Posts

David Weiss Was Planning on Using Alexander Smirnov’s Claims against the Bidens Until He Wasn’t Anymore

/124 Comments/in , , /by

On November 16, CNN reported on David Weiss’ ongoing use of a California grand jury. It reported that by that point, the FBI had concluded its renewed look at money laundering and FARA violations and was not going to file charges.

Prosecutors working under Weiss told a judge earlier this year that in addition to tax charges, they could also bring charges related to possible violations of the Foreign Agent Registration Act. Internal Revenue Service investigators who were part of the Hunter Biden investigation have alleged that the prosecutors slow-walked and blocked efforts to look into possible money laundering and foreign lobbying allegations.

The FBI, which oversaw the money laundering and FARA portions of the investigation, concluded its findings and didn’t anticipate charges to emerge from those allegations, people briefed on the matter told CNN.

That was over a month after the September 27 interview at which Smirnov renewed and expanded his lies. No charges were going to be filed on November 16, CNN reported.

But on November 15, Abbe Lowell asked for discovery on the Scott Brady side channel and subpoenas to serve on people like Trump and Bill Barr.

  1. All documents and records reflecting communications from January 20, 2017 to the present (the “Relevant Time Period”) to, from, between, or among Donald J. Trump, William P. Barr, Geoffrey Berman, Scott W. Brady, Richard Donoghue, or Jeffrey A. Rosen relating to or discussing any formal or informal investigation or prosecution of Hunter Biden, or a request thereof.
  2. All documents and records reflecting communications from the Relevant Time Period to, from, between, or among Donald J. Trump, William P. Barr, Geoffrey Berman, Scott W. Brady, Richard Donoghue, or Jeffrey A. Rosen and any Executive Branch official, political appointee, Department of Justice official, government agency, government official or staff person, cabinet member, or attorney for President Trump (personal or other) discussing or concerning Hunter Biden.

Lowell raised the Brady side channel in his selective prosecution filing, too. David Weiss’ responses to such requests always misrepresented the ask, pretending it pertained to no more than directions from Jeffrey Rosen’s office to avoid overt pre-election investigative steps.

And all the while, according to the Alexander Smirnov detention memo, he kept getting on planes to meet Russian spooks.

In October 2023, SMIRNOV had in-person conversations with RUSSIAN OFFICIAL 1 overseas. During these conversations, RUSSIAN OFFICIAL 1 discussed his knowledge and seeming control of two groups of Russian operatives who were previously tasked with the assassination of a high-ranking official of COUNTRY C. RUSSIAN OFFICIAL 1 offered to stop the assassination efforts in exchange for certain things, including an agreement by COUNTRY C to stop targeting civilian-family members of certain Russian officials living in Moscow

[snip]

SMIRNOV attended a meeting in COUNTRY A [probably UAE] in December 2023 that was attended by RUSSIAN OFFICIAL 2, a high-ranking member of a Russian Foreign Intelligence Service. The primary purpose of the meeting was to discuss a potential resolution to the Russia-Ukraine war.

Against that background, there’s a detail in the Smirnov indictment that hasn’t attracted the attention it deserves.

David Weiss bases his authority for charging Smirnov — in California, not Delaware — on his Special Counsel authority.

41. 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.

42. On August 11, 2023, the Attorney General appointed David C. Weiss, the United States Attorney for the District of Delaware, as Special Counsel. The Special Counsel was authorized to conduct the investigation and prosecution of Businessperson 1, as well as “any matters that arose from that investigation, may arise from the Special Counsel’s investigation, or that are within the scope of 28 C.F.R. § 600.4(a).”

The only way Smirnov could be covered under that Special Counsel grant of authority is if, when investigators interviewed Smirnov on September 27, they were investigating Hunter Biden. David Weiss was made Special Counsel to investigate Hunter Biden, not those who framed him and his father.

There’s a lot that Weiss left out of the indictment, like Scott Brady’s claim to have vetted Smirnov’s travel records and Bill Barr’s claim that Weiss was ordered in 2020 to further investigate the claim and Richard Donoghue’s order to Weiss, just days after Trump yelled at Bill Barr for not doing enough to investigate Hunter Biden, to accept a briefing on Smirnov’s claims.

But that detail makes it clear that the point of the interview was to investigate Hunter Biden, not — not at first, anyway — to investigate Smirnov. This is why, if Abbe Lowell gets discovery on this issue, I think this footnote will be vindicated (an argument I made back in November).

4 The discussion about the scope of the immunity agreement appears shaped by the prosecution’s investigation of the Smirnov allegations, which it began looking into just days before the July 26, 2023 hearing. (Smirnov Indict. ¶ 41 (noting the prosecution team began investigating Smirnov’s claims in July 2023).) While a host of possible crimes had been investigated, the defense understood that the FARA/bribery investigation had been closed and that the only pending issues concerned gun and tax charges. The Diversion Agreement resolved the gun and tax charges, which is why defense counsel believed the immunity agreement covered everything and would conclude the investigation. The push back from the prosecution and its discussion of an “ongoing” investigation—apparently tied to the Smirnov allegations—came as a surprise to defense counsel. (7/26/23 Tr. at 50, 54.) Having taken Mr. Smirnov’s bait of grand, sensational charges, the Diversion Agreement that had just been entered into and Plea Agreement that was on the verge of being finalized suddenly became inconvenient for the prosecution, and it reversed course and repudiated those Agreements.

The reason why David Weiss reneged on a plea deal was to chase this bribery claim. The reason why David Weiss charged Hunter Biden with a bunch of felonies rather than resolving this in a diversion and misdemeanors was because he wanted to chase the false claims floated by someone dallying with Russian spies.

And I’d be willing to bet that if Lowell hadn’t asked for discovery that may expose that fact, David Weiss would never have indicted Alexander Smirnov.

58A-PG-3250958: Curiosities about the Alexander Smirnov Case

/43 Comments/in , , /by

I wanted to flag two details of the Alexander Smirnov case — the FBI informant arrested upon arriving in Las Vegas last week on charges he made up a false claim that Mykola Zlochevsky had bribed Joe Biden.

First, the indictment repeatedly includes the assessment case number.

As part of that process, FBI Pittsburgh opened an assessment, 58A-PG-3250958, and in the course of that assessment identified the 2017 1023 in FBI holdings and shared it with USAO WDPA. USAO WDPA then asked FBI Pittsburgh to reach out to the Handler to ask for any further information about the reference in his 2017 1023 that stated, “During this call, there was a brief, non-relevant discussion about former [Public Official 1]’s son, [Businessperson 1], who is currently on the Board of Directors for Burisma Holdings [No Further Information]”.

[snip]

By August 2020, FBI Pittsburgh concluded that all reasonable steps had been completed regarding the Defendant’s allegations and that their assessment, 58A-PG-3250958, should be closed. On August 12, 2020, FBI Pittsburgh was informed that the then-FBI Deputy Director and then-Principal Associate Deputy Attorney General of the United States concurred that it should be closed. [my emphasis]

In my experience, it is exceedingly unusual to include case file numbers in public documents. One big exception to that rule — the Crossfire Hurricane-related case filings — is instructive: Trump had those case numbers released as part of his effort to burn the investigation.

