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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THE COURT: Is there an ongoing investigation here?

MR. WISE: There is.

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

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

And then said he could still charge FARA violations,

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

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

MR. WISE: Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Filings

September 26: Smirnov motion to continue

September 27: Weiss response on motion to continue

October 14: Smirnov warns of motion to compel

March 5 discovery letter asking for communications involving Pittsburgh
May 28 discovery letter reiterating request for all FD-1023s
August 28 discovery letter asking for request Hunter Biden made of State
September 27 letter asking (among other things) for all FD-1023s from Smirnov and his handler
October 2 email following up on discovery requests

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

Preclude reference to lawfully owned guns
Preclude reference to disloyalty
Take judicial notice of Hunter Biden’s failed plea hearing
Preclude reference to September 27, 2023 interview

November 1: Government motions in limine

Preclude expert witness Gregory Scott Rogers (regarding handling errors)
- Expert notice
Exclude handling agent’s alleged mistakes
Exclude evidence of honesty
Exclude defects in prosecution
Exclude irrelevant factual issues

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

Preclude expert witness Gregory Scott Rogers
Exclude handling agent’s alleged mistakes
Exclude evidence of honesty
Exclude defects in prosecution
Exclude irrelevant factual issues

October 31: Government response to motions in limine

Preclude reference to lawfully owned guns
Preclude reference to disloyalty
Take judicial notice of Hunter Biden’s failed plea hearing
Preclude reference to September 27, 2023 interview

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

November 1, 2024/15 Comments/in 2020 Presidential Election, 2024 Presidential Election /by emptywheel

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

August 1, 2024/87 Comments/in 2024 Election, emptywheel, Hunter Biden, January 6 Insurrection, Leak Investigations /by emptywheel

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.

The Threats that Hunter Biden’s Prosecutors Pretended Didn’t Exist Continue Unabated

June 16, 2024/58 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel, Hunter Biden /by emptywheel

Twice in the lead-up to Hunter Biden’s first trial, Leo Wise and Derek Hines pretended that threats elicited by the political firestorm surrounding the case didn’t exist.

When Abbe Lowell raised the threats David Weiss faced and cited a story describing Weiss’ testimony about the safety of his family, Derek Hines continued to insist that there was no way Trump — who attacked Weiss personally after the plea deal was docketed — could have influenced the case (before Judge Noreika, prosecutors had claimed to be incompetent to find the offending Trump posts on Truth Social).

If the statements by politicians prior to the hearing truly influenced the prosecution in the way the defendant claims they did, why did the government sign the agreements and present them at the hearing? Second, to state an obvious fact that the defendant continues to ignore, former President Trump is not the President of the United States. The defendant fails to explain how President Biden or the Attorney General, to whom the Special Counsel reports, or the Special Counsel himself, or his team of prosecutors, are acting at the direction of former President Trump or Congressional Republicans, or how this current Executive Branch approved allegedly discriminatory charges against the President’s son at the direction of former President Trump and Congressional Republicans. The defendant’s fictious [sic] narrative cannot overcome these two inescapable facts.

Then, in a March hearing on that motion as well as one arguing that the publicity campaign from the disgruntled IRS agents had unlawfully influenced the prosecution, Leo Wise claimed there’s no proof that the IRS agent campaign started the dominoes that led Weiss to renege on the plea deal.

MR. WISE: So I think the Defense’s problem is the same problem you identified in the last motion, which is they offer no proof. None. None whatsoever that there’s causation.

I wrote down what Mr. Lowell said. He said the agents “did the causation.” What does that mean?

Where’s the proof that these two guys going on TV had anything to do with what we did?

Well, they said, “Oh, they started the dominoes.”

What dominoes? Where is the proof of any of that?

Other than insulting us, where is the proof that anything these two agents — who I couldn’t have picked out of a lineup — had anything to do with our decision-making?

Wise said that as David Weiss looked on. While neither Jim Jordan nor DOJ have released the transcript proving it, according to Special Agent in Charge Thomas Sobocinski, both Sobocinski and Weiss acknowledged, after Gary Shapley first started his media tour, that the publicity campaign, “would have had it had an impact on our case,” and that impact had been doxing and pressure on members of the investigative team.

Q After it became public that Gary Shapley was going to come to Congress and he gave, I think, an interview on CBS in the at the end of May before his congressional testimony, who did you discuss that with?

A My team within Baltimore, probably folks within the Criminal Investigative Division. Definitely David Weiss.

