist dumping ground for criminals, junkies, Marxists, thugs, radicals, and dangerous refugees that no other country wants,” he said. The speech was ominous, but one rhetorical flourish stood out. “In 2016, I declared I am your voice. Today, I add: I am your warrior; I am your justice,” Trump said. “And for those who have been wronged and betrayed, I am your retribution.” He repeated the last phrase—“I am your retribution”—and promptly the crowd started chanting: “U.S.A.! U.S.A.! U.S.A.!”

When I spoke with Bannon a few days later, he wouldn’t stop touting Trump’s performance, referring to it as his “Come Retribution” speech. What I didn’t realize was that “Come Retribution,” according to some Civil War historians, served as the code words for the Confederate Secret Service’s plot to take hostage—and eventually assassinate—President Abraham Lincoln.

Both can be true, of course. Faced with a kind of vulnerability he has never before faced and willing to burn everything down to find a way out, Trump is all too happy to mobilize far right extremists as his instrument (in his description of the Waco event, Karl describes Trump celebrating January 6).

To the extent that Trump’s campaign logic is retribution, then, the spate of stories — both the NYT one and the WaPo one featuring Trump-whisperers — simply reinforce Trump’s campaign message while downplaying the way Trump has always engaged in retribution, often backed by threats of violence.

Indeed, they help Trump provide assurances that in the future, he’ll find better prosecutors than John Durham, who was every bit as corrupt as the prospective stories predict Trump’s select prosecutors might be in the future, every bit as much about retribution, but who never found evidence that could sustain a conviction. He’ll find better prosecutors, more corrupt ones, Trump needs to tell his mob, because quite honestly, he made these very same promises in 2020 and failed to deliver, though did untold damage in the process.

And those failures weren’t for want of trying or any kind of ethical compunction on his part or the instruments of his retribution.

The reason I think Karl’s descriptive piece is more useful than the predictive pieces (aside from the way the predictive pieces totally whitewash Trump’s past unprecedented focus on retribution) is because he identifies the puzzle at the core of Trump’s success running on retribution: What’s in it for his mob? Why does this focus on retribution work?

“If they can do it to him they can do it to you,” Donald Trump Jr. tweeted. Noticeably absent from Trump’s obsession with his own victimization was any real focus on helping Americans who weren’t under criminal investigation, but his advisers were convinced that the ploy would work. “This week, Trump could lock down the nomination if he played his cards right,” Bannon told me as rumors began to swirl of Bragg’s indictment. “‘They’re crucifying me,’ you know, ‘I’m a martyr.’ All that. You get everybody so riled up that they just say, ‘Fuck it. I hate Trump, but we’ve got to stand up against this.’”

[snip]

“The DOJ and FBI are destroying the lives of so many Great American Patriots, right before our very eyes,” Trump posted on Truth Social the day after four members of the Proud Boys militia were convicted of seditious conspiracy for their role in the storming of the Capitol. “GET SMART AMERICA, THEY ARE COMING AFTER YOU!!!”

But “they” weren’t coming after Trump’s law‐abiding supporters—they were coming after Trump. Decades earlier, the presidential candidate Bill Clinton told voters that he felt their pain. Trump was now doing the reverse, trying to persuade his supporters to feel his pain as if it were their own. [my emphasis]

The answer this question is both obvious, and urgent.

It’s obvious, because Trump really is keying into something that isn’t entirely about extremism. And/or Trump is in many cases the gateway drug to radical extremism, something that has shown up over and over in January 6 cases. People respond to something in Trump and then, because Trump’s networks include large numbers of right wing extremists, their ideology gains traction where they might otherwise not. And then the cultural coding of retribution starts to resonate.

It’s urgent, because whether or not Trump wins election, if he primes his mob to embrace political violence again, January 6 will look like elementary school recess. On January 6, many people were armed, but even the ones who brought guns — and plenty did — kept them holstered. That won’t be true the next time.

It is more urgent to show how Trump’s past obsession with retribution hurt people, from his targets, to American security, to the wives of Republican Congressmen, than it is to report that he’ll do more of the same, only earlier this time. It is more urgent to understand why Trump’s mob buys into his messiah syndrome and puncture its power.