This case number — 58A — marks this as a bribery assessment.

That makes Bill Barr’s project sketchier than it already was. Here’s how Chuck Grassley described the genesis of this lead:

Although investigative activity was scuttled by the FBI in 2020, the origins of additional activity relate back to years earlier. For example, in December 2019, the FBI Washington Field Office closed a “205B” Kleptocracy case, 205B-[redacted] Serial 7, into Mykola Zlochevsky, owner of Burisma, which was opened in January 2016 by a Foreign Corrupt Practices Act FBI squad based out of the FBI’s Washington Field Office. This Foreign Corrupt Practices Act squad included agents from FBI HQ. In February 2020, a meeting took place at the FBI Pittsburgh Field Office with FBI HQ elements. That meeting involved discussion about investigative matters relating to the Hunter Biden investigation and related inquiries, which most likely would’ve included the case against Zlochevsky. Then, in March 2020 and at the request of the Justice Department, a “Guardian” Assessment was opened out of the Pittsburgh Field Office to analyze information provided by Rudy Giuliani.

So during Trump’s impeachment for extorting a bribery investigation, Bill Barr’s DOJ shut down a kleptocracy investigation of Mykola Zlochevsky, then, weeks later, opened up a back channel for Rudy Giuliani that led to an assessment of whether Mykola Zlochevsky had bribed Joe Biden.

Close a corruption investigation into Zlochevsky, then open a corruption investigation into an make-believe bribe Zlochevsky made to Joe Biden.

Somehow Scott Brady’s team found a passing notice about Hunter Biden in a 2017 informant report from Smirnov — he offered conflicting explanations of how he found this FD-1023 in his House Judiciary Committee interview — which led to the interview where Pittsburgh’s FBI allowed Smirnov to make allegations about Zlochevsky claiming to have bribed Biden that should have easily been debunked.

And then, after the assessment had been shut down, days after Trump yelled at Bill Barr about the Hunter Biden investigation, David Weiss’ team was ordered, by Richard Donoghue (who had concurred in closing the assessment), to accept a briefing on it. Barr’s story and the indictment conflict about whether Weiss should have investigated in 2020, which would have led him to discover these lies then, or was only asked to investigate further after Republicans (and Bill Barr!) had made a stink about the informant report again.

Meanwhile, it seems to have escaped notice that Weiss’ team is seeking to detain Smirnov pretrial.

It is almost unheard of to seek detention for a false statements case. Even assuming Weiss argues that Smirnov is a flight risk, people usually aren’t detained on such charges.

So detention may be more about the other claims Smirnov made to investigators last September: That he had (faked) recordings of Hunter Biden from a hotel in Kyiv, and that he had been working with some Russians since May 2023 to end the Ukraine war, a plan that had some tie to the 2024 election.

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

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

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

That is, seemingly of the belief that the FBI would be amenable to this plan, Smirnov claimed to be involved in an information operation for the third straight election.

Remember, the indictment ties Smirnov to the Andri Derkach influence operation in 2020 by tying the genesis of Smirnov’s 2020 bribery claims to this article, reporting on probably fabricated tapes between Joe Biden and Petro Poroshenko.

A Ukrainian lawmaker who met with Rudolph W. Giuliani late last year released recordings of private phone calls several years ago between Vice President Joe Biden and Petro Poroshenko, then Ukraine’s president, in a new broadside against the presumptive Democratic nominee for U.S. president that has raised questions about foreign interference in the 2020 election.

The recordings played at the news conference Tuesday shed relatively little new light on Biden’s actions in Ukraine, which were at the center of President Trump’s impeachment last year. They show that Biden, as he has previously said publicly, linked loan guarantees for Ukraine to the ouster of the country’s prosecutor general in 2015. But Derkach used the new clips to make an array of accusations not proven by the tapes.

Smirnov even claimed to have met with Poroshenko and Viktor Shokin in 2016.

One of the two AUSAs on this case, Sean Mulryne, is a Public Integrity prosecutor who has worked FARA cases (including that of Elliott Broidy-related Nickie Lum Davis, who was represented by Abbe Lowell).

There may be — likely is! — more to this case than a simple false statement. But that’s another reason why David Weiss has no business overseeing a case in which he is a direct witness.

David Weiss Is a Direct Witness to the Crimes on Which He Indicted Alexander Smirnov

/63 Comments/in , , /by

On the day that Bill Barr aggressively intervened in the parallel impeachment inquiry and Hunter Biden prosecutions last summer, David Weiss’ office sent out a final deal that would resolve Hunter’s case with no jail time and no further investigation. Within weeks, amid an uproar about claims in an FD-1023 that David Weiss now says were false, Weiss reneged on that deal. With the indictment yesterday of Alexander Smirnov, the source of those false claims, Weiss confesses he is a direct witness in an attempt to frame Joe Biden, even as he attempts to bury it.

On June 7, 2023, Bill Barr went on the record to refute several things that Jamie Raskin described learning about Smirnov’s FD-1023. Specifically, the former Attorney General insisted that the investigation into the allegations Smirnov made continued under David Weiss.

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.”

“It wasn’t closed down,” Bill Barr claimed. As I’ll show below, according to the indictment obtained under David Weiss’ authority yesterday, that’s a lie. “It was sent to [David Weiss] for further investigation,” Bill Barr claimed, not confessing that it was sent to Delaware on October 23, 2020, days after Trump had yelled at him personally about the investigation into Hunter Biden. According to Barr, Weiss was tasked with doing more investigation into the Smirnov claims than Scott Brady had already done.

In the Smirnov indictment, Weiss now says that he only did that investigation last year, and almost immediately discovered the allegations were false.

The same day the Federalist published those Barr claims, June 7, and one day after Hunter Biden attorney Chris Clark spoke personally with David Weiss, Lesley Wolf sent revised language for the diversion agreement that strengthened Hunter Biden’s protection against any further prosecution.

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.

That language remains in the diversion agreement Leo Wise signed on July 26, 2023.

According to an unrebutted claim from Clark, on June 19, 2023, Weiss’ First AUSA Shannon Hanson assured him there was no ongoing investigation into his client.

36. 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.

That day, June 19, was the first day Wise made an appearance on the case.

On July 10, a month after the former Attorney General had publicly claimed that his office sent the Smirnov FD-1023 to Weiss’ office for further investigation in 2020, Weiss responded to pressure from Lindsey Graham explaining why he couldn’t talk about the FD-1023: “Your questions about allegations contained in an FBI FD-1023 Form relate to an ongoing investigation.” The next day, Hanson fielded a request from Clark, noting she was doing so because “the team” was in a secure location unable to do so themselves. “The team” should have had no purpose being in a secure location; they should have been preparing for the unclassified plea deal.

By July 26, the same day Leo Wise signed a diversion agreement that said Hunter wouldn’t be further charged, he made representations that conflicted with the document he had signed, claiming Hunter could still be charged with FARA. That was how, with David Weiss watching, Wise reneged on a signed plea deal and reopened the investigation into Hunter Biden, leading to two indictments charging six felonies and six misdemeanors.

