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

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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?

David Weiss Maintains He Can Use Hunter Biden’s Diversion Statements at Failed Plea Hearing

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David Weiss has made a show of agreeing to Hunter Biden’s Motion in Limine to exclude statements from his failed plea colloquy but has done nothing of the sort.

In response, he claims that he has already agreed to this, but has submitted his own order because the scope Hunter is asking for is broader than that covered by rules of criminal procedure.

The United States, by and through undersigned counsel, respectfully submits this Response to defendant’s motion in limine (Doc. No. 137). The government previously advised the defendant that the government does not intend to introduce the defendant’s statements from the July 26, 2023, hearing outside the limits of Federal Rule of Criminal Procedure 11(f) and Federal Rule of Evidence 410. Because the relief he requests, the exclusion of such statements “in this matter,” is broader than Federal Rule of Evidence 410, the government asks the Court to grant his motion in part and enter the attached order to this pleading which conforms with the Rules.

FRE 410 has an exception, allowing prosecutors to use statements for use in false statements charges, as has been charged here.

(b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):

(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or

(2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.

Hunter’s proposed order is broader than that — it excludes such statements altogether.

Among the things Hunter agreed to at the plea hearing was language written by Weiss’ team describing Hunter’s well-documented struggle with abuse.

THE COURT: All right. Thank you. Okay. In the next paragraph, it says you have a well-documented and long-standing struggle with abuse and you did tell me already, I’m not going to ask you again about your efforts to treat that. But when we talk about well-documented, is there a particular thing that we’re looking at for where it’s documented or is that just based on your discussions?

THE DEFENDANT: Well, I believe the government is referring to a book that I wrote about my struggles with addiction in that period of time in my life. And quite possibly other news outlets and interviews and things that have been done.

In other words, prosecutors made a big show of agreeing, but instead have carved out their ability to use Hunter’s admissions to being an addict at trial.

To be clear: Under the rules of evidence they can use the plea colloquy (something that has come up over and over). Hunter is asking for broader exclusion, but Weiss is playing games to make it look like he’s agreeing (meaning Judge Noreika will not review the issue), while instead getting her to sign an order permitting them to use everything.

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

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

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

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

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

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

Weiss refused.

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

Other Special Counsel prosecutions

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

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

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

Igor Danchenko: 6 Government Witnesses

Hunter Biden Prosecutor Derek Hines Confesses He Failed To Do Basic Due Diligence, Again

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I’ve written about how David Weiss’ prosecutors indicted Hunter Biden before they had taken basic investigative steps — like obtaining a warrant to search the President’s son’s digital data for evidence of gun crimes, or sending the gun to the FBI lab for testing, or figuring out what the evidence actually showed.

But wow, this one is a doozy.

Prosecutors just filed a late Motion in Limine (it was signed by Derek Hines, the sloppier of two sloppy AUSAs calling themselves Senior Assistant Special Counsels), seeking to prevent Hunter Biden from introducing evidence about how the guys at the gun store belatedly added information to the form on which he allegedly lied. They want to prevent Hunter’s team from telling the jury about how three years after the purchase, people in the gun store added information to the form to make it look like they had properly demanded a second form of identification after Hunter used his passport to buy a gun.

In other words, the original scanned form…

 

 

Differs from the physical form that prosecutors would need to submit at trial.

 

The government says — citing what they claim is an interview with the gun shop owner, Ronald Palimere — that the gun store guy insists the original form is accurate (and it may well be).

Following the hearing on May 14, 2024, the government interviewed Palimere on May 16, 2024. Exh. 2. He confirmed that Certified Form 4473 was the accurate version of the form as it existed on the date the defendant purchased his firearm:

For the sale to Biden, all the fields completed on the certified 4473 were done before Biden left the store. . . Palimere scanned and emailed the certified 4473 to Reisch . . . The form was then filed away. Palimere did not handle the form again for three years and until he was requested to turn it over to ATF SA Veronica Hnat on September 23, 2021.

Id. at p. 3. According to the report, before he produced the form to ATF SA Hnat:

Palimere decided to write Delaware registration in the box labeled 18.b. Palimere does not know why that was chosen but he knew it had to be an official document and it was all they could think of. Turner was the one who wrote Delaware vehicle registration in the box. Palimere thinks that if Biden presented a vehicle registration on the day of the sale, it would have been documented on the certified 4473.

Id. at p. 4. With respect to annotating box 18.b., the report of Palimere’s interview states:

No one thought to get supplemental information because everyone in the area knows who lives at [the defendant’s father’s address]. The address is a celebrity address. At the time and to Palimere and the employees, the address was obvious. If a second form of identification with an address was presented by Biden, Palimere was not present when it happened.

Id. at p. 2. [my emphasis]

Only, these brain surgeons didn’t include Palimere’s interview 302. Exhibit 2 is, instead, the 302 from a guy named Gordon Cleveland — the guy who sold Hunter the gun. He told the FBI that he thinks Hunter got some kind of additional record, but “can not say with certainty.” But he “would not have paid attention to the paperwork side of the sale” because he had already made the sale.

In other words, the guy who sold Hunter Biden the gun testified that he didn’t much care about the paperwork.

Palimere’s described testimony (that no one bothered getting secondary ID because everyone knew Hunter’s father) is inconsistent with Cleveland’s (who claimed maybe he got the Delaware Registration).

The word “impeach” does not appear in this MIL. Instead, prosecutors complain that Palimere — the guy whose 302 they apparently didn’t provide — is not on trial and Hunter Biden shouldn’t be able to put him on trial.

Palimere is not on trial. Nor does his decision to annotate the Form 4473 years after the defendant bought his gun change anything the defendant did in 2018.

And while David Weiss’ guys are demanding that Hunter not get any extensions, they’re asking for one to clear this up.

1 The defense did not raise this issue until a hearing on May 14 and the government respectfully requests leave to file its motion in limine after the May 13 deadline imposed by the Court.

Meanwhile, Hunter Biden’s team is trying to subpoena these gun shop guys (Palimere, Cleveland), apparently thus far with no success.

Prosecute Hunter Biden, if you must. But for goodness sake, please try to exercise the most basic due diligence before you do so.

