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“Friendly to Us:” NYT Buries Its Own Role in Trump’s Attacks on Rule of Law

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There comes a time in almost every Trump legal scandal where evidence comes out that Trump insiders believe they manipulated Maggie Haberman to serve Trump’s interests.

Evidence that both Roger Stone and Rick Gates used Maggie for various purposes came out in the Mueller investigation files, as when Gates claimed leaking Trump’s foreign policy speech to Maggie was a way to share it with Stone.

At Trump’s NY trial, Michael Cohen described how he deliberately misled Maggie about the nature of the payments he made to Stormy Daniels.

Perhaps the most damning example came in Cassidy Hutchinson’s testimony, where she described how, after her last appearance before the January 6 Committee while still represented by Stefan Passantino, he took a call from Maggie and confirmed that Hutchinson had just finished testifying to the committee.

His phone is ringing.

I look down at his phone. It’s Maggie Haberman calling him. And I looked at Stefan, and I said, “Stefan, did you tell Maggie Haberman that we were meeting with the committee today?”

And he’s like, “No, no. Maybe that’s not what she’s calling me about.”

And I said, “Stefan, did you tell Maggie that we were meeting with the committee today?

And he said, “No, no, but I should probably answer to see if she knows, right? I should answer.”

And said, “Stefan, no. I don’t think you should answer that call. She probably wants to know if we met with the committee today.”

He said, “Cass, I’m just going to answer. It will just be 2 seconds. I just want to find out what she’s going to talk to me about.”

He answers.

I can’t hear what she’s saying, but I hear Stefan say, “Yeah, yeah, we did just leave her third interview. You can put it out, but don’t don’t – don’t – don’t make it too big of a deal. I don’t think she’ll want it to be too big of a deal. All right. Thanks.”

And I said, “Stefan, was that Maggie Haberman asking about my interview?”

And he said, “Yeah, but don’t worry. She’s not going to make it a big deal.”

I said, “Stefan, I don’t want this out there.”

He said, “Don’t worry. Like, Maggie’s friendly to us. We’ll be fine.”

So I was just like, “Whatever.” I was annoyed.

Hutchinson went on to describe how, even as Passantino was discouraging Hutchinson from reviewing documents in a SCIF that would allow a follow-up appearance, Passantino and Alex Cannon spent the weekend talking to Maggie about Hutchinson’s testimony.

So I reached out to him on Monday, May 23rd: “Has [redacted] reached out about the SCIF?”

And then he was just kind of being wishy-washy with it.

He also let me know on that phone conversation that Maggie Haberman, quote, “got a story from the committee about my third interview,” end quote, and he spent he, Stefan, spent the whole weekend with Alex Cannon convincing Maggie Haberman not to publish the story that she got from the committee about my third interview.

Hutchinson described her particular disinterest in sharing her story with Maggie (and Josh Dawsey, another Trump whisperer).

And s0 now we’re moving into the phase of you know, I did my best throughout this whole period — I don’ like talking to reporters. Reporters would text me during this period. Ninety-nine percent of reporter texts always go unresponded to. I don’t like talking to reporters. I think there are some that I have, like, a friendship/working relationship with that I knew from being on the Hill and at the White House, but, like, Josh [Dawsey], Maggie Haberman, all those people, I stay very clear from.

But Josh [Dawsey], for example, had started reaching out to me and saying that he heard that the committee was in talks with Stefan about bringing me in for a SCIF interview and a live testimony; where did I stand on that with Stefan?

Say what you will about Maggie’s role in all this: Assuming it was her on Passantino’s phone (Hutchinson does not name the journalist in her book), she was just chasing a big story.

But there’s no doubt that one source of Hutchinson’s distrust of Passantino in the period leading up to her decision to get new lawyers stemmed from his willingness to share details of her testimony with Maggie — at least as she portrayed it — against her wishes.

“I don’t think you should answer that call,” Hutchinson said.

“Don’t worry,” the attorney representing Hutchinson but paid by a Trump entity said. “Like, Maggie’s friendly to us. We’ll be fine.”

None of that shows up in NYT’s faux savvy review of the game behind Barry Loudermilk’s referral of Liz Cheney for criminal investigation for allegedly intervening in Hutchinson’s legal representation at the time. NYT doesn’t bother to disclose to readers that, as Hutchinson described it, Maggie — who is bylined — played as significant a role in the breakup of the relationship between Passantino and Hutchinson as Cheney did.

Having failed to disclose Maggie’s alleged role in all that, here’s how — starting 28¶¶ in — NYT ultimately describes Loudermilk’s report and the claims within it.

The House report on Ms. Cheney, prepared by a Republican-led subcommittee on oversight, was specifically focused on the former representative, who broke with her G.O.P. colleagues over their ongoing support of Mr. Trump in 2021. But she has also infuriated Mr. Trump not only because she helped to lead the congressional investigation into him, but because she crossed party lines in the election and campaigned against him in support of Ms. Harris.

The report claimed that Ms. Cheney may have violated “numerous federal laws” by secretly communicating with Cassidy Hutchinson, a star witness for the Jan. 6 committee, without the knowledge of Ms. Hutchinson’s lawyer.

When Ms. Hutchinson was first approached to provide testimony to the committee, she was represented by a lawyer who had once worked in the Trump administration’s White House Counsel’s Office.

After meeting with Ms. Cheney, she hired a different lawyer and her subsequent public testimony was damaging to Mr. Trump. It included allegations that he had been warned his supporters were carrying weapons on Jan. 6, but expressed no concern because they were not a threat to him.

The report asked the F.B.I. to investigate whether Ms. Cheney’s dealings with Ms. Hutchinson were carried out in violation of a federal obstruction statute that prohibits tampering with witnesses. The report also accused Ms. Hutchinson of lying under oath to the committee several times and suggested that investigators examine whether Ms. Cheney had played any role in “procuring another person to commit perjury.” [my emphasis]

There’s a lot that’s misleading in this description. As I’ve noted, the section of the report describing DOD’s failures is actually longer (39 pages as compared to 36) than the section on Cheney and Hutchinson. Particularly given Loudermilk’s silence about Kash Patel’s role in what Loudermilk claims was DOD misconduct, to claim the report was “specifically focused” on Cheney is particularly misleading.

Maggie, writing with Alan Feuer, takes as proven the timeline Loudermilk lays out, which overstates what the evidence shows. While Cheney did communicate directly with Hutchinson, that was in June 2022, hours after Passantino had advised Hutchinson to take the “small element of risk to refus[e] to cooperate” with the committee any further in light of DOJ’s declination to press contempt charges against Mark Meadows. Hutchinson initiated the communication with Cheney and did so because, as she told Passantino, “I don’t want to gamble with being held in contempt.”

NYT asserts that what was damning about Hutchinson’s testimony after she ditched Passantino was Trump’s knowledge that people were refusing to go through magnetometers, but he wasn’t concerned because they wouldn’t hurt him. Hutchinson did tell that story publicly on June 28, 2022 (and J6C played earlier video testimony she had provided). But that thread of testimony started in her first interview in February 2022 and continued in her May 2022 interview, both of which Passantino attended. It all stemmed from texts she exchanged with Tony Ornato (texts that also make clear Trump “kept mentioning [a trip to the Capitol] before he took the stage” to give his speech).

To the extent this is among the things Loudermilk claimed Hutchinson lied about, Loudermilk’s case is based on word games, conflating formal intelligence with notice from Secret Service manning the rally that rally goers had (at least) flagpoles that were triggering the mags, misrepresenting a conversation Hutchinson claims she and Tony Ornato had with Mark Meadows, and ignoring that one of Ornato’s denials amounted to a claim he didn’t remember.

Plus, Hutchinson always emphasized that Trump’s concern was “get[ting] the shot,” packing enough bodies into the audience to make it look crowded, and not about ensuring that his supporters could keep their weapons before they marched to the Capitol. The claim that Trump knew his supporters were armed was legally damaging; it meant he knew the risk when he riled them up further about Mike Pence. But that’s not how Hutchinson spun it and it was testimony rooted in what she said in Passantino’s presence.

A reader might expect some assessment of Loudermilk’s claims in an article that boasts, as the headline of this does, that “Republicans Map a Case Against Liz Cheney.” No they didn’t. They floated a number of flimsy claims that don’t amount to a crime. You’re reporters. Act like it. Make that clear (as Philip Bump did here), rather than pretending Loudermilk’s claims aren’t mere whitewash.

The report neither links nor shows much understanding of the report itself. Even where it quotes lawyers about the viability of the charges, it doesn’t mention (for example) that the Jack Smith investigation resulted in a new Speech and Debate opinion that would apply to Cheney’s actions.

The real sin with the four-paragraph description of Loudermilk’s case, however, is one closely tied to Maggie’s own undisclosed role in it. NYT claims that Passantino was merely a former Trump White House Counsel. That’s not the issue. The issue, which goes to the core of the dispute and the reason Hutchinson replaced him, is that he was paid by entities associated with Trump, and Hutchinson came to believe he represented Trump’s interests over her own.

Loudermilk packages up as a crime actions Cheney took to give Hutchinson confidence her attorney was representing her interests, not Trump’s. Loudermilk packages up as a crime Hutchinson’s effort to avoid what even Passantino depicted as a risk of a contempt referral.

When Passantino told Hutchinson that it was okay for him to share information against her wishes because, “Maggie’s friendly to us,” was he also expecting that Maggie might misrepresent his role in all this (and leave his name unmentioned)?

That’s why you disclose such things.

The rest of this column (NYT bills it as analysis and claims the reporters who wrote it have “deep experience in the subject,” which is one way you might describe involvement in the story you’re telling) focuses on describing how delivering this report after Trump’s public demands, “reliev[es] Mr. Trump of the potentially fraught step of explicitly ordering the inquiry himself.”

A “friendly to us” reporter treats Trump’s word games as if they absolve him of responsibility.

¶¶4-14 describe Trump’s contradictory claims, including an uncorrected quote from Trump’s spox that “the nation’s ‘system of justice must be fixed and due process must be restored for all Americans.'”

¶¶15-23 describe Trump’s efforts to gin up investigations into his adversaries in his first term and going forward. The section includes multiple grossly misleading claims. First, it falsely insinuates that Trump never got the investigation of Hillary he demanded.

During his first presidential campaign, he often joined crowds at his rallies in chanting, “Lock her up!” — a reference to his opponent Hillary Clinton, whom he and other Republicans believed should have been investigated for using a private email server while she was secretary of state. After he won that election, however, Mr. Trump appeared to soften his stance, telling The New York Times editorial board that he did not want to “hurt the Clintons.”

But Mr. Trump, facing a special counsel investigation of his own, changed his mind again in 2018, telling his White House counsel that he wanted to order the Justice Department to investigate Mrs. Clinton.

[snip]

While the White House counsel ultimately declined to approve his plans to investigate Mrs. Clinton, Mr. Trump made clear on social media during his years in office that he believed various people should be prosecuted.