According to the Smirnov indictment, sometime in July (tellingly, Weiss does not reveal whether this preceded his letter to Lindsey Graham, whether it preceded the plea colloquy where Leo Wise reneged on a signed deal), the FBI asked Weiss’ office to help in an investigation regarding the FD-1023.

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.

It is virtually certain that the FBI asked Weiss to pursue whether any leads had been missed in 2020, not whether Joe and Hunter Biden had been unfairly framed. That’s because Weiss cannot — should never have — led an investigation into how the Bidens were framed. He’s a witness in that investigation. 

So it is almost certain that the FBI decided to reopen the investigation into the FD-1023, perhaps based in part on Bill Barr’s false claims. It is almost certain that this investigation, at that point, targeted Joe and Hunter Biden. It is almost certain that this is one thing Weiss used to rationalize asking for Special Counsel authority.

And that’s probably why, when Weiss’ team interviewed Smirnov on September 27, Smirnov felt comfortable adding new false allegations.

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

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

Smirnov seemingly felt safe telling new, even bigger lies. In his mind, Hunter and Joe were still the target! Again, that is consistent with the investigation into Hunter Biden being reopened based off Bill Barr’s public pressure.

According to the Smirnov indictment, David Weiss’ team found evidence that proves Bill Barr lied and Scott Brady created a false misimpression — the former, to pressure him — Weiss — and the latter, in testimony to Congress that was also part of the pressure campaign against the Bidens.

Compare Bill Barr’s claim made on the day when Weiss agreed that Hunter would face no further charges with what the Smirnov indictment states as fact. The Smirnov indictment says that Scott Brady’s office closed the assessment, with the concurrence of David Bowdich and Richard Donoghue, which is what Jamie Raskin said (though Raskin said Barr himself concurred).

40. By August 2020, FBI Pittsburgh concluded that all reasonable steps had been completed regarding the Defendant’s allegations and that their assessment, 58A-PG-3250958, should be closed. On August 12, 2020, FBI Pittsburgh was informed that the then-FBI Deputy Director and then-Principal Associate Deputy Attorney General of the United States concurred that it should be closed.

But Barr told the Federalist that it was not closed down, it was forwarded — by Richard Donoghue, days after the President yelled at Barr about this investigation (though he didn’t say that) — to David Weiss for more 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.”

Had it been forwarded to David Weiss for more investigation, had he taken those additional investigative steps Barr claims he was ordered to do, Weiss would have discovered right away the key things that proved Smirnov was lying, the claims that Scott Brady had claimed to investigate, the things that the Smirnov indictment suggest he newly discovered months ago.

According to Scott Brady’s testimony to Congress, his team asked Smirnov’s handler about things like travel records and claimed that it was consistent.

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

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

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

According to the Smirnov indictment, Weiss’ team asked the handler the same question — about travel records. Only, they discovered that Smirnov’s travel records were inconsistent with the claims the handler himself recorded in the FD-1023.

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

44. The Handler provided investigators with messages he had with the Defendant, including the ones described above. Additionally, the Handler identified and reviewed with the Defendant travel records associated with both Associate 2 and the Defendant. The travel records were inconsistent with what the Defendant had previously told the Handler that was memorialized in the 2020 1023.

Tellingly, when Brady was asked more specific questions about Smirnov’s travel records, his attorney, former Trump-appointed Massachusetts US Attorney Andrew Lelling, advised him, twice, not to answer.

Q And did you determine that the CHS had traveled to the different countries listed in the 1023?

Mr. Lelling. I would decline to answer that.

[snip]

Q The pages aren’t numbered, but if you count from the first page, the fourth page, the first full paragraph states, following the late June 2020 interview with the CHS, the Pittsburgh FBI Office obtained travel records for the CHS, and those records confirmed the CHS had traveled to the locales detailed in the FD1023 during the relevant time period. The trips included a late 2015 or early 2016 visit to Kiev, Ukraine, a trip a couple months later to Vienna, Austria, and travel to London in 2019. Does this kind of match your recollection of what actions the Pittsburgh FBI Office was taking in regards to this.

Mr. Lelling. Don’t answer that. Too specific a level of detail

Q You had mentioned last hour about travel records.

Did your office obtain travel records, or did you have knowledge that the Pittsburgh FBI Office obtained travel records?

Mr. Lelling. That you can answer yes or no.

Mr. Brady. Yes.

If Brady obtained those travel records, he would have discovered what Weiss did: Neither Smirnov’s travel records nor those of his subsource, Alexander Ostapenko, are consistent with the story Smirnov told.

o. Associate 2’s trip to Kiev in September 2017 was the first time he had left North America since 2011. Thus, he could not have attended a meeting in Kiev, as the Defendant claimed, in late 2015 or 2016, during the Obama-Biden Administration. His trip to Ukraine in September 2017 was more than seven months after Public Official 1 had left office and more than a year after the then-Ukrainian Prosecutor General had been fired.

[snip]

34. Further, the Defendant did not travel to Vienna “around the time [Public Official 1] made a public statement about [the thenUkrainian Prosecutor General] being corrupt, and that he should be fired/removed from office,” which occurred in December 2015.

Paragraph after paragraph of the Smirnov indictment describe how the travel records — the very travel records that the handler and Scott Brady claimed corroborated the allegation — proved Smirnov was lying.

The record is quite clear that Bill Barr and Scott Brady made false representations about activities that directly involved David Weiss in 2020.

And yet Weiss has been playing dumb.

Abbe Lowell made a subpoena request and a discovery request relating to these matters on November 15. Lowell not only laid out this scheme in his selective and vindictive prosecution claim, but he cited the Federalist story in which Barr lied. He cited these matters in his discovery request.

Rather than acknowledging that Weiss’ team had discovered evidence that proved the claims of Barr and Brady were misrepresentations, Weiss’ team lied about the extent of Richard Donoghue’s role — documented in a memo shared by Gary Shapley — in forcing Weiss to accept the FD-1023 on October 23, 2022.

Next, defendant alleges that “certain investigative decisions were made as a result of guidance provided by, among others, the Deputy Attorney General’s office.” ECF 58, at 3 n.4. In fact, the source cited revealed that the guidance was simply not to conduct any “proactive interviews” yet.

And now, on the eve of Abbe Lowell submitting a reply on his motion to compel and a selective prosecution and discovery request in California, David Weiss has unveiled a belated indictment proving that Lowell’s allegations were entirely correct. The indictment may well provide excuse to withhold precisely the discovery materials Lowell has been demanding for months, and it may create the illusion that Barr’s pressure led Weiss to renege on a plea deal. But it is a confession that there was an attempt to frame Joe Biden and his son in 2020.

What David Weiss discovered — if he didn’t already know about it — is that he was part of an effort to frame Joe Biden in 2020, an effort that involved the Attorney General of the United States. If Merrick Garland is going to appoint Special Counsels for these kinds of things, one should be appointed here, especially given that Donoghue required the briefing on the FD-1023 days after Trump personally intervened with Bill Barr.

But David Weiss can’t lead that investigation. He’s a witness to that investigation.

Update: Fixed how long it took Weiss to renege on the deal after Bill Barr’s false claim.

See Hunter Biden’s Eight Legal Chessboards for links to all the filings.

