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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THE COURT: Is there an ongoing investigation here?

MR. WISE: There is.

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

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

And then said he could still charge FARA violations,

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

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

MR. WISE: Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Filings

September 26: Smirnov motion to continue

September 27: Weiss response on motion to continue

October 14: Smirnov warns of motion to compel

October 15: Judge Otis Wright denies continuance

October 28: Government response to discovery

October 31: Smirnov reply on discovery

October 31: Smirnov motions in limine

November 1: Government motions in limine

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

November 5: Motion to dismiss for discovery violations

November 5: Opposition to renewed bid to continue

November 8: Judge Wright denies motion to compel

November 12: Response to motion to dismiss on discovery violations

November 15: Defense response to motions in limine

October 31: Government response to motions in limine

Lesley Wolf Vindicated by Alexander Smirnov Indictment

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In the wake of the Alexander Smirnov indictment, the 51 former spooks who wrote a letter stating their opinion that the release of Hunter Biden emails to the NY Post is consistent with a Russian information operation have claimed vindication. That has led to this problematic Ken Dilanian report parroting David Weiss filings that deliberately obscured the evidence in the Hunter Biden case. And that, in turn, has led to a flood of people expressing opinions about the laptop turned over by John Paul Mac Isaac (Olivia Nuzzi, Reese Gorman) that exhibit no clue about how precarious that evidence is now.

In other words, that has renewed a debate consisting of misrepresenting the 51-spook letter, then misstating what the public evidence about the laptop shows.

I’ll return to the details about the laptop that these people are missing; hopefully until I get there, they’ll consider whether David Weiss’ claim that a Keith Ablow picture of a picture of a table saw with sawdust was instead Hunter Biden’s cocaine really validates the laptop, as they seem to believe it does.

But there is one person who has been vindicated: Lesley Wolf, the AUSA who aggressively pursued real charges against Hunter Biden, even while attempting to prevent repeated onslaughts of political garbage from tainting the case.

Among the many complaints the two disgruntled IRS agents aired, largely targeting her, one was that, “This investigation has been hampered and artificially slowed by various claims of potential election meddling.” That appeared in a memo submitted within the IRS in December 2020, probably written by Gary Shapley. The IRS agents believed they knew better than Lesley Wolf about efforts to interfere in the election.

The IRS agents and their allies in Congress bitched over and over that Wolf and others had not ingested politicized dirt into the investigation readily enough.

For example, Joseph Ziegler described that investigators asked to reinterview Tony Bobulinski after his October 23, 2020 meeting with the FBI, but were not permitted to do so because he “was not viewed as a credible witness” — and that was before Cassidy Hutchinson’s testimony, now backed by video, about the sketchy meeting Bobulinski had with Mark Meadows.

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

In his House testimony, Bobulinski backed off all the most inflammatory claims — such as that he attended a key meeting in Miami and witnessed Hunter receive a large diamond as a gift –made to the FBI.

Republicans in Congress have repeatedly complained that Tim Thibault shut down Peter Schweizer as a confidential human source in September 2020. Thibault explained to Congress that the Supervisory Special Agent called him and asked him to stop sending Schweizer’s reporting, because doing so would give Hunter’s attorneys ammunition if the case ever went to trial.

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

Q Uh-huh?

A — could have some ammunition.

And Shapley specifically complained that Lesley Wolf withheld a particular email about some anomalies in the the hard drive image obtained from John Paul Mac Isaac.

Prosecutors deliberately withheld that email from agents who might have to testify to avoid making it Jencks production that would have to be shared with Hunter’s lawyers. Thanks to Shapley, it will presumably play a role in any suppression and Brady complaints tied to the laptop.

None of this is particularly noble on Wolf’s part. It’s typical, among prosecutors, in that they watch out for any evidence that would harm a case at trial, and avoid ingesting it in ways that would give defendants access to it. Lesley Wolf was not withholding details about problems with the hard drive JPMI provided the FBI to protect Hunter Biden. She was doing it to protect her case. In fact, her treatment of the laptop may be the one thing that helps bollox the case, if Leo Wise ends up needing any assistance on that front.

But it seems quite clear that efforts Wolf made to preserve a case for trial were instead spun by the disgruntled IRS agents as attempts to thwart the investigation. Their efforts to sell that spin have not only endangered the case, but also resulted in death threats targeting Wolf and her family.

Particularly given the timing of Congress’ focus on the FD-1023, including Bill Barr’s public commentary, Alexander Smirnov’s attempt to frame Biden is an important example of an effort Wolf made to protect a viable case against Hunter.