Q And what was the nature of your conversation with David Weiss?

A I need to go off the record for a minute.

Mr. [Steve] Castor. Okay.

[Discussion held off the record.]

Mr. Sobocinski. Yeah. In general, it was concerns about how this was going to affect the ongoing case and were there issues we needed to take into at least from the FBI side to move forward.

BY MR. CASTOR:

Q After Shapley’s testimony became public in June, did you have any conversations with David Weiss about that?

A We acknowledged it, but it wasn’t I mean, we didn’t sit there with the transcript going back and forth. We both acknowledged that it was there and that it would have had it had an impact on our case.

Q Okay. Did any of your conversations with David Weiss, you know, have anything to do with like, can you believe what Shapley’s saying, this is totally 100 percent untrue?

A I don’t remember that level of it.

Q If it was

A I was more concerned about how this is affecting my employees. I now have FBI employees that names are out there. I have FBI employees and former FBI retired agents who’ve served for 20plus years whose parents are getting phone calls, whose photos with their girlfriends, who their children who are being followed. That is not something that we were prepared for, and I was concerned about having that continue or expand to other one of my employees. [my emphasis]

The transcripts in which David Weiss, Lesley Wolf, and Martin Estrada described the threats they and their families faced as a result of the pressure campaign from the IRS agents, House Republicans, and Trump have not been released. The outcome of any investigations into those threats likewise remains secret. Similarly, the efforts US Marshals made in response, especially, to the threats against Wolf and Estrada remains secret, though even Ken Dilanian described a special unit to investigate threats against FBI agents on these high profile investigations.

While Abbe Lowell did not focus on the threats elicited by the pressure campaign as much as he might have, to the extent he did, prosecutors simply pretended those threats didn’t exist.

And then, hours and days after the Hunter Biden verdict, the vicious conspiratorial threats went public with the arrest affidavit for Timothy Muller, a Trump supporter in Texas who, six hours after the verdict, called the FBI agent who picked up the laptop from John Paul Mac Isaac (and who may not have been involved in the case since 2021) and threatened him and his family.

Hey [j], you little cock-sucking pussy! You can run, but you can’t fucking hide. You covered up child pornography. You covered up [Hunter Biden] raping his own fucking neice, you fucking piece of fucking degenerate shit! So here’s how it’s gonna go: [Trump’s] gonna win the re-election. and then we’re gonna fucking go through the FBI and just start throwing you cock-suckers in jail. OR, you can steal another election, and then the guns will come out, and we’ll hunt you cock-suckers down and slaughter you like the traitorous dogs you are in your own fucking homes. In your won fucking beds. The last thing you’ll ever hear are the horrified shrieks of your widow and orphans. And then you know what we’re going to do? Then we’re going to string those fucking cock-suckers up. We’re going to slaughter your whole fucking family, you fucking pedophile! It’s like THAT now. So choose. Jail? Or getting strung up and lynched like the fucking traitor you are. That’s what happens when you cover up for fucking pedophiles, you piece of fucking shit!

Trump supporters are calling investigators and threatening to lynch them because they’re not prosecuting conspiracy theories ginned up by fellow Trump supporters.

When staffers asked David Weiss last November about these threats, he offered up the word, “intimidation” (then disclaimed understanding the motive for such threats).

Q Has this outsized attention led to increased attention on your office specifically?

A It’s led to increased attention for everyone who has touched the case. I think that’s correct.

Q Has the outsized attention given to this case resulted in threats and harassment against members of your office?

A Yes. Members of my office, agents assigned to the case, both from the IRS and from the FBI, doxing family members of members of my office. So, yeah, it’s part and parcel of this case.

Q Do you have concerns for the safety of individuals working in your office?

A Sure. I have safety concerns for everybody who has worked on the case, and we want to make sure that folks — yeah, folks are encouraged to do what they need to do with respect to the pursuit of justice generally and they not be intimidated in any way from performing their responsibilities.

[snip]

Q Do you have concerns for your safety or that of your family because of these threats?

A You know, I’m not — for myself, I’m not particularly concerned. Certainly I am concerned, as any parent or spouse would be for — yeah, for family, yep.

And at least as expressed by Muller, these threats are intimately tied (as exploitation of Rudy Giuliani’s copy of the laptop and Trump’s threats to replace DOJ officials with Jeffrey Clark were in the first place) to Trump’s false claims about the 2020 election, to Trump’s bid to become a dictator from day one.