The Gaps in David Weiss’ Belated Indictment of Alexander Smirnov

/46 Comments/in , , /by

David Weiss has indicted the informant behind an FD-1023 that Bill Barr used to justify the ongoing investigation into Hunter and Joe Biden. Weiss charged Alexander Smirnov with one count of false statement and one count of obstruction.

The indictment alleges that Smirnov lied about the meetings he did have with Burisma, and lied about what Burisma officials told him.

The indictment ties Smirnov’s efforts to frame Joe Biden with Rudy Giuliani’s efforts, though without naming Rudy. For example, the indictment describes that both before and after this article, Smirnov promised his handler that Biden would soon be going to jail.

But the citations of the article simply omit mention of Rudy.  

In describing the side channel that Barr set up, it attributed the project to Jeffrey Rosen, not Barr.

It omitted mention that the side channel was primarily set up so that Rudy could share information, including information from Russian spies. And it didn’t describe that, per Scott Brady, he found Smirnov’s report by seeking information on Hunter and Burisma.

Q And the original FD1023 that you’re referring as information was mentioned about Hunter Bidden and the board of Burisma, how did that information come to your office?

A At a high level, we had asked the FBI to look through their files for any information again, limited scope, right? And by “limited,” I mean, no grand jury tools. So one of the things we could do was ask the FBI to identify certain things that was information brought to us. One was just asking to search their files for Burisma, instances of Burisma or Hunter Biden. That 1023 was identified because of that discreet statement that just identified Hunter Biden serving on the Burisma board. That was in a file in the Washington Field Office. And so, once we identified that, we asked to see that 1023. That’s when we made the determination and the request to reinterview the CHS and led to this 1023. [my emphasis]

It describes that after Pittsburgh closed their assessment (something Bill Barr has public disputed), the FBI interviewed Smirnov again, and he lied again.

It doesn’t describe that after Smirnov changed his story, and days after (in October 2020) Donald Trump yelled at Bill Barr about Hunter Biden, Richard Donoghue ordered David Weiss to accept a briefing on the FD-1023.

And the timing of the claimed investigation stinks.

It claims that some time in July 2023, the FBI asked David Weiss to help investigate the source that Weiss had been ordered to integrate into his investigation years before.

It doesn’t mention that Weiss was already under pressure from Lindsey Graham to use the informant report against Hunter Biden.

The FBI interviewed Smirnov’s handler on August 29 of last year. They interviewed Smirnov on September 27, where — they allege — he told still more lies.

But they did nothing when Hunter Biden asked for discovery on this on November 15, repeatedly misrepresenting Richard Donoghue’s role in it.

They only indicted after Judge Mark Scarsi suggested, in a preliminary hearing on January 11, that he would provide discovery on matters outside of prosecutorial deliberations.

Now they can withhold the details of how David Weiss used “a little more colorful language” when he acquiesced to accepting other materials from Scott Brady.

Great! They indicted another of James Comer’s great hopes to impeach Joe Biden.

But there are few people left in DOJ who are more conflicted on this prosecution than David Weiss.

Update: Took out a reference to the September 2023 interview that was out of timeline.

Exp[o]rt Reports: When David Weiss Claimed Keith Ablow’s Sawdust Was Hunter Biden’s Cocaine

/138 Comments/in , , /by

As Garrett Ziegler was confessing, again, to have accessed a password-protected phone backup (for which Hunter Biden is suing him), he described that this is a photo of a photo in the office of then-still licensed psychiatrist Keith Ablow, which Ablow sent Hunter Biden, explaining that the photo came from an expert carpenter who was trying to kick a coke habit.

Ziegler was even kind enough to include the June 2, 2022 extract date of the iPhone XS iTunes backup where he found the picture, even while bitching of the dishonor and incompetence of David Weiss and his team.

David Weiss says the picture isn’t one of sawdust passed on by Keith Ablow. He says it’s a picture that Hunter Biden took himself of “apparent cocaine” sometime in late 2018.

During November and December 2018, the defendant took multiple photographs of videos apparent cocaine, crack cocaine, and drug paraphernalia.

Weiss doesn’t provide a date for the photo. But he says it came from an iPhone 11 backup stored to iTunes, though he’s not telling whether he found it in an iTunes backup in Hunter’s iCloud account obtained in September 2019, or an iTunes backup found on a laptop attributed to Hunter Biden obtained in December 2019.

iTunes Backup (iPhone 11) – Production 1

Now, perhaps it’s a good thing that David Weiss didn’t know he was (at least per Ziegler, who — bizarrely — has more credibility than the people who have a stack of warrants and lots more metadata) falsely claiming that this picture depicted cocaine. Perhaps that means he didn’t breach Hunter’s privileged communications with Ablow and read what the then still-licensed psychiatrist had to say to his client.

But he has just made the competence of his team’s forensic analysis an issue, and done so in a filing in which Derek Hines appears to be claiming they don’t need any expert forensic reports.

In the motion to compel to which Hines was responding, Abbe Lowell had claimed that Weiss had not turned over any expert reports.

Mr. Biden requested the ongoing production of all materials subject to disclosure under FRCP 16(a)(1)(A), (B), and (D). (See DE 65.) Mr. Biden notes that his October 2023 Rule 16 requests also cover any expert reports that the prosecution intends to rely upon at trial; to date, however, no expert reports or materials have been identified or produced to defense counsel.

The prosecution produced a Delaware state police case file, which includes a summary of an interview Mr. Biden gave police in October 2018 and other information about the purchase, discard, and recovery of the firearm, as well as evidence photos from its case file. The prosecution also produced an ATF case file that has additional information about the firearm and statements about its purchase. Mr. Biden asks the Court to order the prosecution to either (1) confirm no further responsive documents or communications exists in its possession (which includes material in the possession of all relevant government agencies and officials), or (2) produce the requested documents (including any expert reports) and, if the prosecution believes any responsive documents are protected from disclosure, identify those documents and the reasons why the prosecution believes they need not be disclosed.

Not true!, responded Hines in the filing where he appears to have claimed a photo of sawdust taken by a Keith Ablow client was instead a photo of cocaine taken by Hunter Biden.

Hines described that the prosecution has provided two expert reports: that of the FBI chemist who — five years after the gun was seized — found cocaine residue in the pouch in which the gun was found, but didn’t look for fingerprints or try to date the cocaine.

The defendant does not allege any Rule 16 materials are missing from the productions other than one assertion that, “to date, however, no expert reports or materials have been identified or produced to defense counsel.” ECF 83 at p 6. He is incorrect. On November 7, 2023, the government produced to the defendant an expert report prepared by an FBI chemist who analyzed the cocaine discovered on the defendant’s brown leather pouch that had contained his gun.1 In this same production, the government also produced an expert report prepared by an agent related to the interstate nexus of the gun charged in the indictment.2 In addition to these reports, the government produced other materials for these two experts, including CVs, as well as a CV for an additional expert.3 By contrast, the defendant has failed to provide any discovery, including any expert discovery.

In addition, prosecutors provided the CV for the witness who’ll attest the gun had a nexus to interstate commerce and the CV for … Hines isn’t describing what kind of witness that is.