Gary Shapley released a memo that will be central to Hunter Biden’s bid to obtain discovery on the treatment of the Smirnov tip and the Scott Brady back channel, generally. It shows that the FD-1023, “was ordered to be received by this prosecution team by [Richard Donoghue]. It is happening on 10/23/2020 at 3pm in the Delaware FBI office.” It is proof that days after Trump yelled at Barr about the Hunter Biden investigation, DOJ ordered Wolf to accept this briefing.

Yet in his testimony, Shapley said that “We never discussed the form,” seemingly a reference to the Smirnov allegation.

After Barr ran his mouth to Margot Cleveland, both Ziegler and Shapley submitted supplements complaining that they hadn’t gotten briefed on the allegation. Shapley’s testimony, that neither the IRS agents nor the FBI agents, had checked out the allegation seems inconsistent with his claim never to have spoken about it.

Neither I nor the line IRS-CI agents acting under my supervision, nor the FBI agents working with IRS-CI, were ever provided the CHS information that Attorney General Barr recently referenced was sent to Delaware to have it “checked out.” Prosecutors never provided such information to IRS-CI. As such, neither IRS-CI nor the FBI agents working with him were provided the opportunity to conduct proper investigation into the allegations presented by this CHS. I, long with other IRS-Cl investigators, requested 10 be apart of briefings that the Delaware USAO and DOJ were having with the Pittsburgh USAO during the investigation, but our requests were denied.

Both further elaborated their complaints about not getting access to the FD-1023 in their public July testimony.

Then, even more forthcoming testimony Shapley gave to House Ways and Means served as a cue during Scott Brady’s House Judiciary Committee testimony, in which Brady described Lesley Wolf’s skepticism about the material being funneled from Brady’s office.

Q And were you ever told that the Delaware U.S. Attorney’s Office did not want a briefing from your office?

A I believe I was. I don’t remember. But I know that we had trouble scheduling it.

Q Okay. And then, further down, it states AUSA Wolf’s comments made clear she did not want to cooperate with the Pittsburgh USAO, and that she had already concluded no information from that office could be credible stating her belief that it all came from Rudy Giuliani.

Were you ever made aware of Ms. Wolf’s processing and decisions regarding this briefing, and why she didn’t want the briefing?

A I was not. We did, however, make it clear that some of the information including this 1023 did not come from Mr. Giuliani.

Q And did your team ever tell you that they were receiving comments from Ms. Wolf that she didn’t find the information your office was receiving credible?

A I don’t remember that, no.

Q If those conversations took place, would those have been between a AUSA at your office and Ms. Wolf?

A If they would have shared that with us at all, yes, likely, and had I been made aware, I would have called Mr. Weiss directly.

Q When you would have called Mr. Weiss directly, would you have told him the information the 1023 wasn’t coming from Mr. Giuliani, is that accurate?

A Yes, I would have, and that was already communicated to their office, that the 1023 was from a credible CHS that had a history with the FBI, and that it was not derived from any of the information from Mr. Giuliani.

Side note: The publicly released HJC transcript redacts several references to David Weiss, perhaps in an effort to hide the degree to which he is a witness to and therefore hopelessly conflicted on the Smirnov prosecution.

I’m guessing that neither Smirnov nor Hunter’s attorneys are so stupid that they can’t figure out who is named behind that redaction! But if they have any questions: Yes, Jim Jordan’s people really did redact references that make it clear what David Weiss personally witnessed in this transcript!

Unsurprisingly, in her testimony, Lesley Wolf did a far, far better job than Shapley and Brady adhering to her ethical duty to avoid speaking of an ongoing investigation. She also suggestsed that a lot of the decisions that Shapley and Ziegler complained about were made for ethical reasons, even an unwillingness on her part to risk her law license to take more aggressive steps. “Hey, I like my law license, and I know this person has a lawyer, so we’re going to have to work through counsel to get that interview you want,” she characterized such discussions with the investigators.

As a result of her strict adherence to prohibitions on her speaking about the investigation, her explanation for her reluctance to accept information from Brady’s side channel was very general. In her general explanation for why she might want to keep the existing Hunter Biden investigation separate from whatever Brady was doing, though, she provided the same reason Thibault got explaining why Delaware didn’t want to receive tips involving Peter Schweizer.

Q And during the course of your career, have you ever had a situation where you were reluctant to cooperate with a different U.S. Attorney’s Office? And by cooperate, I mean have meetings, take telephone calls.