Update: David Weiss’ crack team has now submitted the exhibit they wanted to submit, as opposed to the one they did: the 302 from a video teleconference interview with gun shop owner Ronald Palimere. It revealed a number of things:

  1. Palimere has a proffer agreement, seemingly offering a gun shop owner legal protection for failures to fill out gun forms properly so long as his testimony is deemed truthful. In other words, David Weiss is now in the position of prosecuting Hunter for a 5-year old gun crime rather than doing anything about a gun shop owner who fudges on paperwork.
  2. The interview was conducted by Derek Hines and an FBI Agent Erika Jensen, with no second FBI Agent present. Jensen did the follow-up interview with Cleveland, linked above, by herself.  Jensen is the witness through whom prosecutors want to introduce all the digital evidence, which means she’ll have to take the stand and therefore be available for questioning based on these 302s.
  3. Derek Hines told Palimere that Agent Jensen found the discrepancies with the gun form, not Hunter Biden’s lawyers. That’s not a big deal, yet (the FBI is allowed to lie to witnesses), but could become one.
  4. In the filing, Hines relies on Palimere’s testimony to claim that, “For the sale to Biden, all the fields completed on the certified 4473 were done before Biden left the store.” Except he also testified that he, “never interacted with Biden” because he was “in the back of the building.” I assume the store has security cameras, but Palimere is not a direct witness to the documentation being completed while Hunter Biden was present. Jensen didn’t ask Cleveland (who is the witness they want to put on the stand) whether it was all completed while Hunter was still there.

Update: David Weiss has now gotten the DE Clerk to memory hole the Cleveland 302 that substantially conflicts with that of his boss.

Update: Judge Noreika has approved the subpoenas Hunter Biden’s team asked for, including (but not limited to) the gun shop employees, including the guy who altered the document.

David Weiss’ Exhibit List Looks Like One Matt Gaetz or James Comer Would Assemble

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David Weiss’ team has submitted its exhibit list for Hunter Biden’s Los Angeles tax prosecution (as well as their motions in limine, which were — with the exception of a request to exclude mention that Hunter paid his taxes in 2021 — mostly uncontested).

The exhibit list includes a number of things that were expected — including:

  • Almost 40 exhibits pertaining to Hunter’s ex-wife Kathleen Buhle and their contentious divorce
  • Documents pertaining to Jeffrey Gelfound, the accountant who did Hunter’s taxes in 2020, who will almost certainly be a key witness on the most serious tax evasion charges
  • Payment records to Lunden Roberts, Hunter’s expensing of which is one of the most compelling pieces of evidence of intentional tax evasion

But it also includes a number of frothy right wingers’ favorite documents.

There is a Tony Bobulinski email that incorporates the “10 for the Big Guy” email — possibly an attempt to show that Hunter didn’t object to that claim, a complaint that comes straight from Matt Gaetz during Hunter’s testimony.

The indictment makes much of the fact that Hunter cut his partners out of this deal; there are multiple pieces of evidence that show one reason he did was he didn’t like Bobulinski’s Russian ties, which if David Weiss wants to talk about Bobulinski’s Trump and Viktor Vekselberg ties, by all means, let’s have it.

In any case, it doesn’t relate to non-payment of taxes, particularly not in 2018.

There are two references to the SDNY Patrick Ho docket — apparently to the docket itself, not the filing that redacted the name of someone believed to be Hunter.

Hunter did get a huge payment from Ho, ostensibly to find legal representation for Ho’s case. At a time when CEFC was recruiting Trumpsters like James Woolsey, Ho also kept ties with Hunter who — in 2018 — could be of no use to him (which is why CEFC was instead focusing on Woolsey).

Ho has recently claimed — for the benefit of frothers in Congress — that Hunter did nothing for huge payment he got for arranging legal representation in this case. It’s a remarkable claim at this late date and would be still more remarkable if introduced in a tax case.

And finally, prosecutors have included an email that probably dates to 2015 regarding the consulting set up with Blue Star Strategies.

On top of the fact that 2015 is not a charged tax year (indeed, the indictment says Hunter declared his 2015 Burisma income) and DOJ reviewed this for years and years and never substantiated a FARA charge, it is likely one of the almost 10% of documents that Joseph Ziegler sourced to the laptop. As I described in this post, the email I have in mind showed up in somebody’s mailbox recognizing “Burisma” as “Burials.”

Prosecutors had moved, with no objection, to prohibit Hunter from arguing that the prosecution team got sucked in by a Russian influence operation (in context, it was a reference to Alexander Smirnov). But if they’re going to rely on one of the most anomalous emails, potentially one only available on a laptop suspiciously similar to the one Lev Parnas said was being dealt by Burisma, the question of Russian influence operation should remain on the table.

Of these documents, only the Ho payment is even directly relevant to the 2018 taxes. And each of these documents would create all sorts of discovery problems and mini-trials about misrepresentations of Hunter’s motive.

Prosecutors have not yet filed their 404(b) notice; perhaps they want to turn the non-crime of monetizing a famous name into a crime?

Or perhaps David Weiss simply wants to use his tax case to feed right wing frothers during an election season.

Hunter Biden Moves to Enjoin David Weiss Under an Appropriations Argument Trump Adopted

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Abbe Lowell has moved to enjoin David Weiss from spending any more unappropriated funds in the prosecution of Hunter Biden.

Mr. Biden moves to enjoin the Special Counsel’s investigation and prosecution of him from now into the future because the Special Counsel lacks a valid appropriation from Congress. Previously, Mr. Biden moved to dismiss the indictment as the tainted fruit of past Appropriations Clause violations (D.E.62). Had that motion been granted, no future violation would have occurred. That said, the Special Counsel insisted dismissal was not the proper remedy and that alleged Appropriations Clause violations “are ‘best seen as requests for injunctions.’” (D.E.72 at 24 (quoting United States v. Bilodeau, 24 F.4th 705, 711 n.6 (1st Cir. 2022)).) Although Mr. Biden preferred dismissal as a remedy (i.e., how could one enjoin past violations?), he did not object to injunctive relief, explaining: “Under either view, this case could not proceed, so it is unclear how the Special Counsel’s preferred remedy would benefit him.” (D.E.80 at 16.) This Court, however, found no Appropriations Clause violation, so it did not reach the question of the appropriate remedy. (D.E.101.) 1