But there are at least four reports I expected to see that are missing:

  • The FBI agent John Paul Mac Isaac calls “Matt” who (at least per JPMI, who like Ziegler might be as reliable as Weiss at this point) described trying to boot up the laptop on December 9, 2019, four days before the known warrant to access the laptop
  • The FBI Computer Analysis and Response Team analyst named Mike Waski, from whom Josh Wilson claims to have obtained the laptop after he had already obtained the laptop four days earlier from JPMI
  • The FBI CART analyst, Eric Overly, who actually imaged the hard drive, which Gary Shapley notes happened after December 13; there may be a different CART analyst who imaged the laptop itself who would be on the hook for another expert report
  • A March 31, 2020 email about the completeness of the disk image that JPMI had done, which prosecutors were withholding from any agents who might testify at trial but which Shapley has kindly informed us exists
  • Any analysis “computer guy” did after October 22, 2020, which is when the FBI realized they had never bothered to check when files had been added to the laptop they had been using for ten months

Those kinds of expert reports are precisely what might have spared poor Senior Assistant Special Counsel Derek Hines from apparently claiming that a photo of a photo of sawdust taken by Keith Ablow is instead a photo of cocaine taken by Hunter Biden.

For example, here’s how Gus Dimitrelos used EXIF data — EXIF data he says he found on most or all of the photos Hunter took — to validate photos to Hunter on the laptop attributed to him.

In this case, Dimitrelos matched the photo to a known iPhone Hunter used and a known location he was at on a particular date and time.

To use photographs to attribute to Hunter Biden cocaine use, those photos are not only going to need to depict cocaine rather than sawdust, but they’re going to need to be accompanied by the kind of forensic data that could prove that a particular phone taking a picture was in Hunter’s hand at the time a picture was taken.

That’s particularly true in this case. Ziegler shows that Ablow texted this photo to Hunter on November 20, 2018.

That happens to be the day when someone first accessed Hunter’s droidhunter account — the one via which his digital life would be packaged up two months later — from a Mac device for the first time after the laptop ultimately shared with the FBI was first logged into Hunter Biden’s iCloud account.

But based on what is available on the public emails, after someone logged into Hunter’s iCloud account with a new laptop on October 21, 2018, it was weeks before a new Mac device logged into his Gmail accounts, starting with a November 16 attempt to log into Rosemont Seneca that was rejected by Google, followed by a reset of the droidhunter account and a login into that on November 20, followed by a login into Rosemont Seneca on November 24. Not only did those attempts come in the midst of a bunch of attempts to get into Hunter Biden’s Twitter account from a Mac. But on November 27, someone appears to have gotten into his iCloud account from Troutdale, OR.

That is, because this text was sent during a period when some crucially important anomalies were happening on Hunter Biden’s digital accounts, you’d need to ensure that whatever device with which Hunter seemingly engaged in this exchange with Ablow was actually in his hand in Newburyport, MA, and not in someone else’s hand in Troutdale, OR. That’s especially important with any conversation with Ablow, because in at least two known conversations — one in which he created the illusion for Hunter that he was speaking to some orthopedic surgeons, and another in which he entirely rewrote a Hunter comment subsequently published in Vanity Fair — Ablow presented as Hunter.

And by claiming a photo of sawdust taken by an Ablow client is instead a photo of cocaine taken by Hunter Biden, Derek Hines may have spoiled his effort to sand-bag Abbe Lowell and avoid a suppression challenge to all this digital evidence. Sure, Hines is claiming that Lowell missed his window to file a motion to suppress by December 11, 2023. But he apparently just claimed that he hasn’t validated the data he’s submitting, as an officer of the court, in filings before Judge Maryellen Noreika. And with this apparent flub, Hines has definitely made the importance of expert forensic reports an issue.

It appears increasingly likely that before Jim Jordan demanded a prosecution of Hunter Biden and before David Weiss started to worry about threats to his family, Weiss or someone who knew better realized that any prosecution that would rely on this digital evidence would be rife with these kinds of embarrassments. But then Weiss decided he’d go forward anyway, he’d bring in experts in prosecutorial dickishness to try to sandbag their way through the difficulties posed by the laptop.

Don’t get me wrong: Hines and Leo Wise have well earned their reputation for prosecutorial dickishness. This effort to avoid any suppression challenge relating to the laptop might yet succeed!

But without the least little understanding of digital forensics, that may not be enough to sustain this case.

Update: According to someone familiar with Ablow’s office in this period, the photo does appear to match one that was in the office. That’s important because the FBI and DEA would have photos of Ablow’s office from the 2020 raid.

Update: We’ve literally come full circle. Fox News is in a tizzy because of these photos, though they appear more careful than DOJ to claim the sawdust is Hunter’s.

 

David Weiss Claims to Have Plain Viewed Hunter Biden’s Dick Pics for Years

/54 Comments/in , , /by

In response to Hunter Biden’s notice of the schedule in California submitted in his Delaware case, Judge Maryellen Noreika asked what was up with Biden’s motion to compel submitted more recently.

ORAL ORDER re 84 Status Report – Having reviewed Defendant’s status report, which states that his motions to dismiss are fully briefed but is silent as to his most recently filed motion to compel discovery (D.I. 83), IT IS HEREBY ORDERED that, on or before February 14, 2024, the parties shall notify the Court whether the parties have reached an agreed-upon briefing schedule for the recent motion to compel or whether briefing will proceed pursuant to the Court’s Standing Order Regarding Responses to Defense Motions in Criminal Cases. ORDERED by Judge Maryellen Noreika on 2/13/2024.

David Weiss responded by explaining his legal basis for accessing Hunter Biden’s dick pics and claiming that Abbe Lowell has forfeited any ability to challenge evidence thus seized. It reveals how Weiss plans to introduce evidence from stolen data that was originally accessed without a warrant in a case against the son of the President of the United States.

It is breathtaking in sheer ethical shoddiness.

And, it may work.

Derek Hines describes that he provided Abbe Lowell the tax warrants to access the iCloud, the laptop, and backups in October, and that because those warrants permitted the search for the what the warrant claims was the email account owner’s state of mind, then searching for evidence of addiction was fair game.

Relevant to this case, investigators were authorized by these warrants to seize “evidence indicating the email account owner’s state of mind as it relates to the crimes under investigation.” Evidence that showed the defendant’s addiction to and use of narcotics indicates “the email account owner’s state of mind as it relates” to the tax crimes enumerated in the warrant. In addition, investigators were also permitted to seize evidence relevant to this case under the plain view doctrine, which they did. This evidence, from the defendant’s backups of his devices to his iCloud account, was produced with the warrants in Production 1 in an easily searchable format. The primary source of electronic evidence in this case is from the defendant’s iCloud account, which investigators were authorized to seize because it showed “the email account owner’s state of mind as it relates to the crimes under investigation” as well as under the plain view doctrine.