[Wolf attorney Jenny] Kramer. I know this is almost too formal for this process, but I’m going to object to form. What does that mean, unwilling to cooperate? I’m just not clear on what exactly you’re trying to ask.

Mr. Castor. Unwilling to take meetings?

Ms. Kramer. Generally?

Mr. Castor. With a different U.S. Attorney’s Office.

Ms. Wolf. I can answer those questions, generally.

BY MR. CASTOR:

Q Sure, sure.

A I think as a general matter, the idea would be that you are coming from a place of cooperation and the common mission of the Department of Justice and what it is you’re trying to accomplish. But there may well be very, very valid means, reasons for a desire and an interest to keep investigations separate and apart. And in those circumstances, you would — and it wouldn’t be unusual to say, you know what, we’re not going to need to share information, we’re not going to do this. And it would just depend, again, on the particulars of an investigation and what the needs and what the various interests were at play.

Q Okay. Are you familiar with Supervisory Special Agent Gary Shapley’s testimony where he indicated you were unwilling to interact with Scott Brady?

A I’m generally familiar with Special Agent Shapley’s testimony, yes.

Q Okay. Are you familiar with that particular aspect of it?

A I mean, I’ve read his testimony.

Chairman Jordan. Would there be a reason not to interact and meet with Mr. Brady and his team?

Ms. Wolf. As that relates to a particular investigation, I’m not authorized to speak to that.

Chairman Jordan. You said there were some situations that — the general way of doing things is to, you know, “cooperate,” I think, is the word you used. And you said there are times that we’re not going to do that. Why would there be a reason not to do it in this situation?

Ms. Kramer. Chairman, respectfully, I think you had left the room when I had asked Mr. Castor earlier, please allow Ms. Wolf to finish her answers to the questions before —

Chairman Jordan. Okay, sure. I apologize.

Ms. Kramer. — and me as well, number one. And number two, I believe you mischaracterized her very recent answer. I don’t believe you said that there were times that you would refuse to cooperate, unless I misheard. So let’s break that down. I think your first question, Chairman Jordan, is what again, if you don’t mind repeating it?

Chairman Jordan. Would there be a reason not to cooperate with Mr. Brady’s office?

Ms. Wolf. As to this particular case, I’m not authorized to speak to that.

As a general matter, and I think to potentially recast and just reframe, the infusion on the point, there are valid investigative reasons in any given case that would need to be evaluated before joining, overlapping, even taking in information, and that would all be factored in, in any case, to deciding how to move forward in a matter, all in the spirit of advancing and the best interest of the investigation.

[snip]

You know, to the extent that it then subsequently touches on an investigation or a matter in your district, I would expect that would be something that you would be aware of and usually the kind of thing that would probably take place above the line level. And that’s part of, you know, a sort of lack of clarity or understanding on how this sort of what is and isn’t typical. I hesitate to answer. And, quite frankly, I think in answering whether this was typical or atypical, it runs afoul of what I am authorized to discuss, because it essentially acknowledges or will be interpreted as acknowledging or denying or endorsing what may or may not have happened.

Wolf is being coy here.

But she’s also making it clear that she decided sharing information with Brady’s project would harm the investigation.

This is why I posted Leo Wise’s repeated, defensive rebuttals to David Chesnoff’s claim that the Smirnov indictment was “makeweight.”

It seems clear that Lesley Wolf left the Smirnov allegation well enough alone, knowing that the project generally was producing garbage that could only endanger the case.

Leo Wise seemingly used the Smirnov allegation as an excuse to reopen the case against the President’s son, only to discover it opened a nasty can of worms.  It gave Abbe Lowell the evidence to prove that the prosecution of Hunter Biden was infected by an effort by the Attorney General to accommodate the dirt that Trump’s lawyers picked up from Russian spies. And it gave Wise a real headache of a prosecution to deal with.

Lesley Wolf probably didn’t decline all the garbage from Scott Brady for noble reasons. She was just protecting her case. But having made the opposite decision, Wise may end up blowing that case.

You know who is vindicated by the Alexander Smirnov indictment? Lesley Wolf.

Leo Wise Keeps Digging Through Difficulties Caused by a Dumb Prosecutorial Decision

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Because I want this language to be available for some other posts, I wanted to look at a ploy Leo Wise pulled in Alexander Smirnov’s Nevada detention hearing (Smirnov has another in Los Angeles later today).