And even as prosecutors serve up one after another humiliating trial during campaign season, they’re pretending the campaign against Hunter Biden isn’t all part of Trump’s bid for unaccountable power.

Fridays with Nicole Sandler (and LOLGOP and Spocko)

June 14, 2024/25 Comments/in 2024 Presidential Election, Hunter Biden /by emptywheel

Nicole Sandler was quite sick today so LOLGOP and Spocko helped fill in.

Listen on Spotify (transcripts available)

Listen on Apple (transcripts available)

Denial and Forgetting at the Hunter Biden Trial

June 13, 2024/48 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel, Hunter Biden /by emptywheel

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What Happened to Hunter Biden’s Plea Agreement

June 12, 2024/47 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel, Hunter Biden /by emptywheel

Because people who ignored the motion to dismiss proceedings have now decided to weigh in on what happened with Hunter Biden’s failed plea agreement last year, I wanted to lay out what is actually known to have happened, rather than what pretty faces like Ken Dilanian falsely claim happened.

The timeline makes several things clear: First, Weiss did revoke the terms of the immunity agreement he offered in June 2023. But that’s not what killed the plea deal. Hunter was willing to accept a narrowed plea deal. What killed it was Judge Noreika’s intervention in the Diversion Agreement. Once she gave David Weiss the opportunity, he withdrew all remaining meaningful terms of the plea deal, got Special Counsel status, and chased the Alexander Smirnov hoax.

Weiss was personally involved in a plea offer on June 6 that would have immunized Hunter against further charges on the fact set under discussion (so guns, taxes, drugs, and FARA). It remains uncontested that Weiss’ office told Chris Clark on June 19 there was no ongoing investigation.

On July 20, Probation agreed to changes to the Diversion Agreement, seemingly indicating approval. But then, as Wise and Hunter were signing the Diversion Agreement on July 26, the head of Probation told AUSA Ben Wallace she would not sign the Diversion Agreement; no one ever told Hunter this in the hearing or the negotiations immediately after the hearing, but it appears that Judge Maryellen Noreika knew Probation was not going to sign.

Before any specific discussion of scope of immunity, Judge Noreika suggested Probation could veto Diversion Agreement because grant of immunity is too broad. After that, she complained over and over and over that she didn’t get to sign the Diversion Agreement.

At the plea hearing, Leo Wise asserted (contrary to earlier assurances) there was an ongoing investigation. After Wise said the immunity permitted FARA charges and there would be no deal if FARA were excluded, Clark agreed to orally modify the scope of immunity, and by the end of the hearing both Wise and Noreika recognized that. At that point, Hunter believed he had a signed Diversion Agreement covering guns, taxes, and drugs (but no longer FARA).

After complaining that she didn’t get to sign the Diversion Agreement over and over, Noreika deferred the plea, and ordered more briefing.

Hunter pled not guilty.

In their first offer after the plea hearing, Weiss proposed getting rid of judicial arbitration and also eliminating all immunity, effectively throwing out the plea. After Hunter didn’t immediately accept the no-immunity, no-arbiter plea, Weiss got Special Counsel status.

Hunter was willing to take a plea without FARA immunity. But because Noreika wanted the ability to veto the scope of immunity, she didn’t approve the plea. And that led Weiss’ office to immediately revoke all meaningful substance of a plea offer.

Timeline

June 6, 2023: Chris Clark spoke to David Weiss and told him any “Agreement’s immunity provision must ensure Mr. Biden that there would be finality and closure of this investigation.” In response, Lesley Wolf proposed this language, to which Chris Clark agreed on Hunter’s behalf:

The United States agrees not to criminally prosecute Biden, outside of the terms of this Agreement, for any federal crimes encompassed by the attached Statement of Facts (Attachment A) and the Statement of Facts attached as Exhibit 1 to the Memorandum of Plea Agreement filed this same day.

June 7: Bill Barr tells Margot Cleveland that the Smirnov FD-1023 had been sent to David Weiss for further investigation.

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

June 19: Per claim from Chris Clark that Weiss never contested in Motions litigation, Weiss’ First AUSA told him that there was not another open or pending investigation into Hunter Biden.

Shortly after that email, I had another phone call with AUSA Hanson, during which AUSA Hanson requested that the language of Mr. Biden’s press statement be slightly revised. She proposed saying that the investigation would be “resolved” rather than “concluded.” I then asked her directly whether there was any other open or pending investigation of Mr. Biden overseen by the Delaware U.S. Attorney’s Office, and she responded there was not another open or pending investigation.