NYT simply ignores the Clinton Foundation investigation predicated in significant part on Bannon-associated oppo research that (as NYT reported) continued throughout Trump’s first term.

More problematic, given the suggestion that someone stopped Trump from getting a Special Counsel investigation into Hillary, it ignores that Special Counsel John Durham not only insinuated two false statement indictments against people associated with Hillary — both of which ended in acquittal — were conspiracies, but fabricated a claim about Hillary to which he dedicated an 18-page section in his final report.

NYT goes onto to — again — falsely suggest that Trump never got a special counsel investigation into Joe Biden.

Mr. Trump has called for Jack Smith, the special counsel who brought two criminal cases against him last year, to be “thrown out of the country.” And after he was arraigned on the first of Mr. Smith’s indictments, he said that, as president, he would appoint “a real special prosecutor” to “go after” President Biden and his family. (He has since backed away from his position on specifically investigating the Bidens.)

NYT’s “friendly” journalists would have you to believe they are ignorant that:

  • Trump extorted Ukraine for dirt on Hunter and Joe Biden
  • During Trump’s first impeachment, his personal attorney solicited such dirt from known Russian agents
  • Bill Barr set up a side channel via which Rudy could share that dirt obtained from Russian agents and others
  • Somehow, an FBI informant willing to frame Joe Biden came to share a claim that Mykola Zlochevsky bribed Biden that got laundered to the Biden investigation via that side channel
  • Trump spoke directly to both Barr and Jeffrey Rosen about the investigation into the Bidens
  • After David Weiss announced a plea deal with Hunter Biden, Trump attacked Weiss, contributing to threats against Weiss’ family
  • After Barr made public representations about the false bribery allegation, Weiss reneged on Hunter’s plea deal and obtained Special Counsel status and chased the bribery allegation, only to discover it was false

Trump already got his Special Counsel to investigate Joe Biden, and just in time for election season. And while it flopped when Weiss discovered Scott Brady’s vetting failed to find obvious problems with the bribery claim, it nevertheless led to felony charges against Hunter and a humiliating trial in June.

Suggesting Trump didn’t get a Special Counsel to investigate the Bidens is propaganda, just as suggesting he didn’t get one to pursue Hillary is.

But I guess that’s what Trump’s people know they’ll get when they work with a journalist “friendly to us.”

David Weiss’ Rush Job on Alexander Smirnov’s Sentencing

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

In his plea deal, Smirnov admitted,

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

Yesterday, Judge Otis Wright accepted Smirnov’s plea.

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

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

3. Defendant agrees to:

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

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

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

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

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

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

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

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

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

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

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

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

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

We’ll know soon enough.

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

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

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

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

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

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

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

Zero Accountability: The Five-Plus Times DOJ Got Fabricated Evidence against Hunter Biden

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The other day, former FBI Agent Asha Rangappa attributed the 11-year scope of Hunter Biden’s pardon to the possibility that, “For the 1st time, the FBI and Justice Department could literally fabricate evidence, or collaborate with a foreign government to ‘find’ evidence of a ‘crime,’ with zero accountability.”

Rangappa is not wrong that the ability to fabricate evidence to invent new crimes with which to charge Hunter likely helps explain the scope of the pardon.

But her suggestion that a second Trump term would be the “1st time” the FBI was in a position to do that is, itself, a symptom of the “zero accountability” that allowed Trump to win a second term.

FBI and DOJ already allowed various types of people — from spies to grifters to informants to an AUSA — to fabricate evidence against Hunter Biden and his father at least five times, with another four instances of potentially false evidence. It appears that such fabricated evidence played a role in the collapse of Hunter’s plea deal, David Weiss’ request for Special Counsel authority, and the evidence that convicted Hunter in his Delaware trial.

And whatever its influence on Hunter’s ultimate conviction, how Republicans worked to insert fabricated and otherwise suspect information into Hunter’s case is a lesson for how it’ll continue to happen.

The following list includes five examples, with numbered headings, that present compelling evidence of fabricated information used either by Congress or DOJ to go after Hunter and his father, along with four suspect incidents. The first five are presented in order of seriousness with regards to the effect on Hunter’s due process. This post will review each. I’ll do a followup that explains the lessons we can take from this.

  1. After sharing a debunked Fox News meme, Alexander Smirnov makes false claims of bribery
  2. Derek Hines narratively plants a crack pipe in Wilmington
  3. The gun shop also lied on the gun form
  4. Tony Bobulinski[‘s FBI report] claims he saw a diamond pass hands
  5. Gal Luft claims Joe Biden met directly with CEFC Chairman Ye in 2016
  • FBI enthusiastically welcomes “The Economist’s” claims
  • The Scott Brady side channel launders dirt Rudy Giuliani obtained from Russian agents
  • FBI makes Peter Schweizer their special Hunter Biden informant
  • Judge Maryellen Noreika admits a laptop that has never been indexed

1. After sharing a debunked Fox News meme, Alexander Smirnov makes false claims of bribery

Fabrication: Longtime FBI informant Alexander Smirnov allegedly falsely claimed Mykola Zlochevsky twice told him that he was bribing Joe Biden.

Resolution: According to Scott Brady’s testimony, prosecutor Lesley Wolf had treated the Smirnov allegation with the same skepticism she did other tips shared via the side channel from Rudy. But after Congress leaked the Smirnov FD-1023 and Bill Barr publicly complained that David Weiss was supposed to have investigated it, it appears to have been part of — if not the primary reason — why Weiss reneged on the plea deal with Hunter, obtained Special Counsel status, and ratcheted up charges afterwards.

In January 2020, right in the middle of impeachment, Bill Barr set up a “discreet” side channel overseen via Pittsburgh US Attorney Scott Brady via which Rudy Giuliani could share the dirt on Hunter Biden he had obtained, in part, from known Russian agent, Andrii Derkach.

As part of that process, Brady checked in on all investigations implicated by the side channel: the SDNY investigation into whether Rudy was acting as an unregistered agent of various Ukrainians, David Weiss’ investigation into Hunter Biden, and two oligarchs from whom Rudy solicited dirt on Hunter: Dmitry Firtash and Ihor Kolomoisky. In his interview, Brady didn’t claim to have looked into the investigation into another oligarch from whom Rudy solicited dirt (indirectly): Mykola Zlochevsky. That investigation reportedly started in 2016 while Joe Biden was Vice President and got shut down the previous month, December 2019, right in the middle of an impeachment focused on corruption at Burisma. Rather, Brady dubiously claimed he discovered Smirnov in a search on Hunter and Burisma.

As Alexander Smirnov’s first indictment describes it, it worked the other way. When Smirnov saw a report of Derkach’s meetings with Rudy, Smirnov started texting his handler that, “bribe of [Joe Biden] should soon be in the news))).” He promised to get proof — and then started sending already debunked memes made popular on Fox News.

Neither story convincingly explains how Brady came to reach out to Smirnov to give him opportunity to frame Donald Trump’s opponent. Perhaps one of Smirnov’s three ties to Trump and his people, including the financial ties to Economic Transformation Technologies, which in turn has ties to one of the construction companies that has partnered with Trump Organization in the Middle East, that are the subject of a second indictment against Smirnov, better explains it. That is, perhaps someone in Trump’s camp knew to send him.

Whatever the case, after Brady came calling, Smirnov claimed that at a meeting in 2017, Zlochevsky insinuated he was paying Hunter Biden as protection, from Joe, for himself. Smirnov further claimed that on a phone call the previous year (in 2019, around the time Rudy was expecting a Hunter laptop, and close to the time the investigation into Zlochevsky would be shut down), the Burisma head bragged about hiding his payments so well it would take ten years to find them.

Here was the bribery claim that Trump had first demanded a year earlier from Volodymyr Zelenskyy, all wrapped up with a bow in that Brady side channel!

Brady told Congress his investigators vetted Smirnov’s claims, which was, after all, the purported reason for his side channel. The Smirnov indictment repeatedly described how precisely the thing — Smirnov’s travel records — that Brady claimed he had used to validate Smirnov’s allegations instead debunked them. Jerry Nadler referred Brady for investigation for those false claims to Congress, an investigation that will presumably be killed after inauguration.

On October 23, 2020 — days after Trump personally yelled at Bill Barr about the investigation into Hunter Biden and on the same day that Tony Bobulinski, accompanied by a former Trump White House lawyer, claimed to have personally witnessed a key meeting with CEFC — David Weiss’ team was ordered by Richard Donoghue to receive a briefing on this allegation.

With the personal involvement of Bill Barr, PADAG Richard Donoghue and before him Seth DuCharme, and FBI Deputy Director David Bowdich, Scott Brady found an informant who — if you believe the indictment — was willing to fabricate a bribery claim against Joe and Hunter Biden during an election year.

Don’t tell me that a second Trump administration will only prospectively use fabricated evidence, because it already happened, and the guy currently investigating how it happened was a witness to the process and one of the interviews in this case.

When DOJ ordered prosecutors to accept this alleged fabrication in 2020, AUSA Lesley Wolf reportedly treated it with the same skepticism she treated all the other dirt laundered through the side channel, and it went nowhere. But it didn’t go away. Republicans resuscitated it, in 2023, during their baseless effort to impeach Joe Biden. The FBI tried but failed to limit sharing of Smirnov’s FD-1023. Marjorie Taylor Greene promptly leaked details of it. Bill Barr started making public claims about it in response to Jamie Raskin’s accurate description of what happened in 2020. Then a “whistleblower” leaked the form itself via Chuck Grassley and James Comer. And amid that frenzy, Weiss reneged on his office’s previous assurances that there was no ongoing investigation, told Lindsey Graham that Smirnov’s FD-1023 was part of that ongoing investigation, and then obtained Special Counsel status, out of which the Smirnov false statements prosecution arose.

Yes, after the Smirnov allegation served as a precipitating factor in the collapse of Hunter Biden’s plea deal, he too is now being prosecuted. But by all appearances, the fabrication and the way Republicans leveraged it nevertheless played a central role in the plight of Hunter Biden, a central role in prosecuting him with far more serious charges than originally planned. The fabrication had its effect, and the effect was to make Hunter a felon.

Update: On December 10, Alexander Smirnov signed a plea deal admitting his bribery claims against Joe Biden were fabricated.

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

2. Derek Hines narratively plants a crack pipe in Wilmington

Fabrication: AUSA Derek Hines repeatedly claimed that a line from Hunter Biden’s memoir set in February to March 2019 in New Haven happened in 2018 in Wilmington.

Resolution: None. Hines presented a version of this claim to jurors.

Prosecutors faced a number of challenges with charging Hunter Biden for the gun crime David Weiss had earlier decided to divert. They needed to defend against a vindictive prosecution claim that they had ratcheted up the gun charges against Hunter Biden because he didn’t accept the narrowed plea agreement after Weiss reneged on his June 19, 2023 assurances there was no ongoing investigation. Their plight was made worse because investigators had never taken the most basic investigative steps to pursue the gun charge: they had never obtained a warrant to search Hunter’s digital evidence for proof he was addicted when he owned the gun, and they had never done laboratory analysis on the pouch in which the gun was found. They did both those things after indicting Hunter for the gun crimes in 2023, after the statute of limitations had already expired.