In response to Smirnov’s attorneys describing the document fabrication charge as, “makeweight and politically-motivated; they do not involve espionage or theft and are thus not serious’,” Wise tried to use Hunter Biden’s claims of selective prosecution to rebut it.

MR. WISE: Now/ in addressing the 3142(g) factors, specifically the nature and seriousness of the offense, the defendants argues that “These allegations are make-weight and politically motivated. They do not involve espionage or theft and are, thus, not serious.”

I didn’t know what make-weight meant so I looked it up. According to Miriam Webster, the meaning of make-weight is something thrown into a scale to bring the weight to a desired value. I have no idea what that means in this context. Maybe Your Honor does.

And politically motivated, by whom? If Defense counsel is referring to his client’s allegations, then we agree. His client’s messages that are quoted in the indictment show political bias on his client’s part.

Or is the — is Defense counsel referring to us, the Government in this case? And that would certainly be curious. We’re prosecuting Hunter Biden on tax and gun charges, and his lawyers make the unfounded claim that we’re working at the direction of former President Trump and Congressional Republicans, although they can never explain why or how.

So then I guess what Defense counsel in this case is arguing is we’re working at the direction —

THE COURT: Are you saying Mr. Chesnoff and Mr. Schonfeld said that in their pleadings?

MR. WISE: That’s what they wrote. They wrote the charges in this case are make-weight and politically motivated.

THE COURT: So — but where do they — okay. But I — you’ve taken that quite a bit beyond that they’re saying — what did you just say was . . .

MR. WISE: Well, I’m trying to figure out — it sounds like they’re saying we’re working at the direction of the White House and the Biden campaign. And the other cases —

THE COURT: Is that a leap?

MR. WISE: And the other cases —

MR. WISE: — the Defense counsels are making the opposite argument.

THE COURT: Well —

MR. WISE: So we’re sort of curious which it is.

THE COURT: Well, and I’m not getting into the politics of this. I  have to make a determination under the Bail Reform Act whether he’s a flight risk or a danger and whether, if he is, there are conditions or a combination of conditions to address that.

MR. WISE: Right.

THE COURT: So I have no time for the politics of this case. I understand the underlying charges. There’s a component to that. But I’m not going to spend a lot of time here talking about the politics.

MR. WISE: Good. Because when we saw that, we were shocked that he would make the accusations —

THE COURT: So go on and continue with your argument.

MR. WISE: Now, the Defense counsel calls the charges not serious, which begs the question is he serious. The defendant’s lies have captured —

THE COURT: All right. I’m not going to get personal with the attacks on counsel. All right? Let’s keep it to the facts and the law. You don’t need to make snide remarks about “is he serious.” And I’m not going to tolerate that from either side .

MR. WISE: Understood, Your Honor. The defendant’s lies in this case have captured the national imagination. And while the — while the filing says they do not involve espionage, of course the charges do involve foreign intelligence services.

He lashed out again later in the hearing.

MR. WISE: You know, while counsel claims, I guess — I mean, in addition — and I hear him say now that the “serious” comment was about the — the sentence, but that’s — that’s not actually what he wrote. He wrote: “These allegations are make-weight and politically motivated. They do not involve espionage or theft and are, thus, not serious.” That’s — that’s his words. And he — he actually ascribes bad motives to us. He says the only reason we want to keep him in is so that he can’t defend himself, and he mentioned improper motives of the Bureau. I wasn’t quite following what he meant.

MR. CHESNOFF: Your Honor, could you ask him to stop? Like, suggest — enough is enough.

I wouldn’t call these “makeweight.”

It’s likely that close scrutiny of Smirnov’s ties to Russia in the conjunction of involvement in two information operations, to say nothing of his possible retroactive reporting to cover it up, made the charges necessary.

But it is also absolutely certain they would not have been charged if Wise had not used the FD-1023 to reopen the case against Hunter Biden and charge him with a bunch of felonies.

Wise seems to have believed, then, that he could bully his way through charges. And he seems to believe, here, that he can continue to do so.

But ultimately both problems stem from a stupid prosecutorial decision, one that didn’t take the difficulties of this case into consideration.

Update: Smirnov’s attorneys have posted a pretty reasonable release proposal, including a Special Master to prevent spending his millions and assurances from the Israeli consulate that they won’t reissue his Israeli passport.

Update: Judge Otis Wright granted the prosecution request for detention.