I’m not suggesting we return to a moody contemplation of the Deplorables. Nor am I hoping NYT reverts from its prospective reporting on retribution to its past obsession with Trump supporters in diners.

I’m asking for a focus on the continuity of retribution in Trump’s power — past, present, and future — along with some soul-searching about the media’s cooperation in that retribution dynamic.

Of particular note: the media’s coverage of Trump’s legal woes has only helped him create this dynamic.

Take the coverage of Trump’s testimony in his fraud trial yesterday. The NYT was one of the rare outlets that got into something substantive — that Trump did have a role in the valuations that Judge Engoron has already ruled to be fraudulent — in a headline; and it reported on that substance after six paragraphs describing Trump’s stunts. Most of the rest, however, reported nothing but conflict, virtually all of it staged or baited by Trump. Trump succeeded in entirely flooding out any reporting on his fraud — something that goes to the core of his ability to govern, something that goes to his success at fooling supporters and lazy journalists — by distracting everyone with spectacle, a strategy Rolling Stone reported he would adopt a month ago. Rather than reporting on all the evidence — even presented yesterday, amid the circus stunts — that Trump is actually the guy sticking it to the little guys, not the one vindicating them, most outlets just printed one after another of Trump’s taunts.

And in the process, just like any other staged wrestling match, spectators pick one or another side and root loudly, brainlessly. Even for those rooting for law and order, that’s unhealthy, because it invites hero worship and a false belief that prosecutions are easy and quick. It encourages people to outsource defense of democracy to prosecutors rather than do the hard work of organizing themselves. It invites people to engage in mockery rather than rational assessment of the legal case.

But for those who’ve been convinced by unrelentless propaganda about the Russian investigation — which showed that five top Trump aides lied to cover up Trump’s ties with Russian, for those who bought into Trump’s sustained attack on the legitimacy of democratic elections, for those who’ve been bombarded by non-stop coverage of Hunter Biden’s dick pics, the side they’ll pick is obvious. Adopt Trump’s conflict staging, and you will only ever heighten existing partisan divides.

Trump doesn’t care if a bunch of self-satisfied people mock him as a clown. Indeed, that’s what he wants. Because every time they do so publicly, it reaffirms that he’s the guy on the side of average people, fighting the pencil-headed assholes who frown at the little guy. Plus, if you mock something as serious as a lifetime of defrauding financial institutions as a circus, rather than explain how it allowed Trump to get something he hadn’t earned, it tells everyone that Trump’s adjudged fraud isn’t really serious. In your actions, you confirm the argument he is making.

And all the while, it prevents anyone from talking about how Trump has disavowed all the January 6ers who are facing the consequences of following Trump, claiming he has no role in their crimes. It prevents anyone from talking about why leaving nuclear documents in your bathroom requires spooks to shut down collection programs, leading directly to diminished US influence as war breaks out overseas. It prevents anyone from talking about how all of Trump’s brand has been built off lies claiming he, his net worth, his gaudy penthouse are much larger than they are.

Regular life may be screwing over the little guy (or, under Biden, regular life might have delivered financial gains and a resurgence of organized labor strength that never gets covered). But that’s a different thing than saying that “they” are coming for the little guy.

Yet Trump continues to convince people differently, in large part because the media plays along with Trump’s staged circus.

NYT Keeps Downplaying Trump’s Past Retribution Tour

November 2, 2023/39 Comments/in 2016 Presidential Election, 2020 Presidential Election, 2024 Presidential Election, Department of Justice, Hunter Biden, Impeachment /by emptywheel

Charlie Savage, Maggie Haberman, and Jonathan Swan keep teaming up to write the same story over and over: A second Trump term is going to be bad … really bad.

Just some of these stories, in reverse order from Tuesday’s latest installment, are:

There are several aspects to these stories: a bid to eliminate civil service protections, a personalization of power, and the elevation of people who proved willing to abuse power in his first term: Russel Vought (who helped obstruct the Ukraine investigation), Stephen Miller, and Johnny McEntee (who even before January 6 was making a willingness to invoke the Insurrection Act a litmus test for hiring at DOD), and Jeffrey Clark.