July 19: Chief of Probation Margaret Bray recommends Hunter for 24-month diversion.

July 20: AUSA Benjamin Wallace tells Noreika’s Courtroom Deputy that the government, Hunter’s team, and Probation have agreed to changes in the diversion agreement.

The parties and Probation have agreed to revisions to the diversion agreement to more closely match the conditions of pretrial release that Probation recommended in the pretrial services report issued yesterday.

July 20: Chuck Grassley and James Comer release Smirnov FD-1023.

July, ND (per indictment): FBI requests Weiss assistance in investigation of FD-1023.

July 26 Plea agreement (note, the links to the transcript come from references Judge Noreika made in her order denying immunity under the Diversion Agreement, as well as all the complaints about not getting to sign the Diversion Agreement which she left out; the order is best understood as an effort to refashion her own intervention):

Before Noreika enters the room: Leo Wise and Hunter Biden sign Diversion Agreement
As Wise and Biden are signing Diversion Agreement, Wallace approaches Bray regarding Diversion agreement, and she, “expressly declined to sign the draft diversion agreement” [at this point, the prosecution and Probation know she has refused to sign, but Hunter does not; for reasons I laid out here, it appears Noreika did know Bray was not going to sign]
12: Noreika does plea colloquy
40: Hunter says he’s relying on promises in Diversion Agreement
42: Noreika asks whether this is a plea under Rule 11(c)(1)(B) or Rule 11(c)(1)(A)
43: Clark says the plea stands alone
45: Clark says government has reassured him they’ll stand by Diversion Agreement
47: Noreika suggests Probation could reject the Diversion because immunity grant was too broad; Wise says that’s discretion of DOJ
48: Wallace — the only prosecutor who definitely knew Probation had refused to sign — agrees that if the immunity were in the plea, it’d be under Rule 11(c)(1)(A)
51: Wise says there’s an ongoing investigation (conflicting with reassurance offered by Weiss’ office in June)
51: Noreika complains she can’t sign the Diversion Agreement
52: Clark says the Diversion Agreement has been approved by Probation; no one corrects him
52: Noreika complains the Diversion Agreement treats her as a rubber stamp
56: Wise says they could bring FARA charges
56: Wise says if FARA is included, then “there is no deal”
58: Clark agrees to orally modify immunity provision to apply to only drugs, guns, and taxes
84: Wise says the parties to the Diversion Agreement are DOJ and Hunter
90: Wise states that the immunity paragraph has been orally modified to apply only to drugs, guns, and taxes
93: Noreika complains that there’s no place for her to sign off on Diversion Agreement
96: Noreika complains that DOJ won’t be able to charge Hunter if she doesn’t agree he has violated Diversion Agreement
102: Wise repeats that they’ve agreed to terms of Diversion Agreement
105: Noreika complains that she doesn’t have the ability to sign off on immunity
105: Noreika defers plea
106: Noreika asks for briefing on why it’s a plea under Rule 11(c)(1)(B)
106: Noreika recognizes Clark has orally modified the scope of immunity, but tells him to put it into writing
110: Hunter pleads not guilty

July 31 DOJ proposes changes:

Eliminate judge as arbiter
Delete immunity provision
Eliminate cross reference between plea and Diversion agreements

August 7: Clark insists on retaining judge as arbiter and retaining immunity provision

August 9: Wise withdraws all agreements by August 11

August 10: Clark asks to have until August 14

August 11: Before Hunter can respond, Weiss withdraws tax agreement and Garland names Weiss Special Counsel

August 29: FBI interviews Smirnov handler

August 29: Weiss tells Lowell they insist on felony pleas, claims they don’t have to rely on laptop

September 27: FBI interviews Smirnov

The Scolding that Hunter Biden Should Have Pled Guilty Ignores the Complexity of What Happened

June 12, 2024/21 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

In the wake of yesterday’s verdict against Hunter Biden, there are a lot of armchair quarterbacks and hacks mulling why Hunter Biden didn’t simply plead guilty.

One of the only thoughtful, factually accurate pieces I’ve seen is this, from Dennis Aftergut. After accurately describing how David Weiss reneged on the original plea deal in the face of Republican pressure, Aftergut nevertheless describes that Hunter should have pled guilty anyway, assuming that the judge who intervened to kill the diversion that would have amounted to a probation sentence would sentence Hunter leniently if he took responsibility as he tried to last July.