Premier Palace: The Risk of Non-Russian Involvement in Alexander Smirnov’s anti-Biden Election Operation

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Based on the transcript from the detention hearing, one reason Principal Senior Assistant Special Counsel Leo Wise failed to convince Nevada Magistrate Judge Daniel Albregts to detain Alexander Smirnov pretrial, is that in arguing Smirnov was a flight risk, Wise focused primarily on Smirnov’s ties to Russian intelligence, not other spy agencies.

That made it easier for Albregts to argue — repeating something Smirnov’s attorney, David Chesnoff, said — that Russian spooks are probably not too enamored of Smirnov right now, given the details included in court filings describing his reporting on Russian spies.

I — you know, I understand the concern about foreign intelligence agencies potentially resettling Mr. Smirnov outside of the United States/ his connections to them, but I think on some level that’s speculative as well because, as Mr. Chesnoff points out, I don’t know what Mr. Smirnov will be thought of in Russia/ but my guess is at this stage he probably thinks that’s not the most attractive place to go either if he was in fact inclined to go hide somewhere. So while I notice and note that that’s a concern and certainly raised by the Government that I should consider it, I just don’t know in the context of what’s happened in the last couple of weeks with his arrest and everything else that that is as grave a concern as the Government outlines.

This misunderstands the implied relationship of Smirnov to the Russians. For example, while Wise notes that Smirnov is not charged with spying (he’d have a tough time charging Smirnov with acting as a foreign agent without informing the Attorney General, given that the then-Attorney General was gleefully cheering what he was doing when he allegedly lied), he insinuates that Smirnov’s charged 2020 lie was part of a Russian influence operation.

MR. WISE: Understood, Your Honor. The defendant’s lies in this case have captured the national imagination. And while the — while the filing says they do not involve espionage, of course the charges do involve foreign intelligence services. The defendant claims to have met with Russian intelligence agencies on multiple occasions, and the U.S. intelligence community has concluded that Russian intelligence interfered in the 2020 election and continues to interfere in our elections by spreading misinformation.

What Wise didn’t emphasize, but which is no doubt the source of urgent concern, is that it’s not just Russian intelligence. As Wise addressed the limits of US extradition authority, he briefly noted there were other countries that, like Russia, would refuse to extradite Smirnov.

MR. WISE: These contacts make this defendant different from other defendants who merely have foreign ties, and they heighten the risk of flight dramatically. And that is because he can use these contacts with foreign intelligence services to flee and to resettle overseas, something I would again venture to say is almost unique in the presentation of a defendant being considered for the pretrial release.

THE COURT: So let’s say that happens. You don’t think that the Federal Government would have the ability to find him and take action to bring him back? You think that these Russian ties that you’re talking about are the type of people that would literally take him and secrete him from prosecution?

MR. WISE: If he were to resettle in Russian, we couldn’t extradite him. Russian won’t extradite under thesecircumstances. If he were to resettle in other — in third countries, we couldn’t extradite him. And so, yes, I think that is the case.

THE COURT: All right. Go ahead. I’ll —

MR. WISE: That’s even assuming we could find him. That’s even assuming we could find him.

For a dual Israeli citizen like Smirnov, those countries would, by law, include Israel. CNN reported last week that the FBI knew that Smirnov has also served as a source for Israel.

And while this is changing, those countries that would refuse extradition also likely include UAE, almost certainly another of the countries where Smirnov has been hanging out on mega yachts with Russian oligarchs.

Most of the details of Smirnov’s recent activity that David Weiss’ team chose to burn — and so the things that Albregts saw and Los Angeles Judge Otis Wright also received in their detention motion — does pertain to Russia.

The government put that reporting out of order in the detention memo, which obscures the timeline. I’m going to do the same, so as to first show the picture of Russian ties the government establishes. But as I’ll get to, those ties are built on two other relationships, relationships in Ukraine and Israel, that are critical to understanding Smirnov’s Russian relationships. [Note: I’ll be linking to the NV detention memo rather than the LA one; the declassified descriptions of his reporting are the same in both, but probably because of page limits, the LA one does not have most of the discussion about how Weiss intends to prove the case against Smirnov, which appears on pages 8-15 of the NV one.]

Here’s most of the timeline Smirnov gave his handler of how, along with discussing a way to end the Ukraine war, he also learned of a kompromat effort probably intending to use deep fake recordings of Hunter Biden. Note that the really interesting discussions post-date the September 27, 2023 FBI interview (marked in bold) at which Smirnov backtracked off some parts of his 2020 story and offered up details of another kompromat plan targeting the Bidens, which he already sourced in September 2023 to four Russian spies.