The series, thus far, skirts the language of authoritarianism and fascism.

At the core of the stories is that Trump is going to use a second term for retribution, to which the June 15 article is dedicated.

When Donald J. Trump responded to his latest indictment by promising to appoint a special prosecutor if he’s re-elected to “go after” President Biden and his family, he signaled that a second Trump term would fully jettison the post-Watergate norm of Justice Department independence.

“I will appoint a real special prosecutor to go after the most corrupt president in the history of the United States of America, Joe Biden, and the entire Biden crime family,” Mr. Trump said at his golf club in Bedminster, N.J., on Tuesday night after his arraignment earlier that day in Miami. “I will totally obliterate the Deep State.”

These stories admit that Trump did some of this in his first term. But they describe a process of retribution by the guy who got elected — with abundant assistance from Maggie Haberman — on a platform of “Lock her up!,” who breached the norm of judicial independence 24 days into office when he asked Jim Comey to “let this” Mike Flynn “thing go,” as something that took a while to “ramp up.”

In his first term, Mr. Trump gradually ramped up pressure on the Justice Department, eroding its traditional independence from White House political control. He is now unabashedly saying he will throw that effort into overdrive if he returns to power.

Mr. Trump’s promise fits into a larger movement on the right to gut the F.B.I., overhaul a Justice Department conservatives claim has been “weaponized” against them and abandon the norm — which many Republicans view as a facade — that the department should operate independently from the president.

Yet even though Savage did some important reporting on some of this (reporting that was counterbalanced by Maggie’s central role in helping Trump obstruct criminal investigations), these pieces always vastly understate how much politicization Trump pulled off in his first term, and never describe how that politicization continues at the hands of people like Jim Jordan.

In the spring of 2018, Mr. Trump told his White House counsel, Donald F. McGahn II, that he wanted to order the Justice Department to investigate his 2016 rival, Hillary Clinton, and James B. Comey Jr., the former head of the F.B.I. Mr. McGahn rebuffed him, saying the president had no authority to order an investigation, according to two people familiar with the conversation.

Later in 2018, Mr. Trump publicly demanded that the Justice Department open an investigation into officials involved in the Russia investigation. The following year, Attorney General William P. Barr indeed assigned a Trump-appointed U.S. attorney, John Durham, to investigate the investigators — styling it as an administrative review because there was no factual predicate to open a formal criminal investigation.

Mr. Trump also said in 2018 and 2019 that John F. Kerry, the Obama-era secretary of state, should be prosecuted for illegally interfering with American diplomacy by seeking to preserve a nuclear accord with Iran. Geoffrey S. Berman, a former U.S. attorney in Manhattan whom Mr. Trump fired in 2020, later wrote in his memoir that the Trump Justice Department pressured him to find a way to charge Mr. Kerry, but he closed the investigation after about a year without bringing any charges.

And as the 2020 election neared, Mr. Trump pressured Mr. Barr and Mr. Durham to file charges against high-level former officials even though the prosecutor had not found a factual basis to justify any. In his own memoir, Mr. Barr wrote that the Durham investigation’s “failure to deliver scalps in time for the election” eroded their relationship even before Mr. Barr refused Mr. Trump’s baseless demand that he say the 2020 election had been corrupt.

Where Mr. Trump’s first-term efforts were scattered and haphazard, key allies — including Jeffrey B. Clark, a former Justice Department official who helped Mr. Trump try to overturn the 2020 election — have been developing a blueprint to make the department in any second Trump term more systematically subject to direct White House control.

This effort was in no way haphazard!!! Most FBI personnel involved in the Russian investigation, from Jim Comey down to line analysts, had their careers systematically ruined, with Peter Strzok (who, the actual record of the Russian investigation shows, repeatedly took steps to protect Trump and Mike Flynn, even if he disliked Trump) offered up as an example of what will happen to people who don’t meekly just accept their punishment or, better yet, retreat to the private sector. The exceptions were the cyber guys who completely bolloxed the Alfa Bank investigation and people like Bill Barnett, who misrepresented the steps he himself took to provide “proof” of corruption on the Mueller investigation. That precedent has been sustained as right wingers take out other FBI agents deemed insufficiently loyal, like Tim Thibault, who personally opened an investigation into the Clinton Foundation in 2016 but who was targeted last year because in 2020 he didn’t mainline disinformation about Hunter Biden.