The decision to charge Hunter with the gun crimes appears to have amounted to, “We know Hunter was an addict based on stuff obtained on the laptop and published in the right wing press” (indeed, one of Judge Maryellen Noreika’s decisions mistook stuff published by Murdoch rags for evidence before her).

Abbe Lowell has claimed that, at least in August 2023, prosecutors told him they had no need to rely on the laptop for evidence at trial. Prosecutors seem to have believed, incorrectly, that the laptop was an exact match of Hunter Biden’s iCloud. They similarly seem to have believed that Hunter’s memoir provided adequate proof that Hunter was doing drugs during the 11-day period in October 2018 he owned the gun. In fact, the memoir says almost nothing about that period.

Nevertheless, AUSA Derek Hines made a version of that argument — that the memoir reflected drug use during or closely after the period he owned the gun — over and over, at least seven times by my last count. Hines did so by claiming that his favorite line from the memoir — “It was me and a crack pipe in a Super 8, not knowing which the fuck way was up” — took place in fall 2018 in Wilmington, DE, and not in Hunter’s stopover in New Haven between the time he left Keith Ablow’s treatment in February 2019 and arrived back in Wilmington, before then moving back to Los Angeles permanently.

He simply moved the narrative reference to the crack pipe in a Super 8 from one crime scene to the one where he needed it to be, from 2019 to 2018, from New Haven to Wilmington. Just like a dirty cop moves an actual crack pipe from one location to another.

(This post includes the full memoir excerpt and a summary of Hunter’s spending around New Haven; it also notes that the claim he was staying in Super 8s was, as so much auto-biography is, embellishment.) The argument was absolutely crucial to Hines’ responses to Hunter’s selective and vindictive prosecution claims, falsely substantiating a defense of the prosecutorial decision to charge Hunter with the gun crimes (and even the tax crimes) because there was so much evidence against Hunter in the memoir, when in fact the memoir had a gap for the crucial period.

Hines sustained this fabrication with the jury by selectively presenting the memoir to exclude the discussion of leaving Ablow’s treatment and the way it exacerbated Hunter’s addiction. And when he walked his summary witness through the memoir, he again falsely insinuated that the line took place in 2018, not 2019.

Q. And how about any section in Chapter 9 or Chapter 10, the relevant time period for 2018?

A. No.

Q. And finally, page 208, continuing in the same chapter, after Mr. Biden describes full blown addiction, Exhibit 19, page 208, does Mr. Biden write “crack is a great leveler.” And then he goes on to say “just like in California.” Is that what he goes on to say here?

A. Yes.

Q. If you zoom out, above that, does he say in the first paragraph, “It was me and a crack pipe and a super eight, not knowing which the fuck way was up.” Are those his words?

A. Yes.

Q. And this is in the same chapter when he describes his return in the fall of 2018; correct?

To be sure: Hunter was also staying in cheap motels while he was in Wilmington in 2018, including the night before Hallie Biden found the gun. But those stays don’t appear in his memoir, and so prosecutors had little to no evidence that he was smoking a crack pipe while staying there. As noted, virtually nothing from those weeks in Wilmington appears in his memoir.

But that was true of the evidence against Hunter generally. While there was a great deal of evidence showing Hunter using drugs before and after the period he owned the gun, there was little definitive evidence showing him using in those 11 days.

Prosecutors charged a case for which they had very little direct evidence of drug use during the period in question. One way they won a conviction anyway was by misrepresenting the timing and location of this line in the memoir.

3. The gun shop also lied on the gun form

Fabrication: Sometime after reporting the gun purchase, the gun shop added a claim to the original form that they had asked Hunter for a second form of ID, in addition to his passport (which, because it lacks an address, would not suffice). 

Resolution: Judge Noreika prevented Hunter from presenting the doctored form to the jury or questioning specifically on the question (though Abbe Lowell did elicit closely related answers), thereby preventing Hunter from discrediting the gun shop practices generally or the proving Hunter’s lie on the gun form was not material. 

According to a contested Abbe Lowell filing, before the election in 2020, the guy who owned the gun shop from which Hunter bought a gun, Ron Palimere, and the State Trooper who first investigated the gun in 2018, Vincent Clemons, exchanged WhatsApp texts about how they could release the paperwork tied to the gun purchase in order to help beat Joe Biden.

[Vincent] 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 [Ron] 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.

As part of their effort to use Hunter’s gun purchase to hurt his father in the 2020 election, it appears that on October 22, 2020 they for the first time printed out the receipt recording Hunter’s purchase of the gun.

They would leak these materials, as well as the partisan write-up of the investigation penned after the fact by Clemons, to right wing propagandists.

Their reference to “proper forms” was important, Lowell argued, because some time after the original gun form was emailed to ATF after the gun had already been lost and recovered, it got altered, to falsely reflect that the gun shop obtained a second form of ID before selling a guy they knew to be Joe Biden’s kid a gun. (There’s no way this vehicle registration could have served as a second ID to supplement the passport, because Hunter was driving his father’s Cadillac, and so the registration would have been in Dad’s name.)

Hunter got evidence that these key witnesses tried to use these documents as part of a political hit job long after his selective and vindictive prosecution bids were rejected. And Judge Maryellen Noreika prohibited Hunter’s team from introducing either that the gun shop owner hated Joe Biden and also wanted to get Hunter out of his shop as quickly as possible and as a result sold him a gun without first getting the proper paperwork, or that they altered the form after the fact. Jurors were left with no explanation of why gun shop employee Jason Turner repeatedly claimed to have written “DE Vehicle Registration” on the form, but it didn’t appear on the form before them (see this post for more on the way the gun shop employees’ testimony materially conflicted).

The means by which prosecutors managed to cover up that the gun shop had also broken the law is fairly banal: They relied on secondary witnesses for key testimony rather than that of people more directly implicated in similar conduct as Hunter (the gun shop owner was immunized to sustain this case), and performed ignorance of details about this corruption at trial.

That happens all the time in criminal trials prosecuted by AUSAs who excel at prosecutorial dickishness. Judge Noreika’s decision to exclude a doctored gun form (and instead rely on a scan at trial) might have been a ripe issue for appeal. Certainly, by excluding evidence that the gun sale went through without proper paperwork, she excluded evidence that Hunter’s lie was not material.

But the larger issue is that Hunter Biden was prosecuted for lying on a gun form even while prosecutors covered up that the gun shop owner himself had an employee fabricate the form after the fact, possibly to hide his own role in leaking to the press and trying to push such a case against Joe Biden’s kid.

4. Tony Bobulinski[‘s FBI report] claims he saw a diamond pass hands

Fabrication: After Trump hosted Tony Bobulinski at a debate, the FBI recorded claims that Bobulinski personally witnessed a key CEFC meeting.

Resolution: After prosecutors deemed Bobulinski’s testimony unreliable and so avoided follow-up, IRS agents claimed prosecutors improperly withheld Bobulinski’s testimony, leading to his platforming of slightly different claims in a hearing purporting to support impeachment. Bobulinski accused FBI of misrecording his interview.

The day after being hosted by Donald Trump at one of the Presidential debates, Tony Bobulinski — represented by onetime White House Counsel and future January 6 witness attorney Stefan Passantino — went to the FBI and made certain claims about Hunter Biden’s ties to CEFC. Among other things, he claimed that he participated in a Miami meeting between Hunter Biden and CEFC Chairman Ye Jianming.

BOBULINSKI first met in person with members of the BIDEN family at a 2017 meeting in Miami, Florida. BOBULINSKI, GILLIAR, WALKER, HUNTER BIDEN, and YE all attended the meeting. Also in attendance was Director JIAN ZANG (“ZANG”), a CEFC Director involved in forming new businesses and capitalizing them at the request of CEFC. At the meeting, BOBULINSKI witnessed a large diamond gemstone given as a gift to HUNTER BIDEN by YE.

The work conducted by CEFC, GILLIAR, WALKER, HUNTER BIDEN, JAMES BIDEN and YE over the preceding two years was discussed in detail at the Miami meeting. In particular, CEFC was closing significant investment deals in Poland, Kazakhstan, Romania, Oman, and the Middle East during this period of time. CEFC had used its relationship with HUNTER BIDEN and JAMES BIDEN – and the influence attached to the BIDEN name – to advance CEFC’s interests abroad. HUNTER BIDEN and JAMES BIDEN did not receive any monetary compensation for their assistance in these projects. HUNTER BIDEN and JAMES BIDEN did not receive any compensation because JOSEPH BIDEN was still VPOTUS during this time period.

He also claimed that when he met Joe Biden in May 2017, they discussed the business deal.

Further, BOBULINSKI met with JOSEPH BIDEN in person on May 2, 2017 at approximately 10:30 PM at the Beverly Hills Hilton Hotel bar in Beverly Hills, California where they discussed SINOHAWK

In his congressional testimony, Bobulinski disclaimed several things recorded in his FBI interview report. He said he did not attend the meeting in Miami nor witnessed the transfer of a diamond to Hunter. He backed off his description of the substance of his meetings with Biden.

Not only did Joe Biden meet with me twice for an extensive amount of time — and we weren’t talking about the weather or niceties. We had an extensive discussion about his family, my family, my business career, where I was successful, the military background, and what I was doing with the Chinese. However, coached before that meeting to not go into a lot of detail by Hunter and Jim Biden. Okay?

The effect here is subtle. Bobulinski — who is furious that Hunter cut him out of this deal — is still trying to put Joe Biden at the center of it, he’s still trying to claim (contracts and finances notwithstanding) that the aspiring President got 10% of the deal. That’s the now partly-disclaimed story he told, allegedly presenting himself as a direct witness to more than he was, when he waltzed into the FBI fresh off his campaign event with Donald Trump.

5. Gal Luft claims Joe Biden met directly with CEFC Chairman Ye in 2016

Fabrication: Uncorroborated testimony that Hunter’s financial payments from CEFC started while Joe Biden was still Vice President.

Resolution: Public release of charges after Luft got House Republicans to claim a cover-up.

At a time when he would have known he was under investigation for his role in Patrick Ho’s influence-peddling scheme, March 2019 (for which he was charged and currently awaits extradition), Gal Luft met with investigators in Belgium for two interviews, one focusing on his role in Ho’s activities, another focused on Hunter Biden. At the latter, he claimed that Joe Biden had met with Ye when he was still President, in 2016, and Hunter had gotten paid in 2016 too.

LUFT is aware that YE met with BIDEN and HUNTER at the end of 2016 at the Four Seasons Hotel in Washington.

The meeting at which Biden was present was later, in March 2017. Here’s how Rob Walker described it.