  • August 2023: Smirnov “had been introduced” to RI 2 (the unclassified report does not say, by whom), who was organizing a birthday party on his mega yacht that RO 2 would attend. At that point, the ties between two or three of the oligarchs involved and RO 2 are not yet clear.
  • September 27, 2023: Smirnov interviewed by different FBI agents, to whom he describes Premier Palace plan.
  • October 2023: Smirnov scores an invite to the birthday party on a Russian oligarch’s yacht in a Middle Eastern country (probably UAE). RO 1 and RI 1 were expected to attend.
  • October 2023: RO 1 is expected to attend the birthday party; Smirnov got a copy of RO 1’s passport.
  • November 2023: Smirnov has now met RO 1. RO 1 boasted that he has direct access to the “highest levels of the Russian government.” RO 1 is a top, unofficial representative to Country B. Smirnov got a picture of RO 1 in November 2023, while he was in Country A (meaning RO 1 stayed past the birthday party).
  • November 2023: RO 1 described the assassin teams in Ukraine, and offered to stop those efforts if Ukraine would stop targeting civilian family members of Russian officials living in Moscow. RO 1 also told Smirnov of plans for a winter attack in Ukraine and its intentions for that war.
  • December 2023: Smirnov attended a meeting at which RO 2 attended. The purpose of the meeting was to discuss a resolution to the Ukraine war. He had a separate conversation in which RO 1 told him about the kompromat operation at a “club” in a particular Ukrainian hotel, probably the Premier Palace. He explained they might use kompromat from the hotel in an election year operation. A Ukrainian government official later confirmed that kompromat operation was common knowledge.
  • December 2023: RO 1 and others tell Smirnov that RO 3 is the representative of RO 4, now listed as the former head of a particular unit of Russian intelligence.
  • January 2024: Smirnov told his handler he’d be traveling to Country A (probably UAE) to discuss a prisoner exchange between Ukraine and Russia with RO 1. [my emphasis]

Here are descriptions of the kinds of Russians with whom Smirnov was partying on mega yachts in the Middle East:

Russian Official 1: Son of former high-ranking RU government official, controls two groups of assassins, a RU representative to another country, ties to a particular RU intelligence service.

Russian Official 2: High-ranking member of specific RIS central to discussions of ending the Ukraine war. He has ties to both RI 1 (the senior member of a defense conglomerate) and RI 2 (the senior member of a RU steel company).

Russian Official 3: The representative of Russian Official 4.

Russian Official 4: Head of a particular unit of a RU intelligence service, ran a kompromat operation at a hotel, probably Premier Palace.

Russian Official 5: A Russian spy that Smirnov helped to flip for Country D, probably Israel. In 2019, RO 5 expressed some opposition to Putin.

Russian Official 6: RO 5 had familial ties to RO 6, a former high-ranking member of a Russian intelligence service. In 2019, RO 5 told Smirnov that RO 6 was also not happy with Putin, and said he RO 6 was close friends with RO 2.

Russian Individual 1: A high ranking member of a RU state-owned defense conglomerate.

Russian Individual 2: A high-ranking member of a RU steel company — the guy who owns the mega yacht that was in a Middle Eastern country in October 2023.

According to the timeline of reporting to his handler, Smirnov was just learning about the assassin teams in November and the Premier Palace kompromat plan in December, both from Russian Official 1, whom he describes first meeting in November.

But as the indictment describes, after Smirnov reportedly stood by all his reporting in a conversation with his handler in July 2023, when his FD-1023 first got released, in August, the handler turned over a bunch of things that made it clear Smirnov was lying.

43. On August 29, 2023, FBI investigators spoke with the Handler in reference to the 2020 1023. During that conversation, the Handler indicated that he and the Defendant had reviewed the 2020 1023 following its public release by members of Congress in July 2023, and the Defendant reaffirmed the accuracy of the statements contained in it.

44. The Handler provided investigators with messages he had with the Defendant, including the ones described above. Additionally, the Handler identified and reviewed with the Defendant travel records associated with both Associate 2 and the Defendant. The travel records were inconsistent with what the Defendant had previously told the Handler that was memorialized in the 2020 1023. The Defendant also provided email communications with both Associate 2 and Burisma personnel beginning in 2017 to the Handler, which the Handler reviewed with the Defendant and shared with FBI investigators. [my emphasis]

Remember: Scott Brady testified that they asked the handler about travel information in 2020 and (while Brady refused to address the particulars on follow-up), the result of that was a determination that the travel records corroborated the claim.