Yes, Bill Barr ordered Geoffrey Berman to investigate John Kerry. But he also set up a complex, systematic structure to halt any investigation into Rudy Giuliani so the President’s lawyer could get dirt from Russian spies, feed it to Scott Brady, who would then push that information into the investigations of Hunter Biden and others. When Berman and Jessie Liu refused to break (after a good deal of bending to Barr’s will), he fired them both.

Barr didn’t just pressure John Durham to prosecute high-level people: He skipped, hand-in-hand, with Durham as they used Russian intelligence to fabricate an attack on Hillary Clinton, the organizing logic of an investigation that swept up private sector people and who had the temerity to research Donald Trump or — worse!! — to help Hillary recover from a hack-and-leak. The effort even took out academic researchers who were simply trying to keep the US safe from Russian hacking. Trump did get DOJ to investigate Hillary, with investigations lasting the entirety of his presidency, and that investigation included precisely the kind of fabricated evidence and coached testimony that NYT imagines is a hypothetical left for Trump’s second term.

To the extent these stories talk about Trump’s pardons, they do so prospectively. There’s no discussion of how the pardons of Mike Flynn and Roger Stone rival any of the most corrupt in US history, but were necessary to prevent DOJ from developing proof that Trump conspired with Russia.

These articles don’t describe how Congress has served as a wing of this politicization, from the leaks to Mike Flynn in 2018 about how to undermine his own investigation to sham hearings — like the one with George Papadopoulos unencumbered by the documents that would have provide evidence of “collusion,” in which he spewed out conspiracy theories that Bill Barr and John Durham quickly got on a plane to chase. These articles don’t describe how the current unrelenting attempt to manufacture an impeachment out of the detritus of Hunter Biden’s life could not have happened if Bill Barr hadn’t made very systematic attempts to enable Trump’s retribution tour in 2020.

And these articles don’t describe the violent threats that have become routine for anyone deemed insufficiently loyal to Donald Trump. The threats Trump deployed against Lisa Page and Marie Yovanovitch — “she’s going to go through some things” — exist on an unrelenting continuum as the threats against Ruby Freeman and Lesley Wolf and Fani Willis and Don Bacon’s wife.

Yes, it’s important to warn about what Trump plans to do with a second term. But calling Trump’s past retribution “haphazard” is a journalistic cop-out, a way to avoid admitting that we don’t yet fully understand how systematic Trump’s past retribution was or — worse — don’t want to come to grips with our own central role in it.

For a warning to be effective, we have to show the human costs of all the past retribution — the thousands of Jan6ers who had their lives ruined, the significant degradation in US national security, the fear, especially the fear among Republicans — costs that no one, no matter how loyal, will ultimately escape.

Nora Dannehy Confirms that Bill Barr Attempted to Sway 2020 Election with Dubious Interim Report

September 22, 2023/60 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

As AP first reported, in response to several questions in a hearing on her nomination to the Connecticut Supreme Court, Nora Dannehy provided details about why she resigned from the Durham investigation. In response to the first, she described that Bill Barr seemed intent on issuing an interim report before the 2020 election, the conclusion with which she “strongly” disagreed.

In the spring and summer of 2020, I had growing concerns that this Russia investigation was not being conducted in that way [independent of political influence]. Attorney General Barr began to speak more publicly, and specifically, about the ongoing criminal investigation. I thought these public comments violated DOJ guidelines. In late summer 2020, just months before the 2020 Presidential election, he wanted a report written about our ongoing investigation. Publicly, he would not rule out releasing that report before the Presidential election. I had never been asked to write a report about an investigation that was not yet complete. I then saw a version of a draft report, the conclusions of which I strongly disagreed with. Writing a report — and particularly the draft I saw — violated long-standing principles of the Department of Justice. Furthermore, the Department of Justice has a long-standing policy of not taking any public actions in the time leading up to an election that might influence that election. I simply couldn’t be part of it, so I resigned.