Walker: It was out‐of‐office.  Ah, we were in ah.., D. C. at the Four Seasons…

Soline: Hmph hmph. Walker: …and ah.., we were having lunch and he.., he stopped in…

Soline: Hmph hmph.

Walker: …then he’d ah, leave.

Wilson: Okay.

Walker: That was it.

Wilson: Just said hello to everybody and then…

Walker: Yes.

Wilson: …took off?

Walker: He literally sat down.  I don’t even think he drank water.  I think Hunter said um.., I may be tryin’ to start a company, ah, or tried to do something with these guys and could you.., and  think he was like “if I’m around”….and he’d show up.

So, too, was a $3 million payment that Luft said Hunter (actually, Rob Walker) received. Luft said it was paid in December 2016; it was paid in March 2017.

At the meeting, Luft “was directly asked to identify his CEFC CHINA ENERGY source(s) but refused to do so.”

Here’s how the tax indictment against Hunter (though not dissimilar to Bobulinski’s claims) described these ties.

8. In the late fall of 2015, the Defendant, Business Associate 1, and Business Associate 2 began to investigate potential infrastructure projects with individuals associated with CEFC China Energy Co Ltd. (CEFC), a Chinese energy conglomerate.

9. In or around December of that year, the Defendant met in Washington, D.C., with individuals associated with CEFC. During the next two years the Defendant, Business Associate 1, and Business Associate 2 continued to meet with individuals associated with CEFC, including in February 2017, with CEFC’s then-Chairman (hereafter “the Chairman”).

10. On or about March 1, 2017, State Energy HK, a Hong Kong entity associated with CEFC, paid approximately $3 million to Business Associate 1’s entity for sourcing deals and for identifying other potential ventures. The Defendant had an oral agreement with Business Associate 1 to receive one-third of those funds, or a million dollars. The Defendant, in turn, directed a portion of those million dollars to Business Associate 3.

On these topics, Luft’s testimony is subtle — just a temporal shift by a few months to make the sleazy Biden relationship with CEFC more damning (and put FARA charges that SDNY seems to have declined by the time Luft went public in 2022 back on the table).  Perhaps unsurprisingly, Luft slightly adjusted his claims about his testimony when he went to NYPost after his arrest, correcting the monetary amounts and timing focusing instead on the later event at which Biden was co-present with Ye.

Luft’s comments about Hunter Biden don’t appear in his own indictment. And indeed, there’s no evidence he wittingly lied himself; whereas Bobulinski had claimed firsthand knowledge of the Miami meeting, Luft was only claiming to have second-hand knowledge of this information. It could well have been an effort from his own sources to harm the Bidens. In his effort to allegedly disavow his own involvement in this influence peddling, Luft certainly had cause to want to shift CEFC’s attempt to recruit James Woolsey, likely sparked by Trump’s election win, to instead focus on what was surely a similar attempt to cultivate the Biden family, something that had less value after Trump’s win.

The files released by the disgruntled IRS agents show that by 2021, SDNY was no longer pursuing a FARA investigation against the Bidens with relation to CEFC, so whatever Luft claim, it has not (at least thus far) done lasting damage, which is the way investigations are supposed to work.

FBI enthusiastically welcomes “The Economist’s” claims

There are a range of Ukrainians who shared dirt on Hunter Biden that made it to investigators. The first two of those, by chronology, were Ukrainians who were briefly made informants by people in Los Angeles, but who were subsequently deemed to be part of an influence operation targeting Joe Biden.

As Johnathan Buma described it, the thumb drive Ukrainians he called Rollie and the Economist provided targeting Hunter Biden in early 2019 (which would have been almost immediately after the investigation into Hunter was opened in Delaware) largely focused on the sex and drugs that reflect Hunter’s addiction, as well as financial improprieties.

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. 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 serilized in their case file. While I transferred the information, I could not read the Ukrainian language, and it required translation in order to determine the viability of the electronic document’s presumed support of the allegations related to Hunter and Burisma, which were presented and summarized in a PowerPoint presentation created by THE ECONOMIST and serialized in the case file. I had no involvement in the subsequent investigation concerning Burisma and the Bidens and never received any update from these agents as to whether the information was corroborated, but later learned from the media that some of the allegations appeared to have been true. Based on the level of corruption and the RIS’ past usage of Ukraine for influence operations raw single-source information derived from Ukraine is always viewed with skepticism by members of the USIC with some specialty and experience in Ukrainian matters.

Buma went on to describe how, when he shared information about Rudy’s ties to Russian spies, his supervisor shut him down.

I’ve written why I am skeptical of Buma. It’s also worth noting that, in fact, in spite of four years of investigation, the FBI never managed to substantiate what he seems to suggest the claims were, so he’s likely wrong that the tips from Rollie and the Economist held up to scrutiny.

Given that, per Buma’s description, these two were quickly disqualified as informants, it seems likely that their information was deemed problematic. That is, it seems likely that this information was vetted and found wanting, which is (again, like the Luft allegations) precisely what is supposed to happen with potentially motivated informant information.

The Scott Brady side channel launders dirt Rudy Giuliani obtained from Russian agents

It’s what DOJ did with Rudy Giuliani’s information, obtained in part from known Russian agents trying to interfere in the election, that defies excuse.

By setting up the Brady Side channel (and related steps), Barr thwarted the SDNY investigation into whether Rudy was himself an unregistered agent of Ukrainian sources. SDNY did not then — and it appears, did not ever — get access to the interview Brady did with Trump’s personal lawyer about how he collected this information. And Brady attempted to intervene in the SDNY investigation to tell them they had gotten it wrong.

As noted above, at Barr’s direction, Brady also created a way that Smirnov could fabricate an allegedly false bribery claim against Joe Biden. He created a way to, effectively, spy on several ongoing investigations.

And, while his sole purpose was supposed to be vetting, his vetting process appears to have done nothing more than serve as a laundry service, insulating Rudy and his sources from investigators and parachuting his information in with the sanction of top DOJ personnel, as when Richard Donoghue ordered DE USAO to provide information about their investigation and accept information in exchange, into the Hunter investigation.

Q And did your AUSAs ever communicate to you issues they were having with Ms. Wolf?

A Not with Ms. Wolf specifically — well, no strike that.

There was an occasion with Ms. Wolf as well, but they would communicate to me the issues that we were having, our investigative team was having with both the FBI and with Delaware and with SDNY. Really the only office we didn’t have any issues with was EDNY. It was Rich Donoghue’s office.

Q Okay.

And so, before you communicated with the PADAG that you needed assistance, did you have an initiative to talk with Mr. Weiss?

A Yeah, I wouldn’t always run to the principal right away, right. I would try to go professional to professional, you know, U.S. attorney to U.S. attorney, and we would try to resolve things. And, only when we couldn’t, would we elevate it to the DAG’s office and involve the PADAG.

Mr. Rosen was never involved directly in our communications. It was always the PADAG.

Q Okay.

And what feedback was Mr. Weiss giving you during that time period before you had to involve the PADAG?

Mr. Lelling. Only in general terms.

Mr. Brady. Usually Mr. Weiss was in receiving mode and would say that he would talk to his team to try to resolve it?

Q At any point did you have to advise Mr. Weiss that you’ve been, you know, you’ve been charged by the DAG to collect this information, and part of your charge and your duty, and correct me if I’m wrong, is to analyze it and hand it off?

A That’s correct and to coordinate with other offices. And, yes, I reminded Mr. Weiss of that obligation that we have, of that requirement, and the FBI on a regular basis as well.

[snip]

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.

We do not know what kind of information got laundered through this process. We do know that after four years of investigation, DE USAO did not charge any of the allegations that Rudy’s Russian spy buddies were pushing. Again, it looks like prosecutors in Delaware properly viewed this information with skepticism.

FBI makes Peter Schweizer their special Hunter Biden informant

But the import of that process shares a feature with another of the efforts to launder dirt into an investigation into Hunter Biden.

By 2020, even as Arkansas’ US Attorney’s Office was four years into an investigation of the Clinton Foundation predicated in three different venues at least partly on Peter Schweizer’s Clinton Cash, some FBI agents in DC had not just used his writing, but made him a formal informant to report on Hunter Biden. It seems that Schweizer was at least partly repackaging allegations based on the laptop, because (according to testimony from retired FBI agent Tim Thibault), when FBI agents from Delaware asked to stop getting the information, they effectively said they already had it.

At the request of the Delaware investigators, Thibault shut down Schweizer as an informant, four years after Thibault had been one of the the three FBI agents who had chased the Clinton Foundation allegations based on Schweizer’s work.

But like the Brady Side channel, this privileged means of sharing dirt — of uncertain quality — on Hunter Biden became a means to discipline those who tried to protect the integrity of investigations by limiting the partisan shit dumped into them. As Lesley Wolf also did, Thibault faced an entire campaign of retaliation (including from two agents who were themselves firebreathing partisans, who claimed that Thibault shut good work down), including public humiliation in an oversight hearing with Chris Wray.

The threats that Wolf faced may have been worse than what Thibault faced. But unlike Wolf, Thibault is on the (dated) Kash Patel’s enemies list.

We don’t know what substance of information Schweizer share with the FBI; we know the investigative agents didn’t want it, at least in that form.

But a more important point is that Thibault’s efforts (at the request of the investigative team itself) to protect the investigation from partisan taint, just like Wolf’s, made him a target for professional and potentially dangerous retaliation.

Judge Maryellen Noreika admits a laptop that has never been indexed

Which brings us, of course, to the laptop (and accompanying hard drive, purportedly a copy of the laptop but the Cellebrite report from which was 62% longer).

There are a great deal of reasons to be skeptical about the laptop: the discrepancies between John Paul Mac Isaac’s story and the FBI’s, JPMI’s claim that the FBI tried to boot it up four days before the known warrant, the possibility that Bill Barr got sent a copy.

But the biggest caution has to do with its handling.

Immediately after the release by NYPost, Rudy ran his yap and said it didn’t really matter if Derkach was a Russian spy and that he regarded the hard drive copy of the laptop he had to be an “extension” of his efforts to collect dirt from Russian spies. (In congressional testimony, Scott Brady admitted that Rudy never told him about the laptop.)

Thanks to Gary Shapley, we know the panicked meeting that ensued, as the investigative team tried to justify the year that they had spent snooping in a laptop that might have, after all, had something to do with Russia’s information operation. And Shapley recorded in real time not just that prosecutors had an email, dated March 31, 2020, recording some kind of concerns “about quality and completeness of imaged/recovered information from the hard drive,” but that they would not share it with anyone who might have to testify at trial. He also described that, at the time of that October 22, 2020 meeting, the FBI had never checked when the files on the laptop got added when. They had never checked to see if someone had packaged Joe Biden’s son’s digital life up onto a laptop to be dealt to the FBI.