Maybe he thinks he’s got a chance on appeal, given the Supreme Court’s expansion of Second Amendment rights. But successful appeals of criminal convictions are historically very long shots — about 1 in 15 get reversed — and it’s hard to see appellate courts ruling that the right to buy a gun includes the right to lie to get one.

The conviction will hurt Hunter Biden’s father personally, and it can’t help him politically. The right wing’s fact-free attempts to link President Biden to his son’s criminality would have been there even with a plea, but Hunter taking responsibility for his conduct would have diminished the MAGA narrative’s staying power.

One thing’s for sure: The hung jury or the acquittal Hunter Biden was hoping for would have been a political disaster for his father — and for the nation, in this election where the rule of law is on the ballot. For many in the media and for a substantial portion of the electorate, former President Donald Trump’s conviction for falsifying business records in connection with buying Stormy Daniels’ silence to corrupt the 2016 election contrasted with Hunter’s non-conviction would have exponentially amplified the MAGA screams claiming that there are two standards of justice.

Even ignoring Noreika’s statements (including a comment in a bench conference that she thinks Hunter violated the law by putting his dad’s address on the gun form), one problem with these think pieces is, to the extent they consider appeals, they usually limit their consideration of the nature of appeal. Most, as Aftergut did, focus primarily on a Breun appeal of the gun charge.

Prosecutors charged this to make such a challenge almost useless. Even at the plea hearing, Judge Noreika inquired why prosecutors hadn’t included a felony false statements charge, particularly in light of constitutional challenges to the underlying statute.

THE COURT: I have had one or two cases involving a person struggling with addiction who bought a gun, we usually see a felony charge for false statement. The Defendant has admitted that his statement was false, but he wasn’t charged. Again, I’m not trying to get into the purview of the prosecutor, and I understand the separation of powers, it’s in your discretion, but I just want to ask, does the government have any concern about not bringing the false statement charge in light of our discussion of 922(g)(3) and the constitutionality of that charge.

And in their response to Hunter’s constitutional challenge, prosecutors argued that the false statements charges would survive even if SCOTUS overturned the possession charge.

The Supreme Court has concluded in many cases, across many decades, and in many different contexts that a defendant cannot make a false statement to evade a statute the defendant believes is unconstitutional and escape criminal liability for the false statement by arguing the unconstitutionality voids his knowingly false statement: “Our legal system provides methods for challenging the Government’s right to ask questions—lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood.” LaChance v. Erikson, 522 U.S. 262, 265 (1998) (quoting Bryson v. United States, 396 U.S. 64, 72 (1969)). In 1937, for example, the Supreme Court held that defendants charged with defrauding the United States by misrepresenting the identity of hog producers could not escape criminal liability by arguing that the statute and regulations requiring the information to be furnished were unconstitutional. See United States v. Kapp, 302 U.S. 214, 215, 218 (1937)

By charging possession and false statements, prosecutors made it risky at best to plead guilty with the intent of appealing on constitutional grounds alone, because the false statements charges with the same punishment may well survive a successful constitutional challenge anyway.

At least until Judge Noreika prohibited Hunter from introducing the doctored purchase record or even pressing gun shop employees about it, Hunter had a shot at raising questions about other elements of offense on the two documents charge. Indeed, per Juror 10, the question of whether Hunter’s lie on the form was material is the one thing that held up a conviction yesterday, so a bid for acquittal on the document charges had more promise than defeating the possession charge.

Biden also filed an as-applied challenge after the government rested, arguing that the facts as presented at trial make the charge unconstitutional, something that required developing a trial record. That, too, may have been defeated by Leo Wise’s exceptional prosecutorial dickishness. Notably, Lowell argued there was no location data showing him at 7-Eleven.

There is no video of Mr. Biden at the 7-11 or CCTV of him near the intersection where he was supposedly sleeping on his car, no location evidence (and if there was, there are bars and restaurants in the areas as well) , or any other evidence.

And then prosecutors used the pretext of an answer Naomi Biden made to introduce just such evidence, effectively using their pretextual rebuttal argument to fight this as-applied appeal.