1 At this morning’s hearing, the Court questioned the timeliness of this Motion. As explained above, the Motion is timely because the prior motion to dismiss the indictment was for past Appropriations Clause violations and Mr. Biden now seeks to enjoin future constitutional violations. While the time has passed for Mr. Biden to bring pre-trial motions to dismiss based on the Special Counsel’s past decision to indict, nothing prevents Mr. Biden from seeking to enjoin future constitutional violations. The Special Counsel cannot be given a blank check to indefinitely spend unappropriated federal funds in violation of the Appropriations Clause. The need to explicitly seek injunctive relief did not arise until the Third Circuit Motion Panel’s May 9, 2024 decision dismissed the appeal under 28 U.S.C. § 1292(a) because injunctive relief was not explicitly requested, and the Court declined to hear Biden’s claim for relief at law (dismissal) on an interlocutory basis. Parties frequently seek to cure defects identified by opinions, for example, plaintiffs often file amended complaints and prosecutors file superseding indictments following motions to dismiss all the time, and the situation is no different here. Additionally, the prior scheduling order for pre-trial motions were for motions to dismiss. (D.E.57.) The parties clearly understood there were other “pre-trial motions” that would be filed addressing future issues and this Court set a new schedule for addressing some of those issues (D.E.117 (e.g., motions in limine, expert disclosure motion)), and the Special Counsel filing several such motions in limine this morning. The Court has not limited the Special Counsel orMr. Biden’s from objectingto any kind of future conduct.

Lowell is doing so because the Third Circuit order finding that none of Hunter’s appeals merited interlocutory jurisdiction rejected his challenge to Weiss’ Special Counsel appointment (which argued both the appointing a sitting US Attorney SCO violated DOJ’s own rules and also that Weiss’ appointment was not appropriated) in part because Judge Noreika had not formally refused his injunction.

In the defendant’s third motion to dismiss, he argued (1) the prosecuting U.S. Attorney’s appointment as a special counsel violated 28 C.F.R. § 600.3(a)’s requirement that special counsel be “selected from outside the United States Government” and (2) the Special Counsel improperly used an appropriation established by Congress for “independent” counsel without the requisite independence. See United States v. Biden, No. 1:23-cr-00061-001, 2024 WL 1603775 (D. Del. Apr. 12, 2024). The defendant contends the denial of this motion is appealable because it, in effect, refused him an injunction. The District Court did not explicitly refuse to enjoin the continued appointment of the special counsel, nor the continued use of appropriation of funds, nor did the defendant explicitly ask for such an injunction. Furthermore, the defendant has not shown the order has a “serious, perhaps irreparable, consequence” and can be “effect[ually] challenged only by immediate appeal.” See, e.g., Office of the Comm’r of Baseball v. Markell, 579 F.3d 293, 297–98 (3d Cir. 2009) (citing Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981)). Accordingly, the denial of the defendant’s third motion to dismiss is not an appealable order denying an injunction.

The District Court’s denial of the defendant’s third motion is also not appealable as a collateral order. For collateral-order purposes, the rejection of the defendant’s claim that the Special Counsel’s appointment violated a regulation is analogous to other challenges to a prosecutor’s appointment or authority. Rejection of these challenges do not constitute collateral orders. See Deaver v. United States, 483 U.S. 1301, 1301–03 (1987) (Rehnquist, C.J., in chambers); United States v. Wallach, 870 F.2d 902, 907 (2d Cir. 1989); Deaver v. Seymour, 822 F.2d 66, 70–71 (D.C. Cir. 1987); United States v. Caggiano, 660 F.2d 184, 191 & n.7 (6th Cir. 1981). Moreover, categorically similar issues have been reviewed on appeal after a final or otherwise appealable decision. E.g., Morrison v. Olson, 487 U.S. 654, 668, 659 (1988); In re Grand Jury Investigation, 916 F.3d 1047, 1051 (D.C. Cir. 2019); United States v. Blackley, 167 F.3d 543, 545–49 (D.C. Cir. 1999); United States v. Wade, 83 F.3d 196, 197–98 (8th Cir. 1996); United States v. Prueitt, 540 F.2d 995, 999–1003 (9th Cir. 1976); In re Persico, 522 F.2d 41, 44–46 (2d Cir. 1975). Similarly, there is no collateral-order jurisdiction over the District Court’s rejection of the defendant’s appropriation argument and this order can be effectively reviewed after final judgment. E.g., United States v. Trevino, 7 F.4th 414, 420–23 (6th Cir. 2021); cf. United States v. Bilodeau, 24 F.4th 705, 711–12 (1st Cir. 2022) (finding appellant’s injunction request could not be effectively reviewed after final judgment). [my emphasis]

In other words, Lowell asked for this injunction so Noreika would refuse it, giving him a better shot at appeal before the Third Circuit.

I’ve consistently said I think this challenge is garbage — garbage on precedent and garbage on DOJ rules.

I still do — though David Weiss’ persistent efforts to claim he is also, simultaneously, the US Attorney who made deals he has since reneged on with Hunter Biden could make the challenge more interesting down the road. Effectively, David Weiss is claiming to be both SCO and US Attorney, all while hiding discovery US Attorney David Weiss knows to exist.

That said, since Hunter first made this argument, Trump has adopted it (I’ve got a post started comparing these things, but remember that Trump was indicted on the stolen documents case two months before Hunter was indicted on gun crimes, but Hunter’s gun trial is scheduled to be done before any of these frivolous hearings start in Florida) — with backing from right wing luminaries like Ed Meese. And Judge Cannon is so impressed with the garbage argument she has scheduled a hearing on it for June 21.

And Hunter has argued this same (IMO, garbage) argument in Los Angeles and the Ninth Circuit, where precedents for such appeals are somewhat more lenient (which Lowell addressed in a follow-up after the Third Circuit decision).

I’m not saying any of this will work. I think Lowell might be better served asking to make an amicus argument before Judge Cannon, if it’s not too late, if only because that’ll disrupt the political bias with which Cannon has run her courtroom. (Though again, that would do nothing to spare Hunter a trial.) We have long since spun free of actual evidence much less law in all these three Trump appointed judge’s courtrooms.