Production 1 also included the contract the defendant signed when he dropped off his laptop and hard drive at the computer repair store in which he agreed that, “[e]quipment left with the Mac Shop after 90 days of notification of completed service will be treated as abandoned.” Investigators also obtained a search warrant authorizing them to search the laptop and hard drive that was obtained from the computer repair store. See District of Delaware Case No. 19-309M, issued on December 13, 2019. The warrant authorized investigators to search for the same violations referenced in the previous paragraph, that is, violations of 26 U.S.C. § 7201, Tax Evasion, 26 U.S.C. § 7203, Willful Failure to File Tax Returns or Pay Taxes, and 26 U.S.C. § 7206(1), False Tax Returns. Relevant to this case, this warrant also authorized investigators to seize “evidence indicating the state of mind of the owner and user of the TARGET MACBOOKPRO and TARGET EXTERNAL HARD DRIVE as it relates to the crimes under investigation.” Again, evidence that showed the defendant’s addiction to controlled substances indicates “the state of mind of the owner and user of the TARGET MACBOOK PRO and TARGET EXTERNAL HARD DRIVE as it relates” to the to the tax crimes enumerated in the warrant. In addition, investigators were also permitted to seize evidence relevant to this case under the plain view doctrine. Evidence seized pursuant to this warrant was produced to the defendant in the specific format that he requested. Many of the same messages, photographs, and information that were obtained from the iCloud warrants were also located on the defendant’s laptop. [my emphasis]

In other words, for months, they were claiming that they had found evidence of addiction in the name of searching for tax crimes and if not that, then plain view and that’s all they were relying on while searching Hunter Biden’s dick pics for five years.

Plain view is the concept that if you see evidence of a crime while looking for other crimes, you can use that evidence at trial (usually, after getting another warrant).

Derek Hines described (there are ways to prove this is false, if Lowell gets his shot to do that, but Hines claims he has forfeited that chance) sniffing Hunter Biden’d dick pics for years, all in the name of tax crimes.

Then, Hines described, he got the December 4 warrant for the very same information, and Abbe Lowell acknowledged seeing it on December 5, which gave them another legal authority to sniff Hunter Biden’s dick pics.

On December 4, 2023, investigators obtained an additional search warrant for the defendant’s iCloud account, the backup data associated with his iCloud account, his MacBook Pro laptop, and the hard drive. See District of Delaware Case No. 23-507M, issued on December 4, 2023. This warrant authorized investigators to search for violations of 18 U.S.C. § 924(a)(6) and 924(a)(2) related to making a false statement during a background check to deceive a firearms dealer, violations of 18 U.S.C. § 924(a)(1)(A) related to making a false statement during a background check on records that the firearms dealer was required to maintain, and violations of 18 U.S.C. 922(g)(3). Among other items, the warrant authorized investigators to seize “all evidence relating to addiction, substance use, and controlled substances, to include conversations, message communications, photographs, documents, and videos.” The December 4, 2023, warrant provided yet another legal basis for investigators to seize information relevant to this case from the defendant’s iCloud account, his iCloud backup files, his laptop, and his external hard drive. The warrant was produced to the defendant that same day, December 4, 2023. The following day, December 5, 2023, defense counsel sent the government a letter that acknowledged it had reviewed this search warrant. Because the actual evidence relevant to this case that was previously seized from the laptop, hard drive, and iCloud backup files had already been produced to the defendant on October 12, 2023, there was no additional evidence produced in response to this warrant.

Effectively, Weiss is saying that because Lowell did not immediately move to suppress the laptop and its progeny with just six day’s notice, that claim has been mooted.

The defendant’s pretrial motions were due on December 11, 2023. ECF 57. The defendant did not file any motions seeking to suppress evidence related to the search warrants and evidence produced to him on October 12, 2023, in Production 1. The December 4, 2023, warrant does not entitle him to file any now. In fact, the December 4, 2023 warrant moots any issues that could have been raised by the defendant had he filed a motion to suppress those warrants, and, in any event, he did not elect to file motions to suppress the evidence from the August 29, 2019, December 13, 2019, or July 10, 2020 warrants that were produced to him on October 12, 2023.

As I will show, the places where they obtained communications are themselves problematic, but if this claim that the December 4 warrant moots any suppression claim works, then Lowell will have no opportunity to challenge the fact that David Weiss wants to use stolen data to prosecute the son of the President except by challenging individual communications at trial.

I’ve literally never seen something this ethically brazen. Ever. (Though admittedly, I only cover federal trials; this kind of stuff goes on in state cases all the time.)

And they’re doing it to get away with investigating Joe Biden’s son for years using stolen data.

Michael Bromwich Warns of Robert Hur Report Ahead of Release

/26 Comments/in , /by

Merrick Garland has informed Congress that Robert Hur, the Special Counsel who spent an entire year confirming that when Joe Biden discovered classified information, he returned it, has finished his investigation and will release it pending a privilege review.

ABC’s report on the release raises cause for concern. Former Inspector General Michael Bromwich, who represented twenty witnesses in the inquiry (and who also has represented Andrew McCabe in avenging his firing), cautions that Hur is refusing to ensure he has the proper context for the interviews he did.

According to attorney Michael Bromwich, for the past month he has repeatedly suggested to Hur’s team that — without such a review — Hur might miss “proper factual context” for the information that each of his clients provided.

But, as Bromwich described it, Hur’s office repeatedly told him that none of the witnesses in the probe would be able to see the report before it became public.

“It’s a huge process foul, and not in the public interest,” Bromwich told ABC News.

An attorney representing other witnesses agreed, saying that his clients should be able to review a draft of Hur’s report before its release.

The ongoing dispute underscores a growing concern among Biden’s closest aides — and the attorneys representing them — that Hur’s report could be substantially critical of Biden, even if it doesn’t recommend charges against him.

ABC News previously reported that Hur’s team had apparently uncovered instances of carelessness related to Biden.

Speaking to ABC News on Wednesday, Bromwich said he expects anecdotes and information provided by many of his clients — ranging from junior staffers to senior advisers — to be included in Hur’s report, but he declined to offer any specifics.

However, Bromwich noted that Hur’s investigation has been so far-reaching that investigators even interviewed waitstaff who had worked an event at Biden’s home in recent years to determine if they might have been exposed to classified documents.

Hur is absolutely right that other Special Counsels have not offered witnesses the ability to review a report before its release.

But his immediate comparison is a tell.

Hur, a close associate of Rod Rosenstein who served as his Principal Associate Deputy Attorney General during (and therefore supervised) the Mueller investigation in its earliest, productive phase, may be thinking of the Mueller Report. In its first 200 pages it laid out how Trump’s willingness to welcome Russian help during an assault on democracy showed evidence for, but not enough to charge, a conspiracy (though the investigation into Roger Stone for such a conspiracy remained ongoing). All of it, though, was tied to a series of prosecutorial decisions. In its second 200 pages, it described obstructive conduct as President that could not be charged.

Rosenstein, after barely keeping his job in the wake of disclosures that he had considered wiretapping the President, participated in a corrupt declination for those actions.

There are key differences between the Mueller Report and what we should expect the scope to be for this report — notably, that much of the conduct pertains to what happened between the time Joe Biden left the Naval Observatory and when he moved into the White House.

And, more importantly, Bromwich advised people to cooperate. And such cooperation no doubt freed Hur to search and search and search in a way that was not possible when key witnesses were lying to obstruct the investigation, as happened with Mueller.

That’s how you spend over a year confirming what was known from the start.