Aftergut notes in his piece that Hunter also challenged the indictment on a selective and vindictive basis, which he also describes is almost impossible to win. That remains true. But even in the lead-up to the trial, prosecutors had to confess that the government discovered in 2021 that the gun shop may have also violated the law with regards to this sale by doctoring the form after the fact, but nevertheless extended a proffer to the gun shop owner so he could confess he sold the gun without second ID because he wanted to get Joe Biden’s son out of his store quickly. Prosecutors also turned over evidence that the gun shop owner had worked to make this gun sale public in 2020 in hopes of raising the political pressure on the case not being charged. By going to trial, Hunter developed evidence that prosecutors chose to charge Hunter while providing a proffer to the guy who brought pressure to charge it in the first place.

And there’s a fact set regarding claims of vindictive prosecution that are unprecedented. Noreika simply ignored the import of Weiss’ decision to renege on the deal because he decided to chase the transparently false Alexander Smirnov lead that he had first gotten in 2020, something that Abbe Lowell preserved before her (but did less well before Judge Scarsi). It is literally the case that Donald Trump’s Attorney General set up a side channel for dirt from known Russian spies that resulted in an attempt to frame Joe Biden and that attempt to frame Joe Biden was the reason prosecutors reneged on the deal last summer.

Aftergut is silent about an appeal on the immunity claim, Hunter Biden’s belief that the original diversion agreement which both parties signed prohibited the government from charging these felonies. As it is, there is a District conflict, with Judge Mark Scarsi ruling that the diversion agreement was valid but had not been put into effect, and Judge Noreika ruling that — after her own head of Probation had refused to sign a deal she had already approved — the deal never went into place. If an appeal of that succeeds, especially if it were quick and succeeded before September, then the September trial might be affected as well.

Abbe Lowell also seems to at least suspect that prosecutors have withheld Brady material, which if he can ever prove it, is another thing that would undermine this prosecution.

Now, Hunter could have challenged some of these without going through the pain of trial. But not all of them.

What we have watched since last July is an incredibly contentious fight in which prosecutors who, as Republicans wailed and threats proliferated, chased the false claims of a guy with ties to Russian intelligence, and now demand that Hunter simply suck up felonies because they did so.

And things get worse as we move to Los Angeles. There, the felony counts for writing off payments to people like Lunden Roberts (and several other women, one of whom may be Zoe Kestan, whose fashion business Hunter was fronting) are charged along with three counts of dubious propriety: the 2016 failure to pay (for which Hunter has argued statutes of limitation have expired) and 2017 and 2018 failure to file, for which venue is either definitely (for tax year 2017) or arguably (for tax year 2018) invalid. Hunter could plead to that indictment, but he’d be pleading to charges that were improperly filed.

Prosecutors have promised to make the Los Angeles trial even more cruelly embarrassing than the Delaware trial, introducing a bunch of evidence of influence-peddling that should be unrelated to the tax charges charged. That is, if Hunter goes to trial to argue that he didn’t remember some of the expenses he wrote off and got advice supporting others, Weiss’ team at least plans on airing Hunter’s relationship with people like Tony Bobulinski, yet another witness in this case alleged of wrong-doing on his own part but not charged.

But here’s the thing everyone keeps forgetting: going to trial may not matter. Because Merrick Garland capitulated to David Weiss’ demand for Special Counsel status to chase Alexander Smirnov’s false claims, Weiss gets to write a report. We’ve already seen John Durham simply fabricate things in his report, including things (like a narrative of all the investigations into Hillary during the 2016 election that Durham deceitfully claimed showed special treatment) that were far afield of the investigation itself. And Weiss’ prosecutors have already proven even more dishonest, with Derek Hines falsely implying he found Hunter Biden’s 2019 New Haven crack pipe in Wilmington in October 2018 on four different occasions, the narrative equivalent of a dirty Baltimore cop framing a defendant by bringing a crack pipe to an alleged crime scene and planting it.

Because David Weiss got the mandate to file a report because he chased Alexander Smirnov’s false claims, recent practice means he can say pretty much anything about Hunter Biden in a report he wants. Weiss’ prosecutors did something incredibly stupid and as a result they’re rewarded with a guaranteed opportunity to dirty up Hunter Biden some more.

So the only difference between deliberate humiliation in a September trial and deliberate humiliation in a report is when it takes place. Leo Wise and Derek Hines have made it clear they plan to continue humiliating Hunter Biden no matter what he does.

And that changes the calculus.

It may not change the wisdom of pleading out, perhaps pleading out in Los Angeles before a September trial brings out the obscene Tiger Beat journalists again for the election period.

But it does make simple bromides about how much better it would be to plead out overly simplistic.