It was the most difficult personal and professional decision I’ve had to make.

This tracks reporting from the NYT that describes Dannehy erupting on September 10, the day before she resigned, when she read the draft report that had been written (Charlie Savage linked this video testimony).

So does something Dannehy said later in the hearing.

What I was involved in involved classified — highly classified — information and I really can’t get into what happened when I was there because I likely would, or potentially could, get into an area that I can’t speak about.

NYT reported that the report came after Durham bypassed Beryl Howell to obtained records he used to attempt to corroborate potential disinformation associated with Guccifer 2.0.

By summer 2020, with Election Day approaching, Mr. Barr pressed Mr. Durham to draft a potential interim report centered on the Clinton campaign and F.B.I. gullibility or willful blindness.

On Sept. 10, 2020, Ms. Dannehy discovered that other members of the team had written a draft report that Mr. Durham had not told her about, according to people briefed on their ensuing argument.

The reference to the Clinton campaign appears to reference Durham’s conspiracy theories about a plan that Clinton planned to frame Donald Trump. But that Durham theory was based on his own fabrication about what the intelligence said, even assuming the intelligence was true and not itself disinformation.

This confirms that Durham twice doubled down on this conspiracy theory about Hillary Clinton, first when he contested Michael Horowitz’s conclusion on the Carter Page investigation, and then when he endorsed this draft report. In the end, his report never substantiated his own conspiracy theory.

Dannehy assiduously avoids blaming her old friend John Durham for this corruption. But long after Barr left office, Durham pursued this conspiracy theory relentlessly, going so far as misrepresenting his own investigation to avoid admitting he proved himself wrong.

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

August 25, 2023/34 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel, Hunter Biden, Impeachment /by emptywheel

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Barr declined to intercede, the people said.

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

I will tell Rudy and Attorney General Barr to call.

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

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

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

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

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

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

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

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

And virtually every Hill journalist is playing along.

“Super:” The Day after IRS Got a Warrant for the Hunter Biden Laptop, DOJ Sent Bill Barr a Laptop

July 24, 2023/31 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel, Hunter Biden /by emptywheel

Thanks to Gary Shapley, we have notes from an October 22, 2020 meeting at which the Hunter Biden investigative team scrambled to make sure they had taken care on their handling of the two devices — a laptop that once belonged to Hunter Biden, and a hard drive containing the attempted recovery of the items on the laptop — turned over by John Paul Mac Isaac.

Among other things, Shapley’s notes reflect that on December 9, 2019, the FBI took possession of the laptop. Even before that, starting on December 3, IRS case agent Joseph Ziegler started drafting a warrant to access it.

On December 12, DOJ’s Office of Enforcement Operations authorized seeking a warrant for it. Then on December 13, Ziegler got a magistrate judge, probably in Delaware, to approve his warrant.

In advance of the October 22 meeting, on October 19, Shapley sent an email that has not been made public. In it, he expressed a belief that John Durham had a copy of the laptop.

On October 19th, 2020, I emailed Assistant United States Attorney Wolf: “We need to talk about the computer. It appears the FBI is making certain representations about the device, and the only reason we know what is on the device is because of the IRS CI affiant search warrant that allowed access to the documents. If Durham also executed a search warrant on a device, we need to know so that my leadership is informed. My management has to be looped into whatever the FBI is doing with the laptop. It is IRS CI’s responsibility to know what is happening. Let me know when I can be briefed on this issue.” [my emphasis]

That’s one of the reasons I find it acutely interesting that on December 14 — the day after a magistrate approved the first known warrant for the “Hunter Biden” “laptop,” Will Levi — who was heavily involved in Barr’s micromanagement of the Durham investigation (including in setting up meetings with the UK, Australia, and Italy) — texted his boss’ personal cell phone and told him a laptop was “on way to you.”

Leading up to December 14, Durham was in the thick of a Russian-Ukrainian disinformation operation. It is totally possible that he did get a copy of the laptop. That’s one reason I pointed to DOJ’s discussion of Patrick Byrne’s disinformation in August 2019. Bill Barr’s DOJ was willing to go anywhere to get information discrediting the Russian investigation into Trump, even Russian-backed sources.