My suspicion is that, after that time, prosecutors decided they shouldn’t try to introduce the laptop at any trial, because they could never clean it of this stench (they don’t appear to have considered investigating that stench, which continues to baffle me to this day). But after brashly telling Abbe Lowell in August 2023 they didn’t need no fucking laptop to charge the gun case, a different set of prosecutors discovered they had almost no evidence showing that Hunter Biden was doing drugs in the 11 days he owned a gun. They discovered that the all-critical communications between Hunter and Hallie Biden from that period — saved from a phone he used until replacement phones for ones he lost days before he bought the gun arrived during this same period — existed only on that laptop which he did not yet possess.

And rather than going back and pretending they were the FBI, acting like the FBI — rather than going back and doing the index that would tell them whether the laptop really did reflect Hunter’s use of it or someone else packaging up the digital life of the then President’s son — they instead bulldozed through things like the dickish prosecutors they are.

They never indexed the laptop. Never.

They never Bates stamped their own exhibits.

They never provided the laptop in e-discovery format.

In fact, after Hunter’s team did their own extraction so they could do searches, prosecutors raised questions about the integrity of their own source, the laptop.

When Judge Noreika denied my request for the extraction reports that Derek Hines claimed authenticated the laptop, she admitted that she had never required a report that actually referred to the laptop by some kind of identifier. The laptop evidence came in with no formal validation whatsoever.

The only two pieces of authentication used to validate the laptop at trial were the fact it had accessed Hunter’s iCloud account (but Zoe Kestan testified at trial that so had her own laptop), and that JPMI had sent an invoice to Hunter’s public iCloud email.

That was it.

The laptop and the most damning evidence against Hunter all came in without the most basic kind of validation. And as a result, we still can’t say with certainty we know fuckall about its provenance. Nor can we say whether its existence as a collection of evidence was doctored by hostile players (who would just as likely be Republican rat-fuckers as Russian spies).

We simply don’t know, and anyone claiming they do, is lying or withholding reporting and testimony that could have come in as part of the trial.

So we still can’t say whether the most famous prop in this whole story involved fabrications or manipulations or merely the disordered digital life of a hopelessly addicted man.

Hunter has been pardoned from these convictions (though James Comer has promised to continue hounding him going forward). Even still, these nine instances of dodgy evidence used against the President’s son provide lessons — none pretty — about what we should expect going forward.

Devlin Barrett Makes Shit Up about Hunter Biden, Again

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Because I want to address how we move forward when both law and journalism will increasingly fail to tell the truth, I want to address this weird 3-paragraph Devlin Barrett … um, blog post? … that NYT chose to publish earlier this week. Devlin picks a big ol’ straw man and carries it across the line for his right wing fans.

Here’s how it works:

  • Headline: Judge Scuppered Hunter Biden Plea Deal, Not Political Pressure
  • ¶1: President Biden blamed “political pressure” for the collapse of Hunter’s plea deal
  • ¶2: The plea deal fell apart in spectacular fashion [linking this article] because Judge Noreika rejected the structure of the deal
  • ¶3: The collapse of the plea deal because of its structure “is a far cry from the president’s suggestion that the deal for Hunter Biden to avoid prison time and a felony conviction collapsed because of political pressure”

Now, as a threshold matter, Devlin oversimplifies what happened in the plea hearing, which I reconstructed here. Two things happened and Maryellen Noreika had two concerns. Yes, there was the way the plea deal (which she had authority to reject) invoked the diversion agreement (which Probation refused to sign after having previously approved it, and which Noreika repeatedly complained she should get to approve but legally should not). Devlin’s right that that was an issue, but Noreika’s complaints extended to areas she had no authority, the scope of immunity the government offered.

But there was also the confusion about the scope covered by the agreement. And that confusion arose because, after David Weiss’ First AUSA had told Chris Clark on June 19 that, “there was not another open or pending investigation” into Hunter, Leo Wise asserted at the July 26 hearing that there was an ongoing investigation, one he later suggested might pertain to FARA.

Don’t take my word for this, though: Here’s what the linked article that Devlin pretends backs his argument says:

Judge Maryellen Noreika, a Trump appointee, repeatedly informed the two sides that she would be no “rubber stamp.” She picked apart the deal, exposing substantial disagreements over the extent of the immunity provision.

Mr. Clark said the deal indemnified his client not merely for the tax and gun offenses uncovered during the inquiry, but for other possible offenses stemming from his lucrative consulting deals. Mr. Wise said it was far narrower — and suggested the government was still considering charges against Mr. Biden under laws regulating foreign lobbying.

Poor Devlin couldn’t even get the plea hearing right.

But the plea hearing is a straw man. Devlin gets there by misrepresenting what Joe Biden said about the prosecution.

Today, I signed a pardon for my son Hunter. From the day I took office, I said I would not interfere with the Justice Department’s decision-making, and I kept my word even as I have watched my son being selectively, and unfairly, prosecuted. [1] Without aggravating factors like use in a crime, multiple purchases, or buying a weapon as a straw purchaser, people are almost never brought to trial on felony charges solely for how they filled out a gun form. [2] Those who were late paying their taxes because of serious addictions, but paid them back subsequently with interest and penalties, are typically given non-criminal resolutions. It is clear that Hunter was treated differently.

[3] The charges in his cases came about only after several of my political opponents in Congress instigated them to attack me and oppose my election. [4] Then, a carefully negotiated plea deal, agreed to by the Department of Justice, unraveled in the court room – with a number of my political opponents in Congress taking credit for bringing political pressure on the process. Had the plea deal held, it would have been a fair, reasonable resolution of Hunter’s cases.

[5] No reasonable person who looks at the facts of Hunter’s cases can reach any other conclusion than Hunter was singled out only because he is my son – and that is wrong. There has been an effort to break Hunter – who has been five and a half years sober, even in the face of unrelenting attacks and selective prosecution. In trying to break Hunter, they’ve tried to break me – and there’s no reason to believe it will stop here. Enough is enough. [my brackets]

Biden made these assertions:

  1. A false statement on a gun form is not normally charged unless there are aggravating factors
  2. Addicts who fail to pay their taxes usually can resolve that civilly (note: This is the claim to which Mark Scarsi, with merit, objected, partly because Hunter waited months after he filed to actual pay his taxes, and partly because Hunter also pled guilty to evading his 2018 taxes, not just failing to pay)
  3. The charges only came about after Republicans instigated them to attack him
  4. A carefully negotiated plea deal unraveled and “a number of my political opponents in Congress [took] credit for bringing political pressure on the process”
  5. No reasonable person can doubt that Hunter was singled out [the comment to which Scarsi objected to without merit]

Joe Biden made absolutely no claim about why the plea deal unraveled in the hearing!! Devlin simply made that up. Rather, Biden observed factually that “a number of my political opponents in Congress [took] credit for bringing political pressure on the process.” [my emphasis]

The words, “political pressure,” are about Republicans claiming credit, not about what led David Weiss to renege on the earlier assurances there was no ongoing investigation or led Noreika to complain about the scope of the diversion immunity (it remains unanswered what led Weiss to renege and what led Noreika to complain about the scope, much less what led Weiss to refuse to fix any of the flaws Noreika pointed out, but to instead ratchet up the charges).

And Biden’s opponents did take credit.

James Comer took credit that same day. Jason Smith took credit when David Weiss got Special Counsel status. The disgruntled IRS agents claimed credit in … the very article Devlin linked.

“It appears that if it weren’t for the courageous actions of these whistle-blowers, who had nothing to gain and everything to lose, Hunter Biden would never have been charged at all,” a team of lawyers for one of the I.R.S. agents said in a statement, adding that the initial agreement reflected preferential treatment.

Where Biden does say those same Republicans had a role in the case is in the charges being filed in the first place. “Several of my political opponents in Congress instigated them.”

The record is less certain on that claim. Hunter’s attorneys provided a bunch of evidence that Weiss equivocated throughout May and June 2023, as Republicans in Congress, Donald Trump, Bill Barr, and the disgruntled IRS agents claimed that prosecutors had stymied the investigation (a claim not backed by the very documents the IRS agents released).

But one place you might look to measure that claim is, again, the story Devlin claims backs his false claims. That story famously describes that Weiss told someone he didn’t want to bring any charges (which someone who might be Weiss “forcefully” denied).

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

It also describes, in a story about the pressure from House Republicans, how Weiss changed the terms he was willing to offer.

On Tuesday, May 23, after four days of silence, Ms. Wolf delivered unwelcome news. Mr. Weiss had revised what he wanted in the deal, now demanding that Mr. Biden plead guilty to two misdemeanor counts of failing to pay his taxes. It crossed a red line for Mr. Clark.

The article that Devlin links claiming it supports his incomplete representation of the plea hearing (the straw man Devlin uses to make false claims about what Biden said) actually supports both of Biden’s claims about political pressure: the pressure led to charges in the first place, and those who applied the pressure claimed credit for killing the plea deal.

All Devlin did with that link is prove that Biden, not Devlin, made claims that match the public record.

And yet NYT published his little blog post as if it — and not the reported article which it claims to rely on — were true.

Judge Mark Scarsi’s Umbrage: Do Not Go Gentle into that Good Night

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I think that Hunter Biden’s two prosecutions are gone. After he submitted notice of a pardon and David Weiss’ prosecutors complained, Judge Maryellen Noreika issued an order terminating all proceedings.

ORAL ORDER: Having reviewed the parties’ submissions (D.I. 272, 274, 276 ) and in the absence of binding precedent and whereas pursuant to the Executive Grant of Clemency signed by President Joseph R. Biden, Jr. on December 1, 2024, Defendant Robert Hunter Biden has been pardoned for, inter alia, the offenses for which a jury rendered a verdict in this case (D.I. 275 ), IT IS HEREBY ORDERED that all proceedings in this case are hereby terminated. ORDERED by Judge Maryellen Noreika on 12/3/2024.

Judge Mark Scarsi … did something else. He issued a blistering opinion suggesting Hunter’s pardon was partly defective (because the President issued the pardon through the day he issued it, suggesting it attempted to grant four hours of prospective immunity), but that he would terminate the case once someone from the Executive Branch gave him a certified copy of the pardon. Mostly, though, Scarsi accused President Biden of impugning him personally and rewriting history by claiming that Hunter was prosecuted only because he was Joe’s son.

According to the President, “[n]o reasonable person who looks at the facts of [Mr. Biden’s] cases can reach any other conclusion than [Mr. Biden] was singled out only because he is [the President’s] son.” But two federal judges expressly rejected Mr. Biden’s arguments that the Government prosecuted Mr. Biden because of his familial relation to the President. (Order on Mots. to Dismiss 32–55); Mem. Opinion 6–19, United States v. Biden, No. 1:23-cr-00061-MN (D. Del. Apr. 12, 2024), ECF No. 99. And the President’s own Attorney General and Department of Justice personnel oversaw the investigation leading to the charges. In the President’s estimation, this legion of federal civil servants, the undersigned included, are unreasonable people.

In short, a press release is not a pardon. The Constitution provides the President with broad authority to grant reprieves and pardons for offenses against the United States, U.S. Const. art. II, § 2, cl. 1, but nowhere does the Constitution give the President the authority to rewrite history.