Mr. Brady. So we attempted to use open-source material to check against what was stated in the 1023. We also interfaced with the CHS’ handler about certain statements relating to travel and meetings to see if they were consistent with his or her understanding.

Q And did you determine if the information was consistent with the handler’s understanding?

A What we were able to identify, we found that it was consistent. And so we felt that there were sufficient indicia of credibility in this 1023 to pass it on to an office that had a predicated grand jury investigation.

Someone, or someones, are lying about the travel records corroborating Smirnov’s claims, either Brady and/or the handler.

Chesnoff — Smirnov’s lawyer — seems to plan to bring this handler down with Smirnov, because he revealed that Smirnov and the handler communicated via the handler’s private phone.

I can tell you. Your Honor, that there will be a vehement defense to the argument that in fact he was not truthful. He had this personal relationship with the handler. It was so personal, Your Honor, that he wouldn’t even call him on his FBI phone; he would call him on his personal phone. So we’re going to dig down once we start defending this case and we’re going to find out who knew what when.

We may yet learn that all the texts in the indictment showing that Smirnov explicitly responded to a story about Andrii Derkach manufacturing dirt by slamming Joe Biden happened on the handler’s phone.

Given what I know of David Weiss’ sawdust-as-cocaine clown show thus far, my guess is they haven’t actually nailed down what this handler knew when, and what he meant when he said, “that would be a game changer.”

Indeed, what appears to have happened is that either the handler warned Smirnov or (more likely) Smirnov figured out, as his lies started crumbling in his September 2023 interview, that his story was in trouble, so tried to throw out new information to Weiss’ team to “help” their criminal investigation of the President and his son.

After the indictment describes the many things Smirnov said in his September 27 interview that thoroughly discredited the story, he describes Smirnov telling Weiss’ team that he already knew of the Premier Palace kompromat and advising them they should check Hunter Biden’s travel records, which they didn’t have to do to know that the Premier Palace kompromat was based on a lie.

51. The Defendant also shared a new story with investigators. He wanted them to look into whether Businessperson 1 was recorded in a hotel in Kiev called the Premier Palace. The Defendant told investigators that the entire Premier Palace Hotel is “wired” and under the control of the Russians. The Defendant claimed that Businessperson 1 went to the hotel many times and that he had seen video footage of Businessperson 1 entering the Premier Palace Hotel.

52. The Defendant suggested that investigators check to see if Businessperson 1 made telephone calls from the Premier Palace Hotel since those calls would have been recorded by the Russians. The Defendant claimed to have obtained this information a month earlier by calling a high-level official in a foreign country. The Defendant also claimed to have learned this information from four different Russian officials.

53. The Defendant told investigators that the four different Russian officials are all top officials and two are the heads of the entities they represent. These Russians said that conversations with Ukrainians about ending the war will include the next U.S. election. The Defendant told investigators he is involved in negotiations over ending the war and had been for the previous four months. According to the Defendant, the Russians want Ukraine to assist in influencing the U.S. election, and the Defendant thinks the tapes of Businessperson 1 at the Premier Palace Hotel is all they have. The Defendant told investigators he wants them to ask Businessperson 1 how many times he visited and what he did while at the Premier Palace Hotel.

54. Businessperson 1 has never traveled to Ukraine. The few Burisma Board meetings that Businessperson 1 did attend were all outside of Ukraine. [my emphasis]

In an effort to claim he was getting useful information about Hunter Biden, then, Smirnov offered up the Premier Palace story and sourced it, already, to four top Russian officials.

It’s totally unclear what Smirnov told his hander. Weiss’ team might be hiding that intentionally, or it may be the case that Smirnov didn’t tell his handler that he was involved in another election influence operation until months later, sourcing it from Russian spies he had or claimed to have met in the interim. But the record at least implies that he told Weiss’ team about the assassination teams and the Premier Palace in September, then found a way to source it anew over the next several months to RO 1, whom Smirnov claimed to have met for the first time on some oligarch’s yacht in October.

In the same interview, Smirnov also claimed that, sometime no later than 2016, he developed ties with Viktor Shokin and Petro Poroshenko.

50. The Defendant told investigators that he had asked the then-Ukrainian President to arrange a meeting between himself and the then-Ukrainian Prosecutor General to talk about Burisma. The Defendant told investigators that this meeting occurred before the then-Ukrainian Prosecutor General resigned, which was early 2016. The Defendant also told investigators this meeting occurred before his meeting with Burisma Official 1 in the coffee shop in a German speaking country. The Defendant told investigators that after he met with the thenUkrainian Prosecutor General, he met with the then-Ukrainian President. The Defendant did not provide any of this information to the Handler in 2020.