Durham’s consideration of Ukrainian disinformation became a prominent issue during the impeachment investigation, the next month, September 2019.

In the FOIA releases showing Barr’s involvement in the Durham investigation released so far, it’s not clear when Durham met with the Ukrainians. It could be this exchange on August 31, 2019, in which Barr suggested Durham reach out to someone. After Durham responded, Barr commented, Having fun.

Levi sent Barr a text, which remained totally redacted on most recent release, the day after the whistleblower complaint went public.

That may not be related.

But by September 22, Barr was definitely in damage control mode, reaching out to Lindsey Graham.

On the morning of September 24, the day Nancy Pelosi would announce support for impeachment and the day the White House declassified “the perfect transcript” showing Trump instructed Volodymyr Zelenskyy, two months earlier, to coordinate with Barr on investigations of Biden, Barr texted Durham and told him to call ASAP.

That night, Barr texted Will Levi to call ASAP.

An hour and a half later, he texted what is probably Eric Herschmann — who at that point was still at Marc Kasowitz’s firm (though he would soon join Trump’s impeachment team) — and instructed him not to call.

Herschmann, of course, would attempt to pitch the laptop himself a year later, before Rudy blew its credibility.

Then later on the night of September 24, Durham texted Barr asking to talk, which may have been a second call that day.

The next day, September 25, DOJ issued a statement revealing that Durham had received information from several Ukrainians who weren’t part of government.

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.”

At 3:44 PM on September 26, the day the White House released the whistleblower complaint, someone from Durham’s team — probably Durham himself — participated in a chat with 8 people.

Less than an hour later, a bunch of people — including Will Levi, Seth DuCharme, and “John” — convened in a lobby bar together, waiting for Barr to arrive.

The following day, when Kurt Volker resigned, there was another group chat.

Barr was still focused on CYA regarding his own involvement. In advance of Lindsey Graham going on the Sunday shows, Barr made sure to get Lindsey his statement claiming not to have spoken to the Ukrainians personally.

On September 29, Michael Mukasey did a column in the WSJ where he pitched the value of speaking to Ukrainians. He suggested that Durham might find the Ukraine leads Trump was looking for.

That Justice Department statement makes explicit that the president never spoke with Attorney General William Barr “about having Ukraine investigate anything relating to former Vice President Biden or his son” or asked him to contact Ukraine “on this or any other matter,” and that the attorney general has not communicated at all with Ukraine. It also contains the following morsel: “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. 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.”

The definitive answer to the obvious question—what’s that about?—is known only to Mr. Durham and his colleagues. But publicly available reports, including by Andrew McCarthy in his new book, “Ball of Collusion,” suggest that during the 2016 campaign the Federal Bureau of Investigation tried to get evidence from Ukrainian government officials against Mr. Trump’s campaign manager, Paul Manafort, to pressure him into cooperating against Mr. Trump. When you grope through the miasma of Slavic names and follow the daisy chain of related people and entities, it appears that Ukrainian officials who backed the Clinton campaign provided information that generated the investigation of Mr. Manafort—acts that one Ukrainian court has said violated Ukrainian law and “led to interference in the electoral processes of the United States in 2016 and harmed the interests of Ukraine as a state.”

I can fathom no way Mukasey would have written this without Barr’s support, and so Barr’s support for continued outreach with Durham.

Barr’s press secretary Kerri Kupec sent him the Mukasey column first thing the next day.

On September 30, Brian Rabbitt told Barr to contact Mick Mulvaney.

On October 2, Barr asked the same Eric — probably Herschman given the person’s contacts with Jared Kushner and Pat Cipollone — if he could call.

On October 11, the day after Igor Fruman and Lev Parnas were arrested, Barr sent Eric a one word text — “Ok.”

On October 30, the day after the Democrats released the impeachment resolution, Kupec sent Barr the statement he had made about Ukraine back in September.

A minute later Barr sent that statement to Will Levi, with no further comment.