This is why I would have preferred Biden not have pardoned his son — because I wanted these verdicts, including Scarsi and Noreika’s rulings that Hunter wasn’t selectively or vindictively prosecuted, to be appealed to judges less intemperate than Scarsi.

Not least because there are several problems with Scarsi’s rant.

First, Scarsi, Weiss’ prosecutors, and Noreika (in her original opinion) are all engaged in navel-gazing. All argued, to one degree or another, that this prosecution could not be political because Biden and his selected Attorney General oversaw it. There were enormous problems with that argument: the degree to which Biden’s adversary was permitted to elicit threats against the prosecutorial team, the unwise retention of David Weiss for a second term, the role that Alexander Smirnov’s alleged attempt to criminally frame Joe Biden played in David Weiss’ decision to first obtain Special Counsel status and then ratchet up charges against Joe Biden’s son. But ultimately, prosecutors argued and judges adopted the claim that because Joe Biden was in charge, the prosecution could not have been political.

But since all that went down, John Roberts rewrote history and vested all the authority over prosecutions in the executive power of the President.

Investigative and prosecutorial decisionmaking is “the special province of the Executive Branch,” Heckler v. Chaney, 470 U. S. 821, 832 (1985), and the Constitution vests the entirety of the executive power in the President, Art. II, §1

[snip]

The indictment’s allegations that the requested investigations were “sham[s]” or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.

Under Roberts’ logic, if the President, exercising his executive authority at its zenith, deems this prosecution political, then it was.

Moreover, Scarsi wildly misrepresents the nature of Biden’s comment. The legal opinions that Scarsi cites address whether Hunter’s case met the very narrow legal definitions of selective or vindictive prosecution, as he himself laid out.

Proving selective prosecution “is particularly demanding.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 489 (1999). Because “[a] selectiveprosecution claim asks a court to exercise judicial power over a special province of the Executive,” “in the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties.” Armstrong, 517 U.S. at 464 (internal quotation marks omitted).

[snip]

“Particularly when a vindictiveness claim pertains to pretrial charging decisions, the Supreme Court urges deference to the prosecutor. Deference is appropriate for pretrial charging decisions because, ‘in the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution.’” United States v. Brown, 875 F.3d 1235, 1240 (9th Cir. 2017) (citation omitted) (quoting Goodwin, 457 U.S. at 381). “[J]ust as a prosecutor may forgo legitimate charges already brought in an effort to save the time and expense of trial, a prosecutor may file additional charges if an initial expectation that a defendant would plead guilty to lesser charges proves unfounded.” Goodwin, 457 U.S. at 380. Thus, “in the context of pretrial plea negotiations vindictiveness will not be presumed simply from the fact that a more severe charge followed on, or even resulted from, the defendant’s exercise of a right.” Gamez-Orduno, 235 F.3d at 462 (citation and internal quotation marks omitted).

Deference to the prosecutorial decision to bring charges, notwithstanding significant pretrial negotiations between the parties to avoid them, is warranted.

Of course, once you adopt Roberts’ logic, then if the President overrides the original prosecutorial judgment of prosecutors, then his view must hold sway. If President Biden says the decisions were unfair, then they were.

Sure. That’s wildly problematic. Welcome to Roberts’ Calvinball.

But as Barb McQuade laid out, whether a prosecutorial decision meets the very narrow definition of selective or vindictive prosecution and whether a prosecution was an unwise exercise of prosecutorial discretion are two different things.

I disagree with McQuade about whether there was evidence of selective or vindictive prosecution. After all, as I noted, Scarsi misrepresented what the record on the comparator of Roger Stone said. Again, that’s why I wanted these cases to be appealed.

But it is also the case that a whole series of events related to this prosecution — Trump’s demand for such an investigation from both Volodymyr Zelenskyy and publicly, DOJ’s laundering of dirt Trump’s personal lawyer obtained, including from a known Russian agent, into this case, efforts by Trump’s debate guest to introduce misleading evidence into this investigation, the way a key witness in the gun case leaked information to affect the 2020 election, and Bill Barr’s subsequent pressure for a prosecution — that were excluded from both judges’ rulings altogether. Both judges simply ignored that David Weiss reneged on his assurances to Hunter’s team that there was no ongoing investigation before he entered into the deal, a detail that was central to any vindictive prosecution analysis. Neither judge addressed how Alexander Smirnov’s alleged attempt to criminally frame Biden himself played into the prosecutorial decisions (I am not sure that was formally before Scarsi, though it was before Noreika).

So while it is a fact that two judges credited the arguments made by prosecutors whose claims Biden has now overridden on the selective and vindictive prosecution issue, it is also a fact that a great deal of evidence of politicization was excluded from all consideration. Biden’s judgment incorporated a great deal of things specifically and surgically excluded from the selective and vindictive prosecution analysis.

Finally, though, there are the ways that Scarsi himself rewrote history to get to his selective and vindictive prosecution decision.

As I laid out here, Scarsi made much of errors that Abbe Lowell made in his selective and vindictive prosecution argument. For example, after pointing out that Lowell misquoted coverage of David Weiss’ comments about threats elicited by political pressure on the case, Scarsi simply ignored the role of threats on prosecutorial decisions, because those “significant threats” were not publicly described as death threats. Importantly, as Noreika did in her opinion, after (correctly) catching Lowell misstating the timeline, Scarsi himself fiddled with the timeline so as to permit himself only to look at the prosecutorial decision in December 2023, not the decision to renege on the plea agreement in June and July 2023.

Scarsi’s treatment of this passage from Hunter’s motion deserves closer consideration:

Mr. Biden agreed to plead guilty to the tax misdemeanors, but when the plea deal was made public, the political backlash was forceful and immediate. Even before the Delaware court considered the plea deal on July 26, 2023, extremist Republicans were denouncing it as a “sweetheart deal,” accusing DOJ of misconduct, and using the excuse to interfere with the investigation.13 [2] Leaders of the House Judiciary, Oversight and Accountability, and Ways and Means Committees (“HJC,” “HOAC,” and “HWMC,” respectively) opened a joint investigation, and on June 23, HWMC Republicans publicly released closed-door testimony from the whistleblowers, who, in the words of Chairman Smith, “describe how the Biden Justice Department intervened and overstepped in a campaign to protect the son of Joe Biden by delaying, divulging and denying an ongoing investigation into Hunter Biden’s alleged tax crimes.”14 Then, one day before Mr. Biden’s plea hearing, Mr. Smith tried to intervene [4] to file an amicus brief “in Aid of Plea Hearing,” in which he asked the court to “consider” the whistleblower testimony.15

13 Phillip Bailey, ‘Slap On The Wrist’: Donald Trump, Congressional Republicans Call Out Hunter Biden Plea Deal, USA Today (June 20, 2023), https://www.usatoday.com/.

14 Farnoush Amiri, GOP Releases Testimony Alleging DOJ Interference In Hunter Biden Tax Case, PBS (June 23, 2023), https://www.pbs.org/.

15 United States v. Biden, No. 23-mj-00274-MN (D. Del. 2023), DE 7. [brackets mine]

Here’s how Scarsi treats this passage laying out what happened between the publication of the plea and the failed plea hearing:

The putative [sic] plea deal became public in June 2023. Several members of the United States Congress publicly expressed their disapproval on social media. The Republican National Committee stated, “It is clear that Joe Biden’s Department of Justice is offering Hunter Biden a sweetheart deal.” Mr. Trump wrote on his social media platform, “The corrupt Biden DOJ just cleared up hundreds of years of criminal liability by giving Hunter Biden a mere ‘traffic ticket.’” Phillip M. Bailey, ‘Slap on the wrist’: Donald Trump, congressional Republicans call out Hunter Biden plea deal, USA Today (June 20, 2023, 11:17 a.m.), https://www.usatoday.com/story/news/politics/2023/06/20/donald-trump-republicans-react-hunter-biden-plea-deal/ 70337635007/ [https://perma.cc/TSN9-UHLH]. 28 On June 23, 2023, the Ways and Means Committee of the United States House of Representatives voted to publicly disclose congressional testimony from the IRS agents who worked on the tax investigation. Jason Smith, chair of the Ways and Means Committee, told reporters that the agents were “[w]histleblowers [who] describe how the Biden Justice Department intervened and overstepped in a campaign to protect the son of Joe Biden by delaying, divulging and denying an ongoing investigation into Hunter Biden’s alleged tax crimes.” Farnoush Amiri, GOP releases testimony alleging DOJ interference in Hunter Biden tax case, PBS NewsHour (June 23, 2023, 3:58 p.m.), https://www.pbs.org/newshour/politics/gop-releases-testimony-alleging-dojinterference-in-hunter-biden-tax-case.29 One day before the plea hearing in the United States District Court for the District of Delaware, Mr. Smith moved to file an amicus curiae brief imploring the court to consider the IRS agents’ testimony and related materials in accepting or rejecting the plea agreement. Mem. of Law in Support of Mot. for Leave to File Amicus Curiae Br., United States v. Biden, No. 1:23-mj-00274-MN (D. Del. July 25, 2023), ECF No. 7-2; Amicus Curiae Br., United States v. Biden, No. 1:23-mj-00274-MN (D. Del. July 25, 2023), ECF No. 7-3.30

28 This source does not stand for the proposition that “extremist Republicans were [1] . . . using the excuse to interfere with the investigation.” (Selective Prosecution Mot. 5–6.) Of Mr. Weiss, Mr. Trump also wrote: “He gave out a traffic ticket instead of a death sentence. . . . 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!” Ryan Bort, Trump Blasts Prosecutor He Appointed for Not Giving Hunter Biden ‘Death Sentence,’ Rolling Stone (July 11, 2023), https://www.rollingstone.com/politics/politics-news/trump-suggests-hunter-bidendeath penalty-1234786435/ [https://perma.cc/UH6N-838R].

29 This source does not stand for the proposition that several leaders of house committees “opened a joint investigation.” (Selective Prosecution Mot. 6.) [3]

30 The docket does not show that the Delaware district court resolved the motion, and the Court is uncertain whether the court considered Mr. Smith’s brief. [brackets mine]

First, Scarsi uses an ellipsis, marked at [1], to suggest the only reason Lowell cited the USA Today story was to support the claim that Republicans moved to intervene in the investigation, when the sentence in question includes three clauses, two of which the story does support. The sentence immediately following that three-clause sentence [2] makes a claim — OGR, HWAM, and HJC forming a joint committee, that substantiates that claim. Scarsi’s complaint at [3] is not that the cited article does not include Jason Smith’s quotation; rather, it’s that Lowell has not pointed to a source for the formation of a joint investigation (a later-cited source that Scarsi never mentions does include it). Meanwhile, Scarsi applies a measure — whether Judge Noreika considered Smith’s amicus, not whether he tried to file it — that Lowell doesn’t make (and which is irrelevant to a vindictive prosecution motion, because Noreika is not the prosecutor); Smith did succeed in getting the amicus unsealed, including the exhibits that Hunter claimed include grand jury materials. Whether or not Judge Noreika considered the content of the amicus, that Smith filed it is undeniable proof that Smith tried to intervene, which is all Hunter alleged he did.