But Hunter’s continued effort to push this may complicate Cannon’s effort to treat this as a novel right wing argument. It could even — though this is unlikely — create a circuit split long before Cannon gets her show hearing. Or it could confuse the right wingers on SCOTUS.

The SCO challenge, in my opinion, is not interesting at all on the law. But the way in which these two cases are working in parallel on this point in particular makes the effort to better frame an appeal immediately more interesting.

Update: Unsurprisingly, the 9th Circuit — a panel of all Dem appointees — rejected Hunter Biden’s bid for interlocutory appeals of his failed Motions to Dismiss.

David Weiss Continues to Misrepresent the Damage Keith Ablow Did to Hunter Biden’s Addiction

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Prosecutors have submitted their motions in limine in the Delaware case. Those include:

Most of these are pretty standard and uncontroversial — though Abbe Lowell made it clear that he reserves the right to contest whether Hunter’s iCloud and laptop had been tampered with before the government obtained them.

Where David Weiss has doubled down on past error comes in his choice of book excerpts he wants to use.

He wants to exclude everything from the book except the excerpts he has chosen.

The government intends to admit into evidence only the excerpts of the book and audiobook that are in Exhibit 1. Federal Rule of Evidence 801(d)(2) provides the statement must be “a statement . . . offered against an opposing party.” Thus, a defendant cannot elicit his own self-serving statements without taking the stand and submitting to cross-examination. United States v. Willis, 759 F.2d 1486, 1501 (11th Cir. 1985); United States v. Wilkerson, 84 F.3d 692, 696 (4th Cir. 1996).

A defendant cannot sidestep the prohibition against hearsay by invoking the so-called “rule of completeness,” contained in Federal Rule of Evidence 106. This rule is designed to prevent “misunderstanding or distortion” caused by the introduction of only part of a statement that could only be cured by admission of the full record. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 172 (1988). It does not allow adverse parties to introduce any unedited statement merely because the proponent party has offered an edited version. Indeed, “it is often perfectly proper to admit segments of prior testimony without including everything, and adverse parties are not entitled to offer additional segments just because they are there and the proponent has not offered them.” United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996). The defendant has not identified for the government any portions of the excerpts that are misleading without additional surrounding context. The other portions of the book are therefore inadmissible hearsay.

The selections are not surprising. But in two ways, they are grotesquely dishonest. First, the chosen excerpts misleadingly lead from something that happened in August 2018.

 

 

To something that happened in February 2019.

Presented in the way it is, jurors will be wildly misled that Hunter’s New Haven exploits are what happened immediately after he relapsed in August 2018. They will be misled into believing the description of the New Haven depravity represent Hunter’s state in October 2018. They don’t.

Here’s what the language in the book describing his return to Delaware in fall 2018 looks like.

I had returned that fall of 2018, after my most recent relapse in California, with the hope of getting clean through a new therapy and reconciling with Hallie.

Neither happened.

For all the obvious reasons—my extended disappearances, my inability to stay sober, her need to stabilize and reorder her own life and family—Hallie and I called it quits. The relationship no longer helped either of us. Our attempt to reanimate Beau remained as doomed as it was from the start. The fallout piled up. I tried to explain things to my daughters, but how could I expect them to comprehend a situation I hardly understood myself?

Next on my agenda was getting clean. I drove up to Newburyport, Massachusetts, an old New England shipbuilding-turned-tourist town thirty-five miles north of Boston. A therapist ran a wellness center where he practiced a drug addiction therapy known as ketamine infusion. I would make two trips up there, staying for about six weeks on the first visit, returning to Maryland, then heading back for a couple weeks of follow-up in February of the new year.

Prosecutors were perfectly willing to use the transition into this passage in their response to Hunter’s MTD.

He wrote in Chapter 10 of his memoir, “I returned [to the East Coast] that fall of 2018, after my most recent relapse in California, with the hope of getting clean through a new therapy . . . Neither happened.” Id. at 203.

Perhaps now they’ve discovered that the book says nothing about Hunter’s state of mind when he was in Delaware, when he owned the gun.

More importantly, David Weiss repeats what might have been just another stupid error when he made it in response to Hunter’s motion to dismiss:

For example, the defendant admitted that he was experiencing “full blown addiction” to crack cocaine and by the fall of 2018 he had gotten to the point that:

It was me and a crack pipe in a Super 8, not knowing which the fuck way was up. All my energy revolved around smoking drugs and making arrangements to buy drugs—feeding the beast. To facilitate it, I resurrected the same sleep schedule I’d kept in L.A.: never. There was hardly any mistaking me now for a so-called respectable citizen. Crack is a great leveler.

David Weiss misrepresented this passage to Judge Noreika (and has not alerted her to the error). The scene in the Super 8 took place in February 2019.

Which means it took place after Keith Ablow’s treatment made Hunter Biden’s addiction worse.

The therapy’s results were disastrous. I was in no way ready to process the feelings it unloosed or prompted by reliving past physical and emotional traumas. So I backslid. I did exactly what I’d come to Massachusetts to stop doing. I’d stay clean for a week, break away from the center to meet a connection I found in Rhode Island, smoke up, then return. One thing I did remarkably well during that time was fool people about whether or not I was using. Between trips up there, I even bought clean urine from a dealer in New York to pass drug tests.

Of course, that made all that time and effort ineffective. I didn’t necessarily blame the treatment: I doubt much good comes from doing ketamine while you’re on crack. [my emphasis]

Weiss wants to exclude this critical context, imagining that Hunter included the Keith Ablow description because he knew that right wingers would demand he be prosecuted for the gun when he wrote it (Weiss emphasizes that Hunter started writing this in 2019, before he even knew of the investigation), and so said that the Ketamine treatment made his addiction worse for the moment he would be prosecuted.

I get what self-serving hearsay is. This is not it (though Judge Noreika has thus far been wildly favorable to Weiss’ misrepresentations).

This is basic facts of timeline — or more specifically, Weiss’ continued effort to misrepresent events that clearly happened in February 2019 as if they’re his smoking gun about 2018.

Brett Kavanaugh Thinks that Jack Smith Is as Crazy as Ken Starr Was

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There was a subtle moment in yesterday’s SCOTUS hearing on Trump’s absolute immunity claim.

Former Whitewater prosecutor Brett Kavanaugh asked Michael Dreeben whether DOJ had weighed in on this prosecution.