But Hur’s stance also comes in the wake of the Durham Report, which because of a supine press, has never been exposed as the propaganda hit job it is. It is provable that Durham:

  • Was appointed without evidence any potential crime had been committed
  • Engaged in a review of other investigations taken during an election (and lied about the results), something that is not remotely a prosecutorial function and does not remotely belong in a SCO report
  • Fabricated a key claim against Hillary Clinton, one which he pursued for years
  • Renewed allegations against defendants who were acquitted at trial
  • Made claims about witness cooperation that at least one has disputed publicly
  • Failed to make prosecutorial decisions for one crime he investigated (the Italian referral) and the statement for which there was most proof it was a deliberate lie
  • Engaged in selective editing to substantiate false claims

Only the last of those — selective editing — was a claim that was credibly made about Mueller (in his editing of an obstructive voice mail John Dowd left for Mike Flynn’s attorney).

And it comes in the wake of David Weiss’ decision — taken in tandem with long-time associates of Rosenstein and Hur, Leo Wise and Derek Hines, and in the wake of pressure from Baltimore-based IRS Agent Gary Shapley — to ask for Special Counsel status because he wants to write a report. (As I have noted, I think that may be one point of Abbe Lowell’s SCO challenge to Weiss’ appointment; to attempt to enjoin a report that is not legally justified.)

Because of the aforementioned supine press, because there is no accountability structure in place for Special Counsels, and because as prosecutors they enjoy broad immunity (though Durham tellingly backed off false claims he made in his report when he testified to Congress), the Special Counsel process was exploited by Bill Barr in retaliation for Rosenstein’s appropriate decision to appoint one.

I don’t expect Hur’s report to be as corrupt as Durham’s. I expect it to overcompensate for claims that Trump was treated differently for intentionally stealing 300 classified records (and hiding still more) than Joe Biden was for negligently taking some home and then giving them back.

Abbe Lowell Already Accused David Weiss of a Brady Violation

/31 Comments/in , , /by

There was something subtle but potentially important in Abbe Lowell’s motion to compel discovery in Hunter Biden’s gun case.

First, after discussing the discovery requests he sent in October and November, he described reminding prosecutors (this is actually in the October letter) that Leo Wise had assured Judge Maryellen Noreika on July 26 that prosecutors had provided all Brady materials.

Mr. Biden reminded the prosecution that this Court ordered the production of Brady materials on July 26 and October 3 and asked the prosecution to confirm whether further productions were forthcoming, or Mr. Biden would need to move to compel. Id. As the Court may recall, the prosecution told the Court at the July 26 hearing that it had already produced all Brady material. (7/26/23 Tr. at 7 (“THE COURT: Has all Brady material been produced? MR. WISE: Yes, Your Honor”.).) Yet, the prosecution did not send the first production for almost three months, until October 12, 2023, with a cover letter noting its production was “in response” to Mr. Biden’s October 8 letter requesting discovery. [emphasis original]

Then, later in the motion, Lowell described that the Delaware case file prosecutors didn’t provide until October 12 — in response to the October 8 letter — included a declination decision.

Despite assuring the Court all Brady material had been produced on July 26, 2023, since then, the prosecution has produced an October 2018 state police case file of the firearm incident that includes interview memoranda and deliberations among Delaware state prosecutors regarding whether to file charges—per the file, on October 30, 2018, after reviewing the facts, New Castle County prosecutors decided not to prosecute and closed the case. [emphasis original]

A decision not to charge for state crimes would be helpful but not definitive at a trial on federal charges. But it pretty clearly is helpful to Hunter Biden’s defense.

And yet, prosecutors hadn’t provided it to Chris Clark before, on July 26, Leo Wise assured Judge Noreika that prosecutors had provided all Brady.

I suspect the motion to compel is designed as much as a challenge — “is this your final answer?” — before Lowell makes further allegations that prosecutors withheld material helpful to Hunter’s defense. That is, I suspect Lowell knows of certain things, perhaps the memos that Joseph Ziegler’s original supervisor, Matthew Kutz, included in the case file documenting improper political influence, that also clearly count as Brady that he hasn’t received yet.

That said, I suspect there was a pretty good reason prosecutors didn’t bother to give Clark that Delaware case file before the hearing on July 26: because there was never any consideration of actually charging Hunter on the gun crimes. That is, whatever Brady they provided was likely focused on the tax case, not the gun one, because the gun charge was never going to be charged.

Until Leo Wise, who assured Judge Noreika that prosecutors had complied with Brady, decided that he was going to charge those gun crimes.

Particularly given DOJ’s increased focus on such things in recent years after some really big Brady violations, a serious Brady violation is one of the few things that would actually give Merrick Garland cause to shut down David Weiss as Special Counsel.

The declination decision, turned over a month after the indictment, isn’t that, yet. For Leo Wise, who assured the judge in this case that all Brady had been turned over, however, it’s a detail that might be more convenient if treated as proof they weren’t going to charge gun crimes before they did.

The December Warrant Shows David Weiss Wasn’t Going to Charge Gun Crimes Until Trump Elicited Threats

/44 Comments/in , , /by

Over a week ago, NBC’s Gary Grumbach emailed me to figure out how he could access the then still-sealed warrant dockets I liberated.

To the best of my knowledge, neither he nor anyone else at NBC reported that the dockets revealed that David Weiss first obtained a warrant to search Hunter Biden’s iCloud content and a laptop attributed to him for evidence relating to the gun charges on December 4, 81 days after indicting him. Indeed, besides me, only right wing outlets (Fox, NYPost, Washington Examiner) reported on the warrant.

The existence of the warrant was first disclosed as part of a legal fight (MTD; response; reply) over whether David Weiss charged Hunter Biden only because pressure from Donald Trump and Jim Jordan generated threats that led Weiss to fear for the safety of his family.

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.

Q Do you have concerns that the threats and harassment employees have received are intended to intimidate them into not doing their jobs?

A I really can’t speak to the intention of any actor in this realm. I just know that these — that certain actions have been taken by individuals, doxing, and, you know, threats that have been made, and that gives rise to concern. We’ve got to be able to do our jobs. And, sure, people shouldn’t be intimidated, threatened, or in any way influenced by others who — again, I don’t know what their motives are, but we’re just trying to do a public service here, so —

Q Have you yourself been the subject of any threats or harassment?

A I’ve certainly received messages, calls, emails from folks who have not been completely enamored of my — with my role in this case.

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.

The fact that, in five years of investigating Hunter Biden, in the over two years after Hunter Biden’s book came out, David Weiss never obtained a warrant to search the iCloud content that he already had in possession for evidence to support gun charges (and also never sent the gun to the FBI lab for testing) is pretty compelling evidence that he never intended to charge Hunter for gun crimes until Donald Trump elicited threats that led Weiss to fear for the safety of his family. In his response, Weiss claims it is a Hollywood plot that such threats might lead him to renege on his decision to deal with the gun crime as part of a diversion agreement, making light of the same threats that, he told Congress, led him to be “concerned, as any parent or spouse would be for — yeah, for family, yep.”