Meanwhile, Scarsi relegates Trump’s Social Media threats — which Scarsi later corrects Lowell by noting that they came during precisely this period — to a footnote.

Here’s one thing I find most interesting. Scarsi’s two most valid complaints about Lowell’s filing are that, in one part of his timeline but not another, he misrepresented Trump’s pressure as happening after the plea failed, and that Lowell claimed that Weiss testified he had gotten death threats when instead the cited source (and the Weiss transcript I assume Lowell does not have) instead say that Weiss feared for his family. He acknowledges both those things: Trump attacked Weiss, and Weiss got threats that led him to worry for the safety of his family.

But he never considers Weiss’ fear for his family’s safety in his consideration of what happened between June and July. He never considers whether those threats had a prejudicial [e]ffect on Hunter Biden.

And aside from that correction regarding the safety comment, nor does Scarsi consider the most direct aspect of Congress’ intervention in the case — that Congress demanded Weiss testify, and he did so just weeks before he filed the charges actually before Scarsi.

In other words, Scarsi accuses Lowell of making a post hoc argument, claiming that he is simply pointing to prior events to explain Weiss’ subsequent actions. Except he ignores the impact of the two most direct allegations of influence.

And in Scarsi’s own fiddling with the timeline, he found a way to ignore how Donald Trump’s threats and direct intervention by Congress may have infected the decision to renege on the plea deal, and instead focused solely on the later decision to indict.

We’re in a post-truth world and Scarsi’s intemperate rant will certainly get the attention of those looking for Trump judges to promote.

But the fact of the matter is that Scarsi did precisely what he accuses the President of, rewriting the history of the Hunter Biden prosecution.

How Jeff Bezos Smothered Pete Hegseth News because Hunter Biden Was Pardoned of Already Declined Charges

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When I went to bed last night, the WaPo was feeding me the following stories at the top of its digital front page.

WaPo has since added a story about Biden’s attempt to surge weapons to Ukraine before Trump cuts them off.

There was not and is not any story dedicated to Kash Patel’s promises to target Trump’s enemies at FBI — a story that not only is more urgent than any of the seven Hunter Biden pardon stories, but is fundamentally tied to the how and why of the Hunter Biden pardon.

There was not and is not any story on Jane Mayer’s report about how Pete Hegseth,

was forced to step down by both of the two nonprofit advocacy groups that he ran—Veterans for Freedom and Concerned Veterans for America—in the face of serious allegations of financial mismanagement, sexual impropriety, and personal misconduct.

Even as Hegseth made visits with the Senators whose vote he would need to be confirmed (definitely watch this video), the rag owned by defense contractor Jeff Bezos chose to litter its front page with seven stories and columns about Hunter Biden’s pardon rather than report out that Hegseth has a history of failing to manage the budgets of even just two medium-sized non-profits.

And it’s not just that Bezos’ rag buried far more urgent news about Trump’s nominees.

It’s that (with the exception of this column explaining the risks and difficulty of seizing weapons from addicts) the Hunter Biden stories were not all that useful.

Will Lewis has again chosen to platform Matt Viser’s dick pic sniffing about Joe Biden, this time trying to drive the controversy about the pardon; as far as I’m aware, Viser still has not disclosed to WaPo’s readers that an error in his own reporting caused a false scandal about Hunter’s art sales.

Viser’s 1800-word post includes 22 words that address, with no specifics, Pam Bondi and Kash Patel’s promise to persecute Trump’s enemies: “His picks for attorney general, Pam Bondi, and for FBI director, Kash Patel, have urged retribution against Trump’s political adversaries and critics.” It does, however, float an inaccurate quote also included in this Aaron Blake piece (as well as these Betsy Woodruff and Ken Vogel stories), claiming that Hunter’s pardon is broader than any since Nixon’s pardon.

Former Pardon Attorney Margaret Love hates this pardon and she’s not afraid to mislead reporters to criticize it, as when she told Woodruff that Nixon was the only precedent.

“I have never seen language like this in a pardon document that purports to pardon offenses that have not apparently even been charged, with the exception of the Nixon pardon,” said Margaret Love, who served from 1990 to 1997 as the U.S. pardon attorney, a Justice Department position devoted to assisting the president on clemency issues.

“Even the broadest Trump pardons were specific as to what was being pardoned,” Love added.

Love’s claim conflicts with what she herself laid out to Politico, the very same outlet, when Mike Flynn was pardoned four years ago.

“Pardons are typically directed at specific convictions or at a minimum at specific charges,” said Margaret Love, former pardon attorney for Presidents George H.W. Bush and Bill Clinton, who now leads the Collateral Consequences Resource Center. “I can think of only one other pardon as broad as this one, extending as it does to conduct that has not yet been charged, and that is the one that President Ford granted to Richard Nixon.”

“In fact, you might say that this pardon is even broader than the Nixon pardon, which was strictly cabined by his time as president,“ Love said. “In contrast, the pardon granted to Flynn appears to extend to conduct that took place prior to Trump‘s election to the presidency, and to bear no relationship to his service to the president, before or after the election.“ [my emphasis]

And I believe even then, Love misstated the intended scope of Flynn’s pardon.

Like Hunter’s pardon, Flynn’s pardon excused the crimes included in his charging documents (false statements, including false statements about being an unregistered agent of Turkey). While Hunter’s pardon specifically invoked the conduct in his Delaware and Los Angeles dockets, Flynn’s pardon excused conduct reviewed in two jurisdictions, DC and EDVA. Like Hunter’s pardon, which would cover the false statements referral from Congress, Flynn’s pardon would have covered the contradictory sworn statements he made as he tried to renege on his plea deal. But Flynn’s pardon also covered,

any and all possible offenses arising out of facts and circumstances known to, identified by, or in any manner related to the investigation of the Special Counsel,

This pardon attempted to excuse any crime based on a fact that once lived in Robert Mueller’s brain or case files.

As I laid out here, that certainly would have covered referrals from Mueller elsewhere (including to DOD), it might have attempted to pardon crimes in process, if (for example) Flynn’s relationship with Russia developed into something more in the future. Flynn’s pardon, unlike Hunter’s didn’t have an end date, and as a result, if Congress wants to continue to harass Hunter about stuff he just accepted a pardon for, he’ll have less protection than Trump intended Flynn to have.

And while Republicans might argue that Hunter’s allegedly false claim to Congress — regarding how he cut Tony Bobulinski out of a deal with CEFC to protect his family’s name — served to protect his father, even the most feverish Republican fantasies would amount to three Biden men profiting from a Chinese company after Biden left the Obama Administration and before he decided to run again. Flynn’s conflicting claims about whether “The Boss is aware” of his conversations with Sergey Kislyak, including regarding undermining sanctions, served to protect Trump’s actions as incoming President. (Another thing WaPo decided was less important than seven pieces about Hunter’s pardon was that Chinese national Justin Sun, who has been charged with fraud by the SEC, just sent Donald Trump $18 million.) That is, you can measure the pardon in terms of familial closeness to the President granting it (none of these stories mention Charles Kushner, much less his nomination to be Ambassador to France); you can also measure the pardon in terms of the silence or lies about the guy giving the pardon it buys. And any one of about ten pardons from Trump, including the Flynn one, were far more corrupt by that measure.

But here’s the other reason why Blake’s piece, one of the seven pieces littering the front page instead of stories about Kash Patel or Hegseth’s unfitness, is not useful. Here’s how Blake introduces the scope of Hunter’s pardon.

Biden didn’t just pardon his son for his convictions on tax and gun charges, but for any “offenses against the United States which he has committed or may have committed or taken part in during the period from January 1, 2014, through December 1, 2024.”

That’s a nearly 11-year period during which any federal crime Hunter Biden might have committed — and there are none we are aware of beyond what has already been adjudicated — can’t be prosecuted. It notably covers when he was appointed to the board of the Ukrainian energy company Burisma in 2014 all the way through Sunday, well after the crimes for which he was prosecuted.

Hunter Biden hasn’t been charged for his activities with regard to Burisma or anything beyond his convictions, and nothing in the public record suggests criminal charges could be around the bend. Congressional Republicans have probed the Burisma matter and Hunter Biden extensively and could seemingly have uncovered chargeable crimes if they existed, but haven’t done so.

Blake glosses over a great deal with his reference to things that have “already been adjudicated,” and in doing so, ignores the problem. Yes, both prosecutors and Republicans in Congress looked long and hard for something to hang a Burisma charge onto; yes, none of them found it. But — here’s the important bit — they still want to pursue one anyway.

The investigation into Hunter Biden started six years ago, based off a Suspicious Activity Report tied to a payment to a sex worker. Investigators tried to turn that into a criminal investigation based on the same Burisma focus that Rudy Giuliani was chasing; in fact, investigators first got data from Apple on the day Trump released the Perfect Phone Call, a transcript that may or may not have expunged a specific reference to Burisma. According to Joseph Ziegler, his supervisor at the time documented the problem of chasing a tax investigation that tracked Trump’s public demands for dirt on the Bidens related to Burisma.

You can actually trace how investigators cycled through one or another potential FARA violation — Burisma, Romania, CEFC — each time, with even the disgruntled IRS agents conceding they couldn’t substantiate those FARA cases (not least because Hunter was pretty diligent about not doing influence peddling himself, at bringing in others to do any of that kind of lobbying). Tips from Gal Luft — awaiting extradition on foreign agent charges — and Alexander Smirnov — awaiting trial on false statements — were key elements of that investigation.

But we know that in the precise period when someone was leaking to try to pressure prosecutors to bring certain charges, David Weiss had decided not to charge 2014 and 2015. Here’s how Gary Shapley wrote up the October 7, 2022 meeting that set him off.

In 2022, David Weiss told Shapley he would not charge 2014 and 2015, which is one thing that led Shapley to start reaching out to Congress to complain.

Prosecutors included more detail in Hunter’s tax indictment.

a. The Defendant timely filed, after requesting an extension, his 2014 individual income tax return on IRS Form 1040 on October 9, 2015. The Defendant reported owing $239,076 in taxes, and having already paid $246,996 to the IRS, the Defendant claimed he was entitled to a refund of $7,920. The Defendant did not report his income from Burisma on his 2014 Form 1040. All the money the Defendant received from Burisma in 2014 went to a company, hereafter “ABC”, and was deposited into its bank account. ABC and its bank account were owned and controlled by a business partner of the Defendant’s, Business Associate 5. Business Associate 5 was also a member of Burisma’s Board of Directors. The Defendant received transfers of funds from the ABC bank account and funds from the ABC bank account were used to make investments on the Defendant’s behalf. Because he owned ABC, Business Associate 5 paid taxes on income that he and the Defendant received from Burisma. Starting in November 2015, the Defendant directed his Burisma Board fees to an Owasco, PC bank account that he controlled.