Did the President weigh in? he asked. The Attorney General?

JUSTICE KAVANAUGH: As you’ve indicated, this case has huge implications for the presidency, for the future of the presidency, for the future of the country, in my view. You’ve referred to the Department a few times as having supported the position. Who in the Department? Is it the president, the attorney general?

MR. DREEBEN: The Solicitor General of the United States. Part of the way in which the special counsel functions is as a component of the Department of Justice.

The regulations envision that we reach out and consult. And on a question of this magnitude, that involves equities that are far beyond this prosecution, as the questions of the Court have —

JUSTICE KAVANAUGH: So it’s the solicitor general?

MR. DREEBEN: Yes.

Having been told that Jack Smith consulted with a Senate-confirmed DOJ official on these tough issues, Kavanaugh immediately launched into a screed about Morrison v. Olson, the circuit court decision that upheld the Independent Counsel statute.

JUSTICE KAVANAUGH: Okay. Second, like Justice Gorsuch, I’m not focused on the here and now of this case. I’m very concerned about the future. And I think one of the Court’s biggest mistakes was Morrison versus Olson.

MR. DREEBEN: Mm-hmm.

JUSTICE KAVANAUGH: I think that was a terrible decision for the presidency and for the country. And not because there were bad people who were independent counsels, but President Reagan’s administration, President Bush’s administration, President Clinton’s administration were really hampered —

MR. DREEBEN: Yes.

JUSTICE KAVANAUGH: — in their view —

MR. DREEBEN: Mm-hmm.

JUSTICE KAVANAUGH: — all three, by the independent counsel structure. And what I’m worried about here is that that was kind of let’s relax Article II a bit for the needs of the moment. And I’m worried about the similar kind of situation applying here. That was a prosecutor investigating a president in each of those circumstances. And someone picked from the opposite party, the current president and — usually —

MR. DREEBEN: Mm-hmm.

JUSTICE KAVANAUGH: — was how it worked. And Justice Scalia wrote that the — the fairness of a process must be adjudged on the basis of what it permits to happen —

Kavanaugh slipped here, and described the horror of “Presidents,” not former Presidents, routinely being subject to investigation going forward.

MR. DREEBEN: Mm-hmm.

JUSTICE KAVANAUGH: — not what it produced in a particular case. You’ve emphasized many times regularity, the Department of Justice. And he said: And I think this applied to the independent counsel system, and it could apply if presidents are routinely subject to investigation going forward. “One thing is certain, however. It involves investigating and perhaps prosecuting a particular individual. Can one imagine a less equitable manner of fulfilling the executive responsibility to investigate and prosecute? What would the reaction be if, in an area not covered by this statute, the Justice Department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person? Does this not invite what Justice Jackson described as picking the man and then searching the law books or putting investigators to work to pin some offense on him? To be sure, the investigation must relate to the area of criminal offense” specified by the statute, “but that has often been and nothing prevents it from being very broad.” I paraphrased at the end because it was referring to the judges.

MR. DREEBEN: Mm-hmm. Yes.

JUSTICE KAVANAUGH: That’s the concern going forward, is that the — the system will — when former presidents are subject to prosecution and the history of Morrison versus Olson tells us it’s not going to stop. It’s going to — it’s going to cycle back and be used against the current president or the next president or — and the next president and the next president after that. All that, I want you to try to allay that concern. Why is this not Morrison v. Olson redux if we agree with you? [my emphasis]

Kavanaugh pretended, as he and others did throughout, that he wasn’t really suggesting this was a case of Morrison v. Olson redux; he was just talking hypothetically about the future.

JUSTICE KAVANAUGH: Right. No, I was just saying this is kind of the mirror image of that, is one way someone could perceive it, but I take your point about the different structural protections internally. And like Justice Scalia said, let me — I do not mean to suggest anything of the sort in the present case. I’m not talking about the present case. So I’m talking about the future.

This intervention came long after Kavanaugh suggested that charging Trump with defrauding the US for submitting fake election certificates and charging Trump with obstructing the vote certification after first charging hundreds of others with the same statute amounted to “creative” lawyering.

JUSTICE KAVANAUGH: Okay. For other official acts that the president may take that are not within that exclusive power, assume for the sake of argument this question that there’s not blanket immunity for those official acts but that to preserve the separation of powers, to provide fair notice, to make sure Congress has thought about this, that Congress has to speak clearly to criminalize official acts of the president by a specific reference. That seems to be what the OLC opinions suggest — I know you have a little bit of a disagreement with that — and what this Court’s cases also suggest.

JUSTICE KAVANAUGH: Well, it’s — isn’t — it’s a serious constitutional question whether a statute can be applied to the president’s official acts. So wouldn’t you always interpret the statute not to apply to the president, even under your formulation, unless Congress had spoken with some clarity?

MR. DREEBEN: I don’t think — I don’t think across the board that a serious constitutional question exists on applying any criminal statute to the president.

JUSTICE KAVANAUGH: The problem is the vague statute, you know, obstruction and 371, conspiracy to defraud the United States, can be used against a lot of presidential activities historically with a — a creative prosecutor who wants to go after a president.

But Kavanaugh returned to his insinuation that it was a stretch to prosecute a political candidate for submitting false certificates to Congress and the Archives under 18 USC 371 after his purported complaint about Morrison v. Olson.

Second, another point, you said talking about the criminal statutes, it’s very easy to characterize presidential actions as false or misleading under vague statutes. So President Lyndon Johnson, statements about the Vietnam War —

MR. DREEBEN: Mm-hmm.

JUSTICE KAVANAUGH: — say something’s false, turns out to be false that he says about the Vietnam War, 371 prosecution —

MR. DREEBEN: So —

JUSTICE KAVANAUGH: — after he leaves office?

None of this intervention made any sense; it wouldn’t even have made sense if offered by someone who hadn’t criminalized an abusive, yet consensual, blowjob for years.

After all, contrary to the demands of many, Merrick Garland didn’t appoint a Special Counsel until Trump declared himself a candidate. By that point, hundreds of people had already been charged under 18 USC 1512(c)(2) and DOJ was at least four months into Executive Privilege fights over testimony from Mike Pence’s aides and Trump’s White House counsel. Jack Smith was appointed nine months after Lisa Monaco publicly confirmed that DOJ was investigating the fake electors and six months after overt subpoenas focused on the scheme came out (to say nothing of the treatment of Rudy Giuliani’s phones starting a year earlier).