With all that in mind, consider the rest of the timeline, the stuff that happened (or that Smirnov claimed happened) before the reporting laid out above.

  • 1992 to 2006: Smirnov lives in Israel, where his family still lives.
  • 2002: Smirnov helps flip RO 5 at the behest of Country D (probably Israel).
  • October 1, 2010: Smirnov starts to serve as a source for the FBI.
  • 2016 or earlier: Smirnov has direct communications with Shokin and Petro Poroshenko.
  • 2019: Smirnov first tells his handler about flipping RO 5 in 2002.
  • January 2022: RO 5 set up a meeting helped introduce Smirnov to RO 2. Then, Smirnov set up a meeting between RO 2 and a high-ranking official of Ukraine.
  • January 2022: Smirnov asked RO 2 for a favor — to protect a Ukrainian associate during any Russian invasion. RO 2 told Smirnov that based on RO 5’s representation that Smirnov was a “good guy,” he’d protect Smirnov’s associate. (Note that the FD-1023 described that Alexander Ostapenko, the guy who introduced Smirnov to Burisma, worked in the Zelenskyy administration.) RO 2 also told Smirnov that there was a 99% chance that, rather than full-blown war, the invasion would only be a skirmish.
  • February 2022: Smirnov provides his handler the back story to his relationship with RO 5 and through him RO 2. When working in Country D (probably Israel) in 2002, Smirnov helped flip two spies, including RO 5, for Country D. Country D had caught RO 5 spying, but gave him 48 hours to leave the country rather than expelling him. RO 5 continued to provide Smirnov intelligence, but never anything adverse to Russia. In 2019, RO 5, whose wife is related to a former Russian spook, RO 6, had described what Russia might look like under different leadership. Smirnov never met RO 6, but once spoke to him briefly over a car speaker phone.
  • February 28, 2022: Smirnov’s partner buys a condo in Las Vegas, using his money, for $1,425,000.
  • December 2022: A RU spy (not any of the identified ones) tells Smirnov the identity of a Russian spy living outside of RU.
  • January 2023: Smirnov confirms, from a different non-identified RU spy, the first name of the RU spy living outside of RU.
  • May 2023: Smirnov participates in discussions to end the Ukraine war
  • By September 2023: Smirnov already claimed knowledge of the Premier Palace kompromat, sourcing that knowledge to four RU Officials, almost certainly one he described meeting in later months.

In other words, there are a bunch of things that lie behind all the reporting about parties with Russian oligarchs on yachts in (probably) UAE that Weiss’ team burned.

First, Smirnov’s entrée into Russian intelligence came by helping someone — probably Israel — flip RO 5, years ago, back in 2002. Smirnov may have thought he had flipped RO 5, but RO 5 never gave him any intelligence about Russia. In other words, in the process of flipping RO 5 for a country that likely is Israel, Russia learned that Smirnov was in the business of flipping people, and strung him along for years.

Smirnov allegedly lied about conversations with Zlochevsky in 2016 that implicated Joe Biden. But his currently operative story is that he had ties with Viktor Shokin from that period — someone who was absolutely central in the 2020 influence operation. It’s not clear that Smirnov ever revealed that to his handler, which surely would have changed the import of those texts sent in response to a story claiming there were secret recordings about Shokin’s firing.

That’s not the only important Ukraine tie. In January 2022, as Russia prepares to invade Ukraine, Smirnov used his tie to Russian spooks, the guy he thought he had flipped years before, RO 5, to meet RO 2. After brokering a meeting, Smirnov then asked for a favor, that Russia protect his associate when they invaded. Then, RO 2 lied about Russia’s intention.

That’s critical background to Smirnov’s claim to be involved in peace negotiations: His entire relationship with Russian spooks is built off a series of lies.

Then, finally, there’s the question of whether Smirnov retroactively provided reporting to cover up what he admitted to Weiss’ team in September: that for months, he had been part of an information operation that involved interfering in the US election and as part of that he had advance knowledge of a plan to frame Hunter Biden.

Again.

Weiss’ team has hinted that Smirnov’s entire relationship with Russian intelligence was built off that effort to flip RO 5 for another country, almost certainly Israel.

But they’re not telling us what they know, if anything, about Israel’s ongoing involvement with all this.