In spite of all this, DOJ still made little effort to convince Trump to stop Rudy Giuliani from flying to meet Andrii Derkach in December 2019, in precisely the same period Levi sent Barr a laptop. FBI prepared but did not give Rudy a defensive briefing.

Sometime shortly after this, in 2020, IRS Agent Joseph Ziegler got a new supervisor, Gary Shapley. Shapley replaced Matt Kutz, who had concerns about — and documented — what are probably confrontation clause problems (meaning the investigation was relying on sources that Hunter Biden would never be able to cross-examine) and Trump’s push for this investigation.

Around the same time in 2019, I had emails being sent to me and the Hunter — and the prosecutors on the case, the Hunter Biden prosecutors, from my IRS supervisor. So this was Matt Kutz still. From what I was told by various people in my agency, my IRS supervisor, Matt Kutz, created memos which he put in the investigative files regarding the investigation potentially violating the subject’s Sixth Amendment rights. He also referred to Donald Trump’s tweets at the time.

I recall that at one point I had to go around my supervisor and ask his boss, ASAC George Murphy, to tell him to stop sending me and the Hunter Biden prosecution team these emails and that I was searching media articles on a weekly basis and was aware of everything being written in the media regarding the case.

[snip]

A So it was actually Matthew Kutz. He was my supervisor at the time and from the articles that he was sending me, I would say he had more of a liberal view than I had and it was pretty obvious from the things he would send me and discuss. And that’s just me making an observation.

So I later found out about these memos that were put in the file regarding the issues that he saw with the investigation, the fact that we even had it opened. So I only learned about those after. And then it came to a point to where he’s sending us so many media articles about different issues that I had to tell him stop, please.

And I had to go around him. And that’s when I went to my ASAC at the time, George Murphy, who was above him.

Per Shapley’s testimony, he became the primary managerial liaison interacting directly with David Weiss’ office in October 2020, the same month as the laptop was made public.

By that point, someone else was in charge of ingesting Russian disinformation. Scott Brady’s assignment pushing Russian from Rudy may have simply represented a reassignment of the task, from Durham to Brady.

But Durham didn’t stop thinking about it. On January 11, Durham sent an aide the group chats that had occurred at the height of DOJ’s panic on September 26 and 27.

January 11 is the day Treasury sanctioned several more Ukrainians as part of Andrii Derkach’s 2020 influence operation.

Former Ukrainian Government officials Konstantin Kulyk, Oleksandr Onyshchenko, Andriy Telizhenko, and current Ukraine Member of Parliament Oleksandr Dubinsky have publicly appeared or affiliated themselves with Derkach through the coordinated dissemination and promotion of fraudulent and unsubstantiated allegations involving a U.S. political candidate. They have made repeated public statements to advance disinformation narratives that U.S. government officials have engaged in corrupt dealings in Ukraine.

I don’t know whether Bill Barr got a copy of the laptop or not.

I know that years latter — at a time when he was selling a book that attempted to distance himself from all this criming — Barr was nevertheless joining in false claims about the laptop.

So when former staffer Larry Kudlow on Thursday interviewed former attorney general William P. Barr for his Fox Business show, the conversation operated from shared assumptions about Trump’s successes and the toxicity of the political left. The result was that Barr outlined a remarkable hierarchy of importance for actions that might have affected the results of a presidential contest.

Russian interference in 2016, he said, was just “some embarrassing emails about Hillary Clinton and Bernie.” The effort to “suppress” information about Hunter Biden’s laptop, meanwhile, was “probably even more outrageous” and “had much more effect on an election.”

And I know that when Hank Johnson mocked John Durham because he hadn’t indicted Hillary Clinton, Barack Obama, Joe Biden — and “couldn’t even indict Hunter Biden” — Durham responded, “We didn’t investigate Mr. Hunter Biden.”

Obtaining a warrant for Hunter Biden’s laptop would surely qualify as investigating Mr. Hunter Biden.

In 2020, the right wing’s favorite so-called whistleblower believed that John Durham got a copy. And one day after the IRS first obtained a warrant for the laptop, DOJ sent the Attorney General, who was micromanaging the Durham witch hunt, a laptop.