This is not a Morrison v. Olson issue.

Rather, Kavanaugh is using his well-established hatred for Morrison v. Olson to complain that Trump was investigated at all — and that, after such time that a conflict arose, Garland appointed a non-partisan figure to head the already mature investigation.

It was one of many examples yesterday where the aggrieved white men on the court vomited up false claims made by Trump.

Kavanaugh made no mention of the appointment of Robert Hur — not just a Republican but a Trump appointee who had deprived Andy McCabe of due process — to investigate Joe Biden for precisely the same crime for which Trump was charged. That’ll become pertinent at such time as Donald Trump’s claim to Jack Smith’s appointment gets to SCOTUS. After all, in that case, Trump will have been similarly treated as Joe Biden. In that case, Hur’s distinction between Biden’s actions and Trump’s should (but probably won’t) reassure the right wing Justices that Trump was not selectively prosecuted.

Speaking of things Kavanaugh didn’t mention, his false complaint — and which Clarence Thomas raised as well — comes at a curious time.

Because of Aileen Cannon’s dawdling, Trump’s challenge to Jack Smith’s appointment won’t get to SCOTUS for months, if ever.

But Hunter Biden, whose challenge to David Weiss’ appointment takes the same novel form as Trump’s — an appropriations clause challenge — may be before the Third Circuit as soon as next week. In a passage of Abbe Lowell’s response to Weiss’ demand that the Third Circuit give Lowell, an observant Jew, three days including Passover to establish jurisdiction for his interlocutory appeal, Lowell scolded Weiss for presuming to know the basis of his appeals.

The Special Counsel boasts that it prepared its motion in “two days” (Mot.Exped.3), but the legal errors that permeate its motion to dismiss only underscore why more time is needed to adequately research and thoughtfully brief the jurisdictional issues for this Court. The Special Counsel ignores numerous bases for jurisdiction (e.g., 28 U.S.C. §§ 1291 (collateral order doctrine), 1292(a)(1) (denial of Appropriations Clause injunction), and 1651 (mandamus)) over this appeal, and the legal claims it does make are flatly wrong, compare Mot.6 (falsely claiming “all Circuit Courts” reject reviewing denials of motions to enforce plea agreements as collateral orders), with United States v. Morales, 465 F. App’x 734, 736 (9th Cir. 2012) (“We also have jurisdiction over interlocutory appeals of orders denying a motion to dismiss an indictment on the ground that it was filed in breach of a plea agreement.”)

In addition to mandamus (suggesting they may either attack Judge Noreika’s immunity decision directly or ask the Third Circuit to order Delaware’s Probation Department to approve the diversion agreement that would give Hunter Biden immunity), Lowell also invoked an Appropriations clause injunction — basically an argument that Weiss is spending money he should not be.

Normally, this would never work and it’s unlikely to work here.

But even on the SCO challenge, there are a number of problems in addition to Lowell’s original complaint: that Weiss was appointed in violation of the rules requiring someone outside of DOJ to fill the role.

For example Weiss keeps claiming to be both US Attorney and Special Counsel at the same time (most obviously in claiming that tolling agreements signed as US Attorney were still valid as Special Counsel), or the newly evident fact that Weiss asked for Special Counsel status so that he could revisit a lead he was ordered to investigate — in the wake of Trump’s complaints to Bill Barr that Hunter Biden wasn’t being investigated diligently enough — back in 2020, a lead that incorporated Joe as well as Hunter Biden, a lead that uncovered an attempt to frame Joe Biden, an attempt to frame Joe Biden to which Weiss is a witness.

The oddities of Weiss’ investigation of Joe Biden’s son may even offer another claim that the right wing Justices claim to want to review. Jack Smith claims to have found only two or three charges with which Kavanaugh, who insists (former) Presidents can only be charged under statutes that formally apply to Presidents, would leave available to charge a President. But there’s one he missed: 26 USC 7217, which specifically prohibits the President from ordering up a tax investigation into someone, which Lowell invoked in his selective and vindictive prosecution claim. Lowell has not yet proven that Trump directly ordered tax officials, as opposed to Bill Barr and other top DOJ officials, to investigate Hunter Biden for tax crimes. But there’s a lot of circumstantial evidence that Trump pushed such an investigation. Certainly, statutes of limitation on Trump’s documented 2020 intrusions on the Hunter Biden investigation have not yet expired.

The Hunter Biden investigation has all the trappings of a politicized investigation that Kavanaugh claims to worry about — and with the Alexander Smirnov lead, it included Joe Biden, the Morisson v. Olson problem he claims to loathe.

That’s a made to order opportunity for Brett Kavanaugh to restrict such Special Counsel investigations.

Except, of course, it involves Democrats.

David Weiss Treats IRS Agents Who Accused Him of Misconduct as “Whistleblowers”

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Hunter Biden is attempting to appeal the adverse decisions from both Maryellen Noreika and Mark Scarsi, both attempts for which there is no obvious basis to make an interlocutory appeal. As I’ll return to, in the Delaware case, David Weiss’ prosecutors are trying to prevent the appeal from delaying a not-yet established deadline for Hunter to reveal what he knows.

After the Ninth Circuit set a normal briefing schedule, with Hunter’s opening brief due on July 5 and the response a month later, after the scheduled trial date, Weiss moved to have that appeal dismissed on — facially at least — sound jurisdictional grounds, asking the court to dismiss this appeal by May 14, in time for existing pretrial deadlines.

Aside from its treatment of three prior Ninth Circuit plea agreement appeal attempts — two successful (including one Abbe Lowell cited in the Third Circuit) and one not — that motion is uninteresting. Except on one point: it calls the media campaign by the disgruntled, debunked IRS agents at the core of Hunter’s egregious misconduct claim “whistleblower disclosures.”