How to Think about the Hunter Biden “Laptop”

June 6, 2024/75 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel, Hunter Biden /by emptywheel

As noted, yesterday the summary FBI witness in the Hunter Biden trial, Erika Jensen, testified that she did not do an analysis to find out whether any of the files on the laptop attributed to Hunter Biden, “had been tampered with, added to, or subtracted?” She also testified that, as someone who had, “a small basis of my understanding of how [FBI’s digital forensics experts] work” and having not done such an analysis, had not “seen any evidence whatsoever from the data [she] reviewed from [the] laptop to suggest that there was tampering”

Her job was not to do such an assessment. Her job was to do a summary of a very narrow cherrypick of files prosecutors asked her to summarize.

Indeed, her further testimony revealed how useless her opinion on the laptop is. Aside from matching the laptop serial number with one of at least seven laptops Hunter had used in the two years leading up to its delivery to John Paul Mac Isaac in 2019, the only other validation Jensen described was the emailed receipt JPMI sent Hunter Biden’s publicly identifiable email account on April 17, 2019, which is utterly and completely useless to validate the laptop. Jensen further described that she didn’t review any emails beyond a small handful prosecutors gave her. The file did not include the kind of metadata that would be necessary to assess its usefulness.

The investigative team had never validated whether anything had been added to the laptop before October 20, 2020. No one made an index before handing over the data in discovery to Hunter Biden’s team.

While everyone was focusing on Jensen’s testimony yesterday, Zoe Kestan actually gave far more interesting — and useful, for assessing the reliability of his data — testimony about Hunter’s digital life. She described, for example, that fairly early in their relationship, Hunter “sent me images of his credit card and asked me to call hotels and find somewhere for us to stay that night.” Kasten described that Hunter would get 5-minute codes and send them to her and to drug dealers so they could pull money from his ATM without his ATM card. She described how, sometime around March 2018, the two went together to drop broken devices off at an Apple store, but he left and she finished that process.

We went out for dinner one night, we went to the Apple store because his phone and his computer were broken, and he had to leave in the middle, so I dropped off, and you know, submitted his phone and laptop at the Apple store for him.

She testified he lost maybe 5 or 6 phones in the period they were in a relationship, a period intermittently spanning a year (though I think this might be high). She described trying to locate him once by logging into his bank account (the credentials for which were on her machine) to see where he was withdrawing money from an ATM. She described that he would do his business from her laptop.

This is just one person! And she had the means to totally pwn his life. As, too, undoubtedly, some of the drug dealers who supported his habit.

This is the kind of thing I’ve focused on for a long time. In the depths of his addiction, Hunter Biden exercised almost no digital security, meaning his girlfriends, his drug dealers, his sex workers, and even the junkies he partied with all had easy means to compromise his devices. And every time Hunter lost a device — the five to six Kasten testified to, the seven or so laptops he had over that year, two more phones she wouldn’t have known about — every single time, it would present the opportunity for someone to take over his digital identity as a bunch of right wing Trump supporters have since and tamper with it.

With all that said, I want to address all the reasons why no one should be admitting Hunter Biden’s digital data into a criminal trial without proving the provenance of each message.

Start with his iCloud. Contrary to widespread belief — belief sown by false claims from prosecutors parroted by credulous journalists — it is not true that all the data on the laptop was backed up to Hunter’s iCloud account.

As I have shown, only half the messages admitted in the trial came from one of two device backups saved to iCloud (these numbers are based off an early draft of the summary).

But there’s a mistaken belief that everything on his iCloud had to be authentic.

That’s because people like Kasten — and people who undoubtedly have a lot less affection for Hunter Biden — have devices that include the login data for Hunter’s iCloud or for phones that were set to back up automatically to iCloud. People with his devices might also be able to access his two main Gmail accounts, his RosemontSeneca one (which frequently suffered what Google believed to be compromises but which might just be Hunter trying to get in), or the droidhunter account he used for adult entertainment (which was accessed by a burner phone in a period when the droidhunter account had access to his iCloud during the period his digital life was packed onto to the laptop that would end up at the FBI).

The reason Hunter’s cloud data was vulnerable to tampering stems from the way he kept his own — and, per Kasten, his associates’ — laptops. We know from the hard drives shared publicly that that laptop included means to access Hunter’s iCloud, an iPad backed up exclusively to the laptop, the phone from which the most important texts used in his trial were extracted (protected by password), and the cookies and passwords to get into much of the rest of his digital life.