This is unbelievably scandalous — that in the middle of a presidential campaign, Donald Trump ginned up threats against a prosecutor and then, for the first time, after the statute of limitations expired, that prosecutor sought new evidence to prosecute Joe Biden’s son.

Yet Gary Grumbach doesn’t think that’s newsworthy.

Instead, Grumbach is focused on important things: like whether Joe Biden will visit his son on his birthday.

Smoking Gun! FBI Didn’t Have “Sufficient Evidence” to Prosecute Firearms Crimes against Hunter Biden

/75 Comments/in , , /by

Let’s go back to the Devlin Barrett story that kicked off the manufactured scandal about DOJ slow-walking the Hunter Biden investigation.

That story wasn’t just about tax charges, though those have gotten the bulk of attention. That story claimed that Federal agents had enough evidence to charge Hunter Biden with a false statement tied to purchasing a gun in 2018.

Federal agents investigating President Biden’s son Hunter have gathered what they believe is sufficient evidence to charge him with tax crimes and a false statement related to a gun purchase, according to people familiar with the case.

[snip]

The gun paperwork part of the investigation stems from 2018, a time period in which Hunter Biden, by his own account, was smoking crack cocaine.

In October of that year, Biden purchased a handgun, filling out a federal form in which he allegedly answered “no” to the question whether he was “an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”

According to a book Hunter Biden later wrote about his struggles with substance abuse, he was using drugs heavily that year.

While it is definitely true that prosecutors ham sandwiched their way through a grand jury on September 14, 2023, charging the President’s son with three felonies (potentially even by relying on the plea colloquy prosecutors obtained before reneging on the deal they made to get it), revelations from that last week have made it clear that while they had enough evidence to charge Hunter Biden, they didn’t have enough evidence to prosecute him.

At the time they indicted, David Weiss had the case file from local authorities showing state prosecutors declining to charge the case days after discovering the gun. Importantly, that case file included evidence photos of the gun itself.

[A]n October 2018 state police case file of the firearm incident that includes interview memoranda and deliberations among Delaware state prosecutors regarding whether to file charges—per the file, on October 30, 2018, after reviewing the facts, New Castle County prosecutors decided not to prosecute and closed the case.

[snip]

The prosecution produced a Delaware state police case file, which includes a summary of an interview Mr. Biden gave police in October 2018 and other information about the purchase, discard, and recovery of the firearm, as well as evidence photos from its case file. [my emphasis]

They also had the ATF case file, describing more about the gun purchase.

The prosecution also produced an ATF case file that has additional information about the firearm and statements about its purchase.

They had excerpts from Hunter Biden’s book. There’s no indication whether those excerpts include the multiple passages that explain why any digital evidence from 2018 would pose some evidentiary challenges. Indeed, when I asked about one of those challenges in December, Weiss’ spox had no explanation for it.

But there are three things David Weiss only sought after indicting the case — and so over a year after Devlin’s sources got him to publish that there was sufficient evidence to charge Hunter Biden.

Sometime in October, the month after the indictment, they sent the firearm for the first time to an FBI lab to test the residue on the pouch in which the gun was found; the residue tested positive for cocaine. The photos in the local case file are important, because the purported reason an FBI agent accessed the gun in October 2023, the month after the indictment, was to take photos of it.

In 2023, FBI investigators pulled sealed evidence from the state police vault to take photographs of the defendant’s firearm. After opening the evidence, FBI investigators observed a white powdery substance on the defendant’s brown leather pouch that had held the defendant’s firearm in October 2018. Based on their training and experience, investigators believed that this substance was likely cocaine and that this evidence would corroborate the messages that investigators had obtained which showed the defendant buying and using drugs in October 2018. An FBI chemist subsequently analyzed the residue and determined that it was cocaine. [my emphasis]

But the effort to obtain forensic evidence after the indictment was half-hearted; investigators did not test to see how long the residue had been in the pouch, nor did they test for other fingerprints.

(a) a brown pouch (obtained by a scavenger from a public trash can) with cocaine residue was in law enforcement’s possession for over five years, but was not tested until after the charges were brought; (b) even then no test was done for fingerprints or to date how long the residue had been there;

Then, sometime after convening a grand jury for tax crimes in November 2023, the second month after the indictment, Weiss obtained,

testimony (in support of finding probable cause) about the firearm obtained from a witness in a grand jury empaneled in the Central District of California in November 2023 after this indictment had already been brought.

Finally, in December 2023, days after Abbe Lowell asked prosecutors for their evidence of Hunter Biden’s mindset in October 2018, David Weiss obtained — Weiss claims, for the very first time — a warrant to search Hunter’s digital records for such evidence. (Side note: Lowell explains that prosecutors sent him that warrant the day they obtained it, December 4, something Derek Hines didn’t think was important to tell Judge Maryellen Noreika.)

According to the warrant return, Special Agent Boyd Pritchard was still searching for that evidence when Judge Noreika granted my request to unseal it.

That makes David Weiss’ failure, thus far, to actually provide Bates stamps of or describe where they found the messages that prosecutors intend to rely on at trial all the more notable. Even assuming Abbe Lowell’s promised motion to suppress that late warrant fails — and that’s likely — there are aspects of the forensics involved that may make it hard to introduce the messages themselves at trial. Plus, it raises questions about whether they actually found these texts or simply think they know they exist because they read them in some public news report? And if they saw it in a public news report, were those agents tainted by one of the many hard drive sets that have been tampered with?

You can definitely argue, and I’m sure prosecutors will, that some of this late obtained evidence was opportunistic. For example, they may argue that they really did need new photos of Hunter’s gun — photos they did not need to present their case to the grand jury — in advance of trial. They may argue that whatever witness whose November testimony they included in the December warrant was a key tax witness, and they simply locked the person into gun testimony while they had them under oath. That kind of stuff flies under precedents of prosecutorial dickishness all the time.

But, assuming David Weiss’ claim to have only obtained a warrant to search Hunter’s digital evidence for gun crimes on December 4, 2023, you cannot say they had the evidence to prosecute the crime.

They hadn’t looked — not in the over three years they had been combing through Hunter’s digital life. Or, if they had looked, they had done so unlawfully.

That’s not evidence, as Gary Shapley claims, of slow-walking the investigation. That’s evidence that in October 2022, when someone kicked off a scandal that has led to an impeachment inquiry by telling Devlin Barrett what to write down as if it were true, no one planned to take this to trial.

Republicans have spent the 15 months since Devlin’s October Surprise screaming about the investigation, based in significant part on the claims made in Devlin’s story.

But one key claim in Devlin’s story — about how much evidence they had to support the gun charges — has been debunked by David Weiss’ three months of scrambling to get more.

This makes Devlin’s gun claims the second scandal manufactured by the WaPo that has been at least partially debunked in recent weeks.

And Devlin, with his reporting partner Perry Stein, chased Derek Hines’ coke-in-gun stunt; that’s precisely the kind of stunt WaPo Dick Pic Sniffers will jump on every time. But they have not reported that that lab report and the warrant to search Hunter’s digital evidence for gun evidence came after the indictment.

In other words, this is, like Matt Viser’s story about the George Bergès testimony, yet another example of WaPo failing to admit that the scandals they manufactured years ago haven’t held up to the evidence found since.