Defendant moved to dismiss the indictment for due process violations based on outrageous government conduct, specifically pointing to whistleblower disclosures to Congress and the media of alleged grand jury information in violation of Federal Rule of Criminal Procedure 6(e) and confidential tax return information in violation of 26 U.S.C. § 6103 by two IRS agents involved in the investigation of defendant. (GEX 55)

While it’s true that Congress made a big stink over covering the release of otherwise prohibited disclosures of taxpayer materials under a whistleblower claim, Hunter’s claim includes conduct that precedes that stink, and also includes grand jury materials and a non-jurisdictional committee not covered by such stink.

Plus, I find it especially weird for David Weiss, who testified to Congress that the disgruntled IRS agents were wrong about their claims as to his charging authority, to call them whistleblowers. Similarly, he told Congress that Lesley Wolf is “a person of integrity” and agreed that Wolf, “did her work on the Hunter Biden matter in a professional and unbiased manner without partisan or political considerations?” He even described remembering Gary Shapley’s “body language” at the October 7 meeting whence Shapley invented claims that formed the basis of his later media campaign. David Weiss’ testimony is inconsistent with calling those disclosures whistleblower disclosures.

So I find it odd that Weiss, here, treats the IRS agents as whistleblowers. He didn’t do so in his response to Hunter’s motion. Derek Hines called them whistleblowers once in the motions hearing before Judge Scarsi. Leo Wise, in his brazenly false claim that there’s no proof the IRS agents affected the case, instead called them, “hyenas, baying at the moon.”

But then Abbe Lowell noted that the record before Scarsi included an instance where the agents “blew by” whistleblower procedures.

I’ll ask you to look at what we’ve put in as — and what the record shows about just compare what the IRS — and by the way, earlier, you called them whistleblowers. I know that that’s a word. I am going to put that word in quotes for a variety of reasons because they were told what whistleblowers are supposed to do. They were even admonished to do anything they do the right way, and they blew past those warnings. And they blew past those warnings by doing that at a congressional committee. That’s not covered by the whistleblower statute or the whistleblower procedure.

It won’t matter for this appeal. And while I expect Weiss has totally misapprehended the nature of Lowell’s appeal, it is still highly likely that Weiss’ motion to dismiss this appeal will work.

But along the way, Weiss has ceded whistleblower status to the IRS agents who invented conspiracy theories about his own actions.

Maryellen Noreika Never Answered Mark Scarsi’s Question

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As I laid out in this post, Judge Maryellen Noreika’s opinion denying Hunter Biden’s bid for immunity under his diversion agreement provided new insight on the nature of her intervention at the July 26, 2023 plea hearing, and her attempt to refashion that intervention after the fact. Among other things, I showed:

  • Judge Noreika provided several indications that she knew, during the hearing, that Probation head Margaret Bray had refused to sign the diversion agreement before the hearing. Given the logistics as described by AUSA Benjamin Wallace, her knowledge of that fact almost certainly had to come from conversations between Bray and Noreika in advance of the plea hearing, and as such, Bray’s refusal to sign the agreement may amount to proxy refusal from Judge Noreika, who was not a party to the agreement.
  • Bray’s discussion with Wallace (which, if Bray refused to sign the diversion agreement at Noreika’s direction, would amount to ex parte communication between the judge and prosecution) created information asymmetry in the hearing. When Leo Wise made comments about the diversion only going into effect once Bray (or Noreika, as he once misspoke) signed it, Hunter’s team had no way to know that that discussion was only happening because of Bray’s earlier refusal. When Wallace piped up to affirm Judge Noreika’s question about the clause under which she should review the plea, Hunter’s team had no way of knowing that his assent may have reflected ex parte knowledge of Noreika’s concerns about how the plea and diversion agreements worked together.
  • Contrary to her portrayal of the hearing in her opinion, Noreika’s intervention in the diversion agreement preceded the moment when Leo Wise “appeared to revoke” the deal. The deal collapsed, temporally at least, first because of her intervention and only subsequently because her intervention gave Wise opportunity to renege on the scope of the immunity agreement.
  • Judge Noreika still claims to have a veto over the substance of the diversion agreement, a contract to which she is not a party.
  • After intervening based on a claim that Hunter’s immunity wasn’t as broad as he understood, her opinion ruled that even though none of the parties to the diversion agreement disputes that it would cover at least gun, tax, and drug crimes, she nevertheless ruled the immunity grant was too uncertain to be applicable to gun, tax, and drug crimes.

Given the assertions and omissions in Noreika’s opinion, Hunter Biden may have a plausible argument that she did precisely what she claimed she feared: unconstitutionally intervened in a prosecutorial decision that David Weiss had already committed himself to.

Noreika’s opinion puts her actions that day at issue, every bit as much as Weiss’ subsequent actions are.

That makes the disparate treatment that Judge Noreika and Judge Scarsi gave to Hunter’s selective and vindictive prosecution claim important.

To be sure, both opinions are supposed to be addressing different things, two different prosecutorial decisions. And both opinions, at least at times, artificially limit their consideration to developments after that failed plea.

Nevertheless, even after ruling (before he would rule again) that Abbe Lowell had not procedurally presented his case, Scarsi engaged in a laudable point by point treatment of Hunter Biden’s claims.

As a result, the two judges took a dramatically different approach to Hunter’s claim that Republican members of Congress had attempted to intervene in his criminal case directly. The longer version of that argument from Abbe Lowell, presented before Judge Noreika, looks like this:

Then on July 25, just one day before Mr. Biden’s scheduled plea hearing, Chairman Smith actually tried to intervene in this case to file an amicus curiae brief “in Aid of Plea Hearing” (United States v. Biden, D.E. 7, No. 23-mj-00274-MN), in which, with no shame about doing real political interference while complaining about non-existent involvement by others, he encouraged the Court to “consider” the unfounded allegations by the IRS agent whistleblowers that the probe into Mr. Biden was tainted by political interference and attaching transcripts of their testimony (which contained confidential taxpayer and grand jury information) on the public docket. (D.E. 7-3 (Smith Memo) (“[T]he Defendant appears to have benefited from political interference which calls into question the propriety of the investigation of the U.S. Attorney’s Office . . . it is critical that the Court consider the Whistleblower Materials before determining whether to accept the Plea Agreement.”).) 25

In Scarsi’s response to a shorter version of this argument, which was posted before Judge Noreika ruled, he raised the question of whether Judge Noreika had considered Jason Smith’s attempt to intervene in the case.

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

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

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.