What everyone knows as the [multiple hard drives] copied from the laptop is better thought of as a set of a significant chunk of Hunter’s digital activity (much of it unavailable elsewhere), as well as keys that a sophisticated actor could use to access what was stored in the cloud.

And a whole lot of dick pics.

If we believe John Paul Mac Isaac, then he delivered that entire package of Hunter Biden’s digital life plus another two laptops,to the Mac Shop on April 12, 2019. (Remember that there’s another laptop in the wild, which purportedly was left at Keith Ablow’s guest cottage during the period some of this data was being assembled.)

Whether you believe that part of the story or not is not actually all that important. Except insofar as it raises the chances that what went into JPMI’s store was packaged up to maximal damage. Except insofar as right wingers and gossip columnists posing as journalists claim it gives them license to do anything they want with the data. Indeed, the way that story has been used as license to do something grotesque is about all that story does, whether true or not.

Which may be the point.

JPMI has made it clear he started snooping long before he claims his terms and conditions gave him property rights over the device (even if that extended to the data on the device, which Hunter’s team argues it does not). JPMI’s claims about what alarmed him enough to reach out the FBI and Congress and Donald Trump’s personal lawyer aren’t backed by the documents on the laptop. JPMI’s claims about what laptops he received that day don’t match the laptop shared with the FBI.

In other words, there are gaping holes all over JPMI’s story, which differs from the FBI’s story about what they did with the laptop in key ways.

And yet, that didn’t lead the FBI to validate the laptop associated with the iCloud account of the (then) former Vice President’s son beyond confirming that some but not all of the data matched what was in Hunter’s iCloud.

Whether you believe JPMI or not, he has copped to giving Rudy Giuliani, members of Congress, and through them, the whole world, the gateway to Hunter Biden’s digital life. There’s no defense of that, and yet virtually the entire DC press corps likes to pretend they’re doing ethical journalism if they whitewash it.

There’s not much, yet, to add to the discussion above of how David Weiss used the laptop. As noted above, the FBI never did real due diligence on this laptop.

There’s a lot yet to learn — including whether there was a connection between FBI getting a warrant on the laptop and then DOJ Chief of Staff Will Levi’s text to Bill Barr the next day, “laptop on way to you.”

We do know that the (known) December 2019 warrant only permitted the search of the laptop for the three tax crimes charged against Hunter Biden in Los Angeles (which seems inconsistent with the subpoena that described money laundering). The FBI did not have authority to search the laptop or data from Hunter’s iCloud for gun related evidence until December (though Agent Jensen’s summary of the evidence submitted at trial cited earlier warrants for reasons that have not been aired at trial).

The [hard drive containing the contents of the] laptop is not the same thing as the laptop entered into evidence this week.

That’s something about a bazillion trolls who responded to something I said in 2023, about the disseminated laptop: that it had been tampered with.

It has.

There are known (albeit minor) alterations on the content of the hard drive that Rudy Giuliani shared with the NYPost and, after that, the entire world. There are reportedly more significant compromises, which we might learn about if Rudy’s bankruptcy doesn’t entirely kill Hunter Biden’s lawsuit of Rudy. There was far more significant alteration done on two other sets of data: one, disseminated by Guo Wengui (including some of the files taken down by Twitter in October 2020), and another, released by Jack Maxey.

And there were different public and non-public means of using the hard drives passed on from JPMI to access further Hunter Biden data. Garrett Ziegler, for example, fully admits he compromised the encryption of the iPhone backed up to iTunes on the laptop (though in his response to Hunter Biden’s lawsuit, claims it was legal because the drive he hacked had never belonged to Hunter). Vish Burra is more outspoken about having hacked Hunter Biden.

Many many many of the people who froth over content from the laptop — and journalists who whitewash the hit job against Hunter — don’t know there are multiple versions of altered laptops that relied on multiple means to access (or create) the data.

Many — including many journalists — have just decided Hunter must a horrible person so they are not obligated to care what really happened here.

Hunter Biden’s laptop is not any one thing. It’s not real or authentic or not. It is, rather, the shoddy state of affairs when an entire country enthusiastically exploits the fact that an addict’s digital life was in a permanent state of half-compromise for most if not all of the time of his addiction.

Update: Corrected spelling of Kestan’s last name.

Update: Fixed the super confusing reference about why the FBI didn’t respond differently to the compromise of Biden’s son.

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

June 4, 2024/10 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How is that not election interference?

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

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

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

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