One reason Hunter wasn’t charged for 2014 and 2015 is because Devon Archer was paying taxes in that period.

But the point is (as reflected in Blake’s note this was all adjudicated), a prosecutor made that decision. And Republicans in Congress and, specifically, Kash Patel, squealed about the injustice of not charging Hunter because the evidence didn’t merit charges.

This decision and the backlash with those dissatisfied by it dictates the lengthy period of Hunter’s pardon. Not just because they want to charge Burisma whether or not there’s evidence of a crime. But because the five year statute of limitations for FARA and the six year SOL on tax crimes, to charge anything related to Burisma, they’d have to apply crimes — like Espionage or certain kinds of Wire Fraud — that have ten year statutes of limitation.

Kash Patel and Republicans in Congress have already said they want to charge Hunter Biden regardless of whether there’s evidence to do so. When David Weiss first offered a plea deal, Trump posted that Hunter should instead have gotten a death sentence.

These people have made it clear they want to prosecute Hunter regardless of what the evidence supports. They have said that over and over. That’s what dictates the pardon, not any corruption by Biden. And to flip that on its head — to flip Trump and Kash Patel’s demand for prosecutions regardless of evidence — on its head is to cooperate in Trump’s assault on rule of law.

This is a point reflected by experts quoted in Vogel’s piece (and expanded by Kim Wehle in her own post).

Mr. Morison, who worked for years in the Office of the Pardon Attorney before going into private practice, added that the Bidens may have seen risk in crafting the pardon grant more narrowly.

“I assume that Hunter’s lawyers were worried that an especially vindictive Trump DOJ would have looked for something to charge him with if they were too specific, so they asked for a blanket pardon, subject only to a fairly broad date range,” he wrote in an email.

Kimberly Wehle, a law professor at the University of Baltimore, predicted that if Mr. Trump’s Justice Department were to charge Hunter Biden, he would raise the pardon in a motion to dismiss the case.

Ms. Wehle, the author of a recent book detailing how the lack of constraints on presidential clemency powers invite abuse, said in an email that it was Mr. Trump — not President Biden — who initiated “the norm-violating behavior” by pledging to use the Justice Department to prosecute his enemies.

“This is not a corrupt pardon,” she said in an email. “It’s about taking care of a family member knowing what Trump will do otherwise.”

The reason you have to pardon broadly is because Trump has demanded an outcome divorced from evidence. And to get to his desired outcome, he would have to do something expansive, something that could not be foreseen by the scope of the existing investigation that (as Blake notes) has already been adjudicated.

You can tell this story about how broad the pardon is — structured very similarly to the Mike Flynn one.

But if you leave out the story of how this investigation from the start paralleled Trump’s extra-legal effort to gin up dirt on Joe Biden’s son, if you leave out the fact that even in his first term, Trump’s DOJ solicited information from at least one Russian spy and a Chinese agent to pursue dirt on Hunter Biden, then you are flipping the matter of justice on its head. That’s what Trump did already, in his desperation to find something to hang on Hunter Biden. And particularly given his picks of Bondi and Patel (the latter of whom played a role in extorting a foreign country for such dirt, too), there’s no telling what Trump will do in a second term.

That’s what dictates the terms of this pardon. A prosecutor issued a declination for charges related to 2014 and 2015, and almost the entire Republican party said, we’re going to find something anyway. And if you hide that detail, you’re burying the most crucial information, just like you’re burying detrimental information about Hegseth and Patel below a seventh post on Hunter Biden.

This is what a captive oligarch press looks like: Burying detrimental information on the guy who might oversee Jeff Bezos’ defense contracts, while hiding the reasons why the Hunter Biden pardon looks like it does.

America Just Failed the Test of Responding to Trump’s Politicized Prosecutions

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Let’s imagine that, two years from now, Pam Bondi rolls out charges against some onetime adversary of Donald Trump. To the extent that journalists will still be employed and reading court filings, to the extent that prosecutors under Emil Bove (who at SDNY oversaw a team sanctioned for discovery violations) comply with discovery requirements, the adversary in question learns the following about his prosecution:

  • The case started when an investigator started looking into a transnational trafficking network
  • The investigator discovered that the prominent adversary had paid one of the sex workers trafficked in the network
  • Rather than pursuing the traffickers, the investigator used the payment for sex as cause to open an investigation
  • Of course, no one is going to charge a John … so the investigator starts pulling divorce records and four year old tax returns to try to move from that payment for sex work to something that can be charged
  • Then the investigator started incorporating oppo research from Peter Schweizer into his investigation
  • Kash Patel’s FBI set up protected ways to accept tips from Trump supporters who’ve doctored documents to create a crime
  • Trump called up Bondi and told her to take more aggressive steps
  • Trump called up foreign leaders asking for help on this prosecution
  • Bondi then set up a way to launder that information from foreign sources, including known spies, into the investigation of the adversary
  • Patel’s FBI asked a partisan informant to fabricate claims against the adversary
  • Trump publicly called out prosecutors — resulting in them and their children being followed — because they had not yet charged his adversary
  • Ultimately, the adversary got charged on 5-year old dirt, and only then, after charging, did prosecutors quickly do the investigative work to win the case at trial

Now, as I’ve described it, you surely imagine you’d say, wow, that looks like a thoroughly corrupt prosecution, a clear case of Trump using DOJ to punish his adversaries.

Right?

It’s not so much that investigators didn’t, after the fact, find a crime to charge. They did. If you investigate most high profile people long enough, you’ll find something to charge, particularly if multiple people come to DOJ with doctored evidence to help create that crime.

It’s that someone found the name of an adversary in the digital records of crimes that were more important to investigate, and instead of pursuing that crime, used the electronic record as an excuse to keep looking until they found some evidence of a crime against Trump’s adversary.

Everyone would recognize that’s what happened, right?

Of course not. Of course no one would recognize that that was a political prosecution.

We need no further proof than the fact that none of those very same details showed up in any of the coverage of the Hunter Biden investigation. Not now that he has been pardoned. Not when all these details came out last year. Not in any of the retrospectives of the times Trump demanded investigations on his adversaries.

What will happen instead is that a bunch of self-important DC scribes will chase the most salacious allegations, provide endless headlines about sex workers and wild parties. The DC scribes will ignore every detail about the legal investigation — every one!! — and instead use the prosecution as an opportunity to sell political scandal. And also, they will point to their Tiger Beat coverage as proof, they say, they are not politically biased.

Rather than diligently rooting out the obviously politicized prosecution, the press will be complicit in it.

And rather than deciding that the adversary was the target of an obviously politicized prosecution, American public opinion would instead decide that the adversary was icky, and because he is icky, his statements about Trump cannot be credited.

That is what political prosecutions look like. That is, of course, precisely what the Hunter Biden prosecution was (ignoring the assurances from prosecutors who say no one with the fact set Hunter faced would be charged). Every single bullet has an analogue in the Hunter Biden case. That obviously political prosecution is what happened.

Once the GOP got the House majority, they did nothing else but platform these claims, which a different set of self-important scribes treated as an interesting process story, not an obvious case of a great abuse of government power.

And now that Biden has pardoned his son, the very same self important scribes who ignored all the signs this was a political prosecution, are giving non-stop coverage to a pardon that — unlike those of Trump’s Coffee Boy, National Security Adviser, campaign manager, personal lawyer, and rat-fucker — are not about self-protection, most with no mention of all the evidence Trump ordered up this prosecution to target Joe Biden.

The question is, what are we going to do about this, now that we have rock solid proof the press establishment is not only incapable, but wildly uninterested, in rooting out this kind of politicized prosecution — at least not when they can instead sell scandal?

In the face of seeing Pam Bondi and Kash Patel preparing to redouble efforts to find politicized prosecutions against Donald Trump’s adversaries, Joe Biden chose to end the process, with his son, at least.

I’m actually on the record opposing the pardon — but not for the reasons everyone else is. I don’t think pardoning Hunter in this circumstance is corrupt. I take Biden at his word that he changed his mind about pardoning Hunter. I’m far more interested in Trump admitting he was lying about his plans to implement Project 2025 than that Biden reneged on assurances no one much believed anyway.

I oppose the pardon because it eliminates Hunter’s standing to appeal and with those appeals to begin telling the story that the media chose to ignore. I oppose the pardon because if we don’t start laying out how Trump already politicized DOJ while there’s a good base of legitimate judges in place, it’ll be far too late.

And don’t get me wrong. I think Biden fucked this one up. Not just for saying he wouldn’t pardon Hunter, but for not taking action far earlier — like firing David Weiss the day he was inaugurated, citing Trump’s first impeachment, or pardoning Hunter and firing Weiss on November 6 — to do something about this. I think Merrick Garland shouldn’t have given Weiss himself SCO status (not least, because Weiss continues to investigate crimes — the alleged attempted framing of Joe Biden by Alexander Smirnov — to which he is a witness). I think Garland’s supervision of Special Counsels allowed the abuse of the system, repeatedly.

I’ve never, as far as I’m aware, spoken with Hunter Biden. I have, however, spoken to a good number of the people who were and who would be politically prosecuted in Trump’s second term (not including myself, of course). And the thing I’ve learned from them is because the press is complicit in their politicized prosecution, it guarantees they’ll be isolated, regardless of guilt or innocence. Because the press has unquenchable thirst for lazy dick pic sniffing, they don’t do the work of reading the court filings. Because the press thirsts for a false appearance of both sides neutrality, they’re always on the hunt for something to fit into their both sides scandal box.

And meanwhile, those very same self-important scribes were largely silent in 2020 when Trump pardoned his way out of Russian trouble, and even more silent in 2024 when they could have explained to voters that he had done so.

Whatever else you think about the Hunter Biden case and the way Joe Biden pardoned him, it is crystal clear proof that the thing defenders of democracy swear they’ll do in a second Trump term — rise to the defense of those targeted for political prosecution — they already failed to do. Whatever you think about the Hunter Biden case, the vast majority of people talking about it have absolutely no clue that it is precisely what people fear in Trump’s second term, not (just) because Hunter was charged in two indictments when others would not be, but because Trump and his people repeatedly ordered up this prosecution.

Update: Peter Baker, who wrote an otherwise thorough piece during the election about Trump’s corruption which ignored Hunter, claims to be unable to tell whether Biden’s claim that Hunter’s prosecution was politicized is true or not.

Update: Here’s a copy of a white paper Hunter’s attorneys released to describe the politicization of the case. It adds the Parnas and Scott Brady allegations to the stuff in the selective prosecution motions.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Goba attempts to interrupt]

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

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

[Scott tries to interrupt]

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

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

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

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

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

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

Elements of the Offense

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

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

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

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

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

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

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

Theories of Biden Crime

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

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

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

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

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

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

Why You Can Charge Trump

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

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

There were 32 documents charged against Trump. They include:

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

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

How Trump’s Case Got Dismissed

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

There are several reasons the distinction is important.

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

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

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