[snip]

After the plea hearing, Mr. Smith told Fox News, “I think that justice is being served,” Jason Smith on Hunter Biden plea deal collapse: Justice is being served, Fox News (July 26, 2023, 7:01 p.m.), https://www.foxnews.com/video/6331889313112 [https://perma.cc/YL3P-JNW5]. [my emphasis]

As I noted in this post, Scarsi actually over-read what Abbe Lowell argued here. Lowell only argued that the amicus was proof that Jason Smith attempted to intervene, not that Judge Noreika had considered his amicus.

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.

Scarsi, by contrast, raised the question — again, before Judge Noreika ruled — of whether Judge Noreika considered Jason Smith’s plea to scotch the plea deal before she intervened in a contract to which she was not a party. Judge Scarsi raised the question of whether Smith had succeeded in intervening, with Noreika.

Noreika, who offered no indication she had reviewed Scarsi’s selective prosecution language (though his opinion on this topic was in the same omnibus ruling she cited on the diversion agreement), didn’t answer that question. Instead, in her selective and vindictive prosecution opinion, she simply dismissed the bulk of that claim with one paragraph.

In attempting to show discriminatory purpose, Defendant points to past and recent statements made by former President Trump, alleged conduct of one of the former president’s personal attorneys (Rudy Giuliani) and a purported criticism and pressure campaign by Congressional Republicans. (See id. at 27-37). None of this evidence, however, is relevant to any alleged discriminatory purpose in this case. The charging decision at issue here – from 2023 – did not occur when the former president was in office. Nor did it occur when Mr. Giuliani was purportedly trying to uncover “dirt” about Defendant and presenting that information to U.S. Attorneys across the country. (See id. at 30). And the pressure campaign from Congressional Republicans may have occurred around the time that the Special Counsel decided to move forward with indictment instead of pretrial diversion, but the Court has been given nothing credible to suggest that the conduct of those lawmakers (or anyone else) had any impact whatsoever on the Special Counsel. It is all speculation. [my emphasis]

Noreika does three things in this passage (besides ignoring Bill Barr’s intervention last year, which is pertinent to her silence about Alexander Smirnov). First, she treats Rudy’s intervention as contested (even while falsely claiming Hunter had described his gun purchase in his memoir, when instead he only did so in text messages, published by NYPost, that Rudy obtained from Hunter’s hard drive). She did so even in spite of Lowell’s submission of Scott Brady’s transcript, detailing Rudy’s intervention, as a supplemental authority.

Generally, as she does elsewhere, she fails to do what she claimed to do, to consider “the prosecution’s decision to abandon the Plea and Diversion Agreement framework.” Her description of David Weiss as “Special Counsel” is the tell here: she’s dating Weiss’ actions to a date, August 11, that postdates the first steps of abandoning the diversion. And she’s explicitly focused on the indictment, not the abandonment, even though she claims to be considering the abandonment.

Having fiddled with the timing, she then — astoundingly — questions whether and when a pressure campaign from Congress happened! Noreika here cites Lowell’s later discussion of Congressional intervention, not the earlier factual background discussion for the entire motion that mentions Smith’s filing to her own docket specifically.

Given Noreika’s own apparent veto of a contract between prosecutors and Hunter Biden, Noreika’s treatment of Lowell’s separation of powers is more interesting.

At the end of his selective- and vindictive-prosecution arguments, Defendant argues that his prosecution also violates the separation of powers. (See D.I. 63 at 54-60). The gist of Defendant’s argument is that the Legislative Branch has failed to respect the prosecutorial discretion vested in the Executive Branch and instead attempted to usurp that authority. (Id.). In particular, Defendant claims that many members of Congress “are actively interfering with DOJ’s investigation” and conducting “a criminal investigation of private conduct by a private citizen” – i.e., Defendant. (Id. at 58). He goes so far as to assert that these Legislative Branch officials “have overcome Special Counsel Weiss’s independent judgment” and, even further, those officials are the reason that pretrial diversion was abandoned in favor of indictment. (Id.). Defendant’s separation-of-powers argument is not credible.

As an initial matter, Defendant never disputes that the Executive Branch holds the ultimate power to prosecute in his case and that that branch of government is headed by his father. And Defendant does not actually accuse the Legislative Branch of successfully encroaching on or usurping the Executive Branch’s power. Indeed, Defendant’s argument is more subtle and nuanced; he alleges that the Legislative Branch is exerting pressure on the Special Counsel, purportedly causing him to make charging decisions that he would not otherwise make simply because members of Congress are unhappy. Yet members of the Legislative Branch pressuring Executive Branch officials or the Special Counsel to act is fundamentally different than actually making charging decisions or influencing them. And, apart from Defendant’s finger-pointing and speculation, the Court has been given no evidence to support a finding that anyone other than the Special Counsel, as part of the Executive Branch, is responsible for the decision to indict Defendant in this case instead of continuing to pursue pretrial diversion. There is thus no basis to find a violation of the separation of powers under the facts here.

I think the two judges’ opinions that Lowell’s separation of powers argument has no basis in precedent is absolutely right. But Noreika’s treatment of it here is far more suspect given her own description that she intervened in a contract to prevent David Weiss from entering into a contract that limited his prosecutorial authorities. If Noreika thereby usurped Weiss’ authority, then this whole focus on whether Congress influenced Weiss is misplaced.

The question becomes whether Congress influenced her.

And in spite of the fact that Judge Scarsi specifically raised the question of whether Noreika had considered Jason Smith’s intervention, Noreika didn’t answer that question. Instead, her treatment of Lowell’s interference claim — the facts meant to apply to the entire selective and vindictive motion to dismiss — instead entirely dodges the uncontested fact that Smith attempted to intervene with her.

On July 19, 2023, Margaret Bray recommended Hunter Biden for diversion. On July 20, at least per Benjamin Wallace, Probation “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.”

Neither judge has addressed why that doesn’t amount to approval to the extent Bray has authority over the diversion. Scarsi simply rewrote Probation’s agreement out of his opinion. Noreika simply dismissed its import.

More importantly, no one explained what happened between July 20 and July 26 such that Bray declined to approve the diversion agreement she had approved six days earlier. What changed?

One thing that changed was the intervention of Congress with Judge